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The civil liability of magistrates

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									            The civil liability of magistrates. International standards.
                              New legislative tendencies


                                                                       Cristi Danileţ, judge
                                                         Assist. Univ. Loreley Mirea, judge



          1. Liability of the judge
          Any human act that violates a mandatory norm spells a responsibility in front of
the society.1 Liability occupies a central place in each branch of law. "Any subject of law
must be responsible for his acts, assuming the commitments he makes or the fact that
he is not taking into consideration some legal liabilities."2
          In a democratic society, even judges have to be responsible for willful
infringement, or due to serious negligence of the rules of law. The legal frame of the
liability of the judge already exists, but the legal mechanisms of implementation are
missing. Like it is missing the will of the competent authorities springing from the
realization of the fact that accepting a total exoneration of liability of the magistrates in
front of their own unpardonable errors produces even more serious effects in the judicial
system than the existence of a civil liability which deals with the eventual contingence of
the magistrate’s independence.

          2. The regulation of the judge’s civil liability
          2.1. At international level, in the International Covenant on Civil and Political
Rights it is provided in Article 14 paragraph 6: " When a person has by a final decision
been convicted of a criminal offence and when subsequently his conviction has been
reversed or he has been pardoned on the ground that a new or newly discovered fact
shows conclusively that there has been a miscarriage of justice, the person who has
suffered punishment as a result of such conviction shall be compensated according to
law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or
partly attributable to him.”3 It is regulated this way on a global level, the obligation to
establish the right to repair damages of judicial errors in criminal matters.
          This regulation is assumed with the same content in Article 3 of Protocol no. 7 by
the Convention on Human Rights and Fundamental Freedoms, which regulates "The
right to compensation in case of miscarriage of justice".4
          2.2. At national level, the Romanian Constitution regulates in art. 52, "Right of a
person aggrieved by a public authority”, foreseeing in paragraph (3) that "The State shall
bear patrimony liability for any prejudice caused as a result of judicial errors. The State
liability shall be assessed according to the law and shall not eliminate the liability of the
magistrates having exercised their mandate in ill will or grave negligence ".


1
  See Şt. Beligrădeanu “Material liability employed persons”, Editura Ştiinţifică şi Pedagogică,
Bucureşti 1973, p.11
2
  See D.C.Dănişor.I Dogaru.Gh Bănişor, “The general theory of law – University Course”, Editura
CH Beck Bucureşti, 2006, p.458.
3
   Adopted by the General Assembly of the United Nations on 16 December 1966. See
www.un.org.
4
  Protocol 7 was adopted in Strasbourg on 22 November 1984 and it was used beginning with 1
November 1988, being amended by Protocol no. 11, introduced on the same date.
         The constitutional text is assumed exactly in the article 96 paragraph (1) and (2)
of Law no. 303/2004 on the status of judges and prosecutors. In addition, paragraph (3)
and (4) covers cases in which the injured party is entitled to compensations for damages
caused by judicial errors committed by judges and prosecutors, the text of the law
distinguishing between the judicial errors produced in criminal cases and cases of
judicial errors produced in other than the criminal processes:
         a. To repair damages caused by errors committed in judicial criminal processes,
law no. 303/2004 is referring to the cases indicated in the Code of Criminal Procedure.
Article 504 from the Code of Criminal Procedure regulates situations, which offers the
right to repair damages: "(1) The person with definitive conviction has the right to be
compensated by the state for the suffered damage if after the re-judgment of the case a
court has acquit this person definitely. (2) Has the right to be compensated for the
damage the person who, during criminal proceedings, was deprived of liberty or whose
liberty has been restricted unlawfully".
         b. To repair damages caused by errors committed in judicial processes other
than criminal, the text foresees two conditions: the existence of a final decision
establishing the criminal or disciplinary liability of the judge or prosecutor for an act
committed during the trial process, and this act was likely to cause a miscarriage of
justice.

