CASE OF BEKERMAN v. LIECHTENSTEIN

FIFTH SECTION

CASE OF BEKERMAN v. LIECHTENSTEIN

(Application no. 34459/10)

JUDGMENT

STRASBOURG

3 September 2015

FINAL

01/02/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bekerman v. Liechtenstein,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Mark Villiger,
Boštjan M. Zupančič,
Ganna Yudkivska,
Vincent A. De Gaetano,
André Potocki,
Helena Jäderblom, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 7 July 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 34459/10) 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 Michael Bekerman (“the applicant”), on 9 July 2010.

2. The applicant was represented by Mrs R. Bekerman, his wife. The Liechtenstein Government (“the Government”) were represented by Mr T. Zwiefelhofer, Deputy Prime Minister, by Mr B. Hammermann, Director of the Office for Administration of Justice (Amt für Justiz) and by their Agent, Mr D. Ospelt, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Liechtenstein to the Council of Europe.

3. The applicant alleged, in particular, that the length of the civil proceedings at issue had been excessive and that he had exhausted all effective domestic remedies to complain about that length.

4. On 12 July 2013 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible. On 1 October 2013 the Acting President of the Chamber granted the applicant leave to be further represented by a person other than an advocate, namely by his wife (Rule 36 §§ 2 and 4 (a) of the Rules of Court). The applicant submitted two original powers of attorney signed both by himself and by his wife as his designated representative which referred explicitly to the present proceedings, one when lodging his application and another one when applying for the above-mentioned leave.

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), did not indicate that they wished to exercise that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1955 and lives in Berlin.

A. Background to the case

7. 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 to considerable assets (more than 14 million Swiss francs (CHF)) 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.

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

8. 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.

9. By submissions dated 27 September 2001, received by 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 (file no. 2 CG.2001.317).

10. 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.

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

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

13. 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.

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

14. 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.

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

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

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

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

24. 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.

25. 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.

26. 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, inter alia, that his right to a hearing within a reasonable time had been violated.

27. 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 constitutional complaint (file no. StGH 2009/177).

28. The Constitutional Court found that the complaint was 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.

29. As to the alleged breach of the right to be heard within a reasonable time, 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.

30. As regards costs and expenses, the Constitutional Court ordered the applicant to pay R. and K. lawyer’s costs in the amount of CHF 3,087.05 and declared the court costs uncollectible, referring to its practice in previous proceedings brought by the applicant before it.

31. It emerged from a letter dated 17 July 2013 from the Court of Appeal to the applicant’s wife that the Court of Appeal had stayed the proceedings before it pending the proceedings before this Court having regard to a proposal made by the applicant to that effect.

32. By decision of 2 April 2014 the Court of Appeal declared that the proceedings were terminated and that the court costs were to be borne in accordance with the Court Fees Act (Gerichtsgebührengesetz). It noted that by submissions dated 29 January 2014 the applicant, who had revoked his wife’s power of attorney to represent him in the proceedings before that court, the applicant’s sisters R. and K. and the H. foundation had informed the court that they had agreed on a settlement of the case and requested that the proceedings be stayed perpetually (ewiges Ruhen). This Court has not been informed of the content of the settlement. The proceedings were thus stayed ex lege. The Court of Appeal further explained that the proceedings before it had not been continued following the remittal of the case to it by the Supreme Court’s decision dated 1 October 2009 because the applicant had lodged a constitutional complaint against that decision with the Constitutional Court and subsequently an application with the European Court of Human Rights. None of the parties to the proceedings before the Court of Appeal had requested that the proceedings be continued while the complaint and the application were pending before the Constitutional Court and the European Court of Human Rights respectively.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant provisions of the Code of Civil Procedure

33. Article 17 § 1 of the Code of Civil Procedure, on third-party intervention, provides that anyone with a legal interest that a party in a legal dispute between other persons prevails may join that party in the proceedings as intervener. The intervener is entitled to offer evidence and to take procedural actions in support of the main party he has a legal interest in prevailing. The intervener may, without approval or authorisation of the main party, lodge all appeals foreseen by law even if the main party does not appeal (Article 19 §§ 1 and 4 of the said Code).

B. Relevant provision of the Official Liability Act

34. Under Article 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 provisions of civil law shall apply mutatis mutandis unless otherwise determined by the Act (Article 3 § 4).

C. Relevant provisions of the Court Organisation Act

35. Articles 46 to 50 of the Court Organisation Act (Gerichtsorganisationsgesetz) of 24 October 2007 contain provisions on supervisory review (Dienstaufsicht). Article 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 (Article 47 § 2 of the Act).

