Unlawful and irregular work as a condition of state liability for damage caused by work of judges with particular reference to the problem of qualification of such work as a factual or a legal question in a proceeding

Abstract

In this paper, the authors discuss unlawful and irregular work of judges as a condition of liability of the Republic of Croatia for damage. In the introduction, they warn about different approaches to the question of state liability for damage caused by judges in contemporary legal systems, as well as the liability of European Union Member States when their courts infringe the norms of European law. They then analyze the type and the special conditions of state liability prescribed by the Courts Act. Special attention is given to the terms of unlawful work and irregular work of judges and their definitions in legal scholarship and case-law. The authors bring attention to the problem of qualifying such work as a factual question in civil procedure and the practical consequence of such qualification with regard to the rules regulating the burden of proof. By demonstrating the rules which should facilitate the distinction between factual and legal questions within undetermined legal terms, they conclude that their application upon the qualification of unlawfulness and irregularity of work of judges in the fulfilment of their judicial duty goes in favour of the standpoint that unlawful and irregular work is not a factual question, but a question of law.