FIFTH SECTION

Application no. 10722/13 A.K. against Liechtenstein lodged on 21 December 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 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).

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

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.

In September 2006 and in April 2007 the Regional Court 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 corporations ’ respective supervisory boards with power to represent the corporation may not be cancelled.

2. The proceedings before the Regional Court

On 10 June 2005 F.H. brought an action against the applicant in the Regional Court. He requested the court to oblige the applicant to return a specified number of bearer shares in the EMK stock corporation and in the EMK Engineering stock corporation and to 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.

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.2005.163-9). It found that it had jurisdiction on grounds of location of assets ( Vermögensgerichtsstand ) to decide upon F.H. ’ s action. The defendant applicant had assets in Liechtenstein, namely claims for salary and fees against the EMK stock corporation and the EMK Engineering stock corporation, 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.

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 concerning the Liechtenstein courts ’ jurisdiction.

On 1 March 2006 the Constitutional Court granted the applicant ’ s request that his constitutional complaint of 22 February 2006 against the Court of Appeal ’ s interlocutory decision be given suspensory effect. It further ordered the Regional Court not to hold any further hearing in the proceedings at issue until the Constitutional Court had taken its decision on the applicant ’ s constitutional complaint.

On 27 March 2007 the Constitutional Court, having regard also to F.H. ’ s submissions to it dated 21 March 2006, dismissed the applicant ’ s constitutional complaint (file no. StGH 2006/16). It found that the Court of Appeal ’ s decision considering that the Liechtenstein courts had jurisdiction on grounds of location of assets had not been arbitrary.

Following the termination of the proceedings before the Constitutional Court, the Regional Court resumed the proceedings. It heard the parties, their counsel and twelve witnesses in person in hearings on 31 May 2007, 28 June 2007 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.

On 22 April 2009 the applicant asked the Regional Court to deliver its judgment, given that the oral proceedings had been terminated on 6 September 2007.

On 28 December 2009 the Regional Court allowed F.H. ’ s action (file no. 02.CG.2007.114-55). It ordered the applicant to return a specified number of bearer shares in the EMK stock corporation and in the EMK Engineering stock corporation to F.H. and declared that the applicant did not hold and had never held shares in those corporations.

Having regard to the evidence before it, the Regional Court considered that F.H. ’ s version of the facts relevant to the question who was the owner of the shares in dispute was more credible than that of the applicant. It found that the applicant ’ s mother I.K. had never obtained property 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 corporations. The applicant had known this at the latest on conclusion of his contract with I.K. transferring him the shares as a gift in 2003. I.K. had not, therefore, been the owner of or authorised to transfer property of the shares to the applicant and the latter had not obtained property thereof for lack of good faith.

3. The proceedings before the Court of Appeal

On 3 February 2010 the applicant appealed against the Regional Court ’ s judgment, claiming that I.K. had bought the shares in question from F.H. and had therefore validly transferred them to him as a gift.

On 27 May 2010 the Court of Appeal, endorsing the findings of the Regional Court, dismissed the applicant ’ s appeal after having held a hearing. 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 applicant had not even claimed not to have been able to submit the documents at issue already in the proceedings before the first-instance court.

On 30 June 2010 the judgment was served on the applicant ’ s counsel.

4. The proceedings before the Supreme Court

On 7 September 2010 the applicant lodged an appeal on points of law against the Court of Appeal ’ s judgment.

In a judgment and decision dated 13 January 2011 the Supreme Court dismissed the applicant ’ s appeal on points of law. It found that the lower courts had not made an error of law in their legal classification of the facts they had established, had not failed to take necessary evidence and had sufficiently reasoned their judgments.

The judgment and decision was served on the applicant ’ s counsel on 25 January 2011.

5. The proceedings before the Constitutional Court

On 18 February 2011 the applicant lodged a constitutional complaint (running to 80 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 Prot. 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 a request to speed up the proceedings, in order to enforce his Convention rights.

The applicant further argued, inter alia , that the biased judges of the lower courts had not had jurisdiction, had lacked independence, had insufficiently and arbitrarily taken and assessed the evidence and had insufficiently reasoned their wrong judgments and had therefore violated his right to property in unfair proceedings.

