State liability for victims of terrorist attacks

07/09/2017

State liability for victims of terrorist attacks

The recent terrorist attacks in Barcelona and Cambrils (Spain) resulted in the deaths of many people, with victims suffering injuries of varying severity and some left in a very serious condition.

There are 35 confirmed dead due to the attacks having occurred in particularly busy areas, especially in the case of Barcelona (the victims were not only from Spain, but also from France, Italy, Portugal, Belgium, United Kingdom, Ireland, Germany, Austria, the Netherlands, Romania, Hungary, Russia, Macedonia, Greece, Turkey, Australia, China, Hong Kong, Taiwan, Pakistan, Kuwait, Algeria, Morocco, Egypt, Mauritania, Peru, Ecuador, Venezuela, Argentina, Honduras, Cuba, USA, Canada and the Philippines).

Barely one third of those that lost their lives were Spanish, which provides some insight into the global effect of the attack and its consequences in the community.

The judicial investigation into the events is led by the Spanish National High Court Central Court of Preliminary Investigation No.4, with assistance from various state security bodies and forces, both at the national and regional level.

For their part, all victims, whether personally injured or relatives of the deceased, both Spanish and foreign, are entitled to immediate assistance from the health services and psychological support as necessary. Thereafter, they will be entitled to compensation for personal injury and material losses incurred.

This system of entitlement was originally established by means of Law 29/2011, of 22 September, on Recognition and Overall Protection for Victims of Terrorism. The aforesaid law, as we shall see below, obliges the National Government to provide compensation on two tiers.

It is important to note that the aforesaid law does not differentiate Spanish citizens from foreigners or residents from non-residents (Article 4): all persons affected, by the simple fact of having been affected, have the same rights.

I.AUTOMATIC COMPENSATION AND ASSISTANCE SYSTEM

The backbone of this automatic compensation and assistance system comprises automatic compensation payable by the State, as agreed in favour of both direct and indirect victims of the specific terrorist act.

The necessary requirements (Article 3 bis) to be entitled to the assistance established in that law are as follows:

Entitlement to compensation arising from civil liability for the events and losses as established in the aforesaid Law must be recognised in a firm and final court ruling, or
If no such ruling has been issued, as long as appropriate judicial steps have been taken or criminal proceedings brought to decide liability for the offences. In such instances, proof of legal capacity as a victim or legal beneficiary, of the scope of harm incurred, of the nature of the acts or events that led to the harm, and any other compulsory legal requirements must be adduced before the competent body of the National State Administration by any means of evidence permitted in law.

Upon payment by the State, the latter will be subrogated into any legal actions brought by the recipients of compensation and of amounts provided in application of this Law against those responsible for the terrorist acts and up to the limit of compensation paid by the State. For these purposes, persons receiving compensation or amounts provided must transfer the corresponding civil legal actions to the State before they can be paid the amounts concerned either as aid or as financial provision.

Beneficiaries will retain their civil action rights in relation to amounts of damages over and above sums paid out by the State under this system notwithstanding, as we shall see below, that such amounts may also be met by the State in whole or in part.

One important point is that Article 16 establishes exemption of the amounts paid in compensation from taxation in Spain. If beneficiaries are not resident in Spain, the applicable tax regulations in their countries of residence will apply and, as the case may be, provisions established in the corresponding double taxation agreement.

Compensation and amounts payable upon death

1.1. Amounts and beneficiaries

Compensation is payable in the amount of 250,000 euros if the victim dies.

The persons entitled to be paid the above compensation are, in priority order:

Spouse of the deceased, if not legally separated, or the person with whom the deceased resided permanently in a similar relationship for at least two years immediately prior to the date of death and unless they have children in common, in which case it is sufficient that they should have been living together; and children of the deceased.
If none of the above exists, the following persons shall be entitled to receive amounts payable, successively and exclusively: parents, grandchildren, brothers or sisters and grandparents of the deceased.
By default, children of the resident partner and children adopted permanently or in pre-adoption stage by the dead person, if the latter were financially dependent on the deceased.

