State Liability

In September 2015 the Court of Justice ruled for the first time that a national Supreme Court had breached its obligation to request a preliminary ruling under Article 267 (3) of the TFEU. The case of Ferreira concerned both a violation of the Acte Clair doctrine and liability of a Member State for judicial error. The aim of this paper is to assess the different criteria governing the doctrine established in CILFIT and the principle of State Liability for judicial breaches that arose in the Kobler decision and how they are applied in the case of Ferreira. The conclusion I have drawn is that, indeed, the Portugese government did not satisfy the criteria for acte clair since the matter at stake was unclear and that there were controversial decisions ruled by national courts of other Member States. With regard to the liability of the Portuguese state, the Court of Justice ruled that the conditions governing the principle shall be interpreted as precluding a provision of national law which requires the setting aside of the decision given by that court which caused the loss or damage.

This paper analyses whether and under which conditions the State ought to compensate for the losses caused when managing the COVID-19 crisis. It focuses, firstly, on instances where public authorities have accidentally caused the damage at issue either through actions or omissions. Secondly, it considers cases of State liability for lawful conduct, where public authorities deliberately have inflicted some damage on a person or a group of people for the sake of the public interest. The paper takes Spanish law as a reference, which does not prevent our analysis from being extended to other legal systems based on similar principles.

ABSTRACT
For the first time, this thesis intends to deepen in such a  level, on the right of compensation of any property and non-pecuniary damage caused by the public body or its employees and the obligation of the state to recover the situation, even if financially.
Research in this institute was necessary basing by developments in recent decades in countries such as the United States of America, European Union countries.
Unlike other countries that may have only one general article for this institute, in Albania the civil liability of the state has been regulated since 1998 by the Constitution (Article 44), since 1999 by the Administrative Procedure Code (ex-Article 14 and Article 15) and 22 articles of special law no. 8510 dated 15.07.1999 "On the Non- Contractual Responsibility of the State Administration Bodies". However, the volume of court practice is not as desired and the citizens appear unaware on.
This work aims to enrich anyone with the civil liability of the public administration, makes an overview in the history of Albanian legislation, at the international level, presents the cases when every citizen can address for civil damages to the responsible public organ, to its superior or tribunal, it treats the criteria for measuring the damage and its types, compares the doctrine and legislations of other states, the manner of the European Court of Justice (Luxembourg) and the Court of Justice And Basic Human Freedoms (Strasbourg) deal with etc.
Key words: responsibility, public body, compensation material damage, non-pecuniary damage, illegality.

This paper describes some aspects of the liability of public administration in Argentina, after the approval of Law 26,944, of 2014, that builds a system, thus apart of the Civil Code, which makes the State responsible on a more limited basis.

Dista mucho de estar claro si, por qué y, sobre todo, bajo qué condiciones debería el Estado resarcir los daños causados por la prisión provisional cuando el proceso penal termina con la absolución de los perjudicados o con el sobreseimiento. Después de exponer cómo está regulado este problema en nuestro ordenamiento jurídico, de revisar algunas de las soluciones que se le han dado en el Derecho comparado y de repasar las opiniones doctrinales vertidas sobre el particular, este trabajo analiza los costes y los beneficios que para la colectividad se derivan de esta responsabilidad. El autor pone de relieve que indemnizar a los inocentes es socialmente ventajoso, por cuanto así se reduce el coste esperado de ser inocente y, por lo tanto, se incrementa la eficacia preventiva del sistema penal. Ahora bien, si se pretende maximizar esta eficacia, no habrá que compensar a todos los acusados que hayan sufrido prisión provisional seguida de absolución o sobreseimiento, sino sólo a aquellos cuya inocencia quede acreditada de acuerdo con un estándar de prueba más estricto que el utilizado para absolver en el proceso penal.
Western legal systems are far from having provided the same solution to the problem of whether acquitted pre-trial detainees should be compensated for the harm suffered as a result of detention on remand. After describing how this problem has been regulated under Spanish law and other legal systems, this paper analyzes the social costs and benefits derived from compensating acquitted pre-trial detainees, focusing on the case where detention was lawfully and diligently carried out by State agents, and not having been caused by negligence on the part of the detainee. The author shows that compensating actually innocent detainees deters crime insofar as it reduces the expected costs of abiding by the law. Nevertheless, in order to maximize this deterrence effect, the State should not compensate every acquitted defendant for the harm suffered as a consequence of having been held on remand, but only if the evidence indicating his guilt does not reach certain threshold lower than the amount of such incriminating evidence required to convict him.

