An investigation file that is lost, a deliberation that drags on for two years, an expert report that is never ordered despite repeated requests... These situations are not simply a matter of annoyance but can constitute a real malfunction in the public justice service. Contrary to popular belief, the state is not immune from liability in these cases, whether it be the State liability for judicial malpractice or, in separate cases, that of judges and magistrates. The law provides mechanisms for compensating litigants who are victims of such malfunctions. What are the conditions under which such liability can be incurred, and who is entitled to compensation?
The foundations of State responsibility
The State's liability for judicial malfunction is based primarily on article L. 141-1 of the Code of Judicial Organisation. This article sets out a solemn principle: "The State is obliged to make good any damage caused by the defective operation of the public justice service".
This principle has not always existed. Historically, the State enjoyed a form of immunity in the exercise of its judicial function. This concept has evolved gradually. First with the Act of 5 July 1972, which laid the foundations for this liability. This was followed by successive developments in case law, which clarified and broadened the conditions under which such liability could arise.
A major turning point in the case law of the Cour de cassation came with the "Bolle-Laroche" decision of the Assemblée plénière on 23 February 2001. This ruling considerably relaxed the concept of gross negligence, making liability claims against the State more accessible.
European law has had a decisive influence on this development. The European Court of Human Rights has regularly condemned states for judicial malfunctions. In the Kudla v. Poland judgment of 26 October 2000, it stated that states must provide citizens with an effective remedy to complain about excessive length of proceedings.
More recently, the reform introduced by the Law of 18 November 2016 explicitly introduced the expression "public justice service" into the Code of Judicial Organisation, reinforcing this concept.
Who can hold the State liable?
Only "users" of the public justice system can hold the State liable on the basis of article L. 141-1 of the Code de l'organisation judiciaire. This concept has been clarified by abundant case law.
Parties to proceedings are, by definition, users of the public justice service. This includes the plaintiff, the defendant and also the civil party in criminal proceedings.
Case law has gradually broadened this concept. In 2008, the Court of Cassation recognised the status of user for "vicarious victims". The parents of a person who has been remanded in custody and who has committed suicide can therefore claim compensation for their personal losses.
The Bar Association may also act as a user when it is claimed that a right essential to the practice of the legal profession has been infringed, as the Paris Tribunal de Grande Instance ruled in 1999.
On the other hand, some people are not considered as users, but as 'collaborators' of the public service of justice. This is the case for company liquidation agents and legal experts. A separate liability regime applies to these employees.
Absolute third parties to the public service of justice benefit from a no-fault liability regime, which is more favourable but has restrictive conditions of application.
A concrete example: a person under investigation in a criminal case is a user of the public justice service. If his or her file is mislaid, considerably delaying the proceedings, he or she can take action on the basis of article L. 141-1 of the COJ to obtain compensation.
Conditions of liability
Article L. 141-1 of the Code of Judicial Organisation provides that the State's liability "shall be engaged only by a gross misconduct or denial of justice ". These two concepts are the essential conditions of this responsibility.
Gross negligence
The concept of gross misconduct was redefined by the Assemblée plénière of the Cour de cassation in its ruling of 23 February 2001. It is now understood to mean "any deficiency characterised by an act or series of acts that demonstrate the inability of the public service of justice to fulfil the mission entrusted to it".
- An abnormally long hearing time
- Prolonged inaction by an examining magistrate
- The disappearance of a criminal file
- Deliberations drag on for over a year
- Failure to respect fundamental procedural guarantees
It is important to note that a number of negligent acts, which taken on their own would not constitute gross negligence, can, when accumulated, amount to defective operation of the public justice service.
The denial of justice
Denial of justice is the second way in which the State can be held liable. Defined in article L. 141-3 of the French Code of Judicial Organisation, this is defined as a refusal to respond to requests or a failure to try cases that are ready to be tried.
But case law has given it a broader meaning: failure by the State to fulfil its duty to protect the courts. Failure to allow a reasonable time for a case to come to trial is a typical example of a denial of justice in the broadest sense.
Proof, prejudice and causal link
To obtain compensation, the claimant must prove the existence of :
- Gross negligence or denial of justice
- Direct and certain loss
- A causal link between the malfunction and the damage suffered
The burden of proof lies with the claimant. The damage may be material (financial loss) or moral (injury to honour, anxiety).
The case law also requires the claimant to have first exercised the remedies available, where these could have remedied the alleged malfunction.
Practical aspects
Liability claims are subject to the four-year limitation period provided by the law of 31 December 1968. The period begins to run on the first day of the year following the year in which the rights were acquired.
Jurisdiction for these actions lies with the courts, the tribunal d'instance if the claim is for less than €10,000, and the tribunal de grande instance if the claim is for more than €10,000.
In practice, actions are generally brought before the Paris judicial court, which has developed particular expertise in this area.
One important point: the aim of this action is to obtain compensation and not to call into question the court decision itself. The authority of res judicata is not affected by any conviction of the State.
Special liability regimes
In addition to the general regime set out in article L. 141-1 of the Code of Judicial Organisation, there are special regimes for State liability, in particular :
- Compensation for unreasonable procedural delaysas distinct from compensation for unjustified pre-trial detention (articles 149 to 150 of the Code of Criminal Procedure)
- Compensation in the event of a review of a criminal conviction (article 626 of the Code of Criminal Procedure)
- Special responsibility for guardianship of minors and protection of adults (articles 412 and 421 of the Civil Code)
These more favourable to victimsThey do not require proof of gross negligence or denial of justice.
Lastly, litigants can apply to the European Court of Human Rights for "just satisfaction" in the event of a breach of their fundamental rights by the operation of the justice system, in particular the right to be tried within a reasonable time.
The number of liability claims against the State has increased significantly in recent years. The annual report from the Ministry of Justice shows a steady rise in the number of claims and the amounts of compensation awarded.
Our firm assists victims of judicial malfunctions in their claims for compensation. If you believe that you have suffered loss as a result of gross negligence or a denial of justice, we can analyse your situation and determine whether the conditions for state liability have been met in your case.
Sources
- Code de l'organisation judiciaire, in particular articles L. 141-1 to L. 141-3
- Code of Criminal Procedure, articles 149 to 150 and 626
- Civil Code, articles 412 and 421
- 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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