State Liability in Switzerland
State liability is the legal mechanism allowing any private individual or company to obtain redress for damage caused by an unlawful act or omission of a state agent in the exercise of their functions. Under Swiss law, this area is governed at the federal level by the Government and Administration Organisation Act on the Liability of the Confederation, the Members of its Authorities and its Civil Servants (GSLA) of 14 March 1958. Each canton has its own legislation. PBM Avocats assists victims of unlawful acts by the state in Geneva and Lausanne.
Conditions for State Liability (Art. 3 GSLA)
To obtain redress from the Confederation, three elements must be proved:
- Unlawful act: conduct (act or omission) of a civil servant or state agent contrary to a legal norm, in the exercise of their official duties. Personal fault of the agent is not required for Confederation liability
- Damage: an effective and quantifiable harm to the applicant's interests (patrimonial damage, moral harm, bodily injury)
- Causal link: adequate causal relationship between the unlawful act and the damage suffered
Federal Law vs. Cantonal Law: Important Differences
| Criterion | GSLA (Confederation) | LREC (Geneva) | LRECA (Vaud) |
|---|---|---|---|
| Fault required? | No (objective liability) | No (unlawfulness sufficient) | Fault or risk |
| Direct action against the agent? | Excluded (art. 3 para. 3 GSLA) | Excluded | Excluded in principle |
| Limitation period | 1 year / 10 years | Variable | Variable |
| Moral damages | Provided (art. 6 GSLA) | Provided | Provided |
Types of Acts That May Engage State Liability
State liability may be engaged in many situations:
- Illegal administrative decision: unlawful refusal of a permit, erroneous tax decision, unjustified coercive measure
- Unlawful material acts: excessive police intervention, seizure or destruction of property without legal basis
- Omissions: failure to maintain public roads, breach of supervisory obligations
- Excessive delay: prolonged inaction by the authority causing harm (denial of justice)
- Defective performance of public interest tasks: public hospitals, detention facilities
The Liability Claim Procedure
The procedure varies depending on the authority concerned:
- Confederation (GSLA): claim with the Federal Department of Finance (FDF); in the event of refusal, appeal before the Federal Administrative Court (FAC); final appeal to the Federal Supreme Court
- Geneva (LREC): claim with the State Council (state chancellery); appeal to the Administrative Chamber of the Court of Justice
- Vaud (LRECA): claim with the State Council; appeal before the CDAP of the Cantonal Court
Recoverable Damages: Extent of Compensation
- Patrimonial damage: effective economic loss, loss of earnings, costs incurred as a result of the unlawful act
- Moral harm: compensation for moral suffering resulting from an infringement of personality (art. 6 GSLA); amount often limited in public law compared to civil law
- State liability for lawful acts: in certain cases (formal or material expropriation), compensation is owed even for legal acts that cause particular damage
Frequently Asked Questions on State Liability
What conditions must be met to engage state liability in Switzerland?
Under art. 3 GSLA, three conditions must be present: (1) an unlawful act by a civil servant or state agent in the exercise of their functions; (2) damage suffered by the applicant; (3) an adequate causal link between the act and the damage. Personal fault of the civil servant is not required for Confederation liability, but some cantons require it.
Do the Confederation and the cantons have the same liability rules?
No. The GSLA applies to the Confederation. Each canton has its own state liability law. Cantonal laws vary considerably: some cantons require the agent's fault, others do not. In Geneva, the Law on the Liability of the State and Communes (LREC) applies. In Vaud, it is the Law on the Liability of the State, Communes and their Agents (LRECA).
What is the deadline for bringing a liability action against the state?
The limitation period for liability actions against the state varies. For the federal GSLA, a one-year period applies from knowledge of the damage, but at most ten years from the harmful act. Under cantonal law, periods vary (often 1 to 5 years). It is imperative to act quickly as these periods are generally shorter than under ordinary civil law.
Can a state agent be personally sued for their acts?
As a general rule, no. Liability is exclusively that of the state: the agent cannot be sued directly by the private individual (art. 3 para. 3 GSLA: direct action against the agent is excluded). However, if the agent committed a serious intentional fault, the state may take recourse action against them. Criminal proceedings remain possible independently.
Can I obtain damages if an illegal administrative act has caused me harm?
Yes. If an illegal administrative decision (for example, a wrongly refused permit, an unjustified coercive measure) has caused you proved damage, you may claim damages from the state. It is generally necessary first to have the illegality of the decision established through administrative appeal, and then to bring a liability action. The harm must be proved in quantified terms.