FIFTH SECTION
 
 
 
 
 
 
 
 
CASE OF BEKERMAN v. LIECHTENSTEIN
 
(Application no. 34459/10)
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
3 September 2015
 
FINAL
 
01/02/2016
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bekerman v. Liechtenstein,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Mark Villiger,
 Boštjan M. Zupančič,
 Ganna Yudkivska,
 Vincent A. De Gaetano,
 André Potocki,
 Helena Jäderblom, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 7 July 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 34459/10) against the Principality of Liechtenstein lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Michael Bekerman (“the applicant”), on 9 July 2010. 2. The applicant was represented by Mrs R. Bekerman, his wife. The Liechtenstein Government (“the Government”) were represented by Mr T. Zwiefelhofer, Deputy Prime Minister, by Mr B. Hammermann, Director of the Office for Administration of Justice (Amt für Justiz) and by their Agent, Mr D. Ospelt, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Liechtenstein to the Council of Europe. 3. The applicant alleged, in particular, that the length of the civil proceedings at issue had been excessive and that he had exhausted all effective domestic remedies to complain about that length. 4. On 12 July 2013 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible. On 1 October 2013 the Acting President of the Chamber granted the applicant leave to be further represented by a person other than an advocate, namely by his wife (Rule 36 §§ 2 and 4 (a) of the Rules of Court). The applicant submitted two original powers of attorney signed both by himself and by his wife as his designated representative which referred explicitly to the present proceedings, one when lodging his application and another one when applying for the above-mentioned leave. 5. The Government of Germany, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44), did not indicate that they wished to exercise that right. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1955 and lives in Berlin. A. Background to the case
7. The proceedings at issue in the present application are part of a large number of proceedings which have been brought before the Liechtenstein courts since 2001. All of these proceedings concern, in substance, questions relating to the property rights to considerable assets (more than 14 million Swiss francs (CHF)) which the applicant had brought into five different foundations (including the H. foundation) set up by him in 1999 in Liechtenstein and of which he was the beneficiary. The applicant’s mother G.B., represented by her guardian, and the applicant’s sisters R. and K. claimed in different sets of proceedings that the applicant had not been the owner of the assets he had brought into the foundations, but that these assets had partly belonged to G.B. and partly to their deceased husband and father. B. The first phase of the proceedings at issue: Proceedings until the first judgment of the Regional Court
8. On 30 August 2001 the Regional Court, on a request lodged by the applicant’s sisters R. and K. in interlocutory proceedings, prohibited the H. foundation and the applicant from disposing of assets amounting to more than three million euros (EUR) deposited with the P. bank. 9. By submissions dated 27 September 2001, received by the Regional Court on 28 September 2001, the applicant’s two sisters brought an action for payment of some EUR 3,3 million against both the H. foundation and the applicant (file no. 2 CG.2001.317). 10. On 12 November 2003 the Regional Court dismissed the applicant’s request for legal aid as he had not given sufficient information on his financial condition despite the court’s repeated requests. That decision was quashed by the Court of Appeal on 3 March 2004, which found that the Regional Court had been obliged to investigate further into the applicant’s financial condition on its own motion. 11. On 21 July 2004 the Regional Court, having received further information from the applicant, granted the latter legal aid. 12. On 28 July 2004 R. and K. withdrew the action against the applicant and maintained it only against the H. foundation. 13. On 30 December 2004 the Regional Court, having questioned the parties and ten witnesses and having inspected numerous documents, ordered the H. foundation to pay R. and K. some EUR 240,000 each and dismissed the remainder of their claim. It found that the applicant’s allegation that he had received the assets he had brought into the H. foundation as a gift from his mother had not been proven. The applicant had therefore not been authorised to bring the assets of the estate of his deceased father into the H. foundation. The amounts payable to R. and K. corresponded to their respective rights to a share in the deceased’s estate. C. The second phase of the proceedings: Proceedings until the second judgment of the Regional Court
14. On 8 February 2005 both R. and K. and the H. foundation lodged an appeal with the Court of Appeal against the Regional Court’s judgment. 15. On 7 March 2005 the applicant, being the beneficiary of the H. foundation, requested leave to intervene in the proceedings as a third party and applied for legal aid. 16. On 14 June 2005 the Regional Court granted the applicant legal aid and appointed him a lawyer. On 26 August 2005 the applicant joined the proceedings as an intervening third party. 17. On 7 September 2005 the Court of Appeal, granting the H. foundation’s appeal, quashed the Regional Court’s judgment and dismissed the action brought by R. and K. as inadmissible. It found that the plaintiffs, two of several statutory heirs, had not been authorised to claim assets from the H. foundation for their own account. 18. On 4 May 2006 the Supreme Court quashed the Court of Appeal’s decision and remitted the case to that court. It found that, having regard to the principle of good faith, the plaintiffs had standing to sue the H. foundation as the Court of Appeal had accepted that the applicant had unlawfully brought assets from his deceased father’s estate into the foundation, of which he was the beneficiary. It ordered the Court of Appeal to decide upon the plaintiffs’ and the H. foundation’s appeals in the light of its findings. 19. Subsequently, the Constitutional Court (file no. StGH 2006/56; decision of 26 March 2007) dismissed the applicant’s constitutional complaint of 26 May 2006 against the Supreme Court’s decision of 4 May 2006. It found that the complaint was inadmissible as the Supreme Court’s impugned decision to remit the case to the lower court did not terminate the proceedings by a final decision on the matter in dispute. 20. On 21 September 2006 the Court of Appeal, following the remittal of the case to it by the Supreme Court on 4 May 2006, granted the H. foundation’s appeal. It quashed the judgment of the Regional Court dated 30 December 2004, finding that the latter had not sufficiently investigated the facts relevant in order to determine the property of the assets in question, remitted the case to the Regional Court and ordered that court to further investigate the facts of the case. 21. On 21 November 2007 the Regional Court, granting the applicant’s request, quashed its decision of 14 June 2005 to appoint the applicant a lawyer. The applicant was from then on represented by his wife. 22. On 10 June 2008 the Regional Court, having examined ten witnesses, essentially by letters of request, and having inspected numerous documents, again ordered the H. foundation to pay R. and K. some EUR 240,000 each (new file no. 02.CG.2006.315-415). The facts it established and the grounds it gave corresponded to those given in its judgment of 30 December 2004. D. The third phase of the proceedings: The proceedings before the Court of Appeal
23. On 28 June 2008 the applicant and on 9 July 2008 the H. foundation, R. and K. appealed against the Regional Court’s new judgment. 24. On 25 March 2009 the Court of Appeal, allowing the H. foundation’s and the applicant’s appeal, quashed the Regional Court’s judgment and dismissed the action brought by R. and K. Contrary to the Regional Court and to the courts in parallel sets of proceedings, the Court of Appeal, having taken evidence, found that the assets at issue had belonged to the applicant’s mother alone, and not jointly to her and to the applicant’s deceased father. The applicant had received these assets as a gift from his mother in 1993. R. and K. did not, therefore, have a claim against the applicant as the assets at issue were not part of their deceased father’s estate. 25. On 1 October 2009 the Supreme Court, allowing the appeal on points of law lodged by R. and K., quashed the judgment of the Court of Appeal dated 25 March 2009 and remitted the case to that court. The Supreme Court considered that the Court of Appeal had not sufficiently established the facts which had led it to the conclusion – which ran counter to the conclusions reached by all other courts before in different sets of proceedings – that there had been a valid contract of donation between the applicant and his mother on the assets in question. 26. On 19 October 2009 the applicant lodged a constitutional complaint against the Supreme Court’s decision of 1 October 2009 with the Constitutional Court. Relying on Article 6 of the Convention, he claimed, inter alia, that his right to a hearing within a reasonable time had been violated. 27. On 21 May 2010 the Constitutional Court rejected the applicant’s motion for bias against the judges of the Constitutional Court as abusive. It further dismissed the applicant’s constitutional complaint (file no. StGH 2009/177). 28. The Constitutional Court found that the complaint was inadmissible as the Supreme Court’s impugned decision of 1 October 2009 to remit the case to the lower court did not terminate the proceedings by a final decision on the matter in dispute. 