Possible infringements of constitutional principles and the convention of human rights while implementing the principle of state liability for the acts of the courts of last instance
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Abstract
The article discusses whether a member state of the European Community can implement and apply the principle of state liability for the acts of the courts of last instance without infringing the principles that have constitutional value and are protected by the Convention of Human Rights and Liberties.
Taking into account the content of the principles of res judicata, independence and impartiality of the courts and nondiscrimination, the author analyses whether it is possible not to infringe the said principles when a decision concerning judicial error is taken by national judicial institutions. The analysis also covers the question of whether the said right that is derived from the EC law can be implemented by using existing legal procedures or whether steps have to be taken in order to create new judicial institutions that could deal with claims for damages.
The author comes to the conclusion that the obligation of national judicial institutions to judge the claims for damages does not infringe upon the principle of res judicata, although it contravenes the requirement of „issue preclusion” that prevents a person from relitigating an issue in a claim on a different cause of action. The conclusion is only valid under the condition that the requirement of „issue preclusion” is not considered part of the principle of res judicata according to the laws of the state.
Moreover, the author draws the conclusion that when lower national courts judge the illegality of the acts of the courts of last instance, some doubts arise as to the proper protection of the principle of impartiality and independence of the courts. A state having a hierarchical court system has no possibility to ensure that all doubts concerning impartiality of courts will be eliminated, especially when the courts of last instance adjudicate their own cases. Doubts could be excluded if a specialized national judicial institution or an international judicial institution such as the European Court of Justice would deal with cases concerning state liability for the acts of the courts of last instance.
Lastly, it is submitted that a state does not infringe upon the principle of nondiscrimination if it implements into national law the principle of state liability for acts infringing EC law and attributable to the courts of last instance and does not provide analogous legal remedy to individuals that intend to defend rights derived from national law.
Taking into account the content of the principles of res judicata, independence and impartiality of the courts and nondiscrimination, the author analyses whether it is possible not to infringe the said principles when a decision concerning judicial error is taken by national judicial institutions. The analysis also covers the question of whether the said right that is derived from the EC law can be implemented by using existing legal procedures or whether steps have to be taken in order to create new judicial institutions that could deal with claims for damages.
The author comes to the conclusion that the obligation of national judicial institutions to judge the claims for damages does not infringe upon the principle of res judicata, although it contravenes the requirement of „issue preclusion” that prevents a person from relitigating an issue in a claim on a different cause of action. The conclusion is only valid under the condition that the requirement of „issue preclusion” is not considered part of the principle of res judicata according to the laws of the state.
Moreover, the author draws the conclusion that when lower national courts judge the illegality of the acts of the courts of last instance, some doubts arise as to the proper protection of the principle of impartiality and independence of the courts. A state having a hierarchical court system has no possibility to ensure that all doubts concerning impartiality of courts will be eliminated, especially when the courts of last instance adjudicate their own cases. Doubts could be excluded if a specialized national judicial institution or an international judicial institution such as the European Court of Justice would deal with cases concerning state liability for the acts of the courts of last instance.
Lastly, it is submitted that a state does not infringe upon the principle of nondiscrimination if it implements into national law the principle of state liability for acts infringing EC law and attributable to the courts of last instance and does not provide analogous legal remedy to individuals that intend to defend rights derived from national law.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
