FIFTH SECTION
 
 
 
 
 
 
CASE OF A.K. v. LIECHTENSTEIN (No. 2)
 
(Application no. 10722/13)
 
 
 
 
JUDGMENT
 
 
 
 
 
 
STRASBOURG
 
 
18 February 2016
 
 
FINAL
 
18/05/2016
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.K. v. Liechtenstein (no. 2),
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Khanlar Hajiyev,
 Erik Møse,
 André Potocki,
 Faris Vehabović,
 Carlo Ranzoni,
 Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 26 January 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 10722/13) 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 A.K. (“the applicant”), on 21 December 2012. On 28 May 2013 the acting President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court, in the version then in force). 2. The applicant was represented by Mr M. Kleine-Cosack, of Hiddemann, Kleine-Cosack and co., a law firm in Freiburg, Germany. The Liechtenstein Government (“the Government”) were represented by their Agent, Mr D. Ospelt, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Liechtenstein to the Council of Europe, and by Mr B. Hammermann, Director of the Office for Administration of Justice (Amt für Justiz). 3. The applicant alleged, in particular, that the judges of the Constitutional Court had been partial in the proceedings brought before them, notably as a result of the procedure they had adopted for examining his complaints of bias, in breach of Article 6 § 1 of the Convention. He further complained that the length of the civil proceedings brought against him had not complied with the reasonable-time requirement, under Article 6 § 1 of the Convention. Moreover, he claimed that he had not had an effective remedy before a national authority in order to complain about the excessive length of these proceedings, in breach of Article 13 of the Convention. 4. On 18 June 2013 the complaints concerning the partiality of the Constitutional Court, the length of the proceedings and the availability of an effective remedy to complain thereof were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 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 of the Rules of Court), did not indicate that they wished to exercise that right. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1970 and lives in St. Gallenkappel, Switzerland. A. Background to the case
7. Since 2004, the applicant and F.H. have been involved in legal disputes against each other concerning the property rights in 75% of the bearer shares in both EMK stock company (hereinafter “EMK”) and EMK Engineering stock company (“EMK Engineering”), companies resident and registered in Liechtenstein. 8. In September 2006 and April 2007 the Regional Court (Fürstliches Landgericht) ordered by way of an interim measure that F.H.’s entry in the commercial register as a member of the EMK and the EMK Engineering companies’ respective supervisory boards with power to represent those companies may not be cancelled. B. Proceedings before the Regional Court
9. On 10 June 2005 F.H. brought an action against the applicant in the Regional Court. He requested that the court oblige the applicant to hand over a specified number of bearer shares in EMK and in EMK Engineering and establish that the applicant did not hold and had never held any shares in those Liechtenstein companies. The action was served on the applicant’s counsel on 18 June 2005. 10. In a decision dated 15 July 2005 the Regional Court, following a hearing on 14 July 2005, dismissed the applicant’s objection to the Liechtenstein courts’ jurisdiction (file no. 02 CG.2005.163). It found that it had jurisdiction on grounds of location of assets (Vermögensgerichtsstand) to decide upon F.H.’s action. The applicant had assets in Liechtenstein, specifically claims for salary and fees against EMK and EMK Engineering, which both had their seat in Liechtenstein. Furthermore, F.H.’s action for restitution of the bearer shares in these corporations was of a pecuniary nature. 11. In a decision dated 1 February 2006 the Court of Appeal, in interlocutory proceedings, dismissed the applicant’s appeal of 6 September 2005 against the Regional Court’s decision of 15 July 2005. 12. Following a constitutional complaint of 22 February 2006, on 1 March 2006 the Constitutional Court granted the applicant’s application to have the Court of Appeal’s interlocutory decision be given suspensory effect. It further ordered the Regional Court not to hold any further hearings in the proceedings at issue until the Constitutional Court had taken its decision on the applicant’s constitutional complaint. 13. On 27 March 2007 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded (file no. StGH 2006/16). 14. Following the termination of the proceedings before the Constitutional Court, the Regional Court resumed the proceedings. It heard evidence from the parties, their counsel and twelve witnesses in person in hearings on 31 May, 28 June and 6 September 2007. It further took note of the written submissions of the parties and of numerous documents as well as of the case files in several related proceedings. 15. On 22 April 2009 the applicant asked the Regional Court to deliver its judgment, given that the oral proceedings had concluded on 6 September 2007. 16. On 28 December 2009 the Regional Court, in a judgment running to 66 pages, upheld F.H.’s action (file no. 02 CG.2007.114). It ordered the applicant to hand over a specified number of bearer shares in EMK and in EMK Engineering to F.H. and declared that the applicant did not hold and had never held shares in those companies. 