The Guarantee fund for victims of terrorism and other offences (French: Fonds de garantie des victimes des actes de terrorisme et d'autres infractions - FGTI) is a French public-law body. created by Act no. 90-589 of July 6, 1990, amending the Code of Criminal Procedure and the and relating to victims of crime. At that time, the legislator brought together within a single body two distinct pre-existing missions: compensation for victims of acts of terrorism, and compensation for victims of certain .
It grew out of the Terrorism Fund set up in 1986 under pressure from associations, notably SOS Attentats, with a 1990 law extending the Fund's scope. The Fund's financing and scope of intervention are closely linked to the insurance industry, a link that was strengthened by the law of July 1, 2008.
Organization and financing Articles L. 422-1 to 6 and R. 422-1 to 10 of the deal with the organization and financing of the FGTI.
The FGTI, “endowed with civil personality”, is managed by a nine-member Board of Directors: one representative of the insurance industry, four representatives of various ministries, three members of victims' associations, and a chairman from the Council of State (French: Conseil d'État) or the Court of Cassation. The Fund's bylaws are approved by joint order of the Minister of Justice and the Minister of Insurance, the latter also overseeing the Fund through the appointment of a .
The Guarantee Fund was 75% funded by a flat-rate contribution of 4.30 euros (in 2016) levied on each property insurance policy taken out with a company operating in France. Two authors have described this method of financing as “unorthodox”: there is no link between property insurance and compensation for bodily injury to victims of acts of terrorism. The FGTI's resources are supplemented, where applicable, by the reimbursement of obtained by the Fund from the perpetrators of the offenses that led to the damage compensated (20%) and by financial investments (5%). In January 2017, the tax on insurance contracts was raised to 5.90 euros per contract, corresponding to 140 million euros in additional revenue for the FGTI
Management of the FGTI is entrusted to the Guarantee Fund for Compulsory Damage Insurance (French: Fonds de garantie des assurances obligatoires de dommages - FGAO).
History of competencies development
Law no. 77-510 of January 3, 1977, guaranteeing compensation for certain victims of bodily injury resulting from an offence, was a founding act, laying down the principle that “any person who has suffered injury as a result of an act, whether intentional or not, and having the material character of an offence, may obtain compensation from the State”. However, this text laid down a series of particularly restrictive conditions (serious bodily injury, economic loss, subsidiary intervention, serious material hardship, etc.) and set a ceiling on compensation, which was awarded on an emergency basis by a “Crime Victims Compensation Commission (French: Commission d'Indemnisation des Victimes d'Infractions) - " sitting in each Court of Appeal.
The law n°81-82 of February 2, 1981, reinforcing security and protecting personal freedom, extended the compensation system to anyone who, having been the victim of theft, fraud, or breach of trust, could not otherwise obtain compensation and was therefore in a serious material difficulty. It was also the “Security and Freedom” law that introduced a ceiling on resources for claiming compensation, from which the ceiling on the compensation payable is deducted.
Law no. 83-608 of July 8, 1983, reinforcing the protection of victims of crime, improved the existing system, notably by creating a at each County Court (French: Tribunal de Grande Instance), including victims' associations in its membership, and allowing its president to grant a provision to the victim.
Law no. 85-1407 of December 30, 1985, containing various provisions on criminal procedure and criminal law, extended the compensation system to various sexual offences (rape, indecent assault, etc.). For these offenses, the condition that the damage must be serious was abolished.
Law no. 90-589 of July 6, 1990, amending the Code of Criminal Procedure and the Insurance Code and relating to victims of crime, radically altered the system to its current form. It created the FGTI, instituted the principle of full compensation for serious bodily injury by removing the ceiling, and abolished the restrictive conditions for awarding compensation. It also created a new division of responsibilities between the FGAO and the FGTI, with the latter unable to compensate victims of traffic or hunting accidents.
Law no. 92-665 of July 16, 1992 introduced two levels of jurisdiction in the compensation procedure, allowing appeals against decisions handed down by the CIVI.
Law no. 2000-516 of June 15, 2000, reinforcing the protection of the presumption of innocence and the rights of victims, extended the compensation system to include extortion and the destruction, degradation or deterioration of property. Compensation is possible if the victim is “in a serious material or psychological situation”, this last possibility having been inserted by the aforementioned law.
Law no. 2004-204 of March 9, 2004, known as the “Perben II Law”, adapting the justice system to developments in crime, created an article 706-5-1 in the Code of Criminal Procedure, and introduced a procedure for offering compensation to victims' claims addressed to the Fund by the clerk's office of the CIVI.
