State Liability without the Liability of State. Constitutional Problems related to Individual Professional Liability of Estonian Notaries, Bailiffs and Sworn Translators
| Author | Ene Andresen |
| Position | LL. M., Lecturer of Administrative Law, University of Tartu |
| Pages | 146-157 |
Ene Andresen
LL. M., Lecturer of Administrative Law, University of Tartu
State Liability without the Liability of State. Constitutional Problems related to Individual Professional Liability of Estonian Notaries, Bailiffs and Sworn Translators
In Estonia, notaries, bailiffs and sworn translators are independent public authorities who are individually liable for any damage occurring due to their fault when performing their official duties.
The obligation to protect the rights of individuals and the principle of lawful exercise of state authority are the central elements of a state based on the rule of law. The state liability law must implement those principles and give them practical significance. If a public servant has acted unlawfully, the state is required to compensate the injured person for the damage caused by the act. Just like public servants, notaries, bailiffs and sworn translators perform public law functions, but the state is not liable for the damage caused by them. However, a natural person is often not able to perform the obligation to compensate for damage solely with his or her assets. It was said in the past that where nothing can be taken, the emperor has lost his right. In a state based on the rule of law, an injured person cannot be satisfied by knowing that his or her right to compensation has proven valid only on paper. The right to compensation for damage is applicable in Estonia as a fundamental right and such a right must be secured by all public authorities. The peculiarities of an administrative body should not affect the rights of the injured person.
In order to ensure the protection of the rights of individuals, the obligation to enter into a compulsory professional indemnity insurance contract has been imposed on notaries and bailiffs in Estonia; however, the indemnity insurance contracts of neither official suffice to cover the entire professional liability. The requirement for insurance contracts imposed on sworn translators was abolished recently - hence, they are only liable with their personal assets.
Although the number of liability cases is increasing, there is so far no information about any of the injured persons not receiving compensation1. It is still a matter of time before some injured person incurs damage not covered by the insurance contract and that the independent public authority is unable to compensate for. Such instances would be unacceptable in a state based on the rule of law and would deliver a very heavy blow to the reliability of the entire office in the eyes of public.
This article will examine whether, and on what conditions, the state may substitute its liability for the liability of a public authority that is a natural person and to what extent it is actually justified in the case of notaries, bailiffs and sworn translators. The article will draw attention towards the inadequacies of the mechanisms ensuring the liability of these independent public authorities and make proposals for improving the current regulation. Similar questions arise in the administrative law of all countries where a natural person is liable for the damage caused in the course of performance of administrative duties instead of the state.
The first natural persons serving as a public authority, who were subjected to individual professional liability, were notaries. The Notaries Act (NA) entered into force in 1993 2 and its new version in 20023. Before that, notaries had been public servants. The duties of bailiffs were also performed by the officials of the enforcement departments of the county and city courts before the establishment of the Bailiffs Act (BA) in 20014. The office of sworn translators appeared in Estonia in 2002, when the Sworn Translators Act (STA) entered into force5. Due to the small size of Estonia, the number of people holding these offices is rather limited. As of 1 June 2006, there were 86 notaries 6 , 50 bailiffs 7 and 23 sworn translators in Estonia8. Naturally, this does not undermine in any way the most important function of these offices in organising the legal relationships between individuals.
The legal status of notaries, bailiffs and sworn translators is very similar in Estonia. They are self-employed public authorities who perform public law functions imposed on them personally and in their own name, remaining impartial to the participants in the official acts, and subject to an extensive duty to maintain confidentiality. Notaries, bailiffs and also sworn translators are independent of other state authorities when performing their official acts9. They are not public servants remunerated by the state, but instead charge fees in the amount and according to the procedure prescribed by law. The amount retained by the independent public authority after the deductions from the amount received for fees and the expenditure made on the performance of official duties as well as taxes constitutes professional revenue10. Notaries and bailiffs must have higher education in law, while any academic degree suffices for sworn translators. To assume office, each candidate must pass an examination which is preceded by preparatory service for notaries and bailiffs.
In order to ensure the correct and high-level performance of official duties, the law also provides for several interference mechanisms on the part of the state. All three authorities are subject to the state supervision exercised by the Minister of Justice in issues related to the organisation of their duties. The Minister of Justice is also competent to carry out disciplinary proceedings. Besides that, the law imposes restrictions on holding office, which are most extensive regarding notaries and most lenient regarding sworn translators11.
As notaries, bailiffs and sworn translators carry out public law functions when performing official acts, there are public relations between them and the participants in official acts. The compensation for damage caused in public relationships is governed by state liability law; hence, the professional liability of notaries, bailiffs and sworn translators forms part of state liability law. It would consequently be erroneous to consider the liability of these public authorities as civil liability.
In Estonia, the restoration of the rights violated in the course of performance of public law functions, and compensation for damage, is governed by the State Liability Act (SLA) that entered into force as an Act of general application in 200212. Estonian state liability law applies the model of direct state liability, according to which the unlawful act of public servant or any other natural person performing a public law function is attributed to the state or another public authority that had assigned the duty to the natural person. As a rule, a public servant or other natural person is not liable to the injured person (SLA § 12 (1) and (2)). Even if damage is caused by a public authority who is a natural person or private law legal person, the state or other public law legal person who authorised the private law person to perform public duties is generally liable for the damage (SLA § 12 (3)). The state may file a claim of recourse against the public servant or the private law person after compensating the injured person for the damage (SLA § 19 (1)). A claim of recourse may be filed against a natural person, only if damage occurred due to his or her fault (SLA § 19 (3)).
Such regulation is, above all, aimed at protecting the rights and interests of the injured person. State resources allow for satisfying even the largest claims for which private law persons may not have sufficient means. The model of direct state liability also gives the injured person an opportunity to request that the state take much more wide-ranging measures, if this could be demanded from private law persons whose competence is limited.
Nevertheless, § 12 (3) of the SLA provides for a possibility that in cases prescribed by law, the state need not be liable for damage caused by a independent public authority who is a private law person. Such authorities include notaries, bailiffs and sworn translators. All three authorities are liable first of all according to the provisions of the Act governing their official activities, while the State Liability Act is applied additionally. When the claims for compensation for damage caused by notaries, bailiffs or sworn translators were previously examined by the administrative court 13 , then as of 2006, such disputes in public law are, as an exception, settled by way of proceedings of action in county courts14.
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