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I.   Introduction

The Federal Act on the Acquisition of Real Estate by Persons Abroad (LFAIE; SR 211.412.41), also known as the Lex Koller, is a law which aims to limit the acquisition of real estate by persons domiciled outside the country in order to "prevent foreign ownership of Swiss soil".

This law varies according to the type of residence permit, the country of origin and the place of residence. Its operation is therefore complex. Moreover, the law changes according to the type of use one wants to make of it: secondary residence, main residence or holiday home. Foreign investors are not entitled to acquire residential property, but are still allowed to invest in commercial, craft and subsidised property.

The acquisition of a property subject to the authorisation regime requires the granting of an authorisation by the competent cantonal authority (art. 2, para. 1, LFAIE). Thus, the application of this law is first and foremost the responsibility of the canton in whose territory the property is located. It is the competent authority designated by the canton in question that decides whether a legal act is subject to authorisation and whether authorisation should be granted (art. 15, para. 1, letter a, FL). Authorisation is granted only on the grounds set out in the FL and, where applicable, in cantonal law (Art. 3, 8 and 9 FL).

II.  Conditions

In principle, three cumulative conditions must be met for a legal transaction to be subject to the authorisation regime:

- The purchaser must be a person abroad within the meaning of the FL (subjective liability).

- The object of the legal transaction must concern a property that is subject to taxation under the FL (objective taxation according to the use of the property).

- The acquired right must be assimilated to an acquisition of real estate under the FL (objective liability according to the type of right).

Even if these three conditions are fulfilled, further exceptions to the obligation to obtain authorisation in accordance with Art. 7 FL may apply.

III.   Persons abroad

The Lex Koller defines persons abroad in art. 5 para. 1 let. a and abis FL (supplemented by art. 2 OFL). These are foreigners domiciled abroad and foreigners domiciled in Switzerland, but who are not nationals of a member state of the European Community (EC) or the European Free Trade Association (EFTA), nor do they possess a valid C settlement permit.

This regime also applies to companies with headquarters abroad even if they are Swiss-owned and considered to be Swiss from an economic point of view.

IV. Holiday accommodation

A foreigner subject to authorisation may acquire a flat in an aparthotel or holiday home (Art. 9, paras. 2 and 3, and Art. 10 FL). The location of the accommodation must be designated as a tourist area by the canton in question. Each authorisation is subject to the annual quota allocated by the Confederation to the canton for holiday homes and flats in an aparthotel (art. 11 FL, art. 9 OFL and Annex 1 OFL), although there is an exception if the authorisation for the acquisition of this home or flat had already been obtained by the seller at the time.

Quota units may also be transferred to non-taxable persons to enable the sale of dwellings to foreign nationals (so-called "de principe" authorisations). Consequently, individual purchases by foreign nationals still require authorisation, but no longer have to be counted in the quota. Cantons and tourist municipalities may impose restrictions. For example, they may decide to block a location completely, or allow the purchase of multi-storey properties and only up to a certain quota, or limit the annual number of permits, or restrict the purchase of dwellings that are already in foreign hands (Art. 13 FL).

The following cantons allow the purchase of a holiday home or flat in an aparthotel: Appenzell Ausserrhoden, Bern, Fribourg, Glarus, Graubünden, Jura, Lucerne, Neuchâtel, Nidwalden, Obwalden, St. Gallen, Schaffhausen (only for flats in an aparthotel), Schwyz, Ticino, Uri, Valais and Vaud.

Holiday homes cannot be rented out on a year-round basis, but can only be rented out on a short-term basis. The purchaser must be able to use the accommodation himself in accordance with the purpose for which he has applied. The flats in a hotel apartment must be left at the disposal of the hotelier so that he can operate them as a hotel, especially during the high season (Art. 10, letter b, OAIE).

According to Art. 8 OAIE, holiday homes can only be acquired by natural persons directly in their own name; indirect acquisition of a home through a legal entity is not possible.

In principle, according to Art. 10, paras. 2 and 3, OAIE, the net floor area of a property may not exceed 200 m2 and the plot area 1,000 m2 (Art. 10, paras. 2 and 3, OAIE). In accordance with established practice, in the event of additional need, up to 250 m2 of net floor area and 1,500 m2 of plot area may be permitted, and in exceptional cases, higher excesses.