Ever since allegations arose of Russian meddling in the 2016 United States presidential election, cyber influence operations have garnered worldwide attention. This article examines the different options available under international law for holding States responsible for cyber influence operations on elections. To this end, the article first elaborates a typology of different cyber election meddling techniques, before examining three paradigms of international law that may be relied upon to frame State responses to cyber influence operations – the general public international law paradigm, the human rights paradigm, and the State liability paradigm. The article concludes by considering why States have so far avoided the vocabulary of international law in formulating their responses to cyber influence operations and offers a suggestion as to where international law may have a more central role to play in this context in the future.

State Liability for Legislative Acts in the Context of General State Liability Rules. The Development of the Concepts and Institutions until the mid-20th century (part of summary)

State liability for legislator actions is a particular far-reaching application of the principle that the state is liable for the actions of the public authority. Hence the question of such liability is usually raised only when the principle as such is recognized. As a consequence, also comparative historical analysis of the development of the concepts and institutions of state liability for legislative acts must take into account the evolution of the general principles of state liability.

This thesis is divided into three parts. The first part, entitled The Institutions and Concepts of State Liability in Selected Legal Systems until the End of the 18th Century, consists of three chapters. It presents the current state of research on the existence and operation of institutions and concepts of the liability of the public authority, including the legislature, since the classical antiquity (Greece and Rome), through the Middle Ages (ius commune, Germany, France, England) until the first centuries of modern times (the school of rationalist natural law, Germany, France, England). The second part, divided into three chapters and entitled The Development of Contemporary Systems of State Liability for Public Authority Actions, is devoted to the development of contemporary systems of state liability since the end of the 18th century until the mid-20th century (Germany, France, Great Britain). The third part of the thesis features three chapters and is entitled The Problem of State Liability for the Actions of the Legislature. Subject to discussion is the applicable law, judicature, as well as jurisprudence regarding the state liability for legislative acts since the end of the 18th century until the mid-20th century (Germany, France, Great Britain).

The analysis of selected legal systems since the classical antiquity through the Middle Ages until modern times raises doubts with respect to two views pertaining to the origin and evolution of the state liability, which are quite popular in the jurisprudence. First of all, the belief is undermined that state liability is a relatively new legal phenomenon that has, in fact, developed only since the latter half of the 19th century, i.e. a legal phenomenon characteristic of contemporary times only. Secondly, as a partial consequence of the first conclusion, also the thesis of linear progressive development of compensation mechanisms i.e. gradual transformation from non-liability to a more and more complete realization of state liability, is challenged.

In all historic periods and nearly all legal systems under analysis, at least some forms of state liability can be found. In many cases there are no grounds for assuming that there is certain historic continuity among them. This thesis presents, or at least indicates, numerous institutions and concepts of public authority liability that existed before the 19th century.

The first can already be traced back to the ancient Greece and Rome. They were supposed to ensure protection for entities affected by the public authority interference in the ownership title and seem to correspond to the contemporary institution of expropriation. More data are available for the medieval period, where, both in the German and English laws, the rules of liability for losses suffered as a result of public authority actions were to apply. In the German Empire, community liability, based on the rules of the Germanic law, was to apply. In England, in turn, the sovereign and subordinate administration, despite numerous protective privileges, were to bear liability following the same principles as private entities.

