All legal systems face a common challenge: how to respond to harmful human behavior? Where should the line be drawn between punishing antisocial conduct that threatens social order and compensating victims? Each legal system must define the boundaries between civil liability and criminal liability. Sometimes these lines are clear-cut, at other times they are blurred, and sometimes they do not even exist.
Some general trends can be identified across various legal systems: a) criminal law centers on the defendant, while civil law focuses on the victim; b) the starting point for legal intervention in criminal law is the perpetrator’s behavior, whereas in civil law it is the consequences of that conduct; c) criminal law centers on the individual and on unlawful conduct that falls within a framework established by law, while civil justice seeks to provide compensation for certain acts, which are not necessarily unlawful.
While some legal systems draw clear distinctions between civil liability and criminal liability, in others the lines are blurred and the tensions are more evident. However, rather than merely drawing distinctions, it is more important to consider how these differences can be taken into account, drawing lessons and offering explanations for the current state of Brazilian law and its future direction, in light of its history and legal tradition.
Spain: The Blurred Boundaries Between Civil and Criminal Liability
Spanish law intentionally seeks to completely erase the distinctions between civil and criminal liability. As a matter of principle, any act or omission classified as a crime that causes harm gives rise to civil liability. Due to a long historical process,1 the rules governing compensation for torts that are simultaneously civil wrongs and crimes are contained in the Penal Code rather than in the Civil Code.
Due to the factual connection between the two legal consequences, within criminal proceedings the Public Prosecutor's Office is required to file a civil action on behalf of the person who suffers damages resulting from the crime, even if the victim does not formally request such action. In other words, the prosecutor automatically includes a claim for damages in the request for conviction for the criminal offense, unless the victim expressly files a motion to waive compensation or expresses a preference to file a civil suit as soon as the criminal proceedings conclude; this alternative is not permitted prior to the criminal judgment.2
It should be noted that the public prosecutor is not a representative of the person who suffered harm, as the prosecutor will bring the civil action even in cases where the victim acts as a civil party in the criminal proceeding. Nor is the prosecutor a procedural substitute, as the prosecutor does not defend the rights of a third party in their own name or interest. On the other hand, victims may act as private prosecutors in cases where the Public Prosecutor's Office opposes criminal prosecution, since the reservation of civil actions in preceding criminal proceedings does not preclude a subsequent civil action against persons who have not been criminally charged or convicted.3 In summary, the criminal court assumes jurisdiction “by adhesion” to decide the civil action, and its authority to do so is guaranteed secundum eventum litis: that is, the issue of damages is addressed only if the defendant is criminally convicted. This does not necessarily preclude civil liability, an issue that will be decided in civil court.
One of the most problematic consequences of this blurring of responsibilities is excessive criminalization. Cases typically resolved by civil courts in other civil law and common law jurisdictions end up in criminal courts, because plaintiffs choose to file criminal complaints regardless of the position of the public prosecutor in cases involving breach of contract, environmental damage, and compensation for defective products, among others. This is explained by the fact that, in the Spanish system, criminal law handles most of the tasks of civil justice in a simpler, faster, less risky, and more effective manner. Add to this the possibility for investigating judges to open cases on their own initiative and the absence of a mechanism similar to the class-action model,4 which ultimately directs victims of mass wrongdoings toward the criminal justice system. Furthermore, practice shows that many questionable convictions are handed down solely to ensure the victim receives compensation, even if the judge is aware of the injustice of the decision and ends up replacing the prison sentence with a fine or community service. Additional problems arise for the victim when the prosecutor estimates the damages at an amount lower than what the victim desires—leaving the civil party with no recourse—or when the compensation is adequate, but the offender is unable to pay, which adds complexity to the criminal proceedings and even delays their conclusion.