Mizgin CADIR, Alain AGUPYAN & Cassandra JOCHUM

The year 2022 saw an important legal victory for ELC, our law firm.
On September 28, 2022, the Swiss Supreme Court (the Federal Court) issued a decision that put an end to a case of unlawful removal of children from Greece to Switzerland for seven months. Our Law firm, representing the father of the children and requesting their return, won the case at all levels.

The phenomenon of child abduction has grown in recent decades for several reasons, including globalization, the evolution of family law and the increase in binational couples.
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter referred to as the "Hague Convention") is the main legal instrument in this field, as it is currently binding on 100 States (for more information, we invite you to read our article of 1 February 2022)
The most controversial issue before the cantonal courts was whether the mother, according to Greek law, could move to Switzerland with the children without the father's permission, since she had temporary sole custody of the children and the couple had been separated for years. The mother, on the other hand, obviously argued that the father's consent to the move abroad was not necessary because of her sole custody of the children.

The Swiss judge did not have to decide on the matter by applying Greek law, since on May 10, 2022 the Court of First Instance of Athens ruled that the move was illegal. Indeed, art. 14 THC 80 allows the authorities of the requested State to rely directly on a judicial or administrative decision formally recognized in the State of the child's habitual residence in order to determine the existence of an unlawful removal in the sense of art. 3 THC 80.
The Swiss judicial authority thus had to analyze the exceptions to return provided for in art. 13 THC 80, which were lacking in this case, before ordering the immediate return of the children to Greece, in accordance with art. 12 THC 80.
The decision of the cantonal court confirms the rigidity of THC 80, which was rightly designed to protect children from the harmful consequences of abduction by ensuring, among other things, that existing rights of custody and access in a contracting state are effectively respected. In this case, neither the rapid integration of the children in Switzerland nor their preference for this country could prevent their return to their country of habitual residence, Greece, since the law of that country had been violated.
In her appeal to the Federal Court, the children's mother mainly contested the fact that the cantonal court based its decision (in the sense of art. 14 CLaH 80) on the Greek decision of May 10, 2022, which she claimed was null and void.
The Swiss Supreme Court's response to this complaint was clear: art. 14 THA 80 serves the principle of expediency that should apply to this type of case; its purpose is not to recognize a foreign decision in advance or to examine its conformity. Therefore, the cantonal authority had not violated federal law.
Moreover, the Federal Court confirmed its case law not only with regard to the restrictive application of the exceptions to return (art. 13 CLaH 80) but also with regard to the burden of proof and the requirement to state reasons (art. 42 para. 2 FSCA).
In the present case, the complaints raised by the appellant were of a purely appellatory nature or expressed her point of view, but did not show precisely in what way the cantonal court had violated the law.
The appeal was therefore dismissed.
The children, represented by a lawyer of their choice and not by the curator who had been appointed in the cantonal proceedings, also appealed to the Federal Court.
However, the appeal was declared inadmissible. Indeed, lacking the capacity of discernment regarding the dispute between the parents, which had been determined by the cantonal court, the appellants could not free themselves from the services of their curator in order to mandate a lawyer of their choice.
After seven months of legal battle, for a dispute which proved to be very delicate not only for its nature but also for the tense relations between the parties, we welcomed the decision of the Federal Court. Justice has been rendered for a father whose rights were violated!

Carmela Telemaco
Constantin Kokkinos

Following parliamentary debate, a new law of succession will come into effect in 2023 in Switzerland. The new legal provisions will apply to all estates of persons who die on or after January 1, 2023.

Today, the system provides, among other things, that the legal reserve allocated to a descendant is ¾ of his or her inheritance right; that of the surviving parents is ½ each; and the legal reserve of the surviving spouse or registered partner is 1/2 (art. 471 CC).

The major changes planned for 2023 are in the legal allocation of the hereditary reserves. Indeed, the reserve share of the descendants is reduced to half of the legal share (½), thus ¼ of the estate; and the reserve share of the surviving parents will be eliminated.

