LA RESPONSABILIDAD DEL ESTADO JUEZ EN TORNO AL DERECHO DE LOS CIUDADANOS A LA INDEMNIDAD

Abstract

The lacks and insufficiencies of the three traditional titles for the allocation of responsibility to the State for the legal proceedings in order to guarantee the right to indemnity of the citizens are demonstrated; taking into account the current role of the judge and the theoretical postulates to which this Legal institution should response.

When facing the responsibility of the state for the administrative activities and for the legal actions, in the light of the reflections upon the theoretical basis of the civil liability and the identity of the judge in the contemporary State, the need for restating the responsibility of the judge - State arises; with the purpose that this become an expression of the theories of justice that underlie it, guarantees the right to indemnity of the citizens and respond to the current concept of the judiciary

The structure of the text consists of three theoretical chapters and a propositional one, in which the research questions are answered. This, using the information referred at the beginning of the research.

The first chapter develops the philosophical, legal and political bases of the liability, using as method, a conceptual theoretical approach with a historical or contextual component; which function is to be a research objective itself and serve as a base for the analysis of the jurisprudence rules explained later on; in such a way that it can call the attention about the importance that the state respond equally to the citizens for the wrongful damages that it causes regardless of the branch of public power that cause them, as well as on the exigencies of the Social State of Law to the State liability.

The second chapter, called "Who is the judge", using the methodology of the first part, develops the following aspects: the role of the judge in the liberal, constitutional and neoconstitutional states; The theoretical pillars to unveil the identity of the judge in the contemporary state; And the closing bodies in the Colombian legal system, highlighting the increase in the importance of the role of the judge and that the judicial decisions are an expression of the state models. This chapter identifies who the judge is, how he or she acts, how his or her actions are controlled, and the way in which the State assumes the consequences of its actions.

As for the third section, called "How the Judge and the Public Administration Respond", located in the Colombian legal system, it exposes the general elements of the responsibility, to confront the legal and jurisprudential development of State responsibility for the actions of the administration with the responsibility for the judicial proceedings, using the comparative method with variables and an evolutionary component. In this way, the aim is to analyze the performance of jurisprudence; to determine the correspondence between judicial praxis, the theoretical foundations and the mandate of indemnity; And to follow the path of the evolutionary logic of responsibility, according to which the increase in activities and state intervention optimize the occurrence of wrongful damages, as with the increasing importance of the judge in the contemporary State.

Finally, the fourth chapter consists of a cross-diagnosis, applying to jurisprudence the theories contained in the first two chapters, as a result of which some propositional aspects arise. This section was entitled "Challenges of State Responsibility for Judicial Proceedings" and is divided into three parts: the analysis of the philosophical perspectives that underlie the jurisprudential development of state responsibility in Colombia; The explanation of the importance that the State respond for the actions of the judge, considering its identity in the contemporary State and the challenges that it presents; And the establishment of new scenarios of responsibility of the State-judge, other than the unjust deprivation of freedom, the judicial error and defective functioning of the administration of justice.

The challenges encountered for the recognition of the responsibility of the State judge are the intangibility of res iudicata, the judicial independency and the responsibility of the closing bodies of the the jurisdiction. On the other hand, the new scenarios of responsibility presented are the responsibility for the execution of international judgments, for the adoption of arbitration awards and for the change of jurisprudential line, deepening into the last two. This proposal aims to adjust the institution studied to the current state model, responding to contemporary phenomena such as the internationalization of law, the privatization of justice and alteration of the sources of law.