OSSERVAZIONI COMPARATISTICHE SULLA JUDICIAL LIABILITY IN ALCUNI ORDINAMENTI EUROPEI

Abstract

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. Judges liability is therefore an expression of a fundamental and world-wide change in judicial structures. Exemplary in this context is the jurisprudence of the ECJ, 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. The connection between public international law and liability of the judiciary becomes even more obvious when looking at the European Convention on Human Rights (ECHR), where an individual application requires that all domestic remedies be first exhausted. In other words, the ECHR is almost exclusively concerned with acts of the contracting State judiciary, often adjudicating compensation (just satisfaction) on the basis of Art. 41 ECHR. Conclusively, the question should be asked whether new and uniform liability standards are needed to ensure the consistency and predictability of a legal system. In any case, the transformation of the judiciary53— or rather the recent changes and in general the progressive differentiation of the judiciary tasks — represent a further opportunity to reflect upon the current legal situation.