Răspunderea civilă pentru prejudiciile cauzate prin erori judiciare
Civil liability for the damage caused by judicial errors

Summary/Abstract: In any democratic state the activity carried out by the body of magistrates must be limited exclusively to the law and in compliance with the Constitution, because, otherwise, those judgments pronounced by ignoring these requirements, the fundamental rights and freedoms of the citizens, may lead to the commission of some judicial errors, through which the litigants suffer both from damage of material, but especially moral nature.The legal grounds for granting compensations can be found in the Constitution itself, Article 52 (3) specifying that „the state is patrimonially liable for the damage caused by judicial errors. The liability of the state is established in accordance with the terms of the law and does not remove the liability of the magistrates who exercised their function in bad faith or serious negligence”. The text included in Article 52 (3) of the Romanian Constitution was the basis for the elaboration of the Law No 303/2004 on the status of judges and prosecutors1, amended by the Law No 242/20182, which in Article 96 of the law includes provisions governing the liability of the state for the damage caused by judicial errors, in general, and also rules that apply to these types of errors, produced in other cases that are not limited to criminal trials, therefore civil cases as well.Another ground, with a much larger scope of applicability is the one provided by the provisions of Article 3 of Protocol 7 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms, which regulates the case „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 the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him”.The European Convention provides the European legal framework for the access of any natural or legal person to a court independent of the will of the state, the protection of the citizen against illegalities, arbitrariness and gross abuses committed in more and more cases by the courts, protection expressed in the phrase the right to a fair trial, a phrase that includes a set of procedural guarantees which allow the enhancement of the rights protected by the Convention, Article 6 (1) stating that „in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.The state, as a responsible person, has the obligation to account for the activity of the judicial bodies and not for the deed of another, as a guarantor of the legality and independence of the act of justice, so a tort (extra-contractual) liability independent of any guilt, based on objective grounds.From these provisions it results that the liability of the state is a direct, main, objective one, but it does not exclude the liability of the magistrate who is guilty on a subjective level of the judicial error caused, being possible for the magistrate to be held accountable in subsidiary, but only to the state, which has an action in regression against him, admissible under certain special conditions.

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