Law no. 2008-644 of July 1, 2008, creating new rights for victims and improving the execution of sentences, enabled compensation to be paid to victims of a fire involving their motorized vehicle, but introduced a ceiling on the compensation payable.
Finally, at supra-national level, there is the European Convention of November 24, 1983, on the compensation of victims of violent crimes, and the Community directive of April 29, 2004, relating to compensation to crime victims.
The FGTI's scope of action The FGTI is responsible for compensating both victims of crime and victims of terrorism. Each year, the FGTI handles 17,000 claims for compensation, less than a hundred of which are from victims of terrorism. The majority of the fund is used to compensate victims of ordinary offences (assault, rape, and all offences involving personal injury, burned vehicles, theft, fraud, and extortion).
Compensation for certain crime victims
Full compensation for serious bodily injury and sexual offences
Conditions concerning the victim Certain conditions relate to the victim's nationality or the territoriality of the crime. Compensation is only available if the victim is a French national (regardless of where the offence took place). If the victim does not have French nationality, they will only be compensated if the events took place on French territory, and if they are a national of the European Union or are legally resident there.
Conditions relating to the damage suffered by the victim depending on the nature of the facts Only certain acts listed in article 706-3 of the French Code of Criminal Procedure are eligible for full compensation. Bodily injury caused by asbestos, traffic accidents, or terrorism is legally excluded. These different types of injury are likely to be compensated under other specific schemes. Case law has also excluded work accidents from the FGTI compensation scheme. However, conflicts of jurisdiction between the various guarantee mechanisms are common. In all cases, these facts must “present the material nature of an offence”, and may be “voluntary or involuntary”. At this stage, two observations can be made:
The presence of the material element alone is sufficient to entitle the claimant to compensation. It makes no difference whether the perpetrator was unknown, under the influence of a mental disorder, or whether the acts were statute-barred, amnestied or not prosecuted.
The possibility of compensating victims of certain unintentional offences necessarily entails an overlap with other guarantee mechanisms, notably liability insurance, but also the FGAO.
Two types of event may give rise to entitlement to full compensation.
On the one hand, these are offenses that have “resulted in death, permanent disability [IPP] or total personal work incapacity [ITT] equal to or greater than one month”.
On the other hand, these are the offences set out in articles 222-22 to 222-30, 225-4-1 to 225-4-5, and 227-25 to 227-27 of the Penal Code, which respectively punish criminal and tortious sexual assault, trafficking in human beings and sexual offences against consenting minors under the age of 15. Case law has also assimilated mere attempt. As an exception, victims of these offences will receive full compensation, regardless of the seriousness of the harm. Geneviève Viney, a specialist in liability law, believes that this is a welcome solution, since “the seriousness of the facts and the probability of psychological trauma are sufficient”. Although this is true, it needs to be qualified for sexual offences under articles 227-25 to 227-27 of the penal code.
Finally, “compensation may be refused or its amount reduced on the grounds of the victim's fault”. Such fault, which may be invoked against the heirs of the direct victim, could, for example, be accepted in cases of recklessness, insults, or participation in a criminal activity. There is a plethora of case law on this subject,In the first case (Cass. Civ. 2e, December 11, 2003, no. 01-03632), the victim's participation in a punitive expedition against a rival gang reduced his right to compensation by a third. In the second case (Cass. Civ. 2e, July 4, 2002, no. 01-03420), the victim of a gunshot was part of a family in rivalry with another family, and the two families had agreed to meet in a bar to settle their differences. The Court of Cassation refused to award full compensation. and it fluctuates widely. In all cases, jurisprudence requires the presence of a causal link between the victim's fault and the occurrence of the damage, even if the fault is not necessarily concomitant with the offence.
The principle of full compensation for personal injury By “full compensation”, it is meant restoring the victim to their previous situation. This concept is inapplicable in the field of personal injury, and the main aim is to compensate for all types of loss, both economic and non-economic. In this respect, there has been a great deal of discussion on compensation for personal injury over the last few years, and a real consensus has emerged among those involved in the personal injury field around the nomenclature of injury items presented by the group chaired by Jean-Pierre Dintilhac, inspired by case law and the work carried out since 2003 by the Lambert-Faivre commission under the aegis of the National Council for Victims' Assistance (French: Conseil National d'Aide aux Victimes). This nomenclature proposes an inventory and classification of the various injury items characterizing bodily injury compensation, with a precise definition of the compensable content for each.