PP991
Analítico de Periódico
VANNI, Domitilla
Some comparative reflections about judicial liability / Domitilla Vanni
Annuario di Diritto Comparato e di Studi Legislativi, v.8 (2017), p.977-1004
DIREITO PROCESSUAL CIVIL, RESPONSABILIDADE CIVIL DO ESTADO, ERRO JUDICIAL, ERRO JUDICIÁRIO, SEPARAÇÃO DE PODERES, SISTEMA POLÍTICO, SISTEMA JUDICIAL, RECURSO JUDICIAL, DIREITO COMPARADO, UNIÃO EUROPEIA
The emergence of an independent judiciary and the associated and consistent implementation of the separation of powers principle are fundamental achievements of modern times and important characteristics of the transition to the rule of law. Against this background, any attempt aimed at reforming the independence, control structure or liability of the judiciary must be viewed critically, since reform efforts in this area often imply profound modifications to the deep layers of a legal and political system. The question must be settled in the light of the new phenomena of Europeanization, globalization, and internationalization. These developments inevitably subject the judiciary to new challenges that will ultimately lead to a change in mentality, regarding the liability and control structures of the judiciary. In recent years, the influence of European and international laws has led to an ever-increasing pressure against the immunization and protection from liability that the judiciary has so far enjoyed. The liability of judges is therefore an expression of a fundamental and worldwide change in judicial structures. Exemplary in this context is the European Court of Justice case law, affirming that the EU principle of State liability can also be applied to judicial wrongs; furthermore, the European Commission has, in the past, promulgated the notion that the infringement procedure may also pertain to acts of the judiciary. Given that, the research aims to design a framework of the sensitive matter of judicial liability in a comparative perspective focusing on the ever-growing convergence of national legal systems in the sense of enhancing the protection of citizens if the judge incurred in some omissions or miscarriages of justice with fault. As a result of comparison, although the existence of some features in civil law legal systems, in each of them comparison has confirmed a general tendency towards an indirect liability of the State for acts made by the magistrate with the possibility of recouping losses from him/her, with the exclusion – except for the Spanish system – of a direct action towards the magistrate who committed some omissions or miscarriages of justice attributable to his/her guilt. On the other hand the principle of exemption from liability for acts of the judge performed in the exercise of his functions, rooted in common law systems, is traditionally understood as a “safeguard of the independence of the judiciary” as a whole. So under a different perspective but in the same view of safeguarding the independence of judiciary in common law systems the main topic of judicial recusal could be evaluated, although it refers just to principle of impartiality of judges, given that the common challenge hidden behind these sets of legal rules – regarding both judicial liability and recusals – is to protect the independence of those exercising a judicial function. In this perspective once again the apparent classic division common law – civil law systems is gradually collapsing to be transformed in an ever growing proximity between their legal rules.