Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14245/88

by W.W.

against Liechtenstein

The European Commission of Human Rights (Second Chamber) sitting in

private on 9 December 1991, the following members being present:

MM.S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H. G. SCHERMERS

Mrs.G. H. THUNE

Mr.F. MARTINEZ

Mrs. J. LIDDY

MM.M.P. PELLONPÄÄ

Mr. K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 July 1988 by W.W.

against Liechtenstein and registered on 26 September 1988 under file No.

14245/88;

Having regard to the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the parties,

may be summarised as follows:

The applicant, born in 1925, is a national of Liechtenstein, and

resident at S., Liechtenstein. He is a legal adviser and trustee by

profession. Before the Commission he is represented by Mr. I. Schuler,

a lawyer practising in Bregenz, Austria.

In October 1975 the official liquidator of a Liechtenstein limited

company, on behalf of the bankrupt's estate of this company, instituted

civil proceedings before the Vaduz Regional Court (Landgericht) against

the applicant, the former director of this company, claiming compensation

for an unlawful financial transaction. In these proceedings the applicant

was represented by counsel.

The Vaduz Regional Court held hearings on 11 November 1975 and

29 January 1976. In 1976 various measures were taken with regard to the

taking of evidence as proposed by the applicant, in particular the

hearing of witnesses in rogatory proceedings. A further hearing was held

on 18 March 1977. The rogatory proceedings were terminated in 1978, the

hearing was closed on 10 February 1978.

On 27 May 1980 the proceedings were continued with a hearing before

the Vaduz Regional Court. The applicant, duly summoned, was not present

personally. The plaintiff requested that the proceedings be suspended

until completion of the bankruptcy proceedings on the ground that the

compensation claim depended upon the claims against the bankrupt's

estate. The applicant's counsel did not oppose the request. Thereupon,

the Regional Court discontinued the proceedings until a final decision

was taken about the claims against the bankrupt's estate in the

bankruptcy proceedings concerned. The parties waived their rights to

appeal.

In the bankruptcy proceedings the last judgment was given by the

Liechtenstein Court of Appeal (Obergericht) on 26 June 1986.

In the beginning of 1987 the Vaduz Regional Court continued the

civil proceedings against the applicant and fixed a hearing for

27 February 1987.

On 21 January 1987 the applicant's counsel resigned. On 11 February

1987 the applicant requested that the oral hearing fixed for 27 February

1987 be postponed.

At the hearing of 24 April 1987, the Vaduz Regional Court reopened

the suspended proceedings. The Regional Court rejected the applicant's

further voluminous submissions. It considered that he could have made

these submissions far earlier and apparently intended to delay the

proceedings. Several witnesses were heard on the merits of the action.

On 30 June 1987 the Vaduz Regional Court ordered the applicant to

pay the plaintiff SF 350,000 with interest. The Regional Court found in

particular that the applicant, as former director of the limited company

concerned, was liable for an amount of SF 350,000 which was missing from

the original capital. It also confirmed that the applicant's further

submissions at the hearing of 24 April 1987 be rejected.

On 1 September 1987 the applicant lodged an appeal (Berufung) with

the Liechtenstein Court of Appeal, and submitted inter alia a private

legal opinion on his case, prepared by two law professors.

On 22 October 1987 the Court of Appeal fixed 19 November as the date

for a hearing. The hearing was postponed upon the applicant's request

and was held on 10 December 1987.

On 10 December 1987 the Liechtenstein Court of Appeal dismissed the

applicant's appeal. The written judgment was dated 4 January 1988.

On 28 June 1988 the Liechtenstein Supreme Court (Oberster

Gerichtshof) dismissed the applicant's appeal on points of law (Revision)

of 4 February 1988.

On 14 July 1988 the applicant filed a complaint with the

Liechtenstein Constitutional Court (Staatsgerichtshof) alleging

violations of his constitutional rights and rights under the Convention

in that the proceedings had been unfair. He submitted in particular that

his appeal on points of law was not decided by the competent court as the

Supreme Court's judgment was dated 28 June 1988 and thus prepared on the

same day as the Court's deliberations in his case. Furthermore, his

additional submissions were incorrectly rejected by the Vaduz Regional

Court.

On 28 April 1989 the Constitutional Court dismissed the applicant's

complaint. The Constitutional Court found in particular that, in the

proceedings before the Supreme Court the use of a rapporteur's draft

could not be objected to under constitutional or Convention law. The

Constitutional Court also considered that the applicant had been given

the opportunity to present his arguments; the decision to reject his

further submissions before the Vaduz Regional Court did not render the

proceedings unfair. The applicant received the judgment on 31 May 1989.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the

length of the civil proceedings. He also complains that the

Liechtenstein court decisions were incorrect, and that the proceedings

concerned were unfair. He submits in particular that some of his

submissions at first instance were not admitted. Furthermore, he was not

summoned and, therefore, could not attend the hearings in person.

Moreover, he complains that the judgment of the Supreme Court was drafted

before the deliberations had taken place. He also invokes Article 1 of

Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 July 1988 and registered on

26 September 1988.

On 5 March 1991 the Commission decided that notice should be given

to the respondent Government of the application and that the Government

should be invited to submit written observations on the admissibility and

merits of the case.

The Government's observations were submitted on 7 May 1991. The

applicant's submissions in reply were submitted on 29 July 1991.

On 27 May 1991 the Commission referred the application to the Second

Chamber.

