Today the Constitutional Court has issued a decision that the persons responsible for condemning the country at the ECHR may be held liable solely on the basis of a court sentence.  

The decision was taken after the Constitutional Court was notified by one of the Ministry of Justice magistrates included in the list of persons responsible for cases lost at the ECHR, who were sued for compensation. The judges concerned have asked the Court to withdraw the objection on the unconstitutionality of Article 27 of the Law on the Governmental Agent, which allows the state to submit recourse action against those responsible for condemning the country to ECHR. 

The authors of the exceptions believe that the provisions of the respective law violate the Constitution and the principle of judicial independence in making decisions.  

Having examined the materials of the case, the Court emphasized that the judges should have unfettered freedom to solve the cases impartially, in accordance with the law and their own assessments. The decisions given by them must be challenged through appeals, and not by the individual responsibility of judges, except in cases where the judges had acted in bad faith or admitted a serious omission during the decision-making process.

However, the state has the right to establish national mechanisms for the repayment of sums paid as compensation in processes lost at ECHR.

According to the Court, the regression institution is not contrary to the Constitution, as long as attracting to liability does not violate the independence of judges.

The current law provides for the possibility of recourse to the state solely on the basis of an ECHR judgment or decision without the obligation to have a court ruling, adopted in a separate trial, which would clearly state the culpability.

This does not cooperate with the Civil Code, which states the necessity of finding of guilt by a court decision, nor with the Law on the Status of Judges, which provides that the punishment of a judge will be determined only when the guilt of criminal abuse is established by a final sentence.

The Court observed that the provision on recourse of Article 27 of the Law on the Governmental Agent does not meet the overall framework of the accountability of judges, by allowing their accountability in the absence of a guilt finding by a court decision, only on the basis of an ECHR judgment.

The Court also noted that in the proceedings at the European Court, it is not relevant which public authority - the legislative, executive or judicial generated nationally the stated violations, because ultimately, the state is responsible for compensating moral and material damages.

In this regard, the Court stated that the recourse may be exercised only based on a sentence in a separate court proceedings at the national level that would state the guilt of persons, including of judges, for violating the European Convention.

We remind that the Venice Commission expressed itself on the same issue in June, 2016. Its opinion was requested by the Constitutional Court, which declined to examine the notification for months.

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