Repayment of Free Legal Aid: Subsistence Minimum, Travel Costs and Current Taxes in Instalment Payments

Facts

The appellant was granted free legal aid for matrimonial and divorce proceedings. The Canton of Graubünden covered court and attorney costs totalling CHF 11'307.--.

In May and June 2019, the Tax Administration of the Canton of Graubünden requested that the appellant disclose her asset and income situation. The appellant declared net income of CHF 1'043.-- per month and a subsistence minimum of CHF 998.--. After submitting further documents, she claimed a subsistence minimum of CHF 3'490.-- and pointed to a part-time position with [B.] with net income of CHF 2'500.-- per month, to begin on 1 August 2019, in addition to her employment at Amt [C.] of the Canton of Graubünden.

By decision of 13 November 2019, the Tax Administration ordered the appellant to repay the advance of CHF 11'307.-- in monthly instalments of CHF 400.--, first due on 31 December 2019. It based this on a URP subsistence minimum of CHF 2'804.-- and total income of CHF 3'453.--.

By judgment of 11 March 2020, the Administrative Court of the Canton of Graubünden partially upheld the appeal. It confirmed the instalments of CHF 400.--, but limited the obligation to pay instalments to the period from 31 December 2019 to 30 September 2020. It determined a monthly net employment income of CHF 3'773.-- (CHF 2'714.-- with [B.] and CHF 1'059.-- at Amt [C.] ) and a civil procedure subsistence minimum of CHF 3'372.--, including current taxes of CHF 293.--.

By appeal in public law matters dated 9 April 2020, the appellant requests, in substance, that the lower court's judgment be set aside without replacement. The lower court requests dismissal. The Tax Administration waives a response.

The disputed issues are the obligation to repay under Art. 123 para. 1 CPC, the amount of the rate for meals taken away from home, the calculation of travel costs, and whether current taxes form part of the civil procedure subsistence minimum.

Considerations

The Federal Supreme Court affirms the admissibility of the appeal in public law matters. The dispute over the repayment of advances on costs under free legal aid is of a public law nature (Art. 82 lit. a FSCA), even though the underlying proceedings were civil. The lower court decided as the final cantonal instance (Art. 86 para. 1 lit. d and Art. 90 FSCA). The Federal Supreme Court applies the law of its own motion but is bound only to a limited extent by the lower court's findings of fact (Art. 105 FSCA).

Under Art. 123 para. 1 CPC, the person is obliged to repay as soon as their economic situation permits. The same principles apply as for indigence under Art. 117 CPC. Repayment by instalments once net income exceeds the subsistence minimum is permissible under legal doctrine, provided it takes place over a reasonable period of one to two years. The lower court was entitled to calculate the subsistence minimum in accordance with the practice of the Canton of Graubünden.

With regard to the rate for meals taken away from home of CHF 11.-- instead of CHF 15.--, the Federal Supreme Court refers to the guidelines of the debt enforcement officers (range CHF 9.-- to CHF 11.--). The debt enforcement subsistence minimum is not conclusive for free legal aid, but the appellant does not show that CHF 11.-- is insufficient. The tax deduction of CHF 15.-- is irrelevant, and the appellant herself had previously claimed CHF 217.--. The complaint is dismissed.

With regard to travel costs, the appellant complains that she must travel to [U.] not only on 70% of working days but on all working days. A reduction of 30% is justified only if the journeys actually arise on only 70% of working days. The contested judgment contains no findings on this, and the file does not provide any information either. Since the Federal Supreme Court cannot itself supplement the findings of fact (Art. 105 para. 2 FSCA), the matter must be remitted for…