The legislative and jurisprudential basis for state responsibility in compensation for the judge’s fault

Abstract

This study investigates the legal and jurisprudential foundations of state responsibility for compensating for judicial errors, comparing Egyptian and Palestinian laws. The investigation focuses on the following aspects:

Constitutional Foundations: Most modern constitutions, human rights charters, and Islamic Sharia incline towards ensuring the principle of state responsibility for compensating those harmed by a judge's error.

Legislative Foundations: The study also examines legislative provisions that establish the state's responsibility to compensate for judicial errors in specific cases, such as retrial, personal error by the judge, and pretrial detention.

Jurisprudential Foundations: Additionally, the study delves into jurisprudential foundations supporting the concept of state responsibility for judicial errors. Various jurisprudential perspectives advocate for state liability concerning judicial errors. Some endorse theories of personal and vicarious liability, while others lean towards theories of subordination and equality.

The idea for this study stemmed from the inadequacy of legal texts that establish the concept of state responsibility for judicial errors and the need to identify the legal (constitutional, legislative, and jurisprudential) foundations that address this deficiency. The study aims to bridge the gap and address the deficiencies in the means to seek compensation and establish state liability for judicial errors.

The study concluded with a set of results and recommendations, the most prominent of which is that compensating for judicial errors in Palestine is confined to judges' impeachment and retrial. No legal provision regarding compensation for pretrial detention was found. The Palestinian legislature restricted compensation for retrial to the criminal law, excluding civil law. The study recommended establishing a compensation fund to secure against civil liability for judges, judicial officers, and arbitrators.