Legal Eye: Protection from the state

"Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to the law."
Art. 77, Polish Constitution

Most of us, by the time we reach adolescence, know the difference between right and wrong, and upon reaching adulthood grudgingly accept that we are responsible for the consequences of our actions. As adults we take responsibility for our actions, knowing that if we break a law, or cause an injury to another person or property, we will be held accountable. I sometimes wonder, however, if the same applies to public officials. Is a government official liable for an injury suffered by a member of the public that results from the official's action (or lack of action)? The answer, of course, is yes. Public servants, and more importantly their employer, are liable for their actions, and in particular for any damages suffered by a member of the public as a result of the official's performance of his or her duties in a manner contrary to the law.

Protecting the public
In addition to the Constitution, the Civil Code and Administrative Procedure Code provide for such liability in more detail. And, just to avoid any misunderstanding, the Constitutional Tribunal has also weighed in on the subject, declaring in a landmark decision three years ago that public officials hold a "special, servitude-like role responsible for protecting the freedom and rights of the public."

At the national level, article 417 of the Civil Codes declares that the "State Treasury shall be liable for damages caused by an official of the state in carrying out acts entrusted to him." In other words, an individual may seek compensation from the State Treasury for an injury caused by a state official. And, in contrast to earlier rules, the guilt of a state official no longer needs to be declared by a court in order for a member of the public to bring a monetary claim for damages against the state.

Similarly, at the local level, municipal and regional governments are liable for the actions of their employees. Article 420 provides that "if damage is caused by an official of a unit of territorial self-government in the exercise of his duties, the liability for such damage shall be borne by that unit of territorial self-government." Additionally, 420 provides that if the "damage was caused by a local official in the exercise of his statutory duties ... the State Treasury shall be liable jointly and severally with the local government unit for such damage." So, just in case the local government cries poverty, the State Treasury is ultimately responsible if the local official caused the damage in performing a function delegated by the national government. Local officials include both employees and elected officials.

Compensation culture
Now to the nub of the issue. The Administrative Procedure Code also regulates the liability of state and local officials. Article 160, together with Article 153 (1) provides for the payment of compensation to a party (not just a person) who incurs monetary damage resulting from the reversal of an earlier administrative decision. If a member of the public relies on the validity of a decision issued by a government official, and subsequently the decision is revoked due to a court or administrative order, the individual who relied on the decision will be entitled to seek compensation for any resulting damage. This issue arises most often in relation to the issuance of building permits by local officials, which are subsequently revoked by court or administrative decree, but only after an investor has already commenced construction, or in some cases, after the completion of construction.

Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners.