Rules on Liability for Damage Caused During the Service Relationship of Judges II

Abstract

The rules governing institutional liability for damage caused by judicial authority are the result of many centuries of doctrinal development in legal scholarship. Nevertheless, the exceptional nature of holding courts and judges liable, which emerged in earlier centuries, still has a significant influence to this day. As a result, compensation claims brought against courts may be initiated only where a cumulative set of conditions are met. Under the current domestic legal framework, claims for compensation against courts are permitted solely in cases where damage arises in connection with judicial proceedings, is attributable to courts possessing legal personality, follows the exhaustion of ordinary legal remedies, and is based on exceptionally serious errors of legal interpretation or application. The restrictive nature of access to litigation has received considerable criticism, with commentators arguing that the regulation draws an unjustified distinction between the liability of courts and that of other professional actors for damage caused during their activities. The increasing number of actions brought against courts for the infringement of personality rights have been framed in accordance with the provisions of the Civil Code governing liability for damage caused in the exercise of judicial authority, which do not allow the personal liability of judges. Both the legal order of the European Union and international legal norms similarly prioritize institutional liability for damage over the imposition of personal liability. This article seeks to present the key characteristics and internal tensions of the applicable statutory provisions and judicial practice, while addressing the European Union and international legal approaches to liability for damage caused in the exercise of judicial authority.