However, the decedent's legal partner will still be awarded ½ of the reserve. In addition, there is still no right to the estate for the cohabitant.

This new distribution of legal shares gives the testator greater flexibility in the distribution of his or her estate. Now, half of the total estate can be distributed freely by the testator, instead of ⅜ of the estate previously.

Implications for usufruct:  

Spouses/registered partners maintain the possibility of providing for the granting of a usufruct on the entire share of the estate devolving to the joint children. However, they can extend this advantage granted to the partner; indeed, they can now attribute half of the estate in full ownership to the spouse/registered partner (i.e. the available portion of ½ of the estate, instead of the ¼ currently) and the other half in usufruct (½ instead of the ¾ currently).

However, in the event that the spouse / registered partner remarries or enters into a new registered partnership, he/she loses the usufruct on the children's inheritance reserve. The latter become full owners of their share of the estate, which is no longer subject to a usufruct.

Couple involved in divorce proceedings:

As soon as divorce proceedings or the dissolution of a registered partnership are initiated, the protection of the inheritance reserve will cease, even before the divorce or registered partnership is finally pronounced.

For this purpose, it is sufficient that:

- a divorce proceeding has been initiated by joint petition, or

- the spouses have lived separately for at least two years, and

- one of the spouses dies, and

- that this deprivation of inheritance is provided for in the deceased's will.

Finally, the surviving spouse will legally lose:

- his or her reserved portion of the estate

- his or her rights resulting from dispositions of property upon death

- the gifts provided for in the marriage contract.

Inter vivos gifts:

Whereas the current law provides that a gift made by the testator after the conclusion of a contract of succession may be voidable only if it contravenes the provisions of the contract of succession or if there is an intention to prejudice the instituted heirs, the new law of 2023 will allow the contracting party to the contract of succession to object to dispositions upon death or liberalities between living persons without the need to prove that they cause prejudice to the contracting party.

This brings us closer to a restrictive practice in the freedom of the testator to dispose of his property. 

Furthermore, the reform modifies the order in which reductions of gifts can be made in the event of a violation of the legal reserve. Until the reserve is reconstituted, the order of reduction is as follows:

1.     Acquisitions on account of death resulting from the law

2.     Gifts in lieu of death

3.     Gifts between living persons

Clarity for Pillar 3a:

Pillar 3A pension assets will now be included in the calculation of reserves (for their surrender value) and will not be included in the estate.

This provision, which is already in force but vague at present, will be expressly written and clarified in the text of the law.

In conclusion, we are moving towards a modernization of the Swiss inheritance law. The Swiss Confederation fills its gaps in the field of inheritance law by means of standards that are already applicable in many other European countries.

Jacques DEGORS & Ilona ROUSSEL

Sources : ww.ubs.com / www.bdo.ch / arpr.ch / www.mll-news.com 

MORAL TORT

In Switzerland, Article 47 of the Federal Act supplementing the Swiss Civil Code provides that "The judge may, taking into account particular circumstances, award the victim of bodily injury or, in the case of death, the family, fair compensation as moral reparation.

It appears from the practice of Swiss courts that this moral damage is assessed according to a two-stage process.

The Swiss courts therefore analyse successively :

 the objective seriousness of your injury

the elements specific to the case in question

An objective amount is thus allocated as an indication in a first phase and in a second phase, all the circumstances of the case are taken into account to adjust the basic amount, this last phase being more important in serious cases.

Phase 1: In order to calculate the basic amount to which a victim's next of kin may be entitled, the maximum insured earnings at the time of death, i.e. CHF 148,200 under the LAA (Compulsory Accident Insurance Act), must be taken into account.

https://www.swissriskcare.ch/sites/default/files/src_chiffres_cles_2022.pdf

When calculating such an amount, the aim of providing the injured party with a certain feeling of enrichment should only serve as an overall criterion, applicable in the same way to all injured parties, and making it possible to set the range within which the total compensation should be situated.

Thus, the Swiss courts have based themselves on the figures used in the literature, in particular the figures used by Hütte, which are most probably the closest to the current case law. A basic compensation of 35% of the share of earnings insured by the compulsory accident insurance is awarded for the death of a child (Guyaz Alexandre, le tort moral en cas d'accident:une mise à jour, SJ 2013 II p. 215 ss, 250 s.)