        3. Claims of the State against a judge
        3.1. To protect magistrates against wrongful actions, article 96 of Law no.
303/2004 provided a certain mechanism to trigger the civil liability of these: "(6) To repair
the damage, the injured party may introduce a claim only against the state, represented
by the Ministry of Public Finance. (7) After the damage was covered by the state through
an irrevocable decision given respecting the foresights of paragraph (6), the state may
step in with an action for damages against the judge or prosecutor who, in bad faith or
committing a serious negligence, had committed the judicial error causing injury.” But,
for judicial errors committed in criminal trials, and in the situation in which the State of
Romania was condemned by an international court, it is obligatory a claim action against
the one who, in bad faith or committing serious negligence, caused the situation
generating damage as it is foreseen in article 507 of the Code of Criminal Procedure.5
        This way the patrimonial action against the judge or prosecutor assumes the
following steps:
        - the stage of the civil or criminal process where the judicial error was committed;
        - the stage of the civil process against the State of Romania having the object to
repair the injury caused by the error;
        - the stage of the civil process having the object the reclaim action of the State
against the judge or prosecutor, who is guilty of committing the error.

        3.2. To carry over the civil liability of the judge or prosecutor, the legal texts from
above assess that he must have acted with bad faith or committing a serious negligence.
The establishment of the level of the guiltiness seems to be regulated in a different way,
according to the type of the process in which the judicial error was committed.
        Thus, for judicial errors committed in other processes than criminal, article 96
paragraph (4) of the Law 303/2004 provides that before opening a process by the victim
of the judicial error, it must be established, through a definitive decision, the penal or



5
    Modified through Law no. 356/2006.
disciplinary liability, as appropriate, of the judge or prosecutor for a crime committed
during the trial process and if it was likely to cause a miscarriage of justice.6
         Such regulations do exist neither in the Constitution nor in law, for judicial errors
committed in criminal cases. This would lead to the conclusion that guilt of the
magistrate would be established even during process opened by the state against the
magistrate for the recovery of damages paid to the victim of the error. However, this is
not admissible, because the two concepts - "bad faith" and "serious negligence" – are
related to a crime (abuse of service, negligence in service, unfair punishment) or to a
disciplinary discrepancy. Moreover, article 99 latter h of the Law no. 3303/2004 foresees
this to be a disciplinary misconduct: "exercising his function, including infringements of
the rules of procedure, in bad faith or with serious negligence, if the deed does not
constitute a criminal infraction."
         On the other hand, investigations to assess whether the judge or the prosecutor
acted in bad faith or with serious negligence must be made within certain time
constraints. Thus, according to Article 46 paragraph (8) of Law no. 317/2004 on the
Superior Council of Magistracy, disciplinary action should be exercised not later than 1
year after the crime was committed. And Article 96 paragraph (8) of Law no. 303/2004
on the status of judges and prosecutors provides that the limitation period in all cases
must be no more than one year. The respecting of this term would be impossible if the
investigations would be made only after triggering the regression procedure.
         Therefore, before the regression stage of the action of the State against a judge
or prosecutor there should be a decision establishing the liability of magistrates, either
disciplinary (pronounced by the disciplinary body, which is the Superior Council of
Magistrates) or criminal (pronounced by a criminal court).
         3.3. The only difference between the two types of processes in which there were
committed errors, remains the legal recourse of action against the magistrate in order to
recover the damages paid to victims of judicial errors caused by bad faith or serious
negligence: required in criminal matters, optionally in non-criminal matters.

       4. Expected legislative changes
       4.1. The distinction between the two types of processes, and therefore between
the two types of civil liability of magistrates does not seem to be justified. This is why the
last version of the draft law to amend Law no. 303/2004 and the Code of Criminal
Procedure, in debate, in order to be accepted, the Legal Commission of the Superior
Council of Magistrates introduced a new article, Article 962, as follows “(1) After the
damage was covered by the state according to the conditions foreseen by the Code of
Criminal Procedure or based on an irrevocable decision respecting the provisions of