29. As to the alleged breach of the right to be heard within a reasonable time, the Constitutional Court found that it could still rule on the alleged human rights violation after the Supreme Court had handed down a final decision. In any event, in cases of excessive delays in proceedings the problem arose that the fundamental rights violation caused thereby could not be effectively redressed. The Constitutional Court could only declare that the length of the proceedings had been unreasonable, but could not undo the delays. It noted in this context that in proceedings before the administrative authorities, a complainant could assume the rejection of the request made by him to that authority when the latter had remained inactive for more than three months and could pursue his case on appeal (see Article 90 § 6a of the National Administrative Justice Act (Gesetz über die allgemeine Landesverwaltungspflege)). However, this did not apply to the proceedings before the Constitutional Court. 30. As regards costs and expenses, the Constitutional Court ordered the applicant to pay R. and K. lawyer’s costs in the amount of CHF 3,087.05 and declared the court costs uncollectible, referring to its practice in previous proceedings brought by the applicant before it. 31. It emerged from a letter dated 17 July 2013 from the Court of Appeal to the applicant’s wife that the Court of Appeal had stayed the proceedings before it pending the proceedings before this Court having regard to a proposal made by the applicant to that effect. 32. By decision of 2 April 2014 the Court of Appeal declared that the proceedings were terminated and that the court costs were to be borne in accordance with the Court Fees Act (Gerichtsgebührengesetz). It noted that by submissions dated 29 January 2014 the applicant, who had revoked his wife’s power of attorney to represent him in the proceedings before that court, the applicant’s sisters R. and K. and the H. foundation had informed the court that they had agreed on a settlement of the case and requested that the proceedings be stayed perpetually (ewiges Ruhen). This Court has not been informed of the content of the settlement. The proceedings were thus stayed ex lege. The Court of Appeal further explained that the proceedings before it had not been continued following the remittal of the case to it by the Supreme Court’s decision dated 1 October 2009 because the applicant had lodged a constitutional complaint against that decision with the Constitutional Court and subsequently an application with the European Court of Human Rights. None of the parties to the proceedings before the Court of Appeal had requested that the proceedings be continued while the complaint and the application were pending before the Constitutional Court and the European Court of Human Rights respectively. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant provisions of the Code of Civil Procedure
33. Article 17 § 1 of the Code of Civil Procedure, on third-party intervention, provides that anyone with a legal interest that a party in a legal dispute between other persons prevails may join that party in the proceedings as intervener. The intervener is entitled to offer evidence and to take procedural actions in support of the main party he has a legal interest in prevailing. The intervener may, without approval or authorisation of the main party, lodge all appeals foreseen by law even if the main party does not appeal (Article 19 §§ 1 and 4 of the said Code). B. Relevant provision of the Official Liability Act
34. Under Article 3 § 1 of the Official Liability Act (Amtshaftungsgesetz) of 22 September 1966 public legal entities shall be liable for damage caused unlawfully to third parties by persons acting in their official capacity as organs of those legal entities. The provisions of civil law shall apply mutatis mutandis unless otherwise determined by the Act (Article 3 § 4). C. Relevant provisions of the Court Organisation Act
35. Articles 46 to 50 of the Court Organisation Act (Gerichtsorganisationsgesetz) of 24 October 2007 contain provisions on supervisory review (Dienstaufsicht). Article 47 § 1 (a) of that Act provides that supervisory review comprises, inter alia, the supervision of the periods of time for processing cases and for issuing decisions and the monitoring of longer periods of procedural inactivity. Supervisory review may not interfere with judicial independence (Article 47 § 2 of the Act). 36. Anyone who considers to be prejudiced by an act of a court may lodge a supervisory complaint in writing (Article 49 of the Court Organisation Act). Complaints about the denial or delay of administration of justice may be lodged with the president of the court concerned (see Article 48 § 1 of the Act). All complaints which are not manifestly ill‑founded shall be communicated to the court or judge concerned with the request to take remedial action and to report thereon within a fixed time‑limit or to report on obstacles to taking remedial action (see Article 48 § 2 of the Act). 37. Under Article 23 of the previous version of the Court Organisation Act, of 7 April 1922, it was the president of the Court of Appeal or, if that court was concerned itself, the president of the Supreme Court with whom such supervisory complaints had to be lodged. D. Provisions concerning the Liechtenstein Constitutional Court
