The possibility that employees or agents of the state and other public entities can be personally sued for civil liability occasioned by shortcomings in medical assistance before and after childbirth
Liability of civil servants
RULING Nº 5/05
5 of January of 2005
As per the civil liability of the state and other public bodies for acts or omissions amounting to a violation of rights, freedoms or guarantees or causing prejudice to others, ordinary legislation may be introduced to adjust the rules governing civil servants' and other state employees' exclusive liability in order to limit external liability to fraudulent conduct, provided victims continue to be protected by virtue of provisions whereby the public body is directly liable and able to take internal action for indemnity against the civil servant or other state employee whose conduct has caused the damage.
The interpretation (in connection with acts carried out in the performance of public administrative duties in such a way as to infringe human rights) according to which the civil liability of members of public bodies/ public servants may not be engaged jointly with that of the state for acts which are merely improper or negligent neither violates Article 22 of the Constitution (which governs only the liability of public bodies) nor goes beyond the limits set by Article 271.1 of the Constitution (which provides that civil servants and other state/public employees are civilly liable, criminally responsible and accountable in disciplinary proceedings for acts or omissions in the performance of their duties as a result of which citizens' legally protected rights or interests are violated, and that legal action or prosecution may not at any stage be subject to the prior approval of a higher authority).
The case relates to an action for civil non-contractual liability brought to obtain compensation from two doctors and a hospital for shortcomings in the medical care provided before and after the delivery of a child, as a result of which the child was born with serious cerebral palsy. The doctors were acquitted by the trial judge, who ruled that civil servants and other state/public employees were civilly liable in respect of third parties only if they had acted beyond their authority or fraudulently in the performance of their duties.
The question of unconstitutionality related only to the interpretation according to which victims could not bring an action against civil servants or other state/public employees if they had acted merely negligently, but not fraudulently, in the performance of their duties. In other words, the only issue that had to be resolved was whether the victims could bring an action against civil servants or other state/public employees who acted negligently in the performance of their duties.
The interpretation of the rule in question - according to which it is not possible to bring an action against civil servants and other state/public employees in order to establish liability for an action attributed to such civil servants or employees on grounds of mere negligence and not fraud on their part - was not held to be unconstitutional by the Constitutional Court.
The Constitutional Court has not often been called on to rule on this constitutional issue. It has dealt with it previously only in Judgment 236/2004, in which it ruled that the fact that the civil liability of civil servants and other state employees for acts carried out in the performance of their duties was limited to fraudulent acts was not unconstitutional.