Responsabilidad estatal, criterio objetivo y subjetivo

Abstract

State liability for unjust deprivation of liberty is an essential characteristic of the modern State. It generates an objective damage, by violating the founding principles of the liberal philosophy and pillar of the new constitutionalism. Our jurisprudential history of reparation, in these specific cases, does not date back more than half a century, with a difficult consolidation, because unfortunately on many occasions the citizen may be deprived of liberty and acquitted, which results in future proceedings, convictions and patrimonial detriment. In the literature reviewed, we observe how laborious and polemic the subject is, due to the large number of processes of this type whose claims include exorbitant amounts. This paper investigates the methodology used by judges in the establishment of two openly dissimilar regimes, the objective and the subjective. What is their legal basis? To which it was possible to establish the free configuration of the judges in use of the iura novit curia. An autonomy rooted in the factual assumptions, very close to the realist currents, but equally formalistic by converting the damage caused by unjust deprivation of liberty into a legally permissible phenomenon, subject to the principle of legality. Of great importance for this work is the constitutionalization of law, which, despite being conceived from the principles and values of the primary constituent, positively imposes itself in these two major branches involved, extremely legalistic. First to limit the restriction of rights and second to guarantee the sanction to the State for the disregard of these limits.