State Liability in Swiss Law

Principle

The Confederation, cantons and municipalities may be liable for damage caused by their agents in the exercise of their functions. Federal level: Federal Liability of the State and Government Act (FLSG). Cantonal level: cantonal state liability laws.

Federal Liability (FLSG)

Conditions (art. 3 FLSG)

The Confederation is liable for damage caused unlawfully by an official in the exercise of functions, regardless of fault. This is strict liability (no-fault). Conditions: damage, unlawful act, causal link, act in exercise of functions.

Official's Immunity (art. 3 para. 3 FLSG)

The victim cannot sue the official directly. Action exclusively against the Confederation. The official is only personally liable through internal recourse (art. 7 FLSG).

Procedure (art. 20 FLSG)

Written claim to the responsible department. If rejected, action before the Federal Supreme Court (art. 120 para. 1 let. c FSCA). Prescription: three years from knowledge of damage, maximum ten years from the harmful act.

Cantonal/Municipal Liability

Each canton has its own law, generally similar to the FLSG.

Typical Cases

Public hospital medical care: state liability for medical malpractice. Patient must prove violation of medical standards, damage and causal link (ATF 133 III 121).

Police activity: disproportionate or faulty interventions. Excessive force constitutes an unlawful act (ATF 118 Ib 163).

Unlawful administrative decisions: annulled decisions may give rise to compensation if sufficiently serious (ATF 132 II 449).

Public works: defective public infrastructure (roads, buildings) engages liability analogous to art. 58 CO.

Limits

No liability for lawful acts (legislation, correct but unfavourable decisions). Victim's contributory fault may reduce compensation (art. 4 FLSG).