State Civil Liability is a highly relevant topic for those who wish to delve deeper into the study of administrative law. This is true whether for improved professional development (such as law practice, the judiciary, public defense), or even for potential public service examinations.

In short, civil liability is the legal phenomenon that imposes on the Public Administration the duty to repair/compensate for damages caused to third parties by public agents when performing their duties.

To make it easier to understand, I'll give you an example! Imagine that a patient has suffered a serious injury during surgery in a public hospital. 

If it is proven that the injury was caused by negligence or recklessness on the part of the professionals involved in the procedure, the State may be held civilly liable for the damages caused to the patient. 

This is because, as a provider of public health services, the State has a duty to guarantee the safety and quality of the services offered to the population. If there are failures in this regard, the State may be sued to compensate the patient for the damages caused.

Is the State's Civil Liability provided for in the Constitution?

Yes, the constitutional text expressly provides for the civil liability of the State, as outlined in Article 37, § 6. See the text of the aforementioned article:

"Public legal entities and private legal entities providing public services shall be liable for damages that their agents, in that capacity, cause to third parties, with the right of recourse against the responsible party in cases of intent or negligence."

The article establishes a single regime for the civil liability of public administration, which is objective, both for actions and omissions of public agents or servants.

In this way, the Public Administration will be held objectively liable to the citizen (third party who suffered the damage caused by the public agent or servant).

However, she may seek reimbursement from the employee, provided she proves that the employee acted with negligence or intent (subjective liability) in causing the damage to the third party.

The requirements for holding the State accountable

For the public administration to have a duty to indemnify, the following requirements must be met: 

a) existence of financial and/or moral damage suffered by the person concerned; 

b) an act or omission by an agent or employee; 

c) causal link between the damage and the conduct (omissive or commissive) of the agent or employee. 

Civil liability of the State and the Brazilian prison system

When the Supreme Federal Court and the Superior Court of Justice were called upon to rule on the civil liability of the State, certain understandings were established. Understanding them will help us to better understand the subject.

The first of these concerns the Brazilian prison system, a topic judged in Extraordinary Appeal 580.252.

For the Supreme Federal Court (STF): “Considering that it is the State's duty, imposed by the normative system, to maintain in its prisons the minimum standards of humanity foreseen in the legal order, it is its responsibility, under the terms of article 37, § 6, of the Constitution, to compensate for damages, including moral damages, demonstrably caused to detainees as a result of the lack or insufficiency of legal conditions of imprisonment . ”

Furthermore, according to the understanding established by the Court, it is not possible to accept arguments that invoke the "principle of the reserve of the possible" in cases involving the prison system. 

This is because adopting such a principle would be a subterfuge to endorse the emptying of the constitutional, conventional, and legal provisions that impose on the State the duty to guarantee the physical and psychological integrity of detainees.

The case of the fugitives

The Supreme Federal Court, when analyzing the leading case in Extraordinary Appeal 608.880 , discussed whether, in light of Article 37, § 6, of the Federal Constitution, there would be objective civil liability, or not, of the State for damages resulting from a crime committed by an escaped prisoner, due to the omission in the duty of surveillance of detainees under its custody.

The court's established precedent was that, according to Article 37, § 6, of the Federal Constitution, the State is not held objectively liable for damages resulting from a crime committed by a person who has escaped from the prison system, unless a direct causal link is demonstrated between the moment of the escape and the conduct committed.

The theory of double guarantee 

Another important understanding established by the Supreme Federal Court is that Article 37, § 6 of the CR/88 (Brazilian Constitution of 1988) aims to protect the victim (the administrative official who suffered the damage).

For this reason, the individual may file a lawsuit against the State, in which case the State would be held objectively liable, without the need to prove intent or negligence on the part of the public official.

However, the constitutional provision also protects the public official who caused the damage, since he would only be held liable through a recourse action filed by the public authority against him, in cases of intent or negligence. 

Therefore, to ensure the passive legitimacy of the claim, the victim cannot file the lawsuit directly against the public agent who caused the damage, but rather against the public authority, which will be held responsible for the actions of the latter. 

This is what was decided by the Supreme Federal Court in Extraordinary Appeal 1027.633, judged under the general repercussion procedure:

"According to the provisions of Article 37, § 6, of the Federal Constitution, an action for damages caused by a public agent must be brought against the State or the private legal entity providing the public service, with the author of the act being an illegitimate party to the action, while the right of recourse against the responsible party is guaranteed in cases of intent or negligence."

This is a very important argument that you can use in defense of a public servant who is the defendant in a civil liability lawsuit where the victim of the harm did not even file a lawsuit against the State.

The causes for exclusion of the State's civil liability.

Finally, it is important to know the cases in which the public administration is not obliged to provide compensation. To that end, some examples are listed below: 

a) there was no patrimonial and/or moral damage suffered by the person concerned; 

b) there was no omission or commission on the part of the agent or employee; 

c) there was no causal link between the damage and the conduct (omissive or commissive) of the agent or employee. 

In practice, for example, if you are a Public Prosecutor for the Treasury, State, or Municipality, you can pursue one of these defense arguments when the State is the defendant in a civil liability lawsuit.

Deepen your studies in Administrative Law!

As you can see, there are many details involved in the topics discussed in Administrative Law . Knowing them is essential for excelling in your professional activity.

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