Recent Developments in State Tort Liability in Poland

Abstract

In modern democratic countries, aggrieved citizens have a prospect of redress against the state for wrongs committed by its servants-officials and employees. The idea of sovereign immunity, based on the old axiom that the King can do no wrong, is clearly contrary to the principle of the rule of law. It prevailed during the era of absolutism, but gave way to protection of the citizen against abuses of state power, first in the civil law world and more recently in most of the common law jurisdictions. The most frequent and important wrongs that a citizen may suffer result either from administrative decisions or from torts. In general, courts may grant relief by reviewing acts of the administration after administrative remedies have been exhausted, except with respect to high-level decisions which amount to acts of state or fall within the discretionary function of government. Actions against the state may be brought either in courts of general jurisdiction (in the common law countries) or in special administrative courts (in many civil law jurisdictions). When Poland recovered her independence in 1918, she was subject to a variety of legal systems. Roughly, Russian law was applicable in the East, Austrian law in the South, Prussian law in the West, and a separate legal system, based on the French Civil Code, in Central Poland (the Congress Kingdom). The status of state liability was different in these four areas: Russian law prescribed state immunity; Prussian legislation was to the contrary.' A broad principle of state liability was proclaimed by the constitution of the reborn state in 1921. Art. 12 provided: [E]very citizen has the right to damages for harm caused to him by a state authority, civil or military, by reason of an official act which is against the law or the duties of service. Both the State and the responsible organ are jointly liable for the harm caused; the commencement of an action against the state or against public servants does not require