Responsibility of the State Cases Administration Agent
Effects of the Liability of the State Attorney (Agent of the State Cases Administration)
If the elements of tort liability of the State Attorney are established, as explained earlier, this means that when all elements of civil liability are fulfilled, the State Attorney becomes obligated to compensate for the damage resulting from his fault.
The legal effects of establishing civil liability lead to compensation claimed by the injured party for the harm suffered. The state bears responsibility for compensation based on the principle of vicarious liability (liability of the superior for the acts of his subordinate).
First Section: Compensation (Guarantee)
Compensation (guarantee) is defined as restoring the balance that was disrupted as a result of the damage, returning matters to what they were before the harmful act occurred, at the expense of the party obligated to compensate.
It is also defined as restoring the injured party to the position they would have been in had the harmful act not occurred, thereby re-establishing the balance disturbed by the damage.
From these definitions, it is clear that compensation revolves around removing or repairing the harm suffered by the injured party. The basic principle of compensation is, initially, restoration to the original state, but if this is impossible, compensation is made in monetary form.
In this regard, Article 362 of the Jordanian Civil Code No. 43 of 1976 states:
“If specific performance is not possible or the debtor insists on refusing performance, the court shall determine the amount of compensation, taking into account the damage suffered by the creditor and the misconduct of the debtor.”
There are two types of compensation due for harm caused by the fault of the State Attorney during the performance of his duties:
- In-kind compensation (specific restitution): restoring the situation to what it was before the breach occurred.
- Monetary compensation: payment of a sum of money.
- Non-monetary compensation: performing a specific act.
Damage is the essential element in compensation. The general principle is that compensation must equal the damage suffered—neither more nor less—provided that the damage is a natural consequence of the unlawful act. Therefore, assessment may be either contractual or judicial.
1) Contractual (agreed) assessment:
This occurs when the parties agree in advance on the amount of compensation in the contract or in a later agreement. This type is limited to contractual liability and does not apply to tort liability.
Article 363 of the Jordanian Civil Code states:
“If compensation is not determined by law or contract, the court shall estimate it according to the actual damage at the time it occurs.”
2) Judicial assessment:
Here, the judge determines the compensation when it is not fixed by law or agreement. The judge has discretionary power to determine monetary compensation payable to the injured party.
The principle of full reparation (complete compensation) governs this assessment. As mentioned earlier, compensation may be monetary or non-monetary.
(B) Extent of the State’s Obligation to Compensate for Damage Caused by the Fault of the State Attorney
The State Attorney is considered a public employee and is affiliated with the Ministry of Justice. Accordingly, the state is liable for his harmful acts committed against others while performing or because of his job, based on the principle of vicarious liability (responsibility of the principal for the acts of the agent).
First Branch: State Liability for Errors of the State Attorney
If the State Attorney commits any act that causes harm to others, the liability of the State Cases Administration Department, represented by the Ministry of Justice, is established. This was confirmed by the Jordanian Court of Cassation, which ruled:
“Any harm caused by a subordinate in connection with the performance of his duties is guaranteed by the superior, even if it resulted from the subordinate’s abuse of his position…”
State liability is not established merely by the relationship of subordination; rather, it requires that the State Attorney commits an act that causes harm to others.
A judicial ruling is sufficient to establish state liability for harmful acts. Accordingly, the state pays the compensation awarded to the injured party and may then recourse against the State Attorney to recover the amount paid due to his fault.
Conditions for Exemption of the Public Employee under the Principle of Vicarious Liability:
- The person who committed the act must be a public employee.
- The employee must prove that he believed the order issued to him by his superior was lawful, and that this belief was based on reasonable grounds and not mere suspicion.
- The employee must prove that he exercised caution and due diligence, and that he only acted after verification and investigation.