Therefore, in the case of a human death following a road accident, a parent would be awarded CHF 52,000 (i.e. 35% of CHF 148,200) as basic moral compensation.

Phase 2: Using the example of parents who have lost their child, the basic amount of CHF 52,000 could be increased to some extent, given the mitigating or aggravating circumstances in each particular case.

The fact of having directly witnessed the accident, the intensity of the bond between a mother and her deceased daughter, the pain caused by the loss of the child or the moral suffering resulting from the fact that no one was found guilty in the criminal proceedings, for example, are elements that may well be taken into consideration by the judges in order to increase the compensation.

However, this compensation must be fixed in a "fair" manner, thus leaving a wide margin of appreciation to the courts. As mentioned above, compensation is also assessed in comparison with similar situations and the amounts awarded in those cases.

Case law and doctrine take into account, among other things, the seriousness of the fault committed by the wrongdoer when determining the compensation. The latter should be considered only insofar as it has aggravated the claimant's psychological pain and made it even more difficult to accept the situation suffered.

In sum, there are ultimately as many grounds for awarding 100,000 francs as there are for awarding 200,000 francs or 1,000,000 francs for the same injury and it would undoubtedly be preferable for this type of decision to be taken directly by the legislator rather than left to the discretion of the judge.

ECONOMIC LOSS

Article 45 paragraph 3 of the Swiss Code of Obligations provides for damages for the loss of support resulting from the death of a loved one. It is necessary to estimate the hypothetical income that an individual would have obtained from his or her deceased loved one from the day of his or her death. In order to do this, it is necessary to examine several criteria: the amount of income, the proportion of this income that was spent on the relative, possible reductions and the duration of the support. If the support was given in kind (in the form of work, household help, care, etc.), it is possible to estimate its value, but this is more difficult to demonstrate in court.

In conclusion, when a loved one is lost, a certain category of individuals close to the deceased can claim their rights before a court to receive both compensation for the moral suffering experienced and the economic damage that follows the death.

It has been observed that the amounts awarded to relatives are small compared to what some have suffered, such as the loss of a child or parents. Only in exceptional cases has Swiss case law doubled the compensation for moral damages and prevented claims from being made for sums that are too high compared to the latter, at the risk of having claims rejected.

Today, therefore, it seems that this process is not very representative of the pain endured. The moral issue should probably be examined by the legislator in order to revalue the amounts awarded in the event of death and avoid this issue being left to the arbitrariness of a judge.

Jennifer Gaumann & Ambre Schindler

 1.    School bullying: a 21st century societal phenomenon

Bullying is generally defined as an aggressive, intentional act perpetrated by an individual or a group of individuals, repeatedly against a victim who cannot easily defend himself or herself.

More specifically, school bullying is characterized by three aspects: the repetition of a behavior, creating a relationship of domination and the existence of an intention to harm. It takes the form of aggressive behavior, whether verbal (threats, insults, lies, mockery), relational (exclusion), physical (beatings, racketeering, sexual harassment) or material (theft, damage, etc.). The effects on the young victim can be extremely harmful: dropping out of school, social isolation, anxiety, depression or somatization. In the long term, the victim of harassment can suffer significant consequences in his or her psychological and social development.

The main problem is the difficulty victims have in expressing their suffering. Therefore, fighting against school bullying requires first of all an awareness raising among students and school staff in order to avoid any lack of reactivity or minimization of the phenomenon.

