Facts
The appellant M. declared himself insolvent before the President of the Court and requested the opening of bankruptcy proceedings based on Art. 191 DEBA. At the same time, he requested to be granted free legal representation and the appointment of an official attorney in the proceedings under Art. 191 DEBA. The President of the Court dismissed the request for free legal representation and ordered M. to pay an advance on costs of CHF 3,000. M. appealed this decision to the Court of Appeal of Canton X., which dismissed the appeal in its entirety.
M. now files a constitutional appeal alleging a violation of Art. 4 of the Federal Constitution and requests that the decision of the Court of Appeal be overturned.
Considerations
The Federal Court examines whether there is a direct entitlement to free legal assistance (free legal representation, free legal counsel) in bankruptcy proceedings due to a declaration of insolvency derived from Art. 4 of the Federal Constitution.
The Federal Court first notes that previous case law has denied the entitlement to free legal assistance in debt enforcement proceedings and in particular in debt enforcement release proceedings. However, the Federal Court has recently derived the entitlement to free legal assistance not only for civil and criminal proceedings, but also for administrative appeal and administrative court proceedings, as well as in certain areas of non-contentious administrative proceedings, directly from Art. 4 of the Federal Constitution.
The Federal Court considers that the provisions on costs in bankruptcy proceedings do not contain a reservation in favor of free legal assistance. Nevertheless, the Federal Court sees reasons that speak in favor of granting an entitlement to free legal assistance in the proceedings for the opening of bankruptcy due to a declaration of insolvency and in the bankruptcy proceedings up to the first creditors' meeting.
The Federal Court explains that the considerations that have led to the recognition of an entitlement to free legal assistance in administrative appeal and administrative court proceedings, as well as in certain areas of non-contentious administrative proceedings, also apply in principle to the proceedings for the opening of…