French law provides for two no-fault liability regimes in matters of justice. One applies to public service employees. The other applies to third parties. These mechanisms complement the fault-based liability regime applicable to users.
Responsibility towards public service employees
The principle of occupational risk
This liability is based on the theory of professional risk. The State guarantees its employees against the risks associated with their participation in the public service.
This principle has existed for a long time. The Cames ruling (CE, 21 June 1895) established it for permanent employees of the Administration. The Giry ruling (Civ. 2e, 23 November 1956) applied it to occasional employees.
To be compensated, the loss must be "abnormal, special and of a certain gravity".
Permanent employees
Court-appointed experts fall into this category. The Conseil d'Etat has recognised their right to compensation when their remuneration is not paid by the party ordered to pay costs (CE, 26 February 1971).
The Cour de cassation takes a different view. It requires proof of fault on the part of the legal service in order to compensate an unpaid expert (Civ. 1re, 21 December 1987).
Legal representatives
The Cour de cassation has clarified their situation. Court-appointed agents are employees of the public justice system.
An agent who is the victim of a systematic failure to appoint may obtain compensation without proving fault. He must demonstrate abnormal, special and serious prejudice (Civ. 1re, 30 January 1996).
This case law was confirmed in 2006, although the loss was not considered in this specific case (Civ. 1re, 14 February 2006).
Lawyers: a special situation
A lawyer defending a party is not considered to be a member of the public service. He does not benefit from this no-fault liability regime (Civ. 1re, 13 October 1998).
He must invoke Article L. 141-1 of the Code de l'organisation judiciaire and prove that he has a criminal record. gross misconduct or denial of justice.
European protection for bailiffs
The European Court has reinforced the protection of judicial officers. In the Pini v. Romania judgment (22 June 2004), it stated that bailiffs are "an essential element of the rule of law".
If a bailiff is sequestered during the enforcement of a court order, the State may be held liable. The State must guarantee the safety of judicial officers in the performance of their duties.
Liability towards third parties
A favourable but restrictive regime
Third parties to the public service of justice benefit from a no-fault liability regime. This liability is based on abnormal risk and exceptional prejudice.
This scheme is more favourable than that of users, who must prove gross negligence or a denial of justice.
Restrictive definition of third party
Case law strictly defines the notion of third party. A third party is considered to be a person who is totally unrelated to the public service of justice.
A person injured during a police operation, without any connection with this operation, is a third party (Civ. 1re, 10 June 1986).
On the other hand, a person affected by a procedure, even if not formally a party to it, is classified as a user (Civ. 1re, 25 January 2005).
Recognised applications
- Bystander injured by a stray bullet during a police operation
- Damage suffered by the owner of seized property
- Damage caused by a delinquent minor placed with his grandparents (CE, 26 July 2007)
In the latter case, the Conseil d'État recognised that the placement of a delinquent minor creates "a special risk for third parties".
Jurisprudential limits
Release measures do not automatically engage the responsibility of the State.
The Conseil d'Etat has ruled that "neither collective pardon decrees nor sentence reduction measures incur the liability of the State in the absence of fault" (CE, 15 February 2006).
To obtain compensation, the third party must demonstrate the abnormal and special nature of the loss suffered.
Links with other schemes
These no-fault liability regimes complement the general system.
Prior qualification is essential. Before taking action, determine your status: user, collaborator or third party.
This qualification determines the applicable regime and therefore your chances of success.
Employees and third parties benefit from a favourable presumption. Users must prove gross negligence or a denial of justice.
Our firm can help you determine your exact status with regard to the public justice service. This first step is crucial if you are to choose the right legal strategy for your situation.
Sources
- Code of Judicial Organisation, articles L. 141-1 to L. 141-3
- Giry ruling by the Court of Cassation, 23 November 1956
- Council of State ruling of 26 July 2007 on "special risk".