State Liability in Spain: How to Claim Damages Against the Government (Arts. 32-35 LRJSP)

State Liability: A Constitutional Right

State liability (responsabilidad patrimonial) is a cornerstone of the Spanish rule of law. Art. 106.2 of the Spanish Constitution enshrines the right of individuals to be compensated for any harm suffered as a result of public service operations. This principle is developed in Arts. 32-35 of Law 40/2015 on the Legal Regime of the Public Sector (LRJSP).

This is a system of strict liability: there is no need to prove fault or negligence by any public official -- only that the harm resulted from public service operations, whether normal or abnormal.

Legal Framework

Core Principles

1. Strict liability: No fault required
2. Universal application: Covers all public administrations (state, regional, local)
3. Full coverage: Both normal and abnormal service operations
4. Full compensation: Damage must be fully repaired

Requirements (Art. 32 LRJSP)

1. Effective, Economically Assessable, and Individualized Damage

The damage must be real and current, quantifiable in monetary terms, and affect a specific person or group.

Types of compensable damage:

2. Causal Link

There must be a direct causal connection between public service operations and the damage suffered.

Exclusionary causes: Force majeure, exclusive victim fault, third-party intervention.

Concurrent fault: If the victim contributes to the damage, compensation is proportionally reduced.

3. Unlawfulness of the Damage

The individual must have no legal duty to bear the damage.

4. Public Service Operation

The damage must result from public service operations, whether normal (service works correctly but causes collateral damage) or abnormal (service malfunctions).

Claim Procedure

Mandatory Administrative Phase

#### Step 1: Written Claim (Art. 67 LPAC)

Must contain: claimant's details, facts and circumstances, damages suffered, causal link, compensation amount requested, and supporting evidence.

#### Deadline: 1 Year (Art. 67.1 LPAC)

The 1-year period is one of limitation (prescripción), meaning it can be interrupted by extrajudicial claim.

#### Step 2: Investigation

The Administration must admit the claim, conduct evidence, request a Council of State report if compensation exceeds EUR 50,000, and give the claimant a hearing.

#### Step 3: Resolution

• Resolution deadline: 6 months from claim submission
• Administrative silence: After 6 months without express resolution, the claim is deemed rejected (negative silence)

Judicial Review Phase

If the claim is rejected, the claimant may file an administrative appeal before the Administrative Court:

Damage Quantification

Compensation must achieve full reparation. The traffic accident scale (Law 35/2015) is used as an analogical reference for personal injury valuation in state liability cases, though it is not binding.

Compensation is updated with the CPI from the date of harm to the date of payment (Art. 34.3 LRJSP).

Common Cases

1. Healthcare Liability

The most frequent scenario. Key principles:

• Diagnostic/treatment error: The standard is the lex artis ad hoc (medical best practice)
• Informed consent failure: Even if treatment was correct, omitting informed consent generates liability if an uncommunicated risk materializes
• Hospital-acquired infection: Strict liability except for force majeure

2. Roads and Public Infrastructure

• Potholes and lack of maintenance
• Missing signage or malfunctioning traffic lights
• Animals on the road

3. Urban Planning

• Unjustified delays in granting permits
• Annulled building permits (Administration liable for demolition costs)
• Irregular expropriation

4. Justice Administration

• Judicial error (requires prior Supreme Court declaration)
• Abnormal functioning (undue delays, lost case files)
• Wrongful pretrial detention

Conclusion

State liability is a constitutional right enabling citizens to obtain full compensation for damages caused by public service operations. It is a strict liability system requiring only proof of damage, causal link, and unlawfulness -- no fault.

The 1-year claim deadline and 6-month negative silence make swift, well-founded action by the lawyer essential to protect client rights.

Lexiel includes Arts. 32-35 LRJSP, the damage assessment scale, Supreme Court case law on state liability, and administrative claim templates -- all verified against official sources.

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