Facts
The Federal Court decision deals with the question of whether the debt collection office may have the debtor, who fails to comply with the obligation to be present or represented at the debt attachment without sufficient excuse in accordance with Art. 91 para. 1 DEBA, brought before the authorities by the police for the purpose of providing information.
The Federal Court finds that although the law does not contain an express provision for this, the analogous application of Art. 229 para. 1 DEBA, which provides for such a possibility in bankruptcy proceedings, is justified. This is because the mandate of Art. 91 para. 1 DEBA, like that of Art. 229 para. 1 DEBA, serves to protect the interests of the creditors in the enforcement of debt.
The Federal Court considers the procedure practiced by numerous debt collection offices of having the defaulting debtor brought before the authorities by the police to be lawful. The prerequisite for this is that the debtor was absent without sufficient excuse and his personal presence is necessary to complete the enforcement measures. The debtor must be threatened with being brought before the authorities in advance.
Considerations
However, the compulsory appearance of the debtor may only be limited to his appearance before the debt collection officers. Further coercive measures, such as detention in the office, are not permissible. If the debtor refuses to provide information, only a criminal complaint pursuant to Art. 323 no. 2 SCC should be considered.
The police…