One of the most important decisions on this issue is the Supreme Court styled Seguel Fisco de Chile dated July 30, 2009. As we know the responsibility of organs that make up these forces have a major problem in regard to the legal status which govern them. Once you have been standardizing the systems of accountability of public bodies in order to demand "no service" in this sector, however, seems not so easy to say that this is the regime. In fact, art. LOCBAE excludes 21 of the Armed Forces and other organs of the application of art. 42, rule establishing precisely the lack of service requirement.
Despite everything that can be provided, there is as yet no satisfactory answer to justify this exclusion and the most reasonable answer to this mess is indicating that it is actually art. 42 (ex art. 44) which was misplaced in that title. The exclusion was entirely justifiable if it was understood that that title - as shown by the art. 21 - regulate "the basic organization of the Ministries, Municipalities governments, and public services created to perform the administrative function" since the excluded bodies have their own administrative rules. Art. 42, however, escapes from a purely organizational rule and the exclusion of its application is clearly wrong.
So, Seguel Fisco de Chile comes in response to questions about the system and makes it applicable through a convoluted way in which a return to the general system of poor service. As art can not be applied. 42, is to conclude the decision should be applied art. Civil Code 2314 (common law rule), which regulates liability for "their own fault." Thus, the armed forces will respond by guilt and blame for the Administrative Law - which is the governing these bodies - not called anything other than "lack of service." "That the way has been arguing - said the ruling - it is successful the application of Article 2314 Civil Code and the institution of the lack of service to the suit in question, since it allows and standardize the system of liability for all authorities of the State Administration. "
However, the recent Supreme Court ruling Morales Fisco de Chile of January 14, 2011 has come to constitute the second stone on which the building is built the responsibility of the Armed Forces. The case is: that police share some entertainment in the bedroom of a single police unit. One of them throws a joke offensive to another, the latter pursues the Joker, he has targeted a particular gun and accidentally shoots him to death. Both policemen were stationed. For security purposes, the death was classified as "on duty."
The ruling of the Supreme Court describes it as "foul" but believes that such failure is not unrelated to the service but it is made "in connection therewith." "The state - says the statement - is closely related to the personal foul incurred by one of its agents, as has been the same State who has installed both officials in a specific mission, of service available and quartered in the second degree - and has imposed a further obligation to stay in the barracks, so that the action taken by the official Tapia Osorio is not devoid of connection with the service. In fact, the two officials residing in the tenure of the police because of their unmarried status, they were both there that night as the cantonment ready, so clearly the personal fault of Osorio is one of those that give rise to state responsibility. "
However, as the lack of service was achieved by means of art. 2314 CC, thank Fisco Seguel, was now needed to have legal support for the "foul." The Supreme Court's reply is that the latter notion "must be made from Article 2320 or 2322 of the Civil Code, provided that it exists, so that in this way, as noted in the ruling" Seguel with Treasury "and said, allow uniform liability system for all bodies of state administration."
In this way, is more or less complete the scheme for contractual liability of the Armed Forces. In good accounts, 2314 over 2320 and 2322 come to play CC as indicated by art. 42 LOCBAE for all organs of state administration.
Some comments may be made of this line of argument:
1) The aforementioned failures come to believe that a coherent response to state accountability system since, as already indicated there is no reason that can justify that excluded bodies art. 21, among which also has the armed forces, the Comptroller General of the Republic, the Central Bank, the regional governments, or the National Television Council, have different rules to other administrative bodies. Of course there were several possibilities to find the solution. The "civil action" developed by previous failures is perhaps the neatest in normative terms (unless the search is discussed in the civil rules as alleged common law) but it is convoluted to draw attention as it is. The "administrative remedies" such as presumably the arts. 38 inc. 2 of the CPR and 4 enshrine LOCBAE same liability regime for lack of service, straight to apply the analogy, or more correctly I believe it is to understand that the exclusion applies only to matters of internal administration are far less neat and somewhat forced from a "literal "the legal system.
2) It is interesting to note how these two faults are not really refer to situations in which citizens outside the public service are affected by administrative bodies. In both cases, these accidents occurred within the administrative body. Seguel Fisco In Cabo is a damaged military exercises in the arm to a conscript after loading his gun with bullets real and not blank as it should. Fisco In Morales, meanwhile, are two police service who are affected. In this sense, I think the way the Supreme Court transferred the notions of lack of service and personal foul statutory relations within the Service Shall be deepened with time. Indeed, there is a fairly comprehensive scheme to address accident compensation service may overlap with these tort claims. If not theorize about them together can be upsetting the public compensation system.
3) Failure Fisco de Chile Morales put on the table the issue of separation of the lack of service with personal foul. The ruling clearly indicates that, if there were only short of staff, could not state responsibility. This confirms the correct interpretation of the second paragraph of art. 42 LOCBAE in the sense that it does not come to establish a personal foul when the state must respond to the mere possibility of later action against the official. On the contrary, subsection 2 assumes you have already been condemned for lack of service (I could not have been otherwise), but it also exists a personal foul, as in this case precisely, since the lack personnel has been completely separated from the lack of service.
In this same vein, I think we should continue to refine this notion separation between faults. Morales failure Fisco de Chile provides a mere geographical separation and working hours so that it is sufficient that an officer is in the public premises and within their day to give rise to liability. In this case, in fact, was sentenced by the State primarily because the policeman who was shot inside the unit and both were stationed. I think that that separation must also meet subjective criteria. In effect, sharply intentional acts of public officials that do not reflect an organizational problem that reveal the service and the staff - as indicated at the time the arret Laumonnier-Stroller in defining failure personal - "with their weaknesses, their passions, their carelessness" should be classified as outright misconduct (also a very personal calls) and for them to be accountable only to the person who commits it. Aggression among public officials, still committed in work schedule, I do not think they should be compensated for the common treasury. Themselves, developed in private, but they are not compensated by the person who commits it. In this regard, the Morales case Fisco de Chile, the court ruling had found that what happened was an act totally private, outside of police functions and that it could not be considered is a service that would reveal it to malfunction.
0 comments:
Post a Comment