6
  Besides, the dispositions of this article constituted the object of an unconstitutional exception
rejected by the Constitutional Court through Decision 633 from 24.11.2005 published in the
Official Journal Part I. no. 1138 from 15.12.2005, the Court showing in the explanation that: ”Far
from constituting a delimitation of the free access to the justice, as it is affirmed by the author of
the exception, the regulation, according to which the injured person can open an action only
against the State, and not against the magistrate who had committed the judicial error, offers
larger possibilities to get an eventual right for compensation. This way, the conditioning of
acknowledging the right for compensation exclusive from committing the judicial error; has as
consequence the alleviation of the duty to prove, in comparison to the hypothesis in which, near
the judicial error, the bad faith or the serious negligence of the magistrate must be proved,
constitutional requirements for the liability of this above mentioned person. Even more, the
conferring the debtor quality of the obligation of compensation exclusively for the State is likely to
eliminate the risks of the creditor not to make available his debts, taking into consideration the
idea that the State is always solvent.
article 961 paragraph (3), the state can step in claims against the judge or prosecutor
who, in bad faith or with serious negligence, committed a judicial error causing injury. (2)
After injury coverage, the state can step in claims against the judge or prosecutor who,
in bad faith or with serious negligence, the committed a judicial error causing injury,
established by a definitive decision condemning the Romanian State, pronounced by an
international court.", proposing in the same time the abrogation of the foresights of article
507 of the Criminal Procedure Code.
         4.2. Also there was a need to define key terms in the civil liability matters. Thus
article 96 would provide: (3) There is bad faith when the judge or prosecutor violates, in
a conscious way, the rules of law or procedure, following or accepting the possibility of
the prejudice of a person. (4) There is serious negligence when the judge or prosecutor
is consciously not taking into consideration, in serious and unforgivable way, the rules of
material or procedural law.
         4.3. In the same time, there must be regulated a new institution designed to
protect the magistrate, namely, providing professional guilt: "Art 962 (4) in the claim
action based on serious negligence, the state is obliged to call into the court also the
institution by which the judge or prosecutor is insured for civil liability. The obligation to
pay compensation can be established only by the institution in charge of insurance and
only in the limit of the insured amount. (5) For risks arising from work, judges and
prosecutors close civil liability insurance for judicial errors committed with serious
negligence, in the conditions established by governmental decision”.
         This way it is introduced the obligation to call in to the court also the institution
where the judge is insured for civil liability, but this will respond only in the limit of the
amount insured, and only when the deed is committed with serious negligence, so that in
the matter of bad faith we cannot speak about an insured risk. Of course, the liability of
the insurance institution assumes the closing in advance by judges or prosecutors of
contracts of insurance for civil liability for judicial errors committed with serious
negligence of the conditions set by the executive. Besides the possibility of the judiciary
to ensure the occupational hazard is currently governed by the provisions of article 78
paragraph (4) of Law no. 303/2004 modified, but in fact they are not implemented yet.
         4.4. As for the term in which the injured party may be moving against the State
through the Ministry of Public Finance for the repair of the damage, it is proposed to be
18 months from the date of the irrevocable decision establishing the judicial error and,
for the claim action in the period remains 1 year from the final decision condemning the
magistrate.