If there are multiple beneficiaries, corresponding amounts will be shared out as follows:

In the scenario referred to in section 1, financial assistance will be shared in equal halves, with one half paid to the spouse that was not legally separated or to the residing partner, and the other half to the children. Children must share their part equally among themselves.
In the scenario referred to in section 2, the entire amount must be divided equally among persons with the same degree of kinship.
In the scenario referred to in section 3, the amount must be shared equally among the multiple beneficiaries.

1.2. Family member surcharge

Beneficiaries of the aforesaid compensation will be entitled to a fixed sum increase comprising twenty monthly payments of the corresponding multiplier effect on index of revenue as at the date of the terrorist act, for each son, daughter or child living with the deceased and financially dependent on the latter at the time of death.

1.3. Deadline for applications

Persons wishing to claim must submit their claims within the maximum period of one year from the date of death. Applications must be made in writing, with corresponding accrediting documents attached, and addressed to the Spanish Ministry of the Interior.

An additional period of one year will be available to submit applications seeking payment of the appropriate difference in amount if the affected person dies as a direct consequence of injuries incurred as a result of the terrorist act.

1.4. Burial or cremation costs

The State will pay costs to transport the body, as well as funeral and burial and/or cremation costs for any deceased not covered under an insurance policy and up to a maximum amount of 6,000 euros. Said costs will be paid upon presentation of the corresponding invoices.

Compensation and financial assistance for permanent disability

2.1. Amounts

Victims of terrorism who suffer personal injury or mental harm as a consequence of terrorist acts are entitled to the following amounts of compensation if those personal injuries or mental harm become permanent incapacitating injuries:

Severe disablement: 500,000 euros
Absolute permanent disability: 180,000 euros
Total permanent disability: 100,000 euros
Partial permanent disability: 75,000 euros

2.2. Persons entitled to payment

Anyone who incurs personal injuries or harm as the result of a terrorist act and if the harm or injuries cause disability to varying degrees.

The degree of disability will be classed as established by the National Health System, and must be carefully considered in relation to persons who do not habitually reside in Spain and who are therefore subject to a different health system, as we shall see further below.

If a victim disabled by a terrorist attack later dies for any reason other than resultant injuries from the terrorist act, the beneficiaries will be paid the amount of compensation to which the deceased was entitled, by order of priority as established in law (see section above).

2.3. Family member surcharge

Beneficiaries of the aforesaid compensation will be entitled to a fixed sum increase comprising twenty monthly payments of the corresponding multiplier effect on index of revenue as at the date of the terrorist act that caused the injury, for each son, daughter or child living with the deceased and financially dependent on the latter at the time of death.

2.4. Deadline for applications

Persons wishing to claim must file their claims within the maximum period of one year from the date the injuries occurred, as calculated from the date on which the resultant injuries were firmly established defined by the National Health System.

In instances of mental harm, the one-year period for filing a claim is calculated as from the date of a firm diagnosis confirming that the harm was caused by the terrorist attack.

An additional period of one year is made available to submit applications seeking payment of the appropriate difference in amount if the affected person’s resultant injuries worsen or if the victim dies as a direct consequence of the injuries incurred from the terrorist act.

If a victim disabled by a terrorist attack subsequently dies for any reason other than resultant injuries, the beneficiaries will be paid the amount of compensation to which the deceased was entitled, by order of priority as established in law.

2.5. Classification of injuries

Injuries must necessarily be classified for compensation purposes by official ruling of a disability evaluation team put in place by the Spanish Social Security Institute. The team will include a person designated by the Ministry of the Interior with special responsibilities for attending to victims of terrorism.

In the case of victims of terrorism who are not resident in Spain, the aforesaid official ruling classifying injuries will be issued for expert report purposes, alongside any other clinical and/or administrative documents the victim may provide, or may be obtained directly by the State in the course of preliminary investigations into the matter.

