¿Deberían las autoridades y los empleados públicos responder civilmente por los daños causados en el ejercicio de sus cargos?

Abstract

With reference to the liability of public employees, Spanish Law seems a troubling puzzle. Under State basic law, Public Administrations are exclusively and vicariously liable for torts committed by their agents whitin the scope of their employment. Under Criminal Code, on the contrary, victims of crimes committed by public agents have the right to directly demand damages from those offenders, bringing their tort claims within the criminal procedure. Under State basic law, Spanish Public Administrations may —and even have to— require compensation from their employees who negligently injured the aforementioned Administrations or caused damages, thus giving rise to vicarious liability, but in fact they have almost never required that compensation. These Administrations, on the contrary, usually demand damages when their agents have violated certain statutes regulating public finances. After analyzing the social costs and benefits of the considered alternatives, the author expresses the opinion that only Public Administrations may be held liable for torts committed by their agents while acting within the scope of their employment. This liability must be thus always vicarious and exclusive. The author examines also whether, why and when the injured or vicariously liable Administrations may require compensation from their employees who have caused the injuries.