        5. The compatibility between the civil liability and the independence of the
magistrates
        It is questioned to what extent the existence of some regulations in the matter of
the liability of magistrates for judicial errors affect the principle of the independence of
judges. This is because the independence is a legal act of carrying out justice
impartially, but the possibility of a civil liability of the judge in a certain moment can be a
pressure factor on him, that might negatively influence his solutions, resulting from his
desire not to become responsible for any errors.
        5.1. Solutions to this question are outlined by the international standards on the
independence of justice.
        Thus, with regard to civil and criminal liability of magistrates, article 10 of the
Universal Charter of the Judge provides: "Civil action, in countries where this is
permissible, and criminal action, including arrest, against a judge must only be allowed
under circumstances ensuring that his or her independence cannot be
influenced "7.
        This is also the opinion of the Consultative Council of European Judges: "A judge
should not have to operate under the threat of a financial penalty, still less imprisonment,
the presence of which may, however sub-consciously, affect his judgment. As a general
principle, judges personally should enjoy absolute freedom from liability in respect of
claims made directly against them relating to their exercise in good faith of their
functions. Judicial errors, whether in respect of jurisdiction or procedure, in ascertaining
or applying the law or in evaluating evidence, should be dealt with by an appeal; other
judicial failings which cannot be rectified in this way (including e.g. excessive delay)
should, at most, lead to a claim by the dissatisfied litigant against the State. That the
state may, in some circumstances, be liable under the European Convention of Human
Rights, to compensate a litigant, is a different matter, with which this opinion is not
directly concerned".8
        Judges should have absolute freedom to defend themselves in the actions
directed against them. Thus, the European Charter on the Status of Judges in paragraph
5.1 and 5.3 provides that "The dereliction by a judge of one of the duties expressly
defined by the statute, may only give rise to a sanction upon the decision, following the
proposal, the recommendation, or with the agreement of a tribunal or authority
composed at least as to one half of elected judges, within the framework of proceedings
of a character involving the full hearing of the parties, in which the judge proceeded
against must be entitled to representation. The scale of sanctions which may be
imposed is set out in the statute, and their imposition is subject to the principle of
proportionality. The decision of an executive authority, of a tribunal, or of an authority
pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial
authority”. On the other hand, "Each individual must have the possibility of submitting
without specific formality a complaint relating to the miscarriage of justice in a given case
to an independent body. This body has the power, if a careful and close examination
makes a dereliction on the part of a judge indisputably appear, such as envisaged at
paragraph 5.1 hereof, to refer the matter to the disciplinary authority, or at the very least
to recommend such referral to an authority normally competent in accordance with the
statute, to make such a reference".9
        In a somewhat different concept, the UNO principle no. 16 grants civil immunity
for judges: "Without prejudice to any disciplinary procedure or to any right of appeal or to
compensation from the State, in accordance with national law, judges should enjoy
personal immunity from civil suits for monetary damages for improper acts or omissions
in the exercise of their judicial functions".10 It is therefore not excluded the liability of the
state for judicial errors. Similarly, section 32 of the Beijing Declaration states that:
"Without prejudice to any disciplinary procedure or to any right of appeal or to

7
   Universal Charter of the Judge, adopted in 1999 in Taipei by the International Association of
Judges See on www.iaj-uim.org.
8
   Opinion no. 3 of the Consultative Council of European Judges (CCJE) to the attention of the
Committee of Ministers of the Council of Europe on the principles and rules governing judges’
professional conduct, in particular ethics, incompatible behavior and impartiality, para. 53 and 55,
la www.coe.int/ccje.
9
  European Charter on the Statute for Judges, adopted by Concil of Europe, at Strasbourg, on 8 -
10 July 1998. See www.coe.int/judges.
10
    Basic Principles on the Independence of the Judiciary was adopted by the Seventh United
Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from
26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29
November 1985 and 40/146 of 13 December 1985. See www.ohchr.org.
compensation from the State in accordance with national law, judges should enjoy
personal immunity from civil suits for monetary damages for improper acts or omissions
in the exercise of their judicial functions".11
        In the jurisprudence of the Court of Justice of the European Communities, the
decision pronounced in case Köbler vs. Austria has held that "the eventual direct
responsibility of the judge in front of the injured party comes into conflict with the
principle of independence of judges”12.