In this sense, the blurring of these responsibilities has led to a “monetization” of criminal justice and the weakening of its capacity for social regulation—a significant function of criminal law. If criminal law is to deal only with the most egregious violations of community values, the act of “stamping” a criminal label on decisions that deal solely with civil matters undermines the significant function of criminal law. If everything is criminal law, then nothing will be criminal law.5
France – The Civil Party
Unlike what occurs in criminal proceedings in Spain—where the Public Prosecutor's Office mandatorily initiates the civil claim regardless of the victim’s wishes—in France, the victim of a crime resulting in harm is granted a procedural choice between civil and criminal courts: if the victim chooses to file a claim for damages in criminal court, that court will have jurisdiction to rule not only on the existence of a crime but also on the defendant’s civil liability. This jurisdiction pioneered the creation of the concept of the civil party (“partie civile”), allowing the victim to become a participant in the criminal proceedings, not only by seeking compensation in criminal court but also by having broad procedural powers. The concepts of “victim” and “civil party” do not always coincide, since while the victim is the person who suffers the harm caused by the criminal offense, the civil party is the person whose claim has been admitted by the criminal court.
The civil action retains its “civil” nature within the criminal justice system, embodying a dual perspective: it is both a claim for damages and a suit with non-pecuniary purposes, grounded in the victim’s desire to uphold the public interest underlying the prosecution and to see the defendant’s guilt established.6 Under this opt-in system, the civil party may intervene in a criminal proceeding already initiated by the Public Prosecutor's Office, or file a civil action before a criminal judge even if the prosecutor has not initiated criminal proceedings (e.g., due to inaction or a determination that the evidence was insufficient). In this case, the victim will compel the Public Prosecutor's Office to initiate criminal proceedings, and the judge will rule on both the criminal case and the claim for compensation. From a political perspective, this possibility empowers the victim by capitalizing on their interest in the outcome of the proceedings, thereby benefiting them personally.7 Nevertheless, while under Spanish law there are no implications or risks associated with initiating a civil action (since compensating for damages is part of the state’s obligation), under French law, the civil party’s ability to compel a proceeding is exceptional; and if it proves to be abusive or dilatory, the civil party may be fined and required to pay damages.
Germany has also regulated the adhesion procedure; however, we have chosen to refer to France, considering that in Germany, victims rarely use criminal proceedings to obtain civil compensation.8
Civil and criminal liability have distinct characteristics under French law: civil liability is based on an objective system that is generous toward victims by providing compensation regardless of fault. However, the civil party model establishes a link between the two forms of liability, serving both to uphold the purposes of criminal law and to provide an opportunity for compensation for damages within the criminal proceedings, the outcome of which in this regard will be the issuance of a civil judgment and its enforcement through civil proceedings. Through this procedure, the subjective and moral aspect of criminal law—aimed at punishing the offender—will take the victims’ needs into account by applying the rules of civil liability.9
England—The Complete Separation
The distinction between civil and criminal liability in England has long been established. While, on the one hand, the forms of action did not allow a claim to be labeled as “civil” or “criminal,” as early as 1200 a distinction was already being made between “tort” and “crime,” the former aiming at compensation and the latter at punishment. Therefore, English law has always been reluctant to involve criminal courts in awarding compensation—in splendid mutual isolation—until the 1970s, when criminal judges began ordering compensation. Currently, the ACT 2000—Powers of Criminal Courts—allows the court to issue a compensation order for damages and personal injury.10
In this way, English law has come to accept a link between civil liability and criminal liability, often striking what it considers a pragmatic balance. Including compensation within the scope of criminal law was a “trade-off,” since if enforced through civil means, it would involve a criminal court issuing a civil order and shifting the entire burden of enforcement to the plaintiff. Thus, the compensation order is a hybrid, as it is criminal in nature and enforced through punitive mechanisms even if the victim is not involved in the proceedings. Consequently, the victim can obtain compensation more easily than in France, where enforcement is carried out through a civil writ.
