Claim for State Liability against the Canton of Bern due to Deficient Compulsory Administration

Facts

B.B. is the owner of a property in C., which contains 14 garages and originally twelve rental apartments, some of which have since been combined into larger units. Since B.B. was temporarily unable to pay the mortgage interest, the bank terminated the business relationship as of December 31, 1995 and filed the debt collection request for the realization of the mortgage in the amount of CHF 1.21 million on January 17, 1996. At the creditor's request, the Debt Collection and Bankruptcy Office of Berner Jura-Seeland, Branch C., placed the property under official administration by O. SA in Z. as of April 1, 1996, which carried out this office until the end of 1996. Subsequently, the debt collection office itself took over the administration. The debt collection proceedings could be concluded because B.B. had found another credit institution that redeemed the mortgage. The official administration ended on August 31, 1997.

B.B. demanded compensation from the Canton of Bern plus interest, which she primarily justified with the deficient administration from April 1, 1996 to August 31, 1997. The Cantonal Government of Bern rejected the request on April 28, 1999. The state liability lawsuit filed by B.B. against the Canton of Bern, in which she had requested an award of CHF 109,326.60 plus 5% interest since July 15, 1997 and a judicially determined portion of insertion costs, was dismissed by the Administrative Court of the Canton of Bern in a judgment dated February 18, 2000.

Considerations

The Federal Supreme Court has essentially upheld the appeal, set aside the contested judgment and remanded the case to the Administrative Court for a new decision.

Prior to the entry into force of the revised DEBA, final cantonal decisions on the liability of the canton for the actions of its debt collection officials could only be appealed to the Federal Supreme Court by way of a constitutional complaint, if the canton concerned had introduced its own liability for the conduct of its officials beyond Art. 6 para. 1 of the former DEBA, taking precedence over the personal liability of the debt collection and bankruptcy officials. In Art. 5 paras. 1 and 2 of…