2.6. Payments on account

Amounts of up to 18,030.36.- euros may be paid in advance, as payment on account of amounts receivable as firm and final financial assistance in instances when it is reasonable, given the serious nature of the injuries incurred, to assume a subsequent declaration of total or absolute disability, or severe disablement of the victim.

Compensation and financial assistance for non-disabling permanent injuries

3.1. Amounts

Amounts payable are established in Royal Legislative Decree 8/2004, of 29 October, which passed into law the Recast Wording of the Law on Civil Liability and Insurance for motor vehicle traffic.

The new Tariff Table passed into law under Law 30/2015 therefore applies to this compensation system.

The total amount of non-disabling permanent injury compensation may not, in any event, exceed the amount established for partial permanent disability, up to a maximum limit of 75,000 euros.

3.2. Persons entitled to payment

Any person directly incurring such personal injury or harm is entitled to this payment.

3.3. Deadline for applications

Persons wishing to claim must submit their claims within the maximum period of one year from the date the injuries occurred, from the date on which the resultant injuries were firmly established defined by the National Health System.

An additional period of one year is available to submit applications seeking payment of the appropriate difference in amount if the affected person’s resultant injuries worsen, as a direct consequence of the injuries incurred and arising from the terrorist act.

3.4. Classification of injuries

Non-disabling permanent injuries may be classified as such by the Medical Advisory team that forms part of the Administrative Unit responsible for investigating compensation matters, on the basis of documents provided by the victim and in accordance with the compensation criteria and limits set out above.

Compensation and financial assistance for temporary disability

4.1. Amounts

Amounts payable are calculated at twice the published daily multiplier effect on index of revenue (IPREM[1]/day) corresponding to the period during which the victim remains temporarily disabled and up to a maximum of 18 monthly payments.

In 2017, the daily multiplier effect on index of revenue (IPREM) was 17.93 euros and the monthly index amounted to 537.84 euros. Thus, the maximum limit of compensation in this regard is established as 19,362.24 euros.

For these purposes, a victim is deemed to be temporarily disabled for as long as he or she continues to receive assistance from the health services and is unable to carry on his or her professional or habitual activities.

4.2. Persons entitled to payment

As in the previous instances, this compensation is payable to victims who directly incur the injuries and are temporarily disabled.

4.3. Deadline for applications

Interested parties should submit applications within the maximum period of one year from the date the injuries or harm occurred, deemed to be the date on which the person was accepted for treatment by the National Health System. This national reference may cause complications when calculating the deadline for non-residents subject to other health systems rather than the Spanish health system, and one should therefore proceed cautiously and prudently when making the calculation.

4.4. Payments on account

An amount equivalent to twice the published daily multiplier effect on index of revenue in force on the date the injury occurred may be paid as an advance payment, for the days off sick. Payments will be made quarterly.

Nevertheless, the first payment on account is subject to submission of documents as evidence the person continues to be off work sick or is unable to work throughout the three-month period concerned. Subsequent payments, also quarterly, will occur as long as evidence of the person continuing to be off work is provided. Payments may continue for a maximum period of 18 months.

As soon as a doctor deems the person fit for work, and at all events after the period of 18 months referred to in the section above has elapsed, paperwork for the total corresponding amount of compensation payable will be processed and all advance payments deducted.

Compensation for kidnapping

5.1. Requirements

Evidence must be provided as proof of kidnapping by a terrorist organisation, of the kidnap duration and that conditions were imposed for setting the person free.

5.1. Amount

An amount of 12,000 euros is payable for the act of being kidnapped and three times the published daily multiplier effect on index of revenue for each day the person continues to be kidnapped, up to the maximum compensation established for partial permanent disability (75,000 euros).

Other assistance

In addition to the financial assistance and compensation referred to under the previous headings, victims may also be entitled to benefit from the following items provided by the State:

Payment of material damages incurred, in accordance with terms and conditions and subject to limitations established in Articles 23 et seq. of the Act.
Assistance with medical treatments, health services and supplementary psychosocial services.
Exemption from educational fees.
Assistance with housing.
Extraordinary assistance in cases of need.
Special awards acknowledged by the Sovereign Ordinance for Civilian Awards to Victims of Terrorism[2].