17. Having regard to the evidence before it, the Regional Court considered that F.H.’s submissions regarding the question of who had been the owner of the shares in dispute had been more credible than that of the applicant. It found that the applicant’s mother, I.K., had never obtained ownership of the shares in question as there had not been a sales contract between her and F.H. She had been in possession of the shares in order to make a minority shareholder think that F.H. was no longer holding shares in the companies. The applicant had known this on conclusion of his contract with I.K. transferring the shares to him as a gift in 2003 at the latest. I.K. had not, therefore, been the owner of or authorised to transfer ownership of the shares to the applicant; the latter had not obtained ownership thereof for lack of good faith. C. The proceedings before the Court of Appeal
18. Following a hearing, on 27 May 2010 the Court of Appeal, endorsing the findings of the Regional Court, dismissed the applicant’s appeal dated 3 February 2010. It considered that the Regional Court had taken all evidence necessary for its decision. It further rejected new documentary evidence submitted by the applicant to support his allegations as inadmissible for having been submitted out of time in an attempt to protract the proceedings. The judgment was served on the applicant’s counsel on 30 June 2010. D. The proceedings before the Supreme Court
19. In a judgment and decision dated 13 January 2011 the Supreme Court dismissed an appeal on points of law lodged by the applicant on 7 September 2010. It found that the lower courts had not made an error of law in the legal classification of the facts they had established, that they had not failed to take necessary evidence and that they had sufficiently reasoned their judgments. The judgment and decision were served on the applicant’s counsel on 25 January 2011. E. The proceedings before the Constitutional Court
20. On 18 February 2011 the applicant lodged a constitutional complaint (running to eighty pages plus annexes) with the Constitutional Court against the Supreme Court’s judgment and decision. Relying, inter alia, on Articles 6, 13 and 14 of the Convention and on Article 1 of Protocol No. 1 to the Convention, the applicant complained, in particular, about the length of the proceedings. He stressed that the outcome of the proceedings, to the duration of which he had not contributed, was of vital importance to him as it concerned his means of subsistence. He further submitted in that context that he had not had at his disposal an effective remedy, such as an application to speed up the proceedings, in order to enforce his Convention rights. 21. On 3 March 2011 the President of the Constitutional Court granted the applicant’s application to have his complaint given suspensory effect. The court reserved its decision on the costs arguing that the duty to bear the costs depended on the outcome of the main proceedings. The applicant would have only had to bear the decision fee if his constitutional complaint had been dismissed. 22. On 24 March 2011 F.H. lodged a submission in reply to the applicant’s constitutional complaint. 23. On 20 April 2012 the President of the Constitutional Court, B., informed the applicant that he, alongside Judges Bu., Sn., S. and W., would decide on his constitutional complaint in a hearing in camera on 15 May 2012. 24. On 8 May 2012 the applicant lodged a complaint alleging bias (running to twenty-seven pages plus annexes) against the five judges of the Constitutional Court called upon to decide on his complaint. 25. The applicant argued, in particular, that all of the five challenged judges had taken arbitrary decisions to his disadvantage and in breach of his Convention rights in relation to the previous injunction and other proceedings brought by him, and that the court, which was influenced by the executive, discriminated against foreign nationals such as the applicant. 26. The applicant further submitted that, for different reasons, the five judges of the Constitutional Court individually had not been impartial. As regards the court’s President, Judge B., the applicant complained that he had delayed the appointment of the judges who were to decide on his complaint. Moreover, he was a close friend of H., the court’s Vice President and brother of F.H., the party opposing the applicant in the proceedings at issue. 27. According to the applicant’s submission, Judge Bu. was biased because he worked for the Government drawing up expert reports on constitutional questions and giving seminars organised by the Government. He further worked with Judge H. on a regular basis. 28. Judge Sn., for his part, was not impartial as he was also a professor at the Liechtenstein University and had himself argued in a publication that judges should be appointed for life or for a long single term of office. 29. The applicant further stressed that Judge S. was a member of the supervisory board of a state-owned company and was therefore not independent and impartial. 30. Finally, Judge W. was a partner in a law firm with a lawyer against whom the applicant had brought proceedings concerning an inheritance. Another lawyer of that firm had already represented EMK and EMK Engineering. Moreover, Judge W. had previously worked as a lawyer in Judge H.’s law firm. 31. By a decision of 15 May 2012, the Constitutional Court, with the five judges whom the applicant had challenged for bias comprising the bench, dismissed the applicant’s complaints of bias. 32. The Constitutional Court stated that, in accordance with the principle that, if possible, a complaint of bias should not be decided upon by the challenged judge, the challenged judges, respectively, had not participated in the deliberations and the decision on the respective complaint alleging bias against them, which had been decided upon by the four remaining judges. 