A lost case file. A judgement handed down three years after the pleadings. A crucial expert report never ordered despite your repeated requests. These situations may constitute gross negligence or a denial of justice. The law then allows you to obtain compensation from the State. But you need to know the precise criteria and the procedure to follow.
Recognising gross misconduct in the justice system
Gross negligence is the primary basis for State liability. Its definition has undergone a major change.
Until 2001, the Court of Cassation defined gross misconduct as "that committed under the influence of an error so gross that a magistrate normally mindful of his duties would not have been drawn into it". This restrictive definition made it difficult to hold the State liable.
A turning point came with the decision of the Assemblée plénière on 23 February 2001. The Court of Cassation adopted a more flexible definition: "gross misconduct constitutes any deficiency characterised by a fact or a series of facts reflecting the inability of the public service of justice to fulfil the mission entrusted to it".
This new approach has paved the way for more compensation actions.
Concrete examples of serious misconduct recognised
The courts have recognised the following as serious misconduct:
- Loss of a criminal investigation file (TGI Paris, 5 January 2000)
- Deliberations lasting more than a year (TI Paris, 2 February 1993)
- Inaction by an examining magistrate for several years (Civ. 1re, 13 March 2007)
- Disclosure to the press of elements of a judicial investigation (TGI Paris, 3 April 1996)
- Failure to respect essential procedural guarantees
- Destruction of seals without prior formal notice (Civ. 1re, 9 July 2008)
The accumulation of several negligent acts may also constitute gross negligence, even if each one taken on its own would not be sufficient. For example, on 25 October 2000, the Paris Court of Appeal ruled that "while none of the negligence observed, taken in isolation, amounts to gross misconduct, on the other hand the defective operation of the public service of justice, which results from their combination, does amount to such misconduct".
What is not gross negligence
Not all malfunctions constitute gross negligence. The courts have rejected this characterisation for :
- Discourteous language used by a magistrate (Civ. 1re, 13 October 1998)
- A simple procedural error with no intention to harm
- A moderate delay in processing a case
- Irregularities already sanctioned by means of appeals
Denial of justice: a specific breach
Denial of justice is the second basis on which the State can be held liable.
Legal and jurisprudential definition
Article L. 141-3 of the Code of Judicial Organisation defines denial of justice as "the refusal to respond to requests" or "the fact of neglecting to try cases that are ready to be tried".
However, case law has extended this concept to include "failure by the State to fulfil its duty to provide citizens with legal protection".
Main forms of denial of justice
The denial of justice takes two main forms:
- Explicit refusal to rule on an application
A president of a tribunal de grande instance who refuses to appoint an arbitrator denies justice (Paris, 29 March 2001, confirmed by Civ. 1re, 1 February 2005).
- Failure to comply with the reasonable time limit for hearing a case
A time limit of three years for a hearing constitutes a denial of justice (TGI Paris, 6 July 1994). Similarly, the failure of a court to act for several years constitutes a breach by the State of its duty to provide legal protection.
The European Court of Human Rights regularly penalises states for failing to respect the "reasonable time" guaranteed by Article 6§1 of the European Convention on Human Rights.
Putting together your evidence file
The burden of proof lies with the claimant. Several elements are required.
Essential evidence
To prove gross negligence or a denial of justice, you need to bring together :
- All procedural documents demonstrating the malfunction
- A precise chronology of events with key dates
- Unanswered requests or reminders
- Any document attesting to the steps taken to remedy the situation
In the event of a denial of justice for refusal to adjudicate, two summonses by bailiff to the court registry are required (article 366-9 of the Code of Civil Procedure).
Essential preliminary steps
Case law requires you to have exhausted the ordinary remedies available to you before engaging the State's liability.
The Court of Cassation has established that "the inability of the public service to fulfil the mission entrusted to it can only be assessed insofar as the exercise of remedies has not made it possible to remedy the alleged malfunction" (Civ. 1re, 12 October 2011).
You must therefore have tried to remedy the malfunction through conventional procedural channels before bringing a liability action.
Compensation procedure
Jurisdiction and time limits
The action must be brought before a court of law. If your claim is for less than €10,000, the district court has jurisdiction.
Beware of the limitation period: the action is subject to the four-year limitation period set out in the Act of 31 December 1968. The period begins on the first day of the year following the year in which the rights were acquired.
The Court of Cassation considers that rights are acquired on the day on which the event giving rise to the damage occurred (Assemblée plénière, 6 July 2001).
Assessing the loss
The loss for which compensation is payable must be direct, certain and causally linked to the malfunction.
Can be repaired:
- Material loss: financial losses, costs incurred, loss of opportunity
- Non-material damage: anxiety, damage to reputation, loss of confidence in the legal system
In a case where the public justice system had failed to clarify the circumstances of a death despite 26 years of proceedings, the Paris Court of Appeal awarded 15,000 euros for loss of confidence in the judicial system (Paris, 28 April 2003).
How the procedure works
The procedure follows the ordinary rules of civil litigation. The State is represented by the State's Judicial Agent.
The average time taken to obtain a decision at first instance is one year. Decisions may be appealed and appealed to the Supreme Court, which can considerably extend the time taken.
An expert appraisal may be ordered to assess certain complex losses, in particular financial losses or psychological damage.
Examples of recent decisions
A number of significant decisions illustrate the evolution of case law:
- Compensation of €344,000 awarded to restaurant owners ruined by an error in judgment (Angers, 11 September 2002)
- Judgment against the State for the failure of investigators and examining magistrates in the case of the "Mourmelon disappearances" (TGI Paris, 26 January 2005)
- Compensation of €35,000 to the parents of a child murdered following a court decision giving custody of the child to a dangerous parent
- Recognition of the State's responsibility in the Outreau case (settlement with unduly detained persons)
These decisions reflect the greater rigour demanded of the public justice system and the greater consideration given to victims' injuries.
Against a backdrop of increasing litigation, liability claims against the State for judicial malpractice are multiplying. The number of claims has risen from 86 in 1999 to over 200 in recent years.
Given the legal complexity of these cases, the support of a competent lawyer is essential. Our firm can help you build a solid case and obtain fair compensation for your loss.
Sources
- Code of Judicial Organisation, articles L. 141-1 to L. 141-3
- Code of Civil Procedure, article 366-9
- Ruling of the Plenary Assembly of the Court of Cassation of 23 February 2001
- European Convention on Human Rights, article 6
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