Liability of the Canton under Art. 5 DEBA for unlawful acts of the debt collection office

Facts

The plaintiff [X.] filed a lawsuit against the Canton of Solothurn on January 17, 2007, with the Administrative Court of the Canton of Solothurn, demanding payment of CHF 32,479.10 in annual installments of CHF 1,579.40, based on Art. 5 DEBA. The Canton of Solothurn and the Administrative Court dismissed the lawsuit.

The plaintiff had previously obtained an arrest order on February 7, 2006, with which [Y.] 's freedom of movement credit in the amount of CHF 131.60 per month (annual credit CHF 1,579.40) was seized at the [S.] foundation in [T.] . After the arrest was executed on February 8, 2006, by the debt collection office Olten-Gösgen, the plaintiff initiated the prosecution of the arrest and demanded the continuation of the debt collection.

The debt collection office carried out the seizure on April 10, 2006, and determined that the debtor [Y.] did not reach the minimum subsistence level with his income and therefore needed the pension for his necessary needs. By letter of May 24, 2006, and June 6, 2006, the debt collection office informed the [S.] foundation and the creditor [X.] that the seizure of February 8, 2006, had been lifted.

The plaintiff appealed against the lifting of the seizure, which was dismissed. Subsequently, the plaintiff again demanded the seizure of the freedom of movement credit, and the debt collection office issued her an empty seizure certificate as a loss certificate on October 9, 2006.

Considerations

The Federal Court examined the admissibility of the appeal and found that the submission designated as an appeal in public law matters was to be treated as an appeal in civil matters. The subsidiary constitutional appeal proved to be inadmissible.

The court investigated the prerequisites for the liability of the canton under Art. 5 DEBA and found that the damage to the plaintiff could amount to at most the difference between the scope of an annual pension and the debtor's necessary needs. The Administrative Court had found that the debt collection office had released the arrest object on May 24, 2006, before the seizure certificate was served on the plaintiff.

The Federal Court found that the disregard of the ongoing arrest order constituted a violation of a protective norm intended to secure the enforcement…