Impartiality in procedural acts carried out by the debt enforcement and bankruptcy offices

When a person is confronted with debt enforcement or bankruptcy proceedings, they must be able to have confidence in the impartiality of the authorities responsible for enforcing the law. In Switzerland, this role falls to the debt enforcement and bankruptcy offices, headed by enforcement officers (préposés) and their staff. The LP lays down rules to ensure that these officials act in a neutral and objective manner.

Within the meaning of Article 10 paragraph 1 number 4 of the Federal Act on Debt Enforcement and Bankruptcy, it is provided that the enforcement officers and employees of the debt enforcement and bankruptcy offices must be recused when there exist circumstances capable of casting doubt on their impartiality. This rule has the scope of a general clause: it is not limited to specific cases such as kinship or a direct interest, but covers any situation in which a legitimate suspicion of partiality may arise. The case law of the Federal Supreme Court has recalled that these provisions are intended to ensure the objective activity of public officials and to avoid any conflict of interest, for example where an enforcement officer has close legal or economic ties with a creditor or a debtor.

It is not necessary to demonstrate actual bias: it is sufficient that, for a reasonable observer, the circumstances give the appearance of a preconceived attitude. Thus, no employee of the office may carry out an act when there is an appearance of bias, and if an employee acts despite this duty to recuse themselves, the decision they have taken may be annulled by way of a complaint. This requirement of impartiality directly echoes Article 29 of the Federal Constitution, which guarantees every person the right to fair treatment and to proceedings conducted by an impartial authority. The aim is to protect the rights of the parties and to ensure that debt collection and bankruptcy proceedings are conducted with fairness and transparency, in accordance with constitutional principles.

Case law nevertheless shows that recusal is not automatic. It is not granted where the enforcement officer merely reports accurate facts about a party. Nor is it granted where the office scrupulously follows the legal standards, for example by actively verifying the debtor’s statements regarding their assets and income, as required by Article 89 LP. Likewise, a delay in serving a record of seizure is not sufficient to establish an appearance of bias if, in all other respects, the proceedings comply with the law and have not caused prejudice.

In summary, recusal is justified where there are objective circumstances that give rise to serious doubts as to impartiality, but it is not upheld in cases of mere negligence or where the legal rules have been complied with. The aim remains to protect the rights of the parties and to ensure that debt collection and bankruptcy proceedings are conducted with fairness and transparency, in accordance with constitutional principles.