I need to disagree with the view of my good friend Raul Letelier in relation to the very important decision Morales Gamboa, he comment a few days ago.
In short, the decision the State liable for the damage suffered by a police officer, after being hit by a bullet fired from a private gun of his companions, in circumstances where both were stationed. I emphasize that is a very important decision, because the accident occurs in circumstances unrelated to any police operation "active" (both police officers for their unmarried status, are quartered in service available), and the private nature of the weapon and the incident same as the damage occurs (before the shooting, the victim had "provoked" the perpetrator through a joke). According
Letelier, the main importance of the decision would be in the way they combine the notions of lack of service and personal foul on a concrete case
" The ruling clearly indicates that, if there were only non 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 precisely the case here, since the personal fault could not be separated entirely from the lack of service . "
are mainly those findings which, in my view, need to be confronted with other ideas.
1 The ruling says the opposite of what he says Letelier. There is no lack of service, but purely a personal foul. Recital 15 is eloquent: " the actions of the police officer Claudio Osorio Tapia is clearly a foul, not a lack of service ... . " A good listener, few words.
2 The State's responsibility does not necessarily depend on a lack of service. Beyond the real responsibilities "objective" (the example is the case Galletué ), the arrangements referred to in art. 42 of the LOCBGAE and other documents that follow its model is not always required in any case the combination of a lack of service.
Regarding the personal foul, the rule says: " However, the state will have right of recourse against the official who personal misconduct." Its main purpose is to regulate the appearance of a contribution to the debt that can result in harmful event has been a public official intervention: the state, which normally carries the weight of redress against the victim, can turn against its agent if it appears that he has committed a "foul." Thus, the rule gives the impression, without referring directly to this hypothesis, that the State respond to the victim both when the harmful event is a lack of service as if it is a foul.
3 º Both in French law as in the Chilean law concerns have been raised about the area where the state has to answer for the misconduct of their agents. Letelier's note favors a restrictive alternative: the personal foul committed the responsibility of the State only if it can connect to a lack of service, clinching it "could not have been different mode.
Again, here the author moves away from the fault. Recall that it states that "the distinction capital on the state tort is precisely from lack of service and personal foul," and states that "such failure assume personal responsibility state when it is not devoid of link the function, what happens when she has committed in the exercise of the function or during the same (cons. 13). The capital for the sentencing aspect is the relationship between a personal foul and a lack of service, but between the lack of personnel and public function played by the public official guilty.
4 The criteria set by the failure is not excessive.
In his usual formula, which comes from a phrase used by Hugo Caldera, it is true that the criterion appears covered with a deplorable lack of precision "to whom the right of victims to be compensated enough for the public official's action is related the government body (the appeal court ruling, cons. 4). In practice, however, not just any relationship between the lack of personnel and the public service, but must be of a sufficiently relevant. Several
aspects that identify the bond is legally relevant for purposes of this responsibility is relatively peaceful temporal and spatial aspects usually enough to resolve common disputes (answering the State if the personal foul is committed in the workplace or during working hours for officials). Increasingly take more weight in the case instrumental links between the state and its agents (eg., The circumstance of being fiscal weapon, or wearing the official uniform provided by the state). In the area of \u200b\u200barmed forces of order, a fairly significant that reveals the link between the lack of personnel and the public is given by the statement (Done in another office, whether criminal or, as happened in this case, in administrative proceedings) of the offense was committed in an "act of service" statement that does not always pursues a purpose pension.
Specifically, in this case, the decision reveals a very special situation: Some public officials are mandated to be permanently available to the public service in a position to undertake their missions at any minute it is necessary, this is the case the police singles and those involved in this case. The fact that been found inside the barracks obvious, but it would seem wrong to reduce the pure fact relevant spatial link between the personal foul and function. When service missions require the coexistence of officers authorized to carry and use weapons, they are public needs that create the conditions for the clash of personalities and the outbreak of violence.
5 ° East jurisprudential approach does not focus solely on the lack of service. On the contrary, justice of the decision (if I may put it in those terms) starts the criterion of risk involved in it. If it is because the public good that a service is structured so that violence may arise among its members, it seems fair that the owner of that public good takes the weight of the consequences. Again, I repeat, can not be attributed lack of service to the state by the mere fact of creating this coexistence to have agents available permanently to control public order (as suggested, apparently, Raul Letelier), would be "He said his time Hauriou - as saying that "the service is at fault for existing, which would be absurd" ( Précis de droit administratif et de droit public , Sirey, Paris, 10 th ed., 1921, p. 380). The remote foundation of this regime is rather on the risk ... but certainly not the case of strict liability.
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