FIFTH SECTION

Application no. 34459/10 Michael BEKERMAN against Liechtenstein lodged on 9 July 2010

STATEMENT OF FACTS

The applicant, Mr Michael Bekerman , is a German national, who was born in 1955 and lives in Berlin. He is represented before the Court by Mrs R. Bekerman , his wife.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

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 on considerable assets (more than 14 million Swiss francs) 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.

2. The first phase of the proceedings at issue: Proceedings until the first judgment of the Regional Court

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.

By submissions dated 27 September 2001, received at 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 in the Regional Court (file no. 2 CG.2001.317).

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.

On 21 July 2004 the Regional Court, having received further information from the applicant, granted the latter legal aid.

On 28 July 2004 R. and K. withdrew the action against the applicant and maintained it only against the H. foundation.

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.

3. The second phase of the proceedings: Proceedings until the second judgment of the Regional Court

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.

On 7 March 2005 the applicant, being the beneficiary of the H. foundation, requested leave to intervene in the proceedings and applied for legal aid.

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.

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.

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.

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.

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.

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.

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.

4. The third phase of the proceedings: The proceedings before the Court of Appeal

On 28 June 2008 the applicant and on 9 July 2008 the H. foundation, R. and K. and appealed against the Regional Court ’ s new judgment.

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.

On 29 April 2009 the Court of Appeal supplemented its judgment of 25 March 2009 in respect of its decision on the costs of the proceedings.

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. The Supreme Court further quashed the decision dated 29 April 2009 of the Court of Appeal on costs in these proceedings.

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 that his right to an independent and impartial tribunal, the prohibition of arbitrary decisions and his procedural rights under that provision, including his right to a hearing within a reasonable time, had been violated.

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 (file no. 2009/177) and the H. foundation ’ s (file no. 2009/190) constitutional complaints.

The Constitutional Court found that the complaints were 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.

As for the alleged breach of the right to be heard within a reasonable time and the applicant ’ s and the H. foundation ’ s complaint about the Supreme Court ’ s lack of impartiality, 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.

On 28 November 2011 the Constitutional Court dismissed the applicant ’ s constitutional complaint (file no. StGH 2011/56) about a decision of the Supreme Court dated 9 March 2011 in which the latter had dismissed as inadmissible the applicant ’ s claim for reimbursement of expenses.

The main proceedings are still pending before the Court of Appeal.

COMPLAINT

The applicant complains under Article 6 of the Convention about the length of the proceedings at issue.

QUESTIONS TO THE PARTIES

1. May the applicant, who, during most of the time, had the position of an intervening third party in the proceedings at issue, claim to be a victim of a violation of Article 6 § 1 of the Convention, within the meaning of Article 34?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, was a complaint to the Constitutional Court an effective remedy within the meaning of this provision in respect of the applicant ’ s complaint under Article 6 § 1 about the length of the proceedings (see for the Court ’ s case-law in this respect, inter alia , KudÅ‚a v. Poland [GC], no. 30210/96, ECHR 2000 ‑ XI and a number of follow-up cases )?

3. Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?