Facts
The case concerns the question of how the hearing of the person to be interdicted, as prescribed in Art. 374 of the Swiss Civil Code (ZGB), is to be conducted within the framework of the interdiction proceedings. The appellant [O.] has suffered from mental health difficulties since his high school years and has been repeatedly treated as an inpatient. To ensure the administration of his assets, [O.] initially applied for a guardianship himself, but later withdrew this request. Subsequently, the guardianship authority ordered a guardianship over [O.] pursuant to Art. 369 ZGB on the application of the official guardian.
[O.] filed a complaint against this decision, which was partially upheld by the Cantonal Government Council. Subsequently, [O.] appealed to have the decision of the Cantonal Government Council overturned.
Considerations
The Federal Supreme Court granted the appeal. It stated that the hearing of the person to be interdicted pursuant to Art. 374 ZGB does not necessarily have to be conducted by the entire deciding authority, but that a hearing by an official who is not himself authorized to make the decision is contrary to federal law. The purpose of the hearing, namely the clarification of the facts and the opportunity for the person concerned to express their views on the intentions of the authority, cannot be fulfilled by a hearing conducted by a single official.
The Federal Supreme Court further stated that the hearing of the person concerned must be conducted by the deciding authority itself or at least by a member of the same, in order to comply with the purpose of Art. 374 ZGB. A mere recording of the hearing by a single official is not sufficient…