In this article, we will focus solely on the liability of "officials" under the Federal Law on the Liability of the Confederation, its Authorities, and its Officials.
When a federal official causes you damage, you can seek compensation by filing a claim for damages or moral compensation.
Through this process, you hold the Confederation liable, not the official directly. We will outline the nature of such liability, the conditions required to establish it, and the procedure to follow.
This law regulates only the civil liability of the State, excluding the criminal and disciplinary liability of the official. In this regard, we refer to objective and exclusive liability of the Confederation. In other words, only the Confederation is directly responsible to the injured party for damages caused unlawfully by an official, regardless of whether the official committed a fault (cf. Article 3, para. 3 of the Federal Law on the Liability of the Confederation, its Authorities, and its Officials). By "official," we mean anyone holding a public office within the Confederation (Article 1 of the Federal Law on the Liability of the Confederation, its Authorities, and its Officials).
Conditions for Liability
According to Article 3, para. 1 of the Federal Law on the Liability of the Confederation, its Authorities, and its Officials:
"The Confederation is liable for damage unlawfully caused to a third party by an official in the performance of their duties, regardless of the official's fault."
Illegality: This implies an infringement on a right protected by an absolute right of the injured party, such as life, liberty, bodily integrity, property, possession, or a financial loss caused by a violation of a legal rule designed to protect the legal good against such damage.
An omission can also constitute an illegal act if a certain measure required of the State was not taken, despite being imposed by a legal norm.
Damage: This can be physical, material, or purely financial. It can result from an action by a State official or from an omission.
Causal Link: There must be a natural and adequate causal link between the official's behavior and the damage. Natural causation exists when it can be admitted that, but for the official's unlawful act, the damage would not have occurred at all or would not have occurred in the same manner (sine qua non condition). Adequate causation exists when the incriminated behavior was, according to ordinary course of events and general life experience, likely to result in a damage of the kind that occurred.
Prescription: Article 20 of the Federal Law on the Liability of the Confederation, its Authorities, and its Officials refers to the prescription period under Article 60 of the Code of Obligations, which states that the claim for the Confederation's liability is subject to a three-year limitation period from the day the injured party became aware of the damage and the person liable for compensation, and in all cases, ten years from the day the harmful act occurred or ceased (Article 60, para. 1 of the Code of Obligations).
In cases of death or bodily injury, the action is limited to three years from the day the injured party became aware of the damage and the person liable for compensation, and in all cases, twenty years from the day the harmful act occurred or ceased (Article 60, para. 1bis of the Code of Obligations).
If the harmful act results from a punishable offense, the action is prescribed no earlier than the expiration of the criminal action limitation period. If the limitation period for the criminal action has expired because a first-instance judgment has been rendered, the civil action is prescribed no earlier than three years from the notification of the judgment (Article 60, para. 2 of the Code of Obligations).
Compensation: If the State's liability is established, the injured party is generally entitled to compensation for the damage suffered. The damage to be compensated consists of financial losses or an impairment of expected income.
If the official committed a fault, the competent authority may grant the victim of bodily injury or, in the case of death, their family, fair compensation for moral damages (Article 6, para. 1 of the Federal Law on the Liability of the Confederation, its Authorities, and its Officials). The same applies to someone who suffers an unlawful infringement of their personality, provided the severity of the infringement justifies it and the author has not otherwise satisfied them (Article 6, para. 2 of the Federal Law on the Liability of the Confederation, its Authorities, and its Officials).
Procedure
Two scenarios are to be distinguished. First, if the liability arises from behavior attributable to members and substitutes of federal authorities and independent commissions of federal courts and federal administration, officials, and other Confederation agents, or any other persons directly charged with public law tasks by the Confederation (Article 1, para. 1, letters d to f of the Federal Law on the Liability of the Confederation, its Authorities, and its Officials), claims for damages or moral compensation must be submitted in writing in duplicate to the Federal Department of Finance, stating the reasons (Article 1, para. 1 of the Ordinance on the Liability Law). The Federal Department of Finance will render a decision subject to appeal to the Federal Administrative Court, which may also be appealed to the Federal Supreme Court.
Second, if the damage was caused by members of the Federal Council, the Chancellor of the Confederation, members and substitutes of the federal courts, or members of the Federal Public Prosecutor's Office (Article 1, para. 1, letters a to cbis), the Federal Department of Finance receives and examines the claim. The Federal Council must then take a position without rendering a decision. If the claim is rejected or if the Federal Council does not respond within three months, the injured party may file an action with the Federal Supreme Court within six months, subject to expiration (Article 10, para. 2 and Article 20, para. 3 of the Federal Law on the Liability of the Confederation, its Authorities, and its Officials; Article 3, para. 1 of the Ordinance on the Liability Law).
Would you like more information about the Confederation's liability? Our team of professionals will be happy to welcome you at our office located at 1 rue du Valentin, 1004 Lausanne, to advise you.
Source: JAAG T., The General System of State Liability Law, in: FAVRE A.-C. et al. (eds.), State Liability, Administrative Law Practice 2012, p. 23 et seq.
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