On the other hand, within the framework of criminal safeguards—and unlike what occurs in civil court—the criminal court will not use the criterion of full compensation to “empty the pockets” of the convicted person, but, based on the offender’s financial capacity, it limits the compensation cap to £5,000 (five thousand pounds), allowing the victim to seek the remainder through the civil courts. Furthermore, a compensation order is applicable even in the absence of civil liability, since the criminal court has the discretion to grant the remedy solely based on the offender’s financial capacity and the moral appropriateness of making the defendant pay, regardless of an assessment of the victim’s financial losses—an aspect that falls within the realm of civil liability. Finally, compensation may be denied in complex cases that require time, effort, and expertise to resolve uncertain facts, without this precluding the possibility of the plaintiff subsequently filing a civil suit.11
Enforcement also differs. If the defendant (or their insurer) is unable to pay, they may even be subject to bankruptcy proceedings, but they cannot be imprisoned or punished, as imprisonment cannot serve as an indirect means of sanctioning those who are unable to fulfill their obligations. This extreme measure applies only if judges have evidence regarding the offender’s financial capacity. In fact, a compensatory order is prohibited when the defendant has limited financial capacity and is unable to make payment immediately or in installments over a reasonable period.
Directive 2012/29/EU
Directive 2012/29/EU establishes minimum standards regarding the rights, support, and protection of crime victims. It places the victim at the center of the criminal justice system, which in many European Member States had previously focused primarily on the role of the prosecution, the judge, and the interests of the State in general. According to Article 16, “1. Member States shall ensure that, in the course of criminal proceedings, victims have the right to obtain a decision on compensation from the offender within a reasonable time, except in cases where national law provides for such a decision to be made in other legal proceedings. 2. Member States shall promote measures to encourage offenders to provide adequate compensation to victims.”12
A total of 24 Member States have transposed the right to a decision on compensation for victims in criminal proceedings, although not all specify that the money must be taken from the offender. The right to a decision on compensation is clearer in cases of mediation or restorative justice, when the victim is clearly informed of their rights. Alternatively, state compensation schemes exist in most Member States (which fall outside the scope of the directive), justifying a given state’s non-implementation of the directive. In some Member States, there is a model of indirect compensation, in which the victim is compensated in advance by the state and the costs are recovered from the offender. In some countries, there are legal provisions authorizing the judge to impose specific conditions to ensure that the victim receives compensation (e.g., Belgium, France). The state may freeze or seize the accused person’s property if there is concern that they will not compensate the victim (Bulgaria). In other cases, the State has set a compensation cap that can be paid to the victim (for example, 15,000 euros in France).13
Of particular note is the Swedish Authority for Compensation and Support to Crime Victims, whose objective is to promote the rights of crime victims. The authority administers the fund as a single mechanism for crime victims: it is financed primarily by money paid by offenders, in addition to donations, with an annual budget of approximately 2.7 million euros. A council affiliated with the authority determines who will receive the funds. Police officers and prosecutors are required to provide victims with information about the possibilities of receiving compensation for crimes, which must be presented to the court by the prosecution if the victim requests it.
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- Spanish criminal law was originally codified in 1822, unlike civil law, which was not codified until 1889 due to tensions with Catalan and Basque private law. The second criminal code (1848) included a series of rules on civil liability arising from crimes, due to a gap in the Civil Code. The subsequent Civil Code retained this system in Article 1.092: “Civil obligations arising from crimes shall be governed by the provisions of the criminal code.” This provision remains in force in the same Civil Code despite the fact that nine different criminal codes have succeeded one another over time.
- Spanish Penal Code: Article 109. 1. The commission of an act described by law as a crime gives rise to an obligation to compensate, under the terms provided by law, for the damages caused thereby. 2. The injured party may, in any case, choose to seek civil liability in the civil courts.
- In Código Civil, 18. ed. Madrid: Colex, 2012.
- One of the most famous cases in the Spanish criminal justice system, the “Colza case,” involved the company Colza marketing industrial oil as if it were olive oil for human consumption. In 1981, dozens of people died and thousands were injured. In 1997, the Spanish Supreme Court found that a causal link had been established between the consumption of denatured Colza oil and the fatal events, ordering the manufacturers responsible for distribution and marketing to pay millions of euros in compensation to the 30,000 victims. A Spanish public official was also convicted of a misdemeanor, which also resulted in the state’s subsidiary civil liability (Second Chamber of the Spanish Supreme Court, September 26, 1997).
