Original scientific paper
Limited Judicial Liability for Damages – A Privilege Indispensable for Judicial Independence, or an Element of Strengthening Judicial Irresponsibility?
Vesna Rakić-Vodinelić
; Faculty of Law, University Union, Belgrade, Serbia
Abstract
Until today, judicial immunity has been explained by the need to secure independence of judges and courts. High requirements for election of judges and the demanding conditions for their dismissal were until recently considered to be sufficient to guarantee legality of judicial conduct of proceedings and correctness of judicial adjudication, so that the idea of disciplinary liability of judges had difficulties finding its advocates in the states successors of former Yugoslavia. In cases where judges cause damages by their work, the damage will be regularly compensated by the state, which can, in turn, under specific conditions raise a recourse claim against the judge.
This paper outlines some important points in the historic development of judicial immunity for damage compensation in England, USA, Germany and France. The contemporary laws and regulations and the leading cases of these countries are presented as well, including some relevant information on situation in some other European countries.
The main argument for establishing judicial immunity in civil cases, ie the need to guarantee judicial independence, is met in this paper by criticism, in particular from the viewpoint of current and announced legislative developments in Serbia. The author initiates her critical analysis by the submission that direct judicial liability is currently only an exception to the rule that the state covers the damages caused by judicial work, while the right of recourse of the state against a judge is generally limited to cases in which the damages were caused intentionally or by gross negligence. National legislations display a trend of further limiting civil liability of judges, and thereby also of the state, for compensation of damages, effectively broadening judicial immunity. On the contrary, European Court of Human Rights and the Court of Justice of the EU tend to extend the liability of the state, and thereby also the civil liability of judges. The binding force of the European judicial institutions for the national courts has in recent times led to effective limitation of judicial immunity.
In her concluding remarks, the author presents and explains her analysis of most recent tendencies in the development of judicial immunity in civil matters in Serbia. They are the following: under current rules of civil procedure, injured parties have difficulties securing their right of access to court when they decide to sue the state for damages caused by judges; the right of state to recourse claims against judges is planned to be limited, in the announced amendments of the Law on Judges, only to cases where judges have committed damages intentionally. Such an approach is considered to be inappropriate. It can secure neither real judicial independence, nor the rule of law. In addition, this approach discourages formation of reliable corpus of case law regarding civil immunity of judges.
Keywords
liability for damages; judicial immunity; judicial independence; civil procedure
Hrčak ID:
109727
URI
Publication date:
15.7.2013.
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