Lack of financial resources not established, request for legal aid dismissed

Case No. O2013_001 ¦ Decision of 22 April 2013 ¦ “Auszug aus der Verfügung, Abweisung des Gesuchs um unentgeltliche Rechtspflege wegen fehlender Mittellosigkeit und Verletzung der Mitwirkungspflicht”

This decision pertains to a request of one of the defendants for legal aid. In general, a person is entitled for legal aid under two preconditions (Art. 117 CPC):

  • he or she does not have sufficient financial resources; and
  • his or her case does not seem devoid of any chances of success.

With respect to the first criterion: A person is deemed fundless if he or she cannot pay the costs of court proceedings without budget cuts for basic needs. Financial convenants as well as income and assets are to be taken into account. The person requesting legal aid is obliged to thoroughly demonstrate his or her financial situation, supported at least by prima facie evidence. The marital assistance obligation must not be forgotten; the financial situation of the spouse thus has to be included in the assessment. The more complex the financial situation, the higher the duty to cooperate. If the requesting party refuses to provide the required information or prima facie evidence, he or she may be regarded as being solvent (cf. BGE 5A_36/2013, decision of 22 February 2013, r. 3.3, with further reference).

With respect to the second criterion: It is not necessary that the chances of success are outstanding. A case is not deemed to be devoid of any chances of success even if the risk of loss is slightly higher than the profit prospects. However, the profit prospects must not be be substantially lower than the risk of loss (cf. BGE 119 Ia 251BGE 129 I 129BGE 4a_189/2010, decision of 10 January 2011).

Defendant outlined his financial situation essentially as follows:

  • He has a regular income of CHF 29’000,– p.a., corresponding to a monthly net disbursement of CHF 2’364,20.
  • Monthly expenses for basic needs amount to CHF 2’829,95.
  • He has no assets.
  • Debt enforcements of CHF 15’245,45 are pending against him.
  • Certificates of unpaid debts amount to CHF 145’905,43.

The FPC requested the defendant to disclose revenue and expenses pertaining to the presumably infringing items. Defendant did not provide such details, but rather only declared that 70 items were produced in total. 30 items were sold in 2011; the remainder could not be sold anymore in view of a decision issued by the Commercial Court of St. Gall. In view of this insufficient information, the FPC held that the defendant did not sufficiently comply with his duty to cooperate.

In accordance with BGE 5A_36/2013 (see above), the FPC additionally took the regular income of the defendant’s spouse into account. This led to a significant exemption of at least CHF 2’000,– per month. In consideration of BGE 120 Ia 179, r. 3a, the FPC refrained from requesting further information about the financial obligations of the defendant’s spouse: The defendant was represented by a lawyer and a detailed form was used which indicates all required information (if this form does not open correctly in your browser, try to download first with right click → “save as” and then to open it locally).

As a sidenote, the FPC stressed that the defendant requesting legal aid is the sole director of the other defendant (which is a legal entity), according to the Commercial Register. De facto, the requesting defendant himself is thus responsible for the regular income being paid to him.

Consequently, the request for legal aid was dismissed since a lack of sufficient financial resources was not established. The chances of success on the merits could thus remain undecided.

This decision is already res judicata.

Reported by Martin WILMING

BIBLIOGRAPHY

Case No. O2013_001 ¦ Decision of 22 April 2013 ¦ “Auszug aus der Verfügung, Abweisung des Gesuchs um unentgeltliche Rechtspflege wegen fehlender Mittellosigkeit und Verletzung der Mitwirkungspflicht”

(not identified) ./. (not identified)

Subject(s):

  • Infringement

Board of Judges of the FPC:

  • Dr. iur. Dieter BRÄNDLE (President)

Representative(s) of Plaintiff:

  • (not identified)

Representative(s) of Defendant:

  • (not identified)

Full text of the decision right here:

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