2.    Different international approaches to a new form of harassment

● French law: the development of legislation criminalizing school harassment
In French law, harassment is punishable under the Penal Code (C. pén. art. 222-33-2-2). Acts of harassment in the school environment are therefore covered by this offence. The French Penal Code also criminalizes violence resulting from acts of hazing and hazing itself, incitement to suicide, as well as the dissemination of degrading images or invasion of privacy (C. pén. art. 223 ff). A right to continue one's schooling without harassment has even been enshrined in article 511-3-1 of the Education Code. However, despite the qualification of school harassment as a criminally reprehensible offence, no sanction is mentioned.
● The German case: the violation of the student's personality by the teacher
Unlike French law, German law does not directly provide for instruments to punish school harassment, but its constituent acts are nevertheless likely to be sanctioned by various provisions of the Criminal Code or by disciplinary measures.
The Oberlandesgericht noted that there is a duty of protection on the part of teachers towards pupils during school hours, as long as the latter are obliged to attend school. In the Ruling of the Oberlandesgericht Zweibrücken (Germany) of May 6, 1997, Az. 7O 1150/93), it was considered that the seriousness of the infringement justified the payment of moral damages.
● The Anglo-Saxon approach: the central role of schools
In the United States, in the absence of federal legislation aimed at specifically punishing harassment as such, including school harassment, there is some protection against acts of harassment with specific characteristics. Each state has anti-harassment laws or amendments. These laws have some common denominators, such as requiring schools to take action.
The United Kingdom also has no specific anti-bullying instruments, delegating to schools the task of protecting schoolchildren, including outside the school grounds. The imposition of sanctions in the event of reprehensible behaviour is possible without any obligation on the part of the schools in this respect, unlike in American state laws.
It can therefore be seen that, in these two examples, the school is in the front line of responsibility, whether because of the risk of action against it or the threat of administrative measures.
● Swiss law: a legal vacuum on the issue of school bullying
In Swiss law, school bullying is not subject to any specific provision. However, the doctrine generally tends to assimilate it to art. 328 of the Code of Obligations, which concretizes the protection of the employee's personality against harassment occurring in the workplace. In fact, the community bond on which this article is based also exists between students and other members of the school. It is based on the duty to attend compulsory school. A crucial distinction must be made between the obsessive dimension of harassment (or stalking) and school harassment as described above (ATF 5A_526/2009 of 5 October 2009, c. 5.3, SJ 2011 I 65). Taken separately, the acts of the schoolchildren may seem harmless, but taken as a whole, their repetitive nature is destructive for the young victims.
At the legal level, cantonal laws also provide for instruments to sanction the failure of pupils to perform their duties. Art. 115 al. 2 of the Law on Public Education of September 17, 2015 mentions that "any act of violence, in any form, committed by students in or out of school [towards teachers and fellow students] is prohibited."
In view of the different legal approaches put in place, it seems that school bullying in its legal aspect is very poorly regulated or even unknown in some legislations. Switzerland, being one of the latter, focuses its attention on making schools responsible. However, it is frequently observed that prohibitions of violence are only accompanied by light disciplinary or administrative sanctions. They are almost insufficient in a context of harassment involving vulnerable people. Thus, it is necessary to take a stand on the problem by putting in place a strict policy of prevention and adequate legal sanctions to prevent the perpetrators and bystanders of harassment from minimizing the problem.
This article does not aim to evaluate which system would be the best, but highlights the need for a legal qualification. Legislation specific to school bullying could help to better target the problem and ensure a minimum of legal security for victims.
Ambre Schindler & Jennifer Gaumann

The trust is an ancient legal institution under Anglo-Saxon law. Although not provided for in our legal system, it has been recognised in Switzerland since the entry into force, on 1 July 2007, of the Hague Convention on the Law Applicable to Trusts and their Recognition of 1 July 1985.

According to Art. 11 para. 1 of the Convention, a trust validly constituted under the applicable foreign law is recognised in the other States parties to the Convention.

Given the complexity and flexibility of this institution, which may take several forms and pursue different purposes, there is no single definition of a trust. At the international level, the Convention has proposed the following definition in Art. 2(1): "[...] the term "trust" refers to the legal relationships created - inter vivos or on death - by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.".

The trust is therefore an institution with three parties:

- the settlor, who may be a natural or legal person, is the one who transfers his property to the trustee

- the trustee is the person who formally holds the assets, who becomes the "legal owner" of them

- the beneficiaries, who for the sake of simplicity can be indicated as the economic owners of the trust property.

The trust may be constituted by inter vivos trust or by testamentary trust. It should be noted that the deed of trust is a unilateral act of the settlor, not subject to the acceptance of the trustee, and that the trust does not have legal personality, which distinguishes it from the institution of the foundation.

