Statutory obligation
| Statutory obligation |
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| See also |
Statutory obligation to "act independently" certainly includes the need to "demonstrate an independent mindset" during the action, increasing the appearance of independence. Hence the "symbiotic" relationship between independence and impartiality[1].
Statutory obligation[2]:
- "An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so.
- Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even, if a minimum penalty is prescribed the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute".
Violation of statutory obligation
It often happens that an act committed by one person that causes injury or damage to another also violates a certain statutory obligation. This naturally means that:
- a person is punishable regardless of the penalty provided for by law, but our current concern affects, if any, the statutory violation of that person's liability for damages to the claimant.
Many legal systems treat the fact that the defendant infringed or does not violate statutory provisions, only as material. to the question of whether negligence occurred. On the contrary, English law considers that a breach of a statutory obligation may in itself be a tort, completely independent of the defendant's negligence, with its own elements of liability and defense. However, it is not suggested that every statutory obligation entails a civil action because it is such a large part of modern legislation that the widespread imposition of liability would be considered a huge burden. Thus, the initial task for a plaintiff who wants to formulate an action in this way (in order to recover damages without the need to prove negligence) is to convince the court that the provision or regulations concerned an infringement, the infringement of which may result in being awarded[3].
Impartiality as a specific statutory obligation
An examination of the statute and regulations of various international criminal jurisdictions reveals the lack of specific regulations imposing an explicit obligation on prosecutors to exercise their functions impartially. One notable exception is the international teams of Timor-Leste, in which United Nations Transitional Administration in East Timor, not recognizing its prosecutors as independent, however, imposed on them the obligation to perform their functions impartially, without prejudices and in accordance with their impartial assessment of the facts[4].
References
- Card R., Murdoch J., Murdoch S., (2011), Real Estate Management Law, Oxford University Press Inc., United States
- Kapila S., (2002), Academic Foundation`s Bulletin On Banking And Finance, Volume -30, Academic Foundation, New Delhi
- Reydams L., Wouters J., Ryngaert C., (2012), International Prosecutors, Great Clarendon Street, United Kingdom
Footnotes
Author: Weronika Nowak
