State’s liability for damages caused by failure to protect the prisoner from being ill-treated by inmates

Mrvić Petrović, Nataša (2024) State’s liability for damages caused by failure to protect the prisoner from being ill-treated by inmates. In: Causation of damage, damage compensation and insurance : Proceedings from XXVII international scientific conference. Institute of Comparative Law, Belgrade; Valjevo, pp. 99-112. ISBN 978-86-82582-21-2

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Abstract

The topic of the research is related to the liability of state for failure of state authorities to protect the life and integrity of prisoners from violence other prisoners. The aim of research is a critical review of the normative framework in the Republic of Serbia and judicial practice. The state liability in tort is clearly the attainment or the rule of law (Rechtstaat). The responsibility of the state for violations of basic human rights and freedoms, especially the rights of the prisoners and other persons for whom the state takes care is universally has become a universally accepted rule in the modern times. The comparative analysis shows that the common law legal system has recognized until recently the immunity of the state and strictly personal responsibility for the unlawful acts of state officials, but the concept of human rights protection has influenced changes, as shown by the examples of Great Britain and the United States of America. The tort liability of the EU Member State, for damages caused to the other EU Member State, legal entity or individual emerges as a new hybrid legal phenomenon. The Constitution of the Republic of Serbia defines the liability of the state in case of unlawful or improper work of its organs. This guarantee is specified primarily in the Law on Contract and Torts and the Law on Enforcement of Criminal Sanctions. Examples of good judicial practice were highlighted - judgments of the Appellate Court in Belgrade (Gž 4868/15) and the Supreme Court (Rev 661/2017). The judgment of the Supreme Court insists on the non-fault (strict) liability of the state for damage if the failure of the prison administration to prevent il-treatment between prisoners. Such determination supports the practice of the European Court of Human Rights.

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