OF THE SERBIAN OBLIGATIONS ACT
2. Conditions for state liability under article 180
Article 180, subsection 1 of the Serbian Obligations Act provides that:
State whose agencies, in conformity to existing regulations, were bound to pre-vent injury or loss, shall be liable for loss due to death, bodily injury or dama-ging or destroying property of an individual due to acts of violence or terror, as well as in the course of street demonstrations and public events.7
5 S. Perović, Skica..., p. 7–8.
6 M. Konstantinović, Obligacije i ugovori: skica za zakonik o obligacijama i ugov-orima, Beograd 1996, p. 33–34.
7 The Law of Contracts and Torts, translated by Đ. Krstić, “Jugoslovenski pregled”
(“Yugoslav Survey”), Beograd 1997. The translation of the title by Krstić seems impre-cise and will not be used in this paper. “Obligations Act” is to be preferred because it is closer to the original meaning and also in conformity with English legal terminology which designates individual enactments with general legal power as acts rather than laws. Using the title suggested by Mr. Krstić could lead to the wrong conclusion that only contracts and torts are regulated by this Act, although it really strives to regulate the whole fi eld of obligations, including areas which cannot be included in either contracts
184
According to this text, State liability is made dependent on two requirements: 1) that State agencies were, according to law, bound to prevent the infl iction of damage and 2) that the damage resulted from acts of violence or terrorism or from public manifestations or demon-strations.
The fi rst requirement is not clear enough and offers space for dif-ferent interpretations. First of all, the State is, undoubtedly, generally responsible to enforce law and preserve public order and in that sense its agencies are always and without exception bound to prevent acts of violence or terrorism, as well as to control public gatherings of large numbers of people. Consequently, the State should be seen as bound by strict liability. The other way of understanding the provision would be that it requires that the duty of State agencies to prevent damage be proven in the circumstances of each particular case, which would lead to a fault based liability of the State. If that road were taken, the State would have the possibility to exclude its liability by proving that its agencies have done all that was reasonably expected in the given situation and that it is not their fault that damage was infl icted. Serbian legal theory supports the fi rst option, i.e. the strict liability of the State, but there are court decisions which seriously undermine this notion by deciding the case on the question of fault in the performance of State agencies.8
Unfortunately, the legislative motive behind this part of the provi-sion is of little help because its original aim was simply to provide a method for determining which local political unit was liable in any given case.9 The original text did not even mention the State, but the so called “social-political communities” i.e. municipalities. In 1985 the wording was changed in order to include the word “State”, referring, at that time, to federal States of Yugoslavia.
The second requirement should have been easy to interpret, but the lack of a consensus as to the aim of the whole rule in art. 180 has led
or torts, such as unjustifi ed enrichment, negotiorum gestio and unilateral assumption of obligations.
8 Presuda Vrhovnog suda Srbije, Rev. 2937/2005.
9 B. Loza, Dva posebna slučaja odgovornosti za prouzrokovanu štetu, “Godišnjak pravnog fakulteta u Sarajevu” 1979, p. 40; Đ. Nikolić, Posebna odgovornost za štetu od terorističkih akata, “Pravni život” 1989, vol. 39, no. 1, p. 173–176.
185 to differing views. The majority of theorists stand on the viewpoint that only damage done through acts of terrorism and political violence comes into account to the exclusion of damage done through violent acts of “ordinary” street crime and organised crime. Such a view has no foundation in the Obligations Act and it seems to introduce an unwar-ranted discrimination between victims of terrorist acts and victims of other forms of criminal activity.
Furthermore, terrorism is often understood very restrictively as de-liberate acts of public violence directed towards the State and motivated by enmity towards the State. Such a view was infl uenced by old crimi-nal law defi nitions of terrorism which stressed anti-State motivation as an essential part of the notion of terrorism.10
Legal systems which provide state compensation to crime victims do not differentiate between terrorist acts and other serious criminal acts. The compensation for damage due to injury, impairment of health and death is awarded to victims of all violent intentional crimes, or in some countries all serious crimes. Sometimes compensation is given even in the case of damage caused by negligence.11 There is no reason to limit compensation if its goal is to alleviate the victim’s hardship. The solution contained in art. 180 seems to follow that line of reasoning; its direct meaning does not restrict state liability to terrorist acts, it clearly states: “(…) due to acts of violence or terrorism (…).”12 However, le-gal theory holds that the State cannot be liable for all criminal activity because such liability would be too wide. Such an argument imparts that the State is not really seen as the responsible subject, otherwise there would be no problem with making the State liable for damages resulting from all crime, but rather that State compensation is deemed just only in specifi c cases.
Finally, the notion of public demonstration is clear enough, but there is doubt regarding the scope of the notion of public event. It would be reasonable to limit State liability only to those public events which call
10 B. Loza, Dva..., p. 36–37.
11 For the overview of different national schemes for indemnifying victims of ter-rorism see: Tort and Insurance Law, Vol. 11, ed. B. Koch, Vienna–New York 2004.
12 There are court decisions which have recognized State liability based on art.
180 even in the case of non-political violence. Presuda Vrhovnog suda Srbije, Rev.
2222/2005.
186
for a higher degree of safety measures on the part of State agencies.
Not because State liability is based on fault, which is not the case, but because a certain proximity of the risk of damage to the State’s role in preserving public order needs to be established. This connection is a natural limit to State liability since otherwise the State could be held liable for damage which occurred outside its fi eld of activity, e.g. in a private party.