Compensation of damages to civil servants (bailiffs): what opportunities does the law provide?

So much for the general principles. What, however, is to be done in a situation where the perpetrator of the offence against whom criminal proceedings are pending is a public official (for example, a bailiff) and the State Treasury is jointly and severally liable with him for the damage caused by his action? Is it permissible to seek damages from the State Treasury in civil proceedings and at the same time to demand that the criminal court impose an obligation on the perpetrator to make good the damage?

The essence of joint and several liability of debtors is that the entire obligation can be enforced against all debtors together or against each of them individually. The mere adjudication of a disputed claim by the court against one of the joint and several debtors does not foreclose the creditor from pursuing performance against the others. Only the satisfaction of the creditor by any of them releases the other debtors. Then the enforcement orders issued against them (judgments or orders for payment) cannot be applied

Conditions for the application of the so-called anti-accumulation clause

For a similar purpose, the so-called anti-accumulation clause was introduced (Article 415 § 1 PCC). The idea is to prevent situations in which, in connection with the same damage, more than one judgment concerning the same parties enabling bailiff enforcement would be in force.

The Code of Criminal Procedure introduces two conditions for the application of the said clause. Firstly, the claims asserted in the individual proceedings must arise from the same damage, being the result of the same act or omission of a criminal nature. This condition is called object identity – as it relates to the subject matter of the proceedings. Secondly, for the application of the anti-accumulation clause, it is necessary that different proceedings for the same injury are between the same parties. This is the so-called identity of the subject matter of the claim, as the parties are the subjects of criminal or civil proceedings.

There is no subjective identity of the claim in a situation where several entities are obliged as joint debtors, with civil proceedings for damages pending against one of them and criminal proceedings against another. In such a case, the criminal court may (and, in cases indicated by the law, even must), in the judgment convicting or conditionally discontinuing the proceedings, rule on the obligation to repair the damage, to make restitution to the injured party or to compensate for the harm suffered

What does this mean in practice?

In a situation where there is damage for which the perpetrator of the crime is solely responsible – the matter is simple. If there is a civil action for damages between the perpetrator and the injured party (or, in civil proceedings, the injured party), or if a final judgment has already been passed in this case, the criminal court will not be able to rule again, as it were, on the reparation of damages in the judgment of conviction or conditional discontinuance of proceedings. In this case, however, the offender is the same person who caused the damage.

The case becomes more interesting if, together with the perpetrator of the offence, another entity is jointly and severally liable, which is the case when the State Treasury is liable for unlawful actions of public officials, e.g. bailiffs.

In such a state of facts, there are no contraindications to conducting civil proceedings for damages against the State Treasury and at the same time, in the event of a conviction or conditional discontinuance of proceedings against the perpetrator of a criminal offence – a public official, an obligation to repair the damage in a criminal judgment. Moreover, both of these judgments may later form the basis for enforcement against the assets of the liable parties. The liability will only be extinguished once the creditor (the injured party) has obtained the full value of the damages awarded.

However, it will be easiest to visualise such a mechanism with a concrete example. Let us imagine a situation in which law enforcement authorities uncover the actions of a dishonest bailiff. The criminal behaviour of this bailiff is very simple – after enforcing funds from debtors to satisfy creditors, he does not transfer them to the court’s escrow account, but appropriates them and leaves them in the cashier’s office freely disposing of them (treating them as his own). When sentencing him for the crime committed, the court should impose an obligation to repair the damage caused. However, it may happen that the offender no longer has the necessary means and that the enforcement of such reparation will be considerably hampered or impossible at all

It is therefore worth remembering that the injured parties may claim compensation for damages in civil proceedings from the State Treasury, which is jointly and severally liable with the bailiff. Owing to the fact that we are dealing with a different entity in criminal proceedings (the bailiff) and a different one in civil proceedings (the State Treasury), Article 415 § 1 of the Code of Criminal Procedure does not prevent the award of damages from both joint and several debtors, even though the source of these proceedings is the same damage and the same unlawful act. Only when the damage has been repaired in full (by one or in part by each of the debtors) will the obligation expire and further enforcement cease to be possible.