- BACHMAIER L; GOMEZ-JARA C.; RUDA, A. Blurred borders in Spanish tort and crime. In: DYSON, M.Comparing tort and crime. Cambridge: Cambridge University Press, 2015. p. 223-270.
- MALABAT, Valérie; WESTER-OUISSE, Véronique. The quest for balance between tort and crime in French law. In: DYSON, M. Comparing tort and crime. Cambridge: Cambridge University Press, 2015. The authors explain that, in procedural terms, there are practical differences that make the pursuit of civil claims more effective in criminal court than in civil court, due to the criminal law principle of “freedom of evidence,” which accepts a broader range of evidence compared to civil court. Furthermore, regarding the burden of proof, while in civil court the victim must prove the causal link between the offender’s fault and the damage, in criminal court it is the Public Prosecutor's Office that bears this burden of proof, which the civil party will then rely on to substantiate its claim for compensation. DYSON, M. Comparing tort and crime. Cambridge: Cambridge University Press, 2015. p. 81.
- In addition to the concept of the civil party, two other procedural rules concerning the relationship between civil and criminal liability are derived from French law: a) res judicata, which gives precedence to criminal decisions over civil ones; b) the stay of a civil action dealing with the same facts while criminal proceedings are pending. However, over the past hundred years, a significant number of substantive principles have impacted this relationship, particularly the existence of punitive damages.
- In sections 403 through 406 of the German Code of Criminal Procedure of 1987 (updated in 2014), titled “Compensation for the Victim,” there is an adhesion procedure similar to the French one that allows for the award of damages in the criminal judgment. Through the adhäsionsverfahren (adhesion method), the victim (or a relative) presents the evidence and claims an amount—with no a priori limit—which will serve as the ceiling for what the judge may award. Although the proceedings follow criminal rules, the burden of proof will adhere to civil standards; the principle of “in dubio pro reo” does not apply to compensation, and there will be the possibility of a settlement, so that it does not differ from civil proceedings. Enforcement of the judgment awarding compensation will be governed by the provisions applicable to civil procedure, under the jurisdiction of the civil court.
- These paths tend to become increasingly intertwined, given the latest developments in French law. The criminal procedure reform of August 15, 2014, introduced the concept of restorative justice, and the proposed reform of the section on civil liability of the Civil Code officially establishes a form of civil penalty. Furthermore, this convergence creates an unprecedented situation in comparative law: criminal law is classified as part of private law for academic positions at French universities, while the term “public law” is reserved for constitutional and administrative law.
- According to the PCC(S)A 2000, §130, “Criminal courts are able to award compensation order for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence”.
- DYSON, Matthew; RANDALL, John. England's splendid isolation. In: DYSON, M. Comparing tort and crime. Cambridge: Cambridge University Press, 2015. p. 56.
- Prior to Directive 2012/29/EU, the Council of the European Union had already adopted the 2001 Council Framework Decision on the standing of victims in criminal proceedings. According to Article 9: “The Right to Compensation in Criminal Proceedings 1. Each Member State shall ensure that victims of criminal offenses have the right to obtain a decision, within a reasonable time, regarding compensation from the offender within the framework of criminal proceedings, unless national law provides that, in certain cases, compensation shall be provided in another context. 2. Each Member State shall take the necessary measures to promote adequate compensation for victims by the offenders. 3. Unless required by the criminal proceedings, returnable items belonging to the victim and seized in the proceedings shall be returned to the victim without delay.”
- In 2017, the European Parliament published the “European Implementation Assessment,” which contains information on the effectiveness of Directive 2012/29 in the Member States. The Victims’ Rights Directive is part of a “victims’ rights package” adopted after 2009, which also includes Regulation 606/20-3—on the mutual recognition of protection measures in civil matters — and Directive 2011/99/EU on the European Protection Order in criminal matters, which aims to ensure that victims continue to benefit from civil and/or protective measures when they move to another Member State. Alongside this package on victims’ rights, several other EU directives have been adopted to strengthen the rights of victims of specific crimes: a directive on human trafficking; a directive on sexual abuse; and the directive adopted on combating terrorism.