38. Under Article 15 §§ 1 and 2 (a) of the Constitutional Court Act, the Constitutional Court decides on individual complaints if the complainant claims that his rights guaranteed, in particular, by the Constitution or by the European Convention on Human Rights were breached by a final last‑instance decision or order of a public authority. 39. Article 56 § 1 of the Constitutional Court Act provides that fees and costs for the hearing and for the court’s decision are to be fixed in accordance with the rules on court fees, that is, the Court Fees Act (Gerichtsgebührengesetz) of 30 May 1974. E. Relevant case-law of the Liechtenstein Constitutional Court
40. The Constitutional Court may find in an individual application before it that the complainant’s right to proceedings within a reasonable time enshrined in the right to equality under the Liechtenstein Constitution and guaranteed by Article 6 § 1 of the Convention was violated in the proceedings before the lower courts and / or in the proceedings before it. It may make such a finding either ex officio (see, for example, file no. StGH 2004/58, judgment of 4 November 2008, §§ 7-8; file no. StGH 2005/13, judgment of 31 March 2009, § 10; and file no. StGH 2005/007, judgment of 14 December 2009, § 5) or following a specific complaint in that respect by the complainant (see, for instance, file no. StGH 2005/052, judgment of 14 December 2009, § 2.4). 41. The Constitutional Court assesses the reasonableness of the length of the proceedings having regard to the four criteria developed in this Court’s case-law, namely what was at stake for the applicant in the dispute, the complexity of the case, the conduct of the applicant and that of the relevant authorities in the specific circumstances of the case (see, inter alia, file no. StGH 2004/58, cited above, § 7.2; file no. StGH 2005/13, cited above, § 10.2; and file no. StGH 2005/007, cited above, § 5.2). 42. In cases in which the Constitutional Court finds a breach of the reasonable-time requirement, it developed, in its more recent case-law, a right for the complainant to be exempted from certain costs of the procedure. It considered, in particular, that the complainant’s lawyer’s costs and expenses (in case the complainant was represented by a lawyer before the Constitutional Court) had to be reimbursed by the State of Liechtenstein and that the court costs had to be borne by the State of Liechtenstein despite the fact that (in case of an ex officio finding of a breach of the reasonable‑time requirement) the complaints which the complainant had brought before that court had been dismissed (see file no. StGH 2004/58, cited above, § 8; and file no. StGH 2005/13, cited above, § 11). The complainant may further be reimbursed the lawyer’s costs incurred by the opposing party in the proceedings before the Constitutional Court in case he had to bear those costs as a result of his constitutional complaint having been dismissed (see file no. StGH 2005/007, cited above, § 6; and file no. StGH 2005/052, cited above, § 4). Where the Constitutional Court found a breach of the reasonable-time requirement not (only) in the proceedings before it, but in the proceedings before the lower courts, it may exempt the complainant also from court costs and lawyer’s expenses incurred in the latter proceedings (see, for instance, file no. StGH 2005/052, cited above, § 2.4). 43. The Constitutional Court subsequently explained that, in such circumstances, the State of Liechtenstein had to bear the costs of the procedure as “compensation for damage or redress” (“Entschädigung bzw. Wiedergutmachung”; see file no. StGH 2010/141, judgment of 19 December 2011, § 9; and file no. StGH 2011/32, judgment of 15 May 2012, § 9). As Liechtenstein law did not contain an express provision addressing the breach of the Constitution by a failure to comply with the reasonable-time requirement and as it would be fundamentally unjust if such a breach would not entail any consequences for lack of a statutory regulation, there was a gap in the law which had to be filled by judicial interpretation (see file no. StGH 2010/141, cited above, § 9; and file no. StGH 2011/32, cited above, § 9). 44. As to the calculation of the amounts payable in lawyer’s costs and court costs, the Constitutional Court, in its well-established case-law, fixes the amount in dispute (Streitwert) before it at a maximum of EUR 100,000 (see file no. StGH 2004/58, cited above, § 8 with further references; and file no. StGH 2005/052, cited above, § 4). Calculated on that basis, the lawyer’s costs which may be reimbursed to the complainant amount to a maximum of CHF 2,694.40 including VAT (see file no. StGH 2004/58, cited above, § 8). As to the court costs to be borne by Liechtenstein or reimbursed to the complainant for the proceedings before the Constitutional Court, these comprise a judgment fee of CHF 1,700 (see file no. StGH 2004/58, cited above, § 8; and Article 56 § 1 of the Constitutional Court Act, read in conjunction with Article 19 §§ 1 and 5 of the Court Fees Act) and a fee for lodging the complaint (usually CHF 170, see file no.

Article of the Convention at issue: Article 6
Outcome: violation