Community Influences on the Material Liability of Magistrates for Prejudices Caused by Material Errors

• Author: Adriana Ioana Pîrvu
• Position: University of Pitesti, Faculty of Legal and Administrative Sciences
• Pages: 115-122

Legal Sciences

115

Community Influences on the Material Liability

of Magistrates for Prejudices Caused by Material Errors

Adriana Ioana Pîrvu

University of Pitesti, Faculty of Legal and Administrative Sciences, andalutza@yahoo.com

Abstract: The paper`s main issue is the fact that in the last years Romania is on top of the list of the sta tes

paying the highest damages further to the convictions in front of ECHR, fact that determines an increasing

dissatisfaction of legal experts but also of the population. This controversial situation generated the

reconsideration of the mater ial liability of magistrates, for the judicial errors and the prejudices consequently

created, established not only befor e international courts but also before domestic courts. Tacki ng into

consideration that, at present, numerous proposals for settling this issue come from more and more subjects,

with or without a legislative initiative right, a mong which the Ministry of Economy and Finances, the

Ministry of Justice or The Sup erior Council of Magis trature the paper tries to capture a perspective view of

the material liability of magistrates, for the judicial errors in our legal system but also in other systems of law,

which can be seen as a source of inspiration. According to the legislation in force, the only one liab le before

an injured party that suffered a prejudice through a judicial error is the state, whose right and possibility to

recover the counter value granted to the prejudiced person through the filing of r ecourse action against the

judge to whom the judicial error is imputable, are acknowledged. The magistrate may be held liable only

when the judicial error is caused by the exercise of the function in bad f aith or with serious negligence. The

application of such concepts as “bad faith” and “serious negligence” is, however, difficult, due to insufficient

criteria for their interpretation, considering all the nuances, and quantification, included by law. Also, please

note that, through the creation of the possibility that each individual holds the magistrate liable for alleged

prejudices caused by the latter, the magistrate’s liability and the good functioning of justice would be

seriously injured. Also, the fac t that numerous convictions obtained by Romania before ECHR were due to

the incoherent or abusive legislation, which the magistrates were a nd are compelled to observe, must not b e

neglected. From this point of view, the magistrates could be held materially liable, based on grounded

reasons, only in the context of a fair, coherent and concise legislation meeting the justice and celerity need of

the litigant parties in the settlement of disputes. Therefore, the avoidance of the convictions based on judicial

errors causing material and mora l prejudices, before ECHR, but also before national courts, supposes the

application of coherent measures both in terms of amending the internal legislation and its adaptat ion and

harmonization according to European standards, and in terms of establishing a group of magistrates

corresponding to the current optimum magistrate profile, a desiderate which needs to b e achieved to meet the

current needs of Romanian justice.

Keywords: magistrates; liability; prejudice

1. Introduction

The fact that Romania has been lately ahead of the States that pay the highest damages further to

convictions by ECHR causes a more and more pronounced dissatisfaction of legal experts, but also of

the population.