In Switzerland, trusts are an important asset planning instrument, particularly in the area of inheritance, to enable the transmission of assets over several generations.

In order to prevent Swiss clients from having to turn to foreign countries to set up trusts, Parliament has instructed the Federal Council, through motion 18.3383, to create the legal basis for the introduction of this institution in Swiss law.

If the trust were to be introduced in our country, it would be necessary to adapt the Code of Obligations and other federal laws, in particular tax laws, which would explicitly specify the rules to which the trust would be subject.

The consultation procedure opened by the Federal Council on 12 January 2022 will last until 30 April 2022.

For further information, please visit

https://www.admin.ch/gov/fr/accueil/documentation/communiques.msg-id-86746.html

In the banking relationship between the client and the service provider, three types of legal relationship can be identified under Swiss and European law: i) execution only, ii) investment advice, iii) management mandate.

What distinguishes them is the degree of involvement of the service provider on the one hand, and the degree of protection given to the client on the other.

An execution-only contract, which, as its name suggests, consists of the provider's sole execution of client orders, will not confer any particular protection on the client. Indeed, the Swiss legislator and, to a lesser extent, the European legislator consider that in order to keep this type of relationship simple, cheap and fast, it is up to the client himself to safeguard his interests.

On the other hand, in more complex legal relationships such as investment advice and management mandates, it can be observed that the greater the activity of the service provider, the greater the degree of client protection.

In the investment advice contract, the decision whether or not to carry out a transaction is taken by the client, but the provider can make suggestions and thus influence the client.

In the management mandate, by delegation from the client, the service provider replaces the client in the decision-making process and in the conclusion of transactions.

While the distinction between the management mandate and other types of banking relationships is clear, the differences between the execution-only contract and the investment advisory contract may be more subtle.

In both cases, the decision on which operations to carry out rests with the client. If an operation goes wrong, the question arises as to who is responsible for the consequences.

In the execution only contract, at least from the point of view of Swiss case law, the service provider is not obliged to ensure the general safeguarding of the client's interests (BGer 4A_369/2015 of 25, recital 2.3), nor is he obliged to assume a general duty to provide information, either about the orders given by the client, or about the likely development of the chosen investments and the measures to be taken to limit the risks (BGE 133 III 97 recital 7.1.1; BGer 4A_336/2014, recital 4.2). Nor does he have to verify the appropriateness of the transaction requested by the client, or its suitability in relation to the client's portfolio as a whole.

Exceptionally, the Swiss Federal Supreme Court has accepted the existence of a duty to warn on the part of the service provider, in particular when the service provider realises or should have realised that the client has not identified the risk associated with the investment he is considering, or in the case of a special relationship of trust developed in the context of a long-term business relationship between the client and the financial services provider (BGer 4A_369/2015, recital 2.3).

In the investment advice contract, Swiss case law notes that the service provider's duties to inform, advise and warn are not set out in general terms, but depend on the type of contract concluded and the circumstances of the specific case, in particular the client's knowledge and experience (BGer 4A_336/2014, recital 4.2.; BGer 4A_364/2013, recital 6.2). In particular, when the provider makes a recommendation about a particular security, he must be aware of several factors, including the client's personal financial situation, the degree of risk the client is prepared to take and whether the advice he gives also relates to the suitability of the investment envisaged (BGE 133 III 97, para. 7.2; BGer 4A_444/2012, para. 3.2).

In conclusion, in an execution-only contract the service provider's duty to inform is the weakest and, as a rule, the client himself is liable for his transactions. In contrast, the investment advice contract entails more obligations for the service provider and the latter may, under certain conditions, be liable for the damage suffered by the client.

From a public law perspective, the European and Swiss legislators have adopted the MiFID II Directive and the Financial Services Act (FinSA), respectively, in order to ensure greater transparency in the markets and enhanced consumer protection. These laws, which detail the information obligations of financial service providers, will be the subject of a future article.

In addition to our many years of expertise in financial matters, our firm also succeeded in obtaining the highest compensation in the world for claims against a major US financial institution following the collapse of Lehman Brothers.