The practical significance of these institutions, however, was about to decline as of the end of the Middle Ages. A lasting achievement of the European legal thought turned out to be the concept of protection for private entities in the case of public authority interference in private rights, developed by commentators in the 14th century. It affected the legal practice and led to the development of expropriation institutions in the Latin countries of Europe, or at least in France and the Iberian Peninsula countries, as early as the end of the Middle Ages. This concept remained vivid until the 18th century in the ius commune. It influenced neo-Scholastics of the School of Salamanca, and, indirectly, Hugo Grotius and other representatives of the rationalist school of the natural law. In the end, it formed the basis for the development of the institution of state liability for breach of vested rights (iura quaesita) in the German Empire. On the other hand, its narrower understanding contributed to the development of the contemporary concept of expropriation in France at the turn of the 19th century. It must be added that in the 18th century France there was a regular practice of compensating, though probably ex gratia only, for losses incurred during public works. The only legal system under analysis where no institution of liability in damages could be found, is England of the late 17th century and the 18th century, though individuals could, at least in some cases, count on compensation for their losses, however, only ex gratia, too.

It seems that since the medieval period, in particular in the ius commune, the question of possibility of state liability for legislative actions has been raised. As some representatives of the legal doctrine hold, both in the Middle Ages and in the first centuries of modern times in some legal systems it was the rule of applicable law. It pertains in particular to the 18th century Germany, where the state liability for legislative actions was to be realized according to the “obvious rule of the German general public law, according to which if individuals are divested of their vested rights, the ruler is obliged to compensate for it”. It must, however, be noted that for the whole period before the 19th century, views of the state liability for legislative actions are not supported with explicit examples from the legal practice.

Since the end of the 18th century contemporary state liability systems have been developing. The analysis contained herein indicates many differences in this respect in the legal systems of Germany, France and Great Britain. They pertain both to their origin and the course of the process as such, as well as achieved results. The origin of some contemporary institutions of state liability for lawful actions of the public authority – as has already been mentioned – should be traced back to the ius commune. The doctrine of liability for breach of private rights, developed by commentators, was fundamental, on the one hand, to the institution of liability for breach of vested rights in Germany, and on the other, to the institution of expropriation in France. Although the rules of such liability were prescribed in some constitutions and statutes towards the end of the 18th and early 19th centuries, it was rather a continuation than a change in terms of the substantive law.

Regarding the institutions of state liability for lawful actions of the public authority, it should be added that also other forms of the liability have originated in the judicature of the French Council of State since the end of the 19th century (liability based on the principle of equality of citizens in respect of public burdens, risk-based liability). Unlike Germany and France, in the British law, in turn, no general rules of state liability have developed which would be aimed at compensating for losses arising from lawful actions of the public authority, although the petition of right, applied again since the early 19th century, served such a function to some extent.

Given that at least basic protection was guaranteed to individuals in the case of losses suffered as a result of lawful interference of the state in the ownership title and other property rights, the fundamental problem in the 19th century Germany and France was state non-liability for unlawful actions of the public authority. Apart from particular regulations adopted occasionally by the legislator, the general rules of such liability first developed in France.

A decisive factor in the creation of the contemporary system of state liability was the ruling of the Jurisdictional Court (Tribunal des conflits) in the Blanco case of 1873. It formed the basis, in terms of competence and substantive law, enabling the Council of State to establish autonomous state liability in tort, independent of the civil law regulations. Following nearly one hundred years of discussion among legal academics, such liability was recognized also in Germany in the early 20th century, finally by virtue of Article 131 of the Reich Constitution of 1919. The state liability for unlawful actions of the state was the last to be generally accepted in Great Britain, where the state immunity in damages dominated until 1947 when, as a result of the legislative reform, the rules of tort liability of private entities began to be applied to the public authority liability.

On the basis of the analysis results one might be inclined to challenge the conviction, often expressed in the reference literature, concerning the way state liability for legislator actions used to be perceived in the past. Such non-liability, contrary to the popular view, was not an indisputable dogma of either the legal theory or practice in the 19th or in the first half of the 20th century. There are however, considerable differences in the way this problem is perceived in individual legal systems.

(...)

