Dismissal of the request for legal aid for lack of substantiated indigence in appeal proceedings concerning infringement of personality rights

Facts

A proceeding concerning infringement of personality rights was pending between the association [B.] and [C.] , on the one hand, and the appellant, on the other. The Bezirksgericht Münchenwilen had, by judgment of 20 November 2018, found at first instance that the appellant had infringed the personality rights of the association and of [C.] .

On 1 February 2019 the appellant lodged an appeal (Berufung) with the Obergericht of the Canton of Thurgau. On 4 February 2019 the Obergericht ordered him to pay a cost advance of Fr. 4'000.--; on 6 February 2019 the association and [C.] requested security for their costs. The appellant thereupon filed a request for legal aid on 18 February 2019.

By order of 4 April 2019, the Vice-President of the Obergericht dismissed the request and set a new deadline for payment of the cost advance. On 26 April 2019 she also dismissed a request for reconsideration. The Obergericht determined an income of Fr. 2'835.-- and a subsistence minimum of Fr. 1'980.--, resulting in a monthly surplus of Fr. 855.--. It further noted securities of approximately Fr. 12'000.-- and a legal expenses insurance. Alleged debts and outstanding amounts from earlier proceedings remained unsubstantiated.

On 8 May 2019 the appellant lodged a constitutional appeal (Beschwerde in Zivilsachen) with the Federal Supreme Court, requesting the annulment of the order of 4 April 2019, the grant of legal aid for the cantonal main proceedings, the granting of suspensive effect, and legal aid for the proceedings before the Federal Supreme Court. On 9 May 2019 the Obergericht provisionally suspended the payment deadline; the President of the II. Civil Law Division declared the request for suspensive effect moot. No response on the merits was requested.

The essential questions in dispute are whether the appellant is procedurally indigent and whether the Obergericht correctly dismissed the request for legal aid for lack of proof of indigence.

Considerations

The Federal Supreme Court affirms its jurisdiction: a decision of a last cantonal instance on legal aid in appeal proceedings is an interlocutory decision that may cause a non-recoverable disadvantage (Art. 75 FSCA; Art. 93 para. 1 lit. a FSCA). As the main proceedings concern infringement of personality rights, which is a civil matter under Art. 72 para. 1 FSCA and generally has no amount in dispute, the constitutional appeal in civil matters is available. The appellant is entitled to appeal under Art. 76 para. 1 FSCA and acted within the time limit.

The subject matter of the proceedings is solely the order of 4 April 2019; the decision of 26 April 2019 on the request for reconsideration is not the subject of the dispute, and therefore the appeal is not admissible insofar as it is directed against it. The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA), but examines only complaints that are sufficiently substantiated in form (Art. 42 para. 2 FSCA). As regards the facts, the court is bound by the findings of the lower court (Art. 105 para. 1 FSCA); only arbitrariness (Art. 9 Cst.) or another violation of federal law may be alleged, and the strict principle of complaint applies (Art. 106 para. 2 FSCA).

Under Art. 117 CPC, a person is entitled to legal aid who does not have the necessary means and whose legal submissions do not appear to be devoid of prospects of success. These provisions give effect to the constitutional entitlement under Art. 29 para. 3 Cst. A person is indigent if he or she cannot pay the costs of the proceedings without encroaching on what is necessary for his or her basic living expenses; the economic situation at the time the request is filed is decisive.

Under Art. 119 para. 2 CPC, the person requesting legal aid bears a comprehensive duty to cooperate. The investigative principle applies only in a limited way. The more complex the circumstances, the higher the requirements for a clear and thorough presentation of the financial situation. For parties represented by counsel, there is no obligation under Art. 97 FSCA to set a grace period; the request may be dismissed where the substantiation is insufficient or proof of indigence is lacking.

The Obergericht disregarded the alleged debts as unproven. The appellant merely sets against…