Facts
The case concerns a former sole administrator of a temporary and permanent staffing company in the construction industry, who requested to be granted judicial assistance to require his personal bankruptcy without prior prosecution, within the meaning of art. 191 DEBA. The company in question was declared bankrupt on 27 June 1997 and the bankruptcy was suspended for lack of assets on 30 September 1997.
The applicant filed a petition for a declaration of insolvency within the meaning of art. 191 DEBA, indicating that he owned no movable or immovable property, nor any commercial assets in Switzerland or abroad. The President of the Geneva Court of Justice rejected the application for judicial assistance, considering that the bankruptcy procedure was doomed to fail due to the lack of assets to be realized.
Considerations
The decision is based on art. 29 para. 3 of the Constitution, which provides that any person who does not have sufficient resources is entitled to free judicial assistance, unless their case appears to have no chance of success. The case law has established that judicial assistance must be refused when the bankruptcy procedure must be suspended immediately due to a lack of assets under art. 230 para. 1 DEBA.
Art. 191 DEBA institutes an insolvency procedure whose purpose is to distribute the debtor's assets fairly among all creditors. The debtor who voluntarily requests his bankruptcy must therefore have some assets to abandon to his creditors. The liquidation procedure should only be continued if there are sufficient assets (art. 230 para. 1 DEBA). A fortiori, if there are no assets at all to be realized, it should not be initiated and the…