Il contributo esplora i possibili scenari risarcitori conseguenti all’avvento dell’emergenza sanitaria determinata dalla pandemia del Covid-19, verificando in che misura la responsabilità civile azionata nei confronti di operatori sanitari e strutture possa risultare effettiva nell’agevolare il risarcimento dei danni lamentati da quanti non abbiano potuto ricevere cure adeguate in esito alla diffusione del Coronavirus durante il primo lockdown (marzo-maggio 2020). Ragionando sul contenzioso seguito al caso del sangue infetto, si verifica come il modello della responsabilità civile di Stato e Regioni, che sembrano aver disatteso precisi e dettagliati provvedimenti emanati per consentire al Sistema Sanitario Nazionale nel suo complesso di essere pronto a gestire in modo ottimale l’avvento di una pandemia influenzale, possa polarizzare il contenzioso promosso dalle vittime del Covid nella prima ondata. Nelle conclusioni si propone di considerare l’istituzione di un fondo finanziato dall’erario destinato alla compensazione delle vittime destinato ad operare su base transattiva, per non replicare gli inconvenienti determinati dalla legge n. 210/1992 con la quale lo Stato ha provveduto a indennizzare i soggetti danneggiati in modo irreversibile dalla somministrazione di sangue ed emoderivati infetti.
This paper analyzes the possible compensation scenarios following the health emergency caused by the Covid-19 pandemic, verifying to what extent the civil liability enforced against health professionals and health structures can be effective in granting compensation for damages alleged by patients who did not receive adequate treatment following the outbreak of the pandemic during the first lockdown (March-May 2020). Speculating on the history and outcomes of the HIV-tainted blood litigation, the work further addresses to what extent the model of civil liability of State and regions — which seem to have disregarded precise and detailed measures previously issued to allow the National Health System as a whole to effectively handle the outburst of a flu pandemic — may polarize the litigation promoted by Covid victims in the first wave of the pandemic. In conclusion, it is suggested to consider the establishment of a State-financed fund to compensate Covid victims, tailored at settling the cases of this possible litigation, in order to avoid the inconveniences caused by 210/1992 law, with which the State provided to indemnify subjects irreversibly damaged by the administration of HIV and hepatitis-tainted blood and blood products.

It is not obvious at all whether States should compensate victims of erroneous judicial decisions. In many countries, individuals are entitled to compensation for the time spent in prison or in custody as a consequence of wrongful conviction or wrongful detention. Individuals can also seek damages before certain international courts for the harm suffered as a result of certain breaches of the law committed by national courts. And in a few legal systems the State is liable for the harm caused by last instance judicial decisions which are manifestly illegal. The present paper analyzes whether and under which circumstances is socially desirable to make States pay damages for the harm caused by judicial errors, and concludes such compensation might be eventually efficient in criminal and international cases, but not in civil disputes where the error at issue may eventually be corrected by national courts.

El coronavirus o COVID-19 ha causado una desgracia humana de proporciones extraordinarias. Una vez pasada la primera fase, de gestión de la crisis sanitaria, comienza otra, en la que se pueden analizar las razones por las cuales se ha producido dicha crisis. A pesar de que la pandemia típicamente constituye un suceso inevitable, que puede ser subsumible en el concepto de fuerza mayor, pueden haber ocurrido algunos episodios en los que los daños, o su agravación, sean imputables a la conducta de personas determinadas, sean particulares y empresas o autoridades públicas. Dada la trascendencia y seriedad de los daños, se anuncian ya acciones tanto civiles como penales, y en España se  ha  dictado  ya  una  primera  sentencia  condenatoria  de  una  administración  pública.  Este trabajo analiza, pues, los principales escenarios en los que cabe plantearse la responsabilidad extracontractual por daños derivados del COVID-19.

The State and its public officials have a function to protect its people from harm and make sure that their needs are met. However, what if the State through its public officials have been neglectful of its functions to the point that it brought harm to the people? Using the case of disaster risk reduction and management (DRRM) in the Philippines, the research question is, “Can RA 10121 be used as a tort mechanism to compel public officials to do their DRRM functions?” In response, this paper argues that RA 10121 can be used as a tort mechanism to compel public officials to do their DRRM functions as negligence of such functions could lead to these officials being sued in court for tort. The method used for the study is discourse analysis of news articles on DRRM issues, RA 10121 and other disaster laws, and Supreme Court tort cases against local government. Results show that the three biggest DRRM issues in the country are delay of services, improper disbursement of relief, and politicking in DRRM procedures. In the case of the laws, RA 10121 has provisions against negligence and punishment for public official violators which it shares with other disaster laws, and Supreme Court rulings show liability of local governments due to jurisdictional supervision. In conclusion, these results reinforce the argument of the paper.

