Facts

Facts and parties:

The Syrian nationals A.A. (the wife) and E.A. (the husband) and their three sons were on the night train from Milan to Paris on the night of 3 to 4 July 2014. The French border police refused them entry, whereupon the group was handed over to the Swiss Border Guard Corps for repatriation to Italy at around 10:45 a.m. in Vallorbe. The Border Guard Corps took the group to Brig, where they arrived at around 14:20 and were accommodated in the control rooms of the border guard post from around 14:50. At this time, A.A. was in her 27th week of pregnancy and was suffering increasing pain. Her husband E.A. repeatedly and unsuccessfully demanded medical assistance for her, including from the Border Guard Corps operations manager. The Border Guard Corps refused to arrange medical assistance. After the train arrived in Domodossola, A.A. was carried by her relatives to the train and into the extra carriage. In Domodossola, the Italian police summoned medical assistance. A.A. was taken to a hospital, where the death of the unborn girl was confirmed at 18:30. According to a forensic medical report, there was no immediate danger to the life of A.A.

Legal prior proceedings:

  • On 3 July 2015, A.A. and E.A. filed applications for compensation and damages with the Federal Department of Finance. The proceedings were suspended as a military criminal case was opened against the operations manager of the Border Guard Corps.
  • On 6 November 2018, the Military Appeal Court convicted the operations manager of the Border Guard Corps of negligent bodily harm by omission (to A.A.) and failure to comply with service regulations. The conviction was based on the fact that the border guard did not order medical assistance despite A.A. suffering pain and E.A. repeatedly requesting it.
  • By decision of 13 January 2021, the Federal Department of Finance rejected the applications for compensation and damages. On 27 October 2022, the Federal Administrative Court ordered the Department of Finance to award A.A. compensation of CHF 12,000 plus interest and dismissed the appeal in all other respects.

Appeal to the Federal Supreme Court:

On 9 December 2022, A.A., E.A. and their three sons filed an appeal in public law matters. They requested the annulment of the Federal Administrative Court’s judgment and the award of damages as well as higher compensation amounts. The Federal Supreme Court ordered the Federal Department of Finance to award E.A. compensation of CHF 1,000 plus interest and dismissed the appeal in all other respects.

Considerations

Applicable liability provisions:

The Federal Supreme Court first examined the applicable liability provisions. While members of the Border Guard Corps are subject to military criminal law and military jurisdiction, the liability of the Confederation for their conduct is governed by Articles 3 et seq. of the Responsibility Act (GLA). According to Article 3(1) GLA, the Confederation is liable without regard to the civil servant’s fault for damage unlawfully caused to third parties in the performance of their official duties. The prerequisites are proof of an unlawful act, damage and a causal link between the two (cf. BGE 139 IV 137 para. 4.1; BGE 132 II 449 para. 3.2).

Compensation claim of the wife (A.A.):

The Federal Supreme Court confirmed the lower court’s view that A.A., as the directly injured party, was entitled to compensation under Article 6(1) GLA. The lower court had found that A.A. had not suffered any severe or permanent physical or psychological damage. Nevertheless, she was awarded compensation of CHF 12,000 as the severity of the injury and the special circumstances justified such an award. The Federal Supreme Court did not challenge this assessment.

Compensation claim of the husband (E.A.) as a relative:

Article 6(1) GLA provides for a compensation claim for relatives only in cases of death. In cases of bodily injury, compensation for relatives may be considered under Article 6(2) GLA if the relatives’ personality rights were unlawfully violated and they were affected to an equal or greater…