projekte
BGE 5 I 178 ΓÇó Insolvency imprisonment requires proven self-inflicted insolvency
BGE 5 I 178Amtliche Sammlung des Bundesgerichts (BGE) / Band I30.11.1878Annulled
Müller was sentenced by the Schaffhausen district court to four days' imprisonment for insolvency in recidivism after an unsuccessful debt collection by Barell & Co. The Federal Court rejected the argument that the sanction violated the federal ban on debt imprisonment, holding that the measure was punitive detention rather than debt imprisonment. However, it found that the district court had not established self-inflicted insolvency, as required by the cantonal constitution, and that the later evidentiary supplement could not cure this defect. The complaint was therefore upheld and the district court judgment annulled.
Art. 59 BV; Art. 5 Schaffhausen Cantonal Constitution; insolvency imprisonment and requirement of culpable insolvency. Detention threatened under the Schaffhausen debt-enforcement legislation is not, as such, debt imprisonment within the meaning of Art. 59 BV, but penal custody. It is nonetheless unconstitutional if the competent court does not establish, in the original judgment, that the insolvency is self-inflicted as required by cantonal constitutional law. Subsequent evidentiary clarifications cannot retroactively cure the omission, since the constitutionally required finding must precede the imposition of the custodial penalty (cf. consid. 1-2).
des Bezirksgerichtes Schaffhausen vom 30. November 1878, als im Widerspruch mit Art. 5 der Verfassung des Kantons Schaff hausen aufgehoben.