The Supreme Court addresses the question of whether a Region can be held liable towards a company, which complains for having suffered damage as a result of the enactment of an unconstitutional regional law. The answer of the Court is negative and it is based on the principle of the legislator's irresponsibility for any damage resulting from its legislative function, since the latter is an expression of a free political power, as such unquestionable, against which private individuals have no legally protected positions. This conclusion can be highly criticised as it is based on arguments that appear to be completely outdated in the light of the current features of the Italian legal system, even in light of the European integration process.

Il contributo esplora i possibili scenari risarcitori conseguenti all’avvento dell’emergenza sanitaria determinata dalla pandemia del Covid-19, verificando in che misura la responsabilità civile azionata nei confronti di operatori sanitari e strutture possa risultare effettiva nell’agevolare il risarcimento dei danni lamentati da quanti non abbiano potuto ricevere cure adeguate in esito alla diffusione del Coronavirus durante il primo lockdown (marzo-maggio 2020). Ragionando sul contenzioso seguito al caso del sangue infetto, si verifica come il modello della responsabilità civile di Stato e Regioni, che sembrano aver disatteso precisi e dettagliati provvedimenti emanati per consentire al Sistema Sanitario Nazionale nel suo complesso di essere pronto a gestire in modo ottimale l’avvento di una pandemia influenzale, possa polarizzare il contenzioso promosso dalle vittime del Covid nella prima ondata. Nelle conclusioni si propone di considerare l’istituzione di un fondo finanziato dall’erario destinato alla compensazione delle vittime destinato ad operare su base transattiva, per non replicare gli inconvenienti determinati dalla legge n. 210/1992 con la quale lo Stato ha provveduto a indennizzare i soggetti danneggiati in modo irreversibile dalla somministrazione di sangue ed emoderivati infetti.
This paper analyzes the possible compensation scenarios following the health emergency caused by the Covid-19 pandemic, verifying to what extent the civil liability enforced against health professionals and health structures can be effective in granting compensation for damages alleged by patients who did not receive adequate treatment following the outbreak of the pandemic during the first lockdown (March-May 2020). Speculating on the history and outcomes of the HIV-tainted blood litigation, the work further addresses to what extent the model of civil liability of State and regions — which seem to have disregarded precise and detailed measures previously issued to allow the National Health System as a whole to effectively handle the outburst of a flu pandemic — may polarize the litigation promoted by Covid victims in the first wave of the pandemic. In conclusion, it is suggested to consider the establishment of a State-financed fund to compensate Covid victims, tailored at settling the cases of this possible litigation, in order to avoid the inconveniences caused by 210/1992 law, with which the State provided to indemnify subjects irreversibly damaged by the administration of HIV and hepatitis-tainted blood and blood products.

The issue of post-war property nationalization and its possible restitution is important for all Central Eastern European countries, but definitely holds a special significance for Poland. This article deals with the legal difficulties associated with restituting property and receiving compensation for property taken in the process of mass nationalization by the communist state in Poland after World War II. Unlike in most countries in Central and Eastern Europe, reprivatization in Poland comes down to judicial review of the correctness of the decisions issued in the past with regard to post-war nationalization laws and decrees. Restitution in Poland is court-conducted, ad hoc restitution litigation, which appears incoherent in some of its outcomes.

This paper deals with the question which court is competent to establish the issue of breach of EU law under Polish rules on civil law state liability for damages - and when it is wiser to use the competence of the constitutional court in this cases.

