Definition and Legal Classification of Judicial Liability
Die Judicial Liability refers to the civil and criminal liability of judges for their official conduct, particularly in connection with the exercise of judicial duties. It concerns the question of the extent to which a judge is personally liable for damages caused by erroneous decisions or other breaches of official duty in the course of adjudication. Judicial liability is a central element of the German legal system and contributes to safeguarding the rule of law, while at the same time constituting an exception to the otherwise prevailing judicial independence.
Legal Basis of Judicial Liability
Constitutional Foundations
The independence of judges is expressly guaranteed in Article 97 of the Basic Law (GG). Judges are subject only to the law and are independent in their decision-making. The purpose of this provision is to protect their freedom of decision from impermissible external influence, particularly from the state. On the other hand, there is a need to protect individual interests of citizens against breaches of official duty that may arise from judicial misconduct. This leads to the normative regulation of judicial liability under ordinary law.
Official Liability pursuant to Section 839 BGB in conjunction with Article 34 GG
The basis for asserting claims for damages against holders of judicial authority is Section 839 of the German Civil Code (BGB) in conjunction with Article 34 GG (so-called state liability). According to these provisions, it is generally not the judge personally who is liable, but the state in whose service the judge is employed if, in the exercise of a public office, a culpable breach of duty occurs.
Special Features of Judicial Liability
Judicial liability is subject to special conditions in comparison to other officeholders:
- Exclusion of Liability for Judicial Decisions (§ 839 para. 2 BGB): A judge is liable to the injured party for damages caused by an erroneous judicial decision only if the act constitutes a criminal offense (in particular perversion of justice pursuant to Section 339 StGB) and this offense has been established with legal finality.
- Principle of Subsidiarity: Before a claim for official liability can be asserted, legal remedies against the decision itself must typically be exhausted (reservation of legal remedies).
Personal and Criminal Responsibility of the Judge
Civil Liability
According to the rules of official liability, a judge’s civil liability is generally only secondary and subject to very strict prerequisites. The enforcement of civil claims against the state due to a judicial error requires an objective breach of duty and fault. In addition, all legal remedies (complaint, appeal, revision) must have been exhausted.
Criminal Liability
In criminal law, judges are principally affected by the offense of perversion of justice (§ 339 of the German Criminal Code, StGB) in the course of their duties. Criminal liability arises when a judge intentionally and severely violates the law in a grossly arbitrary manner:
- Perversion of Justice (§ 339 StGB): Requires intentional conduct and a significant departure from the law. In practice, however, convictions for perversion of justice are extremely rare.
In the event of a conviction for perversion of justice, the judge is personally liable for damages (§ 839 para. 2 sentence 2 BGB).
Procedures for Asserting Judicial Liability
Procedural Requirements
Claims in the context of judicial liability are to be directed against the state (the corporation in whose service the judge was employed). The lawsuit is conducted before the ordinary courts. Pursuant to Section 839 para. 3 BGB, liability exists only if the injured party could not obtain relief against the contested decision through ordinary or extraordinary legal remedies.
Recourse Against the Judge
According to Article 34 sentence 2 GG, the state may take recourse against the judge internally if the judge acted intentionally or with gross negligence. However, the prerequisite is material liability (e.g., a final conviction for perversion of justice).
Limits and Practical Relevance of Judicial Liability
In practice, the liability of judges for their decisions is significantly restricted to ensure an independent and fearless exercise of judicial office. The strict prerequisites and the far-reaching exclusion of personal liability are intended to prevent judges from being hampered in their decision-making by fear of liability.
Criticism and Discussion
The regulations on judicial liability are a subject of debate in legal scholarship and the public, particularly with regard to
- The compatibility of judicial independence and individual accountability
- The necessity of effective legal protection for citizens in cases of judicial breaches of duty
- The question of possible reform, especially regarding the scope of the exclusion of liability
International Context
Similar principles apply internationally: in most continental European legal systems, judicial liability is restricted in favor of judicial independence. However, individual states regulate in detail differently, for example, regarding the extent of judicial protection or the prerequisites for judges’ personal liability.
