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The Pan-European General Principles on State Liability

I State Liability as a Sanction

  1. State liability as an instrument to “motivate” citizens to ensure the principle of legality by filing court actions?
  2. Can an administrative authority be “motivated” to respect the law by threating with financial “punitive” sanctions?

II State Liability as an Element of the “Rule of Law”

  1. All “rule of law”- requirements seek to avoid arbitrariness and offer individuals’ protection from arbitrariness - especially in the relations between the individual and the state

III State Liability as an Element of “Justice”

  1. The existence of administration is in everybody's interest
  2. Every administration employs civil servants
  3. Civil servants are human beings that may fail • Illegal acts of administration are inevitable
  4. Because administration is in everybody’s interest everybody should take on the risk of illegal administrative measures
  5. This is assured when the victims of illegal administrative measures are compensated by the treasury that has been “filled” with the taxes of the population
  6. State Liability as a Fundamental Right
    1. Right to compensation as a part of the right to liberty and security
    2. Right to compensation as an element of every fundamental freedom

1. Recommendation No. R (84) 15 relating to public liability

  • Reparation should be ensured for damage caused by an act due to a failure of a public authority to conduct itself in a way which can reasonably be expected from it in law in relation to the injured person. Such a failure is presumed in case of transgression of an established legal rule.
  • Even if the conditions stated in Principle I are not met, reparation should be ensured if it would be manifestly unjust to allow the injured person alone to bear the damage, having regard to the following circumstances: the act is in the general interest, only one person or a limited number of persons have suffered the damage and the act was exceptional or the damage was an exceptional result of the act.
  • The application of this principle may be limited to certain categories of acts only.

2. Recommendation CM/Rec(2007)7 on good administration

  • Article 23 – Compensation
    • Public authorities shall provide a remedy to private persons who suffer damages through unlawful administrative decisions or negligence on the part of the administration or its officials.
    • Before bringing actions for compensation against public authorities in the courts, private persons may first be required to submit their case to the authorities concerned.
    • Court orders against public authorities to provide compensation for damages suffered shall be executed within a reasonable time.
    • It shall be possible, where appropriate, for public authorities or private persons adversely affected to issue legal proceedings against public officials in their personal capacity.

3. Recommendation Rec (2001)9 on alternatives to litigation between administrative authorities and private parties

  • Internal reviews
    • In principle, internal reviews should be possible in relation to any act. They may concern the expediency and/or legality of an administrative act.
    • Internal reviews may, in some cases, be compulsory, as a prerequisite to legal proceedings.
    • Internal reviews should be examined and decided upon by the competent authorities.
  • Conciliation and mediation
    • Conciliation and mediation can be initiated by the parties concerned, by a judge or be made compulsory by law.
    • Conciliators and mediators should arrange meetings with each party individually or simultaneously in order to reach a solution.
    • Conciliators and mediators can invite an administrative authority to repeal, withdraw or modify an act on grounds of expediency or legality.
  • Negotiated Settlement
    • Unless otherwise provided by law, administrative authorities shall not use a negotiated settlement to disregard their obligations.
    • In accordance with the law, public officials participating in a procedure aimed at reaching a negotiated settlement shall be provided with sufficient powers to be able to compromise.
  • Arbitration
    • The parties should be able to choose the law and procedure for the arbitration within the limits prescribed by law. Subject to the law and the wishes of the parties, the arbitrators’ decisions can be based upon equitable principles.
    • Arbitrators should be able to review the legality of an act as a preliminary issue with a view to reaching a decision on the merits even if they are not authorised to rule on the legality of an act with a view to it being quashed.

4. ECtHR judgment Ryskovskyy v. Ukraine (29979/04), October 20, 2011

  • The applicant complained of the authorities’ failure to enforce a court judgment of 1994 entitling him to possession of a plot of land. The applicant relied on among others Article 13 (right to an effective remedy).
  • The Government in the present case have not shown that the applicant had in practice an opportunity to obtain effective remedies for his complaints, that is to say, remedies, which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.
  • Violation of Article 13 of the ECHR