Aansprakelijkheid voor onrechtmatige rechtspraak: Een rechtshistorisch en -vergelijkend onderzoek

He who causes damage to another must compensate that damage. Under current Dutch law, does that also apply when a court renders an incorrect judgment? Hardly. In the broadest interpretation of the latest case law, liability for a wrongful judgment requires considerable personal blame on the part of the judge. This would only be the case when there is at least gross dereliction of duty. A mistake in the assessment of the dispute or an error in the interpretation of the law is not sufficient.
Though liability in this interpretation will not easily be assumed, it theoretically broadens the scope of judicial liability considerably. With this interpretation it is defensible to say that judicial acts no longer fall outside the sphere of liability. That would be a fitting conclusion to the historical development of the doctrine. Liability of judges began as the only remedy against judgments deemed incorrect. The emergence of appeal systems, professionalization of the judiciary and political considerations made the rules on liability of judges take different forms, including liability to prevent denial of justice, liability for all “erroneous” judgments, liability limited to malicious intent or almost complete immunity. In the Netherlands, all specific laws on judicial liability have since been abolished. In light of the latest case law, the next step could be that the general doctrine of tort is considered fully applicable to judicial acts.