On 3 March 2011 the president of the Constitutional Court granted the applicant ’ s request to allow his complaint suspensory effect.

On 24 March 2011 F.H. lodged a reply to the applicant ’ s constitutional complaint.

On 20 April 2012 the Constitutional Court informed the applicant which judges would decide on his constitutional complaint in a hearing in camera on 15 May 2012.

On 8 May 2012 the applicant lodged a motion for bias (running to 27 pages plus annexes) against the five judges of the Constitutional Court called upon to decide on his complaint and against the judges of the lower courts.

By a decision of 15 May 2012, the Constitutional Court, sitting in the composition of five judges which the applicant had challenged for bias, dismissed the applicant ’ s motions for bias.

The Constitutional Court stressed that the applicant ’ s motions for bias against its judges had been decided upon in the absence of the challenged judge respectively. It considered that the fact that several of the judges had already taken part in decisions finding against the applicant alone 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 were 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. Finally, the applicant ’ s motion for bias against the judges of the lower courts was inadmissible.

On the same day, on 15 May 2012, the Constitutional Court d elivered its judgment (file no. StGH 2011/32). It granted the applicant ’ s constitutional complaint in part, finding that the applicant ’ s right 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 (CHF 170) and bear the further court costs, that is, the judgment fee (CHF 1,700). It further ordered Liechtenstein to reimburse F.H., who, unlike the applicant, was represented by counsel in the proceedings before the Constitutional Court, lawyers ’ fees (CHF 2,694.40).

The Constitutional Court found that the 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 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 which 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.

The Constitutional Court noted that Liechtenstein law did not contain any provisions stipulating which consequences should be drawn from a breach of the right to proceedings within a reasonable time. However, it would be utterly unjust if a breach of the constitutional right to a decision within a reasonable time would not have any consequences as a result of the lack of legislative provisions. There was therefore a loophole 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 fees and lawyers ’ fees) upon Liechtenstein in order to compensate for and redress the breach of the fundamental right at issue. However, the judgment fee could not be imposed on Liechtenstein as a measure of compensation as Liechtenstein had to bear that fee anyway.

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.

The judgment and the decision of 15 May 2012 were served on the applicant on 27 June 2012.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the proceedings. He argues that the duration of the – not very complex – proceedings, to which he did not contribute, made it impossible for him to use his property for many years. He submits, in particular, that the Regional Court was inactive during the period from 6 September 2007 to 28 December 2009, that is, for more than two years and three months. Moreover, the domestic courts only insufficiently acknowledged that Article 6 was not complied with and did not redress the Convention violation. They did not grant prompt and adequate compensation, as a reimbursement of costs was clearly insufficient.

Relying, in particular, on Article 13 of the Convention, read in conjunction with Article 6 of the Convention, the applicant further claims that he did not have an effective remedy under Liechtenstein law in order to speed up the proceedings and to enforce his Convention rights in this respect.

Moreover, in the applicant ’ s submission, the five judges of the Constitutional Court who were called upon to decide on his case were not impartial, as required by Article 6 of the Convention, because each of the challenged judges took part in the decision concerning the challenges against the remaining four judges.

QUESTIONS TO THE PARTIES

1. May the applicant still claim to be a victim of a violation of the right under Article 6 § 1 of the Convention to a hearing within a reasonable time, within the meaning of Article 34 of the Convention?

2. 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?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 1 of the Convention in respect of the length of the proceedings at issue, as required by Article 13 of the Convention (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) ?

4. What is the current practice of the Constitutional Court when it finds that the right under Article 6 § 1 of the Convention to a hearing within a reasonable time has not been complied with? Is there an established practice to the effect that the complainants, or both parties to the proceedings, are always reimbursed costs and / or lawyers ’ fees, irrespective of the merits of the complainant ’ s further complaints to the Constitutional Court? How are these costs and fees calculated and what maximum award can be awarded to the complainants / parties or what maximum award can they be exempted from paying to the Treasury or to the other party in compensation for damage caused by an unreasonable length of proceedings?

5. 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?