| Abstract [eng] |
A main let to apply tort liability to the state is the principle of sovereign immunity (or state immunity; or legislator immunity), derived from Medieval English law, which says that government is immune from tort liability. Today remains of sovereign immunity doctrine usually is justified by: the importance of protecting government treasuries; separation of powers; the absence of authority for suits against the government; the existence of adequate alternative remedies; strengthening the position of elected politicians; and tradition. The doctrine of immunity is inconsistent with the main principles, recognized by democratic countries, so has no place in democracy and should be repealed entirely. The legislator is a subject, who has a right to make a final and unchallenged decision in the law making process. In Lithuania there are two legislators: the Parliament (Seimas) and the Nation. Competence and discretionary powers of legislature are limited by the Constitution and obligations of the state under the international and European Community law. By international contracts, such as European Convention of Human rights, Lithuania is obliged to confer the main rights to individuals in its jurisdiction. The national law that violates such provisions must be held unlawful, but there are no national institutions that have a competence to state that violation. Individuals may get remedy only if the European Court of Human Rights states the violation; in the same judgment the Court will grant the remedy. If such unlawful law is not changed for some time, and individual because of that suffers more damage, national court should grant a remedy. Member State liability for breaches of Community law finds its origins exclusively in the case law of the European Court of Justice. The Court has held that such liability extends to all breaches of EC law, even if the breach which gave rise to the damage is attributable to the legislature. Now liability will be recognized if the rule of law is intended to confer the rights on individuals, the breach of Community law is “sufficiently serious” and there is direct causal link between the breach of obligation and damages sustained. The process and other issues, which are not governed by EC law, are governed by national law, but national rules are subject to principles of equivalence and effectiveness. The law, which is stated as being inconsistent with Constitution by Constitutional Court, is held as an unlawful act of legislature. National court should grant a remedy for damage, sustained because of such law. |