33. The Constitutional Court considered that the fact alone that several of the challenged judges had already taken part in prior decisions finding against the applicant did not suffice to substantiate that there were objectively justified doubts as to their impartiality for the purposes of Article 6 of the Convention. Moreover, the fact that the judges had been elected for five years did not compromise their impartiality. The applicant further had not substantiated that the executive had influenced the judges of the Constitutional Court in the present proceedings in any way. Nor did the fact that the judges concerned worked together with F.H.’s brother, the Vice President of the Constitutional Court, on a regular basis and were friends of the latter objectively cast doubts on their impartiality. 34. On the same day, on 15 May 2012, the Constitutional Court delivered its judgment (file no. StGH 2011/32). It granted the applicant’s constitutional complaint in part, finding that the applicant’s rights under Article 6 § 1 of the Convention and under the Liechtenstein Constitution to a decision within a reasonable time had been breached in the proceedings at issue. It ordered that Liechtenstein reimburse the applicant the fee for lodging the constitutional complaint (170 Swiss francs (CHF)) and bear the further court costs, that is to say, the judgment fee (CHF 1,700). It further ordered Liechtenstein to reimburse F.H., who, unlike the applicant, had been represented by counsel in the proceedings before the Constitutional Court, lawyers’ fees of CHF 2,694.40. 35. The Constitutional Court found that the total duration of the proceedings alone, which lasted almost seven years after the action of 10 June 2005 had been brought, did not justify the finding of a breach of the right to a decision within a reasonable time. It had to be noted in that context that almost two years had been necessary to deal with the interlocutory proceedings on the Liechtenstein courts’ jurisdiction brought by the applicant himself. Moreover, the courts had generally duly furthered the proceedings. There had only been a delay of two years and three months between the last hearing before the court of first instance on 6 September 2007 and the delivery of the judgment on 28 December 2009. Such a period of inactivity could no longer be considered as reasonable despite the complexity of the proceedings. Therefore, there had been a violation of Article 6 § 1 of the Convention. 36. The Constitutional Court noted that Liechtenstein law did not contain any provisions stipulating which consequences should result from a breach of the right to proceedings within a reasonable time. However, it would be utterly unjust if a breach of this constitutional right did not have any consequences as a result of a lack of legislative provisions. There was therefore a gap in the law which had to be filled by way of judicial interpretation. In the Constitutional Court’s view, it was therefore necessary to impose the costs of the proceedings (court costs and lawyers’ fees) upon the State in order to compensate for and redress the breach of the fundamental right at issue. However, the judgment fee could not be imposed on the State as a measure of compensation as Liechtenstein had to bear that cost anyway. 37. The Constitutional Court further dismissed the remainder of the applicant’s constitutional complaint. It considered that the applicant’s property rights had not been infringed in the proceedings at issue in which the opposing parties had both claimed to be the owner of the shares in question. Moreover, the Liechtenstein courts had been independent tribunals. In particular, F.H.’s brother, the Vice President of the Constitutional Court, had not taken part in the decision-making process of any of the Liechtenstein courts. Moreover, the findings of facts, the assessment of the evidence and the legal reasoning of the lower courts did not disclose any arbitrariness. 38. The judgment and the decision of 15 May 2012 were served on the applicant on 27 June 2012. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant provisions of the Court Organisation Act
39. Sections 46 to 50 of the Court Organisation Act (Gerichtsorganisationsgesetz) of 24 October 2007, which entered into force on 1 July 2008, contain provisions on supervisory review (Dienstaufsicht). Section 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 (section 47(2) of the Act). 40. Anyone who considers himself to be a victim of bias by an act of a court may lodge a supervisory complaint (Dienstaufsichtsbeschwerde) in writing (section 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 section 48(2) of the Act). 41. Under section 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 Supreme Court, with whom such supervisory complaints had to be lodged. B. Relevant provision of the Official Liability Act
42. Under section (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 corresponding provisions of civil law shall apply unless otherwise determined by the Act (section (3)(4)). C. Relevant provision of the Code of Civil Procedure
