Legal framework and application of the public liability regime

Bodies exercising public authority are subject to liability

Unlawful acts and actions (as well as inaction) fall within the scope of public liability

Normative activity in the exercise of regulatory authority fall within the scope of public liability

Review of laws to determine the compliance of the public liability regime with the criteria above including the law on obligations, law on administrative procedures, law on administrative disputes and law on the constitutional court process (for liability due to normative activity). The fact that normative activity or normative inaction fall under the scope of public liability regime should be explicitly mentioned in the legal framework (e.g. special law on public liability, also laws on the constitutional court or other courts handling disputes regarding constitutionality and lawfulness of normative acts) or there should be case-law confirming that normative activity or normative inaction fall under the scope of public liability regime. Possible examples of liability for normative activity or inaction include: - Right to claim compensation for damages caused by a normative act that was declared unconstitutional even if there was no individual act adopted on the basis of the provision that was declared unconstitutional or if the consequences caused by the unconstitutional provision cannot be eliminated by amending an individual act; - Right to claim compensation of damages caused by normative inaction (i.e. failure of the regulator to adopt a normative act within the deadline stipulated by law or court decision). There can be criteria in place that limit the scope of liability for normative activity or inaction, e.g. the damage was caused by breach of duties that are “sufficiently serious”, the provision in the normative act is directly applicable, there is evidence of unequal treatment. However, a situation where liability exists only in case an individual act has been adopted on the basis of a normative act, which was declared unconstitutional, is not sufficient for meeting the requirement.

Lawful acts and actions can also fall within the scope of public liability

It is necessary to determine, if lawful acts and actions can fall under the scope of public liability based on explicit provisions of the law or established court practice. An example of public liability for lawful acts and actions would be a situation, where it would be manifestly unjust to allow the injured person to bear the damage alone, having regard to the following circumstances: the act is in the general interest, only one person or a limited number of persons have suffered the damage and the act was exceptional or the damage was an exceptional result of the act. Possible real-life examples include: - compensation for property owners whose land is devalued by the construction of a road or public facility) - Compensation for health damage caused by a lawful vaccination - Compensation for the withdrawal of water or forest rights if this becomes necessary as a result of nature conservation measures. - Compensation for damage caused by construction work as part of transport projects or similar major projects. - During a criminal pursuit, an innocent bystander is injured by a ricochet from a police gun during a criminal pursuit. The right for compensation for expropriation of property alone (i.e. if this rule is not applied in other non-specified situations, where public authority is exercised), is not sufficient.

The specified time limit for submitting a public liability request is not shorter than 1 year

The time limit for submitting a public liability request (i.e., the period of prescription) must be specified in the legal framework and it should not be less than one year after the applicant could have become aware of the damage.

Fair compensation is guaranteed

The methodology on how to define compensation should be specified in the legislation (pecuniary, restitutio in integrum, return to original state), and according to this fair compensation (damnum emergens and lucrum cessans, actual losses as well as loss of profit) should be guaranteed.

There is a general administrative procedure to claim compensation due to state liability and the deadline for reviewing the claim by the responsible state authority is two months or less

Compensation payments from state budget for confirmed cases of state liability are paid

Analysis of administrative data on amicable settlements for public liability, the payments made from the state budget to entitled applicants or court rulings in public liability cases. Payments made by the state to cover the court costs are excluded.