36. Anyone who considers to be prejudiced by an act of a court may lodge a supervisory complaint in writing (Article 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 Article 48 § 2 of the Act).

37. Under Article 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 president of the Supreme Court with whom such supervisory complaints had to be lodged.

D. Provisions concerning the Liechtenstein Constitutional Court

38. Under Article 15 §§ 1 and 2 (a) of the Constitutional Court Act, 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 order of a public authority.

39. Article 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, that is, the Court Fees Act (Gerichtsgebührengesetz) of 30 May 1974.

E. Relevant case-law of the Liechtenstein Constitutional Court

40. 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 ex officio (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 the complainant (see, for instance, file no. StGH 2005/052, judgment of 14 December 2009, § 2.4).

41. The Constitutional Court assesses the reasonableness of the length of the proceedings having regard to the four criteria developed in this Court’s 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).

42. In cases in which the Constitutional Court finds a breach of the reasonable-time requirement, it developed, in its more recent case-law, a right for the complainant to be exempted from certain costs of the procedure. It considered, in particular, that the complainant’s lawyer’s costs and expenses (in case the complainant was represented by a lawyer before the Constitutional Court) had to be reimbursed by the State of Liechtenstein and that the court costs had to be borne by the State of Liechtenstein despite the fact that (in case of an ex officio 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). The complainant may further be reimbursed the lawyer’s costs incurred by the opposing party in the proceedings before the Constitutional Court in case he had to bear those costs as a result of his constitutional complaint having been dismissed (see file no. StGH 2005/007, cited above, § 6; and file no. StGH 2005/052, cited above, § 4). Where the Constitutional Court 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 expenses incurred in the latter proceedings (see, for instance, file no. StGH 2005/052, cited above, § 2.4).

43. The Constitutional Court subsequently explained that, in such circumstances, the State of Liechtenstein had to bear the costs of the procedure as “compensation for damage or redress” (“Entschädigung bzw. Wiedergutmachung”; see file no. StGH 2010/141, judgment of 19 December 2011, § 9; and 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; and file no. StGH 2011/32, cited above, § 9).

44. As to the calculation of the amounts payable in lawyer’s costs and court costs, the Constitutional Court, in its well-established case-law, fixes the amount in dispute (Streitwert) before it at a maximum of EUR 100,000 (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 costs which may be reimbursed to the complainant amount to a maximum of CHF 2,694.40 including VAT (see 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 file no. StGH 2004/58, cited above, § 8; and Article 56 § 1 of the Constitutional Court Act, read in conjunction with Article 19 §§ 1 and 5 of the Court Fees Act) and a fee for lodging the complaint (usually CHF 170, see file no. StGH 2011/32, cited above, point 3 of the operative provisions and § 9; and Article 56 § 1 of the Constitutional Court Act, read in conjunction with Article 17 § 1 of the Court Fees Act).

45. If a constitutional complaint is allowed as the complainant prevailed with at least one of his complaints, the State of Liechtenstein is ordered to reimburse the complainant his lawyer’s costs (if any) and to bear the court costs, calculated on the basis of the amount in dispute fixed by the Constitutional Court respectively (see, inter alia, file no. StGH 2008/48, judgment of 9 December 2008, points 1 and 3-4 of the operative provisions; file no. StGH 2009/14, judgment of 30 March 2009, points 1 and 3-4 of the operative provisions; and also, in respect of complaints about the length of proceedings, file no. StGH 2011/16, judgment of 29 August 2011, §§ 7-9; and file no. StGH 2011/32, cited above, points 3 and 5 of the operative provisions and § 9).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

46. The applicant complained that the length of the proceedings at issue had been excessive. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

47. The Government contested that argument.

A. Application of Article 37 of the Convention

1. The parties’ submissions

48. Following the exchange of observations between the parties, the Government, by submissions dated 14 March 2014, requested that the present application be struck off the list of cases under Article 37 of the Convention. They submitted that the applicant, by a statement dated 27 January 2014 to the Regional Court, had revoked the power of attorney given to his wife in the proceedings before the domestic courts underlying this application. He had further expressly revoked the power of attorney given to his wife in different proceedings before the Constitutional Court. They argued that the applicant was therefore no longer validly represented by his wife also in the proceedings before this Court. Moreover, as the applicant had concluded a settlement in the proceedings before the domestic courts, there was no clear indication that the applicant intended to pursue his application before this Court.

49. The applicant, represented by his wife, contested the Government’s submissions which he considered as being out of time. He argued that the separate power of attorney submitted to the Court, authorising his wife to represent him in the proceedings before this Court, had not been revoked and was thus valid. He further submitted that the conclusion of a settlement in the proceedings before the domestic courts could not undo the damage suffered by him as a result of the breaches of his Convention rights in those proceedings.