II.CIVIL LIABILITY ESTABLISHED BY RULING IN CRIMINAL PROCEEDINGS

Principles

As we have already explained, the State is responsible for payments according to the system of assistance described above, from the time the events and the victim are duly recognised pursuant to the conditions established in Article 3 bis of the Act.

In addition, and as an extraordinary and supplementary measure, the State will pay compensation established by court ruling for civil liability. Such payments may be greater than the established payments under the system of financial assistance described.

Covered damages

All damages agreed in a firm and final court ruling in the event of death or for personal injury or mental harm incurred by victims of the terrorist act.

Amounts payable by the State in this regard

The amount established in the court ruling or court order will be payable, as the case may be, subject to the following maximum limits:

Death: 500,000 euros.
Serious disablement: 750,000 euros.
Absolute permanent disability: 300,000 euros.
Total permanent disability: 200,000 euros.
Partial permanent disability: 125,000 euros.
Non-disabling injuries: 100,000 euros.
Kidnapping: 125,000 euros.

If the firm and final judgment does not acknowledge or permit an amount to be acknowledged for civil liability with regard to personal injury or mental harm, the amounts as established in the Act shall apply, as described under the above headings.

If victims have already been paid financial assistance for the personal injuries, the amount of extraordinary payments for civil liability by the State shall only apply to the difference between the amount established in the firm and final ruling, pursuant to established limits, and the amount of financial assistance already received for the personal injuries.

For example, the State would only pay an additional 250,000 euros in the event of relatives of a victim of terrorism who had died, and if those relatives had already been paid the financial assistance established in this Act in an amount of 250,000 euros and were subsequently deemed beneficiaries in a court ruling that established civil liability in the amount of 700,000 euros, by virtue of the provisions established in Article 20 of the Act.

If the amount of compensation established in the firm and final ruling were equal to or less than the amount received as financial assistance for personal injury, the State Administration would not take any action.

Deadline for applications

The deadline for seeking extraordinary payment for civil liability as established in a firm and final court ruling is one year from the date the interested party was served notice of the ruling, or, as the case may be, one year from the date of the judicial ruling that established the amount of compensation payable.

Subrogation of the State for payment of civil liability

The State will be subrogated in the place of the person entitled to the amount payable, as arising from the ruling that established civil liability arising from the offence and up to the limit of compensation paid by the State.

The persons to whom compensation and financial provisions for terrorist acts are payable and duly acknowledged in the judicial ruling as entitled to remedies in amounts greater than the amount received from the State shall continue to be entitled to civil legal action to claim the difference from the persons responsible for the criminal acts that gave rise to the harm.

III. EXCEPTIONAL FINANCIAL ASSISTANCE FOR INJURIES OR HARM INCURRED ABROAD

Spanish victims of terrorist acts perpetrated abroad and who do not form part of Spanish official groups abroad[3], and provided the terrorist group responsible does not habitually operate in Spain, and who are involved in attacks not directed against the Kingdom of Spain nor against Spanish interests, are exclusively entitled to be paid financial assistance as follows:

Spaniards habitually resident in the country where the terrorist act occurs are entitled to be paid 50% of the amount established as compensation for death, for personal injury (permanent disabilities, permanent non-disabling injuries, temporary disability) and for being kidnapped.
Spaniards not residing habitually in the country where the terrorist act occurs will be paid 40% of the amounts established as compensation for the aforesaid instances.

The aforesaid financial assistance is payable as contingency payment, dependent on the amount of compensation to which the victim is entitled from the State where the attack occurred. If the amount of compensation payable to the victim abroad is less than that established in Spain, the Spanish state will pay the difference.

Acknowledgement of the aforesaid financial assistance will not affect other specific legislation.

Interested parties must apply this financial assistance within a maximum period of one year, calculated from the date on which the harm or injuries occurred.