Reparación de las víctimas del estallido social en un reciente proyecto de ley "...Aunque en apariencia modifica una acción judicial, la especialidad es profunda: el automatismo con que debiera operar la responsabilidad (se presumen el daño, la causalidad y la culpa) no parece muy consistente con el sistema de la falta de servicio sino, al contrario, más propio de un régimen objetivo de compensación..." Miércoles, 22 de septiembre de 2021 a las 11:31

Western legal systems are far from having provided the same solution to the problem of whether acquitted pre-trial detainees should be compensated for the harm suffered as a result of detention on remand. Various arguments have been formulated in order to justify or criticize this compensation, but the possible incentive effects of this compensation on criminal behavior has not yet been considered. This paper analyzes these effects, focusing on the case where detention was lawfully and diligently carried out by State agents, and not having been caused by negligence on the part of the detainee. The paper shows that such compensation can either deter crime or encourage it, depending inter alia on the standard of evidence used to decide whether to compensate or not. Finally, the paper analyzes which standards of evidence maximize both deterrence and social welfare, and discusses some possible extensions.

El alcance de la reparación por el actuar legítimo del Estado no ha tenido una solución pacífica en la jurisprudencia ni en la doctrina, en particular por la ausencia de una norma que la regule. Es así que la cuestión ha tomado relevancia nuevamente por la sanción de la Ley de Responsabilidad del Estado. A su vez, el anteproyecto del Código Civil y Comercial contenía disposiciones al respecto, aunque finalmente aquella propuesta no fue tenida en cuenta en el Código Civil y Comercial finalmente aprobado por el Congreso de la Nación.
En este contexto, se analizará la evolución de la jurisprudencia de la Corte Suprema de Justicia de la Nación y se estudiarán las distintas posturas adoptadas por la doctrina. Seguidamente, se abordará de modo particular el texto del anteproyecto del Código Civil y Comercial y la solución adoptada por Ley de Responsabilidad del Estado, para finalizar con nuestra opinión personal sobre el tema.

It is not obvious at all whether States should compensate victims of erroneous judicial decisions. In many countries, individuals are entitled to compensation for the time spent in prison or in custody as a consequence of wrongful conviction or wrongful detention. Individuals can also seek damages before certain international courts for the harm suffered as a result of certain breaches of the law committed by national courts. And in a few legal systems the State is liable for the harm caused by last instance judicial decisions which are manifestly illegal. The present paper analyzes whether and under which circumstances is socially desirable to make States pay damages for the harm caused by judicial errors, and concludes such compensation might be eventually efficient in criminal and international cases, but not in civil disputes where the error at issue may eventually be corrected by national courts.

This article examines the controversial measure of remand in Spain in the light of two striking facts: firstly, the ubiquity of this preventative measure in judicial practice (at the beginning of the year, 16% of the prison population were pre-trial detainees) and, secondly, a compensation system based on state liability that, in the case of acquittal, has proven ineffective since 1985 and that has recently been shaken to its core by judgements of the European Court of Human Rights and the declaration by Spain's own Constitutional Court of the unconstitutionality of a number of provisions of Article 294 of the country's Organic Law on Judicial Powers. In addition to reviewing the developments leading up to the current situation, the article sets out the parameters for the debate on how to properly tackle two legislative reforms that now appear more pressing than ever.

O artigo analisa o tema da responsabilidade do Estado “pelo” contrato
como forma de responsabilidade extracontratual, tomando como
base danos eventualmente gerados por lacunas e erros em contratos de
concessão comum ou de parceria público-privada.

Este estudio aborda la tutela del derecho de propiedad privada frente a intervenciones administrativas en el seno de dos grandes sistemas jurídicos de ámbito europeo: el Derecho de la Unión Europea y el del Convenio Europeo de Derechos Humanos. Para ello, se exponen de modo sistemático las estructuras de protección existentes en ambos sistemas, analizando los requisitos y límites de las figuras de la expropiación y de la delimitación del contenido del derecho, así como el papel de la responsabilidad patrimonial para la construcción de una cláusula de cierre de la garantía patrimonial del ciudadano. Desde el paralelismo estructural entre la tutela del derecho de propiedad en ambos sistemas jurídicos, se examinan, a través de un amplio análisis jurisprudencial, las divergencias y particularidades propias de cada uno de ellos, plasmadas en elementos tales como el margen de apreciación concedido a los Estados o las diferencias en la configuración y aplicación judicial del principio de proporcionalidad.

This paper is focused on the competence of the constitutional court to review constitutionality of the legal acts of self-governmental units in the preceedings launched by constitutional complaint and the effects of exercising this power for cases concerning state liability in damages for wrongful laws.