Judicial errors, who is liable?

Categories: Civil
Imagine, your business is declared bankrupt by error of the Court, while actually another company should have been declared bankrupt. Understandably, your damages will be enormous. Now what to do?
A case in Belgium proves that this is not a mere theoretical scenario. In the latter case the Belgian state was held liable for all damages.

However, under Dutch law, the Dutch state can, in principle, not be held liable for this kind of mistakes. Liability for judicial errors has been excluded by the Dutch Supreme Court for a long time. A recent judgement by the Supreme Court, however, perhaps gives way to change.
In its judgement of 3rd December 1971, the Supreme Court stated that the Dutch state is, in principle, not liable for judicial errors. This was only different in cases where fundamental principles of law had been violated to such extent that there was no longer a fair and impartial trial, while no appeal against such a judgement was possible. With that case law, the Supreme Court actually ruled out the possibility of state liability for unlawful administration of justice.

After a judgement from the European Court of Justice in 2003, Köbler/Austria (2003 I-10239) in which it was stated that member states could, under certain conditions, be liable for violations of the law of the European Union by judicial authorities, the case law of the Dutch Supreme Court was no longer tenable.

In a judgement of 4th December 2009, the Dutch Supreme Court again, at least somewhat, opened the door for state liability. . In that judgement the Court stated that, in case of a judgement that was reversed by a higher Court, liability on the grounds of unlawful acts of the state might exist, when the judge who rendered the reversed judgement acted willfully wrong or reckless. Also state liability might exist when a judge grossly neglected his duties. In other words, in order for the state to become liable, the judge must have acted seriously reproachable in the fulfillment of his duties.

The conclusion is that the threshold for holding the Dutch state liable for judicial errors is still high, certainly in comparison to the state liability for unlawful legislation and unlawful administrative acts. On both latter areas of law, state liability is fairly easily assumed. With regard to state liability for unlawful administration of justice, it seems that the Supreme Court is well on its way to loosening its stringent case law on unlawful justice. However, we still have a long way to go. In my opinion there is no proper justification for making a distinction between state liability for unlawful administration of justice, on the one hand, and for unlawful legislation and administration, on the other hand.

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