Summary
Judicial Liability is the umbrella term for the civil and criminal liability of judges for breaches of official duty in the exercise of their office. In Germany, the constitutionally guaranteed independence of judges largely excludes personal liability. Instead, the state regularly acts as the liable party. The judge’s personal liability—with the exception of grossly unlawful and criminal conduct—is limited to extreme exceptional cases in order to safeguard the independence of the judiciary and the functioning of the justice system.
Frequently Asked Questions
When and under what conditions can judges be held liable for their decisions?
Judicial liability for decisions is regulated extremely restrictively in Germany. It is subject to the special protection of judicial independence, which is a fundamental principle of the separation of powers. As a rule, judges are not personally liable for decisions made in the exercise of their office to ensure unswayed adjudication (§ 839 para. 2 BGB, Art. 34 GG). Judges may only be held personally liable in cases of intentional perversion of justice—that is, deliberate, willful violation of the law to the detriment of a party. Simple legal errors, mistakes, or interpretative differences do not give rise to liability. For breaches of official duty that do not constitute perversion of justice, only the state (employer) is liable, which may, under certain circumstances, seek recourse from the judge, if he or she intentionally or with gross negligence violated their duties.
What legal principles apply to judicial liability in Germany?
Key provisions on judicial liability are found in the German Civil Code, particularly in Section 839 BGB (liability for breaches of official duty) and in addition Article 34 of the Basic Law (liability for violations of sovereign duties). Section 339 of the Criminal Code (StGB) is also relevant, as it penalizes perversion of justice. According to Section 839 para. 2 BGB, there is an exception for judicial acts: liability arises exclusively in the case of a criminal offense—particularly perversion of justice. This means the threshold for liability is very high in order to protect independence and specifically excludes cases where judges merely misapply or erroneously apply the law.
What does perversion of justice mean in the context of judicial liability?
Perversion of justice, according to Section 339 StGB, is the intentional (!) bending of the law by a judge to benefit or disadvantage a party. This act must be deliberate and constitute a serious violation of the applicable legal order. Mere mistaken application of the law or a differing legal opinion does not amount to perversion of justice as long as the judge’s reasoning is still defensible. Only when the decision is entirely inappropriate, arbitrary, and rendered with conscious disregard for the law does perversion of justice arise—and thus one of the few conceivable cases of personal liability.
Who is liable in the normal case for judicial errors?
As a rule, it is not the judge who is personally liable, but the state for which he or she serves as an officeholder. This results from state liability pursuant to Art. 34 GG, under which responsibility for breaches of official duty devolves to the respective federal state or the federation. The risk of liability for judicial errors therefore falls to the state, which must compensate the injured party if a compensable breach of official duty exists. Personal liability of the judge is thereby limited to exceptional cases.
Does an affected citizen have a right to compensation for a judicial error?
There is generally no direct claim for damages if a court reaches a legally incorrect decision. Such a claim arises only if intentional, criminal perversion of justice can be proven and is subsequently established under criminal law. If there is ‘only’ a legal error (even of a gross nature), the citizen’s sole recourse is to file an appeal against the decision; a claim for damages is excluded. Only after exhausting all legal remedies and upon confirmation of a qualified breach of official duty (perversion of justice) may a claim for damages against the state—but not directly against the judge—arise.
Can the state seek recourse from the judge?
Yes, in exceptional cases, the state can seek recourse against the judge under Article 34 sentence 2 GG and Section 839 BGB. However, this requires that the judge acted intentionally or with gross negligence, for example in the event of proven perversion of justice. The threshold for such recourse is exceptionally high, as there must be an intentional or grossly negligent breach of duty; simple negligence is not sufficient. In addition, a recourse claim is only possible after a final determination of a breach of official duty causing harm has been made in judicial proceedings.
What role does judicial independence play with regard to liability?
Judicial independence (Art. 97 GG) is a fundamental element of the German rule of law and protects judges from facing personal liability claims for their decisions—even in cases of unpopular or controversial judgments. This principle ensures that judges are subject only to the law and need not fear influence from private parties, political actors, or the state. Any restrictions on judicial independence and associated liability risks would threaten impartiality and independent decision-making. The structure of judicial liability takes this into account by practically excluding personal claims and permitting them only in very serious exceptional cases.
