Some basic dilemmas arise when dealing with the State's liability for damages. There are conflicting opinions regarding the question whether the said area should be placed in the sphere of public or private law. Due to the lack of a special law on State's liability for damages, the courts tend to apply the general rules of civil law analogously.
The question arises as to whether the rules of civil law are sufficient or whether they have to be adapted to the content of the constitutional provision. If we take the view that the nature of the responsibility of the state deviates from the nature of the responsibility of private law entities, it may be demanding to justify what this means in dealing with concrete cases.
According to a dominant position, Article 26 of the Constitution applies only in those relations in which the state acts as an authority. On the other hand, when the state enters into relations with individuals as an entity ex iure gestionis, it seems that such relationships are difficult to place within the scope of the constitutional provision.
The first part of the paper deals with the underlying dilemmas. This is followed by consideration of the conditions of the State's liability for damages under Article 26 of the Constitution. It is indicated that it is difficult to give a reliable answer to the question of whether the element of guilt is a necessary condition when assessing the State's liability for damages.
The second part of the paper focuses on the analysis of specific court cases. The red thread is given in the examination of the thesis, according to which the elements of unlawfulness and guilt are closely interlinked. Since many issues are closely connected often there is a reference to the introductory chapters. Three cases from the case-law are presented in depth. Each of them has a special aspect.
Examples of State liability for damages vary considerably. Therefore, in this area, the adoption of generally valid opinions and conclusions is an ungrateful task. I do not explicitly take a stand on the issue of the burden of proof, which is significantly related to the dilemmas regarding the elements of unlawfulness and guilt. Instead, I offer some points for further reflection.
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