Abstract

This paper analyzes the jurisprudential development of the elements to impose liability to the State by judges and prosecutor office’s attorneys, unjustifiably erroneous or arbitrary actions. It should be noted that they have been understood as personal actions of the judge or prosecutor and that, for their configuration, a malicious or negligent action is required, that is, elements of an essentially factual nature. It is argued that this way of interpreting liability, here called institutional, limits its guaranteeing role. Consequently, a reinterpretation of its generative elements is proposed, dissociating them from factual elements and giving them a normative meaning. Thus, it is argued that the current rules about institutional liability can be interpreted in the sense that it arises from a breach of duty.