When our firm undertook the legal defense of a large number of passengers on board the NORMAN ATLANTIC that caught fire on 28 December 2014, despite the satisfactory compensation we subsequently obtained for our clients, we said never again but unfortunately, history repeats itself.

Another Italian ship on the Adriatic line the Euroferry Olympia again caught fire on 18 February 2022 and at this moment at least 11 people are already missing while the ship is being towed on fire.  Responsibilities have not yet been assigned but it is certain that they are many and scattered in many directions.

The damage is enormous and multiple and the legal treatment of responsibility requires special attention, as in the case of the Norman Atlantic. Our office, in coordination with our associates, maritime lawyers in Greece and Italy, within the framework of our international organization Global Justice Network, with whom we have jointly handled the Norman Atlantic case, is at the disposal of those involved in this tragic accident for any assistance or information without any obligation or commitment on their part.  

Since the 1970s, the phenomenon of child abduction has grown. Globalization and developments in family law, in particular the generalized attribution of joint parental authority in the event of separation or divorce, have meant that this phenomenon has continued to grow in recent decades.

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter referred to as the HC80) is the main legal instrument in this field since it is currently binding on 100 States.

A study conducted by Prof. Nigel Lowe (Cardiff University) and Victoria Stephens found that under the HC80, 2,270 applications for return were made in 2015. The study went on to establish that: 73% of abductions were by the mother; proceedings ended with the return of the child in 45% of cases, of which 17% were voluntary returns and 28% were court-ordered returns; 14% of applications were subsequently withdrawn.

The recent increase in bi-national couples is unfortunately also a cause of the increase in the number of abduction cases.

Among the most common abduction situations are those where the custodial parent decides to move abroad (mostly to return to his or her country of origin) without the agreement of the other parent holding parental rights; or where the parent holding access rights decides to keep the children abroad at the end of the holidays. In these cases it is important to understand what legal means are available to enforce one's own rights.

The main purpose of the HC80 is to restore the status quo ante, i.e. to ensure the return of the child who has been wrongfully removed or retained, and to ensure that existing rights of custody and access in one Contracting State are respected in all Contracting States (Art. 1 HC80).

The procedure

The HC80 applies in cases of wrongful removal or retention of a child up to the age of 16 (Art. 4 HC80). The removal or retention is considered wrongful if it violates a person's right of custody under the law of the State of the child's habitual residence immediately before the removal or retention and that right was being effectively exercised at the time of the removal or retention (Art. 3 HC80).

The parent whose custody rights have been violated by the removal of the child may apply for return either to the Central Authority of the country of the child's habitual residence (immediately before the removal) or to the Central Authority of any other Contracting State, including the country where the child is located after the abduction (Art. 8 HC80).

The Federal Central Authority of Switzerland is the Federal Office of Justice. The Greek Central Authority is the Department for International Judicial Co-operation in Civil and Criminal Matters of the Ministry of Justice.

It is also possible to bring legal proceedings directly before the competent court without going through the central authority.

If the conditions (Art. 3(1), Art. 4 and Art. 12 HC80) of the Convention are fulfilled and if no exception (Art. 13 HC80) is applicable, the competent judicial authority must order the immediate return of the child (Art. 12(1) HC80). It should be noted that the judge will not rule on the merits of the custody right but exclusively on the return of the child.

Our firm, specializing in family law, is at your disposal for any questions or requests for assistance in this matter. Thanks to our network of lawyers in Switzerland, Greece, but also elsewhere in Europe and worldwide, we will be able to find a solution to your problems.

In the event of a road traffic accident causing death and serious injury to others, in addition to criminal proceedings, victims or their relatives may also take civil action for various types of damages.

1. Economic damages in the event of the death of a close relative

Article 45 of the Swiss Code of Obligations provides that in the event of homicide, compensation must cover the funeral costs (para. 1). If the death did not occur immediately, the compensation must include the costs of medical treatment, as well as the loss resulting from the inability to work (para. 2). Finally, if, as a result of the homicide, other persons have been deprived of their support, they must also be compensated for that loss (para. 3).