THE LAW

1.The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of the proceedings before the Liechtenstein

courts.

Article 6 para. 1 (Art. 6-1) of the Convention provides, inter alia,

that in the determination of his civil rights and obligations, everyone

is entitled to a fair hearing within a reasonable time.

The Government submit that the period to be considered under

Article 6 para. 1 (Art. 6-1) started on 8 September 1982 when

Liechtenstein ratified the Convention. Having regard to the relevant

criteria established in the case-law of the Convention organs, they

consider that as from this date the proceedings were terminated within

a reasonable time. In particular, in 1982 the civil proceedings

concerned were still suspended pending the outcome of the bankruptcy

proceedings, which were decisive for the plaintiff's claims. Following

termination of the bankruptcy proceedings in June 1986 the proceedings

only lasted two years at three instances (until the Supreme Court's

judgment of 28 June 1988). The applicant had himself delayed the

proceedings.

The applicant considers that the reasons given for the Regional

Court's decision of 27 May 1980 concerning the suspension of the

proceedings show that the plaintiff's claims were unfounded and his

action should have been dismissed.

The Commission has examined the length of the proceedings in this

case according to the criteria established in the case-law of the

Convention organs.

The relevant period did not begin as from the institution of the

civil proceedings in October 1975, but only as from 8 September 1982 when

Liechtenstein ratified the Convention and recognised the right of

individual petition. However, in assessing the reasonableness of the

time that elapsed after 7 September 1982, account must be taken of the

then state of proceedings (cf. Eur. Court H.R., Baggetta judgment of

25 June 1978, Series A no. 119, p. 32, para. 20 with further reference).

The proceedings terminated on 31 May 1989, when the applicant received

the Constitutional Court's judgment of 28 April 1989. The period to be

considered thus amounts to six years, eight months and three weeks.

The applicant's case concerned compensation claims of about

SF 350,000 and raised both difficult questions under Liechtenstein

company law - in this respect the applicant filed a private expert

opinion with the Liechtenstein Court of Appeal - and factual questions

which necessitated the taking of evidence.

The applicant did not, during the relevant period, particularly

delay the proceedings. In February 1987 a hearing before the Vaduz

Regional Court was, upon his request, postponed for two months.

Furthermore, upon his request, a hearing before the Court of Appeal was

postponed for three weeks.

With regard to the conduct of the proceedings by the

Liechtenstein courts, the Commission notes that, at the start of the

period relevant under Article 6 para. 1 (Art. 6-1) of the Convention, the

proceedings were, upon the plaintiff's request, suspended pending the

outcome of bankruptcy proceedings. The bankruptcy proceedings were

related to the compensation claim in dispute in the present case. The

applicant's counsel had not opposed this request, the applicant himself

had not been present although duly summoned. The parties had waived

their right to appeal against the suspension order.

The bankruptcy proceedings terminated on 26 June 1986. The

applicant did not show that these proceedings were unduly delayed by the

Liechtenstein authorities.

The civil proceedings against the applicant were continued by the

Vaduz Regional Court in the beginning of 1987, when a hearing was fixed

for 27 February 1987. The applicant had not asked for reopening of the

proceedings at any earlier date.

The Commission, having regard to the reasons for the suspension of

the proceedings in 1980 and in particular the attitude of the applicant,

represented by counsel, towards this matter, finds that the suspension

of the civil proceedings did not result in any undue delays (cf., mutatis

mutandis, Eur. Court H.R., Lechner and Hess judgment of 23 April 1987,

Series A no. 118, p. 19, para. 53).

The proceedings were formally reopened on 24 April 1987. The Vaduz

Regional Court passed its judgment on 30 June 1987, the Liechtenstein

Court of Appeal on 10 December 1987, the Supreme Court on 28 June 1988

and the Constitutional Court on 28 April 1989. The case thus passed four

instances within two years. There were no unreasonable delays caused by

the conduct of the Liechtenstein courts.

The Commission finds that, in these circumstances, the length of the

proceedings, even taking their state in September 1982 into account, was

not excessive.

Consequently, there is no appearance of a violation of the

applicant's right to a hearing within reasonable time, as guaranteed

under Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).

2.The applicant further complains under Article 6 (Art. 6) of the

Convention about the decisions taken by the Liechtenstein courts. He

considers that the proceedings were not fair.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging that

errors of law or fact have been committed by domestic courts, except

where it considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention

(see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71,

Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R.

18 pp. 31, 45).

As regards the applicant's complaints under Article 6 (Art. 6) of

the Convention, the Commission finds that there is nothing to indicate

that the applicant, represented by counsel, could not properly present

his case or that the proceedings were otherwise unfairly conducted.

The Commission considers in particular that the applicant failed to

show that the decision of the Vaduz Regional Court not to admit his

further submissions had been arbitrary. Moreover, there is no indication

that the applicant's personal presence was indispensable for the proper

conduct of the proceedings. Finally, his submissions that the Supreme

Court's deliberations and judgment were based on a draft do not disclose

any appearance of a violation of his rights under Article 6 para. 1

(Art. 6-1).

Consequently, this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.The applicant also alleges a violation of Article 1 of Protocol

No. 1 (P1-1) in respect of his above complaints. However, Liechtenstein

is not a Party to Protocol No. 1 to the Convention. The remainder of the

application is therefore incompatible ratione personae with the

provisions of the Convention and must be rejected under Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

Menu

W. v. LIECHTENSTEIN

W. v. LIECHTENSTEIN

LEXI