FIFTH SECTION

Application no. 38191/12 A.K. against Liechtenstein lodged on 14 May 2012

STATEMENT OF FACTS

The applicant, Mr A.K., is a German national, who was born in 1970 and lives in St. Gallenkappel , Switzerland.

On 28 June 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).

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 and proceedings at issue

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 the EMK stock corporation and the EMK Engineering stock corporation, companies resident and registered in Liechtenstein.

By an interim order dated 28 December 2009 the Regional Court granted F.H. ’ s request to prohibit the real property and commercial registry to register certain changes concerning the EMK Engineering stock corporation which had been decided in the corporation ’ s extraordinary shareholders ’ meeting of 23 July 2004. It thereby confirmed its provisional order of 21 March 2007 to that effect. The Regional Court notably prohibited registering that F.H. had been voted out of his office as a representative and member of the corporation ’ s supervisory board with power to represent the corporation and that the applicant had been elected managing director of the corporation with power to represent the corporation alone (file no. 02.CG.2007.83).

On 25 March 2010 that decision was quashed by the Court of Appeal on the applicant ’ s request and the case was remitted to the Regional Court for a further investigation of the facts.

On 30 July 2010 the Regional Court made a fresh identical interim order. It found that the applicant had not obtained property of the bearer shares in the EMK Engineering stock corporation in question and had not therefore validly represented 75% of the shares in the corporation ’ s extraordinary shareholders ’ meeting. The decisions taken in that meeting were thus unlawful. It was necessary to maintain the status quo in the commercial register in order to prevent F.H. from suffering irreversible damage.

On 23 September 2010 the Court of Appeal dismissed the applicant ’ s appeal against the order of 30 July 2010.

2. The impugned decision of the Constitutional Court

(a) The applicant ’ s motion for bias

By submissions dated 22 October 2010 the applicant lodged a constitutional complaint with the Constitutional Court against the Court of Appeal ’ s decision dated 23 September 2010.

On 7 November 2011 the Constitutional Court informed the applicant which judges would deliberate on his complaint in private on 28 November 2011.

By submissions dated 18 November 2011, which were received at the court on 21 November 2011, the applicant lodged motions for bias against all five judges called upon to decide on his complaint (judges B., Bu., S., V. and W.), and against the secretary ( Schriftführerin ), V.

The applicant argued, in particular, that the Constitutional Court had not quashed earlier decisions of the lower courts to his disadvantage in parallel proceedings. Moreover, he complained that it had taken the Constitutional Court more than one year to assign the judges who were to decide on his complaint despite the importance of the proceedings for him and that the court discriminated against German nationals.

Furthermore, in the applicant ’ s submission, judges B., V. and W and secretary V. had failed to take measures to remedy the disadvantages resulting from the fact that the commercial register did not reflect his rights concerning the EMK Engineering stock corporation and had arbitrarily disregarded his rights under Article 6 and Article 1 of Protocol no. 1 in previous related proceedings.

The applicant further submitted that, for different reasons, the five judges of the Constitutional Court individually were not impartial. As regards the court ’ s president, judge B., the applicant complained that the latter had not granted his constitutional complaint suspensory effect and had refused to order interim measures in related proceedings. In addition, judge B. was a member of different committees and commissions of which judges of the Supreme Court, which had given an impugned decision in the main proceedings, and judge H., who was a judge at the Constitutional Court and F.H. ’ s brother, were equally members.

In the applicant ’ s submission, judge Bu. was biased because he worked for the Government in that he drew up expert reports on constitutional questions and taught at seminars organised by the Government. He further worked with judge H. on a regular basis.

Judge V. had been a professor at the Liechtenstein University and was, therefore, not independent as he had worked for the Government and as judges had short terms of office. Moreover, he was biased as he was a good friend of judge H., F.H. ’ s brother.

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.

Finally, judge W., in his law firm, was the partner of a lawyer against whom the applicant had brought proceedings concerning an inheritance. Another lawyer of that law firm had already represented the EMK Engineering stock corporation. Moreover, judge W. had previously worked as a lawyer in judge H. ’ s law firm.

(b) The Constitutional Court ’ s decision

Three of the judges of the Constitutional Court made statements on the applicant ’ s motions for bias. Judge Bu. stated that he had not drawn up any expert reports for the Government since his appointment as a judge. Judge S. submitted that he did not draw considerable income from his work as a member of the supervisory board of a state-owned stock corporation. Judge W. explained that he did not have any knowledge of whether his partner in the law firm, who was currently absent, was involved in unrelated legal proceedings with the applicant. His work for judge H. dated back ten years and he had been working as a self-employed counsel for some nine years already since then.

On 28 November 2011 the Constitutional Court, composed of judges B., Bu., S., V. and W., dismissed the applicant ’ s motion for bias against them (file no. StGH 2010/141).

The Constitutional Court stated that, in accordance with the principle that, if possible, a motion for 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 motion for bias against them, which had been decided upon by the four remaining judges.

The Constitutional Court considered that the fact alone that judges B., V. and W. had already taken part in decisions finding against the applicant in related proceedings did not suffice to substantiate that there were objectively justified doubts as to their impartiality. Likewise, the fact that the judges were elected for a period of five years did not compromise their impartiality.

The independence of the judges of the Constitutional Court vis-à-vis the executive was guaranteed by the Constitution. The applicant further had not substantiated that the executive had influenced the judges of the Constitutional Court in the present proceedings in any way. The fact that some of the judges had previously worked for the executive did not suggest that the executive had influenced the present proceedings.

Finally, 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 did not objectively cast doubts on their impartiality in the circumstances of the present case. It added that in a small country like Liechtenstein, excessively strict standards in this respect would disproportionately obstruct the administration of justice.

The decision was served on the applicant on 19 December 2011.

3. Subsequent developments

On 19 December 2011 the Constitutional Court, composed of judges B., Bu., V., S. and W., allowed the applicant ’ s constitutional complaint in so far as his complaint under Article 6 of the Convention about the unreasonable length of the proceedings was concerned and dismissed the remainder of his complaint (file no. StGH 2010/141). The applicant complained about that judgment in a new, separate application (no. 67213/12) to the Court.

COMPLAINT

The applicant complains under Article 6 of the Convention that the five judges of the Constitutional Court who were called upon to decide on his case were not impartial. He argues, in particular, that each of the challenged judges took part in the decision concerning the challenges against the remaining four judges, without the court having considered his motions for bias as manifestly ill-founded.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its civil head applicable to the (interim) proceedings in the present case?

2. Having regard to the procedure by which the Constitutional Court dismissed the applicant ’ s motions for bias against the five judges called upon to decide on his complaint – each of the challenged judges took part in the decision concerning the challenges against his colleagues – , was the Constitutional Court impartial, as required by Article 6 § 1 of the Convention?