         5.2. It is relevant, in the same time, the form of regulation of this institution in the
national legislations.13
         In Hungary the direct responsibility belongs to the court where the judge works.
The judge responds in front of the court when he commits intentional or with serious
negligence an act in contradiction with his duties of office and it is causing damage to his
employer. When the act was committed intentionally, the judge is responsible for the
entire amount, and in major cases of negligence, the judge may be obliged to pay an
amount equal to his salary of less than 3 months. Also in Poland a judge has liability
according to the Labor Code. The injured person has a direct action only against the
court and not against the judge. The liability of the judge is governed by rules laid down
by the Labor Code for employee liability for damage caused to the employer. When the
damage was caused unintentionally by the judge, he is obliged to the payment of his 3
months salary, and when the damage was caused by an intentional act, it was
considered that the best solution would be hiring the responsibility of the judge in front of
his employer.
         In Czech Republic, Croatia and Slovakia are no provisions in law, which
enshrine the right to compensation of the person injured by an illegal court, right which
can be exercised through a direct action against the State which, in turn, acquires the
right to recourse action against a judge who acted in some form of guilt.
         Croatia's legislation contains a precondition that the person injured by a
miscarriage of justice must fulfill before ha can sue the state. The injured person must
make an application in which he submits his payment claims and he must address it to
the prosecution, near the court and ask to resolve the case. If the injured party reaches
an agreement with the Prosecutor, it is enforceable against the state. The prior
procedure is considered fulfilled if they do not reach an agreement or if the Prosecutor
does not respond to the request within 3 months.
         In the French judicial system it is regulated the patrimonial responsibility of
judges who have committed illegal acts in the judicial function, which is judged by the
Court of Cassation.

11
   The 6th Conference of the Chief Justices of Asia and the Pacific adopts the Statement of
Principles on the Independence of the Judiciary contained in the annex to the resolution to be
known as the Beijing Statement of Principles on the Independence of the Judiciary in the
LAWASIA Region (Beijing, 1995), amended at Manila (1997). See www.asianlii.org.
12
   Case C-224/01, Gerhard Köbler v. Republik Österreich, Judgment of the Court, 30 September
2003, para. 26: „Secondly, the United Kingdom Government submits that the authority and
reputation of the judiciary would be diminished if a judicial mistake could in the future result in an
action for damages. Thirdly, it maintains that the independence of the judiciary within the national
constitutional order is a fundamental principle in all the Member States but one which can never
be taken for granted. Acceptance of State liability for judicial acts would be likely to give rise to
the risk that that independence might be called in question”. See http://curia.europa.eu.
13
   From the written material resulted from the Permanent Conference of the Presidents of the
Supreme Courts, having the subject “The patrimonial liability of the judge for the damages caused
through illegal judgment decisions”, Zagreb, 26-29.04.2005.
        In the Italian judicial system it is also regulated the patrimonial responsibility of
the judge in case of injury created intentionally or through serious negligence conduct,
decision or order of a judge, or resulting from a disclaimer of right. The liability of the
judge is considered similar to the liability of any other public official in the article 28 of the
Italian Constitution.
        The civil liability of judges and prosecutors for damages caused in exercising
their function, or of intentional fault, is regulated also in the Spanish judicial system.
Law no. 6/1998 on judicial power does not cover the patrimonial liability of the assets
and the magistrate judge. Parties that are considered injured by the acts committed in
connection with exercising their duties have the right for action by the civil court of
administrative authorities, which is judging in accordance with the common law. In order
to support any eventual damages resulting from this action, judges and magistrates are
closing insurance contracts for themselves personally, and they support the annual
insurance bill too. But in the Spanish judicial system, the responsibility of the State is
always trained for injuries resulting from failures in the proper management of justice.



        Bibliography

            1. Ştefan Beligrădeanu, „Răspunderea materială a persoanelor încadrate în
               muncă” Editura Ştiinţifică şi Pedagogică, Bucureşti, 1973;
            2. I.Turcu., V.Deleanu, „Introducere în teoria şi practica răspunderii
               materiale”, Editura Dacia, Cluj-Napoca, 1984;
            3. Ion Popa în „Tratat privind profesia de magistrat în România”, Editura
               Universul Juridic, 2007;
            4. D.C.Dănişor, I.Dogaru, Gh. Bănişor, „Teoria generală a dreptului-Curs
               universitar”, Editura CH Beck, Bucureşti, 2006;
            5. Laura Ivanovici, Cristi Danileţ, „Răspunderea judecătorilor şi procurorilor”,
               în Curierul Judiciar nr. 1 din 2006, pp.70-81.

								
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