43. Article 415 of the Code of Civil Procedure (Zivilprozessordnung) provides that where a judgment cannot be given directly after the close of the oral hearing, it is to be given within eight days of the closing of the hearing. D. Relevant provisions of the Constitutional Court Act
44. In line with section (1)(3) of the Constitutional Court Act, the Constitutional Court is constituted by five judges and five substitute judges. Its President and Vice President and one further judge as well as three substitute judges have to be Liechtenstein nationals. At least three judges and three substitute judges have to be legally trained. 45. Section (3)(1) of the Constitutional Court Act provides that the judges’ term of office is five years and that they may be re-elected. 46. In its hearings and deliberations and for voting, the Constitutional Court has to be composed of five judges (section (9)(1) of the Constitutional Court Act). If a judge is prevented from attending, he/she is replaced in the case concerned by a substitute judge (ibid, section (9)(2)). If it is impossible to properly constitute the court even by recourse to a substitute judge, a substitute appointment has to be made for the case at hand (ibid, section (9)(3)). 47. Section 11 of the Constitutional Court Act, on withdrawal and challenge, provides:
“1. A judge of the Constitutional Court may withdraw himself or be challenged by the parties:
a)  in matters concerning a legal person of which he is a member;
b)  if a particular friendship, a personal animosity or a particular relationship of responsibility or dependence exists between himself and a party;
c)  if facts exist indicating that the judge appears biased in relation to the case to be adjudicated. 2. Prior to the session, withdrawal or challenge shall be decided upon by the president, otherwise by the court.”
48. Under sections 15(1) and (2)(a) of the Constitutional Court Act of 27 November 2003, 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 an order of a public authority. 49. Section (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 – namely, the Court Fees Act (Gerichtsgebührengesetz) of 30 May 1974. E. Relevant case-law of the Liechtenstein Constitutional Court
50. 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 on its own motion (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 a complainant (see, for instance, file no. StGH 2005/052, judgment of 14 December 2009, § 2.4; and file no. StGH 2010/141, judgment of 19 December 2011, § 5.3). 51. The Constitutional Court assesses the reasonableness of the length of the proceedings having regard to the four criteria developed in the European Court of Human Rights’ 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). 52. In cases in which the Constitutional Court finds a breach of the reasonable-time requirement, it has developed, in its more recent case-law, a right for the complainant to be exempted from certain costs of the proceedings. It considered, in particular, that the complainant’s lawyer’s fees (in a case where the complainant was represented by a lawyer before the Constitutional Court) had to be reimbursed by the State and that the court costs had to be borne by the State despite the fact that (in case of an automatic 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). In case the complainant had to bear the lawyer’s fees incurred by the opposing party in the proceedings before the Constitutional Court as a result of his constitutional complaint having been dismissed, he may further be reimbursed those fees (see file no. StGH 2005/007, cited above, § 6; and file no. StGH 2005/052, cited above, § 4). Where the Constitutional Court has 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 fees incurred in the latter proceedings (see, for instance, file no. StGH 2005/052, cited above, § 2.4). 53. The Constitutional Court subsequently explained that in such circumstances the State had to bear the costs of the proceedings as “compensation for damage or redress” (Entschädigung bzw. Wiedergutmachung; see file no. StGH 2010/141, cited above, § 9, and the judgment in the present application, 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; see for judgments in which the Constitutional Court still expressed doubts as to whether granting redress for a breach of the reasonable-time requirement was possible in the proceedings before it file no. StGH 2009/177, judgment of 21 May 2010, point 2.3, and file no. StGH 2011/16, judgment of 29 August 2011, §§ 8-9). 54. As to the calculation of the amounts payable in lawyer’s fees and court costs, the Constitutional Court, in its well-established case-law, fixes the amount in dispute (Streitwert) before it at a maximum of 100,000 euros (EUR) (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 fees which may be reimbursed to the complainant amount to a maximum of CHF 2,694.40 including VAT (compare 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 Article 56 § 1 of the Constitutional Court Act, read in conjunction with Article 19 §§ 1 and 5 of the Court Fees Act; and file no. StGH 2004/58, cited above, § 8) and a fee for lodging the complaint (usually CHF 170, see Article 56 § 1 of the Constitutional Court Act, read in conjunction with Article 17 § 1 of the Court Fees Act). 55. If a constitutional complaint is upheld as the complainant prevailed in at least one of his/her complaints, the State is ordered to reimburse the complainant’s lawyer’s fees (if any) and to bear the court costs, calculated on the basis of the amount in dispute fixed by the Constitutional Court (see, inter alia, file no.

Article of the Convention at issue: Article 13
Outcome: violation