A supporter is defined as a person who, through regular and free services in cash or in kind, provides or would have provided all or part of the maintenance of another person. A distinction is made between two types of support: actual support and hypothetical support (4C.195/2001). In order to determine the amount of the latter compensation, i.e. the loss of support (Art. 45 para. 3 CO), it is necessary to estimate the hypothetical income that the deceased would have earned without the accident. The calculation of the damage resulting from the loss of support is different depending on whether the person was providing support in cash or in kind. The decisive moment for this calculation is the day of death (FCR 101 II 346). When the deceased's relative provides support in cash, the calculation is made considering several criteria: the probable income of the support, the proportion of this income devoted to the person supported, possible reductions and the duration of the support. If the same relative of the deceased provided support, not in money but in the form of work, the value of this support must be estimated. This is particularly the case for household work performed by the supporter. The calculation principles for household damage resulting from personal injury apply by analogy. The amount of compensation will be determined based on the individual case, which will be assessed by the judges on a case-by-case basis.

1. Damages for personal injury

Article 46 of the Swiss Code of Obligations covers the costs of personal injury, the damage resulting from the inability to work, and the damage resulting from the loss of future earnings (paragraph 1). Personal injury means any damage to the victim's physical integrity (paralysis, amputation, muscular ailments, etc.) or mental health (neurosis, loss of memory, intellectual impairment, etc.). The concept therefore also includes somatic and psychological damage. Paragraph 2 of Article 46 CO provides for an exception to the principle that the decisive moment for calculating the damage is that of the judgment and allows the judge to reserve a review of the judgment.

Only the person directly affected by the perpetrator's conduct may claim compensation based on this article. The bodily injury must be of a certain gravity. Generally speaking, this is accepted when the injury is permanent (FCR 112 II 131). The case law accepts that this is also the case of a relative of the injured party who suffers a nervous shock that can be assimilated to a bodily injury.

The costs are the expenses that the injured party must incur because of the injury. They include the costs of treatment (ambulance, hospital, doctor, etc.), the costs of defending oneself through a lawyer and the costs of home care by relatives.

1. Compensation for moral damages
   

Article 47 of the Swiss Code of Obligations allows the court to award the victim of personal injury or, in the case of homicide, the dependants of the deceased, an appropriate sum for moral harm. The relatives of the deceased have their own claim to compensation for the mental suffering they suffer because of the death. In this third and final part, we will focus on the case of the loss of a child in the event of an accident.

In principle, compensation for non-material damage in the event of the loss of a child gives rise to compensation for non-material damage, even if the victim had reached the age of majority and had already set up his or her own household. While the age of the victim does not in principle play a role, the case law sometimes holds that the parents' pain is greater when they lose their only child. According to FCR 112 II 118 (Hunter judgment), the law only allows damages to be awarded to the person directly affected by the unlawful act. Third parties injured indirectly and by ricochet do not have such a right. In particular, the Federal Court has stated that in the event of death, the list in Articles 45 and 47 of the Swiss Code of Obligations is exhaustive and that survivors cannot claim damages for the loss caused indirectly by the accident to the deceased's property (FCR 54 II 224). The judge must take account of the circumstances when deciding whether to award compensation for pain and suffering following a death. The death alone is not sufficient to award compensation for non-material damage to the relatives, nor is bodily injury alone. It is also necessary that the death causes them particularly severe suffering. Moreover, according to the Federal Court in its decision FCR 93 I 586, the moral damage is all the greater if the rightful claimant witnessed the death, if the deceased suffered, if the latter left his family in a precarious financial situation or if the perpetrator acted in a lowly or careless manner. In this context, the compensation must be assessed on a case-by-case basis, but we have found that it is generally around CHF 40,000.

In conclusion, victims of road accidents can invoke these provisions of the CO in order to obtain compensation for loss of support, bodily injury and moral damage, depending on the circumstances of the case. The amount of compensation will be determined by the judges on their own discretion. Victims also benefit from compensatory interest of 5% for each of these damages. In any case, the loss of a spouse is generally considered the most serious suffering, followed by the death of a child and the death of a father or mother.

By Jessica Baujard and Cécile Ledez, legal interns