2. The Court’s assessment

50. In order to decide whether the application should be struck out of the list in application of Article 37 § 1 (c) of the Convention, the Court must consider whether the circumstances lead it to conclude that “for any other reason ... it is no longer justified to continue the examination of [it]”. The Court reiterates that it has proceeded in that manner, inter alia, in cases where the applicant was not properly represented before the Court in accordance with Rule 36 §§ 2 and 4 (a) of its Rules of Court (see, among others, Grimaylo v. Ukraine (dec.), no. 69364/01, 7 February 2006; Akulov v. Russia (dec.), no. 74688/01, 8 March 2007; and Abulail and Ludneva v. Bulgaria (dec.), no. 21341/07, § 26, 13 November 2014). It has also proceeded in that way in cases where the applicants had reached an agreement or settlement with the domestic authorities which largely satisfied the demands that they had made under the Convention, and had thus lost their victim status (see Association SOS Attentats and de Boery v. France [GC] (dec.), no. 76642/01, § 37, ECHR 2006‑XIV).

51. The Court notes that the applicant has been authorised by the Acting President of the Chamber to be represented by his wife and submitted two powers of attorney signed both by himself and by his wife as his designated representative, referring explicitly to the present proceedings before the Court (see paragraph 4 above). Other than in the proceedings before the domestic courts, he did not revoke the power of attorney given to his wife in the proceedings before this Court. He has therefore been properly represented before the Court in accordance with Rule 36 §§ 2 and 4 (a). Moreover, there is nothing to indicate that the settlement, reached between the parties to the proceedings before the domestic courts and not with the domestic authorities, concerned or covered the breach of Article 6 of the Convention owing to the length of the proceedings alleged by the applicant in the present proceedings. The requirements of Article 37 § 1 (c) are therefore not met.

52. Furthermore, since the applicant gave a clear indication that he intended to pursue his application, sub-paragraph (a) of Article 37 § 1 is not applicable (compare also, mutatis mutandis, Pisano v. Italy (striking out) [GC], no. 36732/97, § 41, 24 October 2002; and Ohlen v. Denmark (striking out), no. 63214/00, § 25, 24 February 2005).

53. Consequently, the Court rejects the Government’s objection in this regard.

B. Admissibility

1. The applicant’s victim status

(a) The parties’ submissions

54. In the Government’s submission the applicant could not claim to be the victim, within the meaning of Article 34 of the Convention, of a breach of Article 6 of the Convention. They argued that the applicant had been aware of the fact that his constitutional complaint in the proceedings at issue (file no. StGH 2009/177) had had no prospects of success. Following a previous decision taken by the Constitutional Court on a complaint brought by him (file no. StGH 2006/56), he had known that the decision of the Supreme Court remitting the case to the lower court he had complained of was not final and a constitutional complaint against the decision was thus inadmissible.

55. The applicant argued that he had initially been sued and had been a co-defendant in the proceedings at issue. He had subsequently been obliged to protect his rights as beneficiary of the H. foundation by intervening in the proceedings as a third party in support of the foundation.

(b) The Court’s assessment

56. In order to claim to be the victim of a violation of a Convention right, for the purposes of Article 34 of the Convention, a person must be directly affected by the impugned measure (see Micallef v. Malta [GC], no. 17056/06, § 44, ECHR 2009). In its autonomous interpretation of the concept of “victim”, the Court has regard, inter alia, to the fact that an applicant had been a party to the domestic proceedings (ibid., § 48; compare also Neves e Silva v. Portugal, 27 April 1989, § 39, Series A no. 153‑A).

57. The Court observes that the applicant, who was the founder and beneficiary of the H. foundation, was initially a co-defendant in the civil proceedings brought by R. and K. against both himself and the H. foundation. After R. and K. had withdrawn the action against the applicant, the latter joined the H. foundation in the proceedings as an intervening third party. In his position as a third party, the applicant had a number of procedural rights under domestic law (see paragraph 33 above) which he could exercise in support of the main party whom he had a legal interest in prevailing. The Court considers that in these circumstances, the applicant was directly affected by the allegedly excessive duration of the proceedings during his participation therein as a defendant or third party intervener.

58. Accordingly, the applicant could claim to be the victim of a breach of Article 6 of the Convention, for the purposes of Article 34 of the Convention.

2. Exhaustion of domestic remedies

(a) The parties’ submissions

(i) The Government

59. In the Government’s view the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They argued that the applicant neither lodged an admissible constitutional complaint, nor a supervisory complaint (Aufsichtsbeschwerde). He also did not claim compensation for damage caused by the allegedly undue length of the proceedings in official liability proceedings. These remedies would have been effective within the meaning of Article 13 of the Convention to complain about the unreasonable length of the proceedings and the applicant had therefore been obliged to exhaust them.

60. The Government argued that in the proceedings at issue the applicant’s constitutional complaint, as the Constitutional Court had found, had been inadmissible for being premature. The applicant had brought his complaint against the decision of the Supreme Court dated 1 October 2009 which had not been final, that court having remitted the case to the lower court.

61. However, once a complainant had obtained a final last-instance decision of the civil courts, the Constitutional Court, under its new case‑law, granted redress to the complainant in form of an award of costs of the procedure, including court costs and lawyer’s expenses, if it found that the proceedings had lasted unreasonably long (the Government referred, in particular, to the Constitutional Court’s judgments in applications nos. StGH 2004/58, StGH 2010/141 and StGH 2011/32 (see paragraphs 40‑45 above) to support their view). This applied even if the remainder of the constitutional complaint was dismissed as ill-founded. The Constitutional Court granted such redress either ex officio if it found that the proceedings, including the proceedings before the lower courts, had lasted unreasonably long or on a complainant’s request.

62. As to the amount of costs of the procedure which the Constitutional Court could award the complainant or charge Liechtenstein with in case it found the length of the proceedings to have been excessive, the Government explained that the Constitutional Court, in its well-established case-law, fixed the value in dispute at a maximum of CHF 100,000. Therefore, a complainant could be awarded or Liechtenstein could be charged with a maximum of approximately CHF 5,500 in costs of the procedure. These comprised a maximum of CHF 2,694.40 for lawyer’s expenses and a maximum of CHF 1,870 in court costs (including CHF 170 in fees for lodging the complaint and CHF 1,700 in fees for the court’s decision), plus CHF 680 in court costs in case of a request for interim measures plus CHF 170 per hour in fees in case of a hearing.

63. As to supervisory complaints under Articles 46 to 49 of the Court Organisation Act (see paragraphs 35-37 above) the Government submitted that the president of the Regional Court or of the Court of Appeal could take measures following a party’s complaint within a short period of time and could, in particular, set a time-limit for a judge to draft his judgment. If the judge concerned failed to comply with the time-limit, he was liable to disciplinary sanctions.

64. The Government added that it was also possible to obtain compensation for damage caused by the undue length of civil proceedings in official liability proceedings under the Official Liability Act (see paragraph34 above).

(ii) The applicant

65. In the applicant’s submission, the Constitutional Court had repeatedly refused to redress the breaches of the Convention by the lower courts. There was nothing to indicate that the court would do so in the proceedings at issue.

66. The applicant further contested that a supervisory complaint would have been an effective remedy against the protracted length of the proceedings as such a complaint could not serve to redress the breaches of his rights. Furthermore, all official liability proceedings he had brought in Liechtenstein until now had been unsuccessful.

(b) The Court’s assessment

(i) Relevant principles

67. The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 is based on the assumption, reflected in Article 13 of the Convention, with which it has a close affinity, that there is an effective remedy available in respect of the alleged breach of a Convention right in the domestic system (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI; and Horvat v. Croatia, no. 51585/99, § 37, ECHR 2001‑VIII). Remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred. A remedy is therefore effective if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002‑VIII; Hartman v. the Czech Republic, no. 53341/99, § 81, ECHR 2003‑VIII (extracts); and Sürmeli v. Germany [GC], no. 75529/01, § 99, ECHR 2006‑VII).

68. The Court repeatedly had to address the adequacy and sufficiency of redress afforded by domestic remedies in the context of the question whether the applicant lost his status as a victim of a breach of the reasonable-time requirement as a result of compensation awarded at domestic level. Such redress may, in particular, be granted by a reduction of, or exemption from, costs and expenses which an applicant would have had to pay otherwise in the legal proceedings at issue (see, for instance, Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; Hansen and Others v. Denmark (dec.), no. 26194/03, 29 May 2006; and Brøsted v. Denmark (dec.), no. 21846/04, 30 August 2006). The issue of an applicant’s victim status is indeed linked to the question of whether a domestic remedy is effective – in which event the applicant is obliged to exhaust that remedy – in that the applicant’s ability to claim to be a victim will depend on the adequacy and sufficiency of redress the domestic remedy will have afforded him or her for the breach of the Convention right (compare Scordino v. Italy (no. 1) [GC], no. 36813/97, § 182, ECHR 2006‑V).

69. The Court further clarified that the redress afforded at domestic level on the basis of the facts about which the applicant complained before the Court had to be adequate and sufficient having regard to the awards of just satisfaction provided for under Article 41 of the Convention. While there was no requirement that the domestic authorities should award the same sum by way of compensation as the Court would be likely to award under Article 41, the level of just satisfaction granted at national level nevertheless had to be reasonable in the particular circumstances of the case (see Ohlen v. Denmark (striking out), no. 63214/00, §§ 30-31, 24 February 2005; Horváthová v. Slovakia, no. 74456/01, § 32, 17 May 2005; Scordino, cited above, §§ 202 and 213; and Hansen and Others, cited above).

70. It is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (see Horvat, cited above, § 39; Herbst v. Germany, no. 20027/02, § 62, 11 January 2007; and Ommer v. Germany (no. 2), no. 26073/03, § 55, 13 November 2008).

(ii) Application of these principles to the present case

(α) Complaint to the Constitutional Court

71. The Court shall determine, first, in the light of the principles developed in its case-law, whether a complaint to the Constitutional Court was an effective remedy which the applicant had, consequently, been obliged to exhaust prior to lodging his application with the Court.

72. The Court notes that it is uncontested that the Liechtenstein Constitutional Court is not empowered to take practical steps to expedite the proceedings before the lower courts, including sanctions for failure to comply (compare, mutatis mutandis, Hartman, cited above, § 67 in respect of the Czech Constitutional Court; and Sürmeli, cited above, § 105 in respect of the German Constitutional Court). Constitutional complaints to it are in fact inadmissible for being premature prior to the termination of the proceedings before the lower courts by a final decision (see paragraphs 19, 28 and 38 above).

73. The Court further observes that the Liechtenstein Constitutional Court does not have a statutory power to grant compensation for pecuniary and non-pecuniary damage incurred by a complainant as a result of the undue duration of proceedings (compare, mutatis mutandis, Hartman, cited above, § 68; Sürmeli, cited above, § 105; and Herbst, cited above, §§ 65‑66). However, the Constitutional Court, in its more recent case-law as established at the time when the applicant lodged his application with this Court (see for the relevance, in principle, of that date, inter alia, Scordino, cited above, § 144), no longer restricted itself to a finding of a breach of Article 6 § 1 of the Convention where the proceedings before the lower courts and / or those before itself, having regard to the criteria developed in this Court’s case-law, had lasted unreasonably long. Filling a gap in Liechtenstein law which, in its view, did not provide for compensation for damage suffered by a complainant as a result of a breach of the reasonable-time requirement, the Constitutional Court developed a right for the complainant to be exempted from, or be reimbursed, certain costs of the procedure, in particular lawyer’s costs and expenses and court costs as redress for such damage (see in detail paragraphs 40-45 above).

74. The Court welcomes the Constitutional Court’s initiative and measures taken in order to bring Liechtenstein’s legal system in line with this Court’s case-law, developed and clarified in judgments delivered against different Contracting Parties. In order to determine whether the remedy developed by the Constitutional Court was effective in the circumstances of the applicant’s case, the Court must assess whether the redress which the Constitutional Court could grant him was reasonable having regard to the awards of just satisfaction provided for under Article 41 of the Convention (see paragraph 69 above).

75. The Court notes in that context that, in the Government’s submission, a complainant could be awarded or Liechtenstein could be charged with a maximum of approximately CHF 5,500 (that is, approximately EUR 5,268) in costs of the procedure by the Constitutional Court (comprising a maximum of CHF 2,694.40 for lawyer’s expenses before that court and the remainder of the sum in court costs before that court) in compensation for the unreasonable length of the proceedings.

76. The Court observes, however, that in the proceedings at issue, the applicant has no longer been represented by a lawyer, but by his wife, since the Regional Court, on 21 November 2007, quashed the decision to appoint him a lawyer following the grant of legal aid (see paragraph 21 above). It does not appear, therefore, that he could have been reimbursed any lawyer’s expenses incurred in proceedings before the Constitutional Court. As to court costs, the Court notes that the Constitutional Court, in previous proceedings brought by the applicant, has declared the court costs before it uncollectible (see paragraph 30 above). In addition, assuming that the applicant’s constitutional complaint about the length of the proceedings was allowed, it appears that the applicant would be reimbursed his necessary lawyer’s expenses and the State of Liechtenstein would have to bear the court costs in any event, as a result of the outcome of the proceedings (see paragraph 45 above). The Court further observes in that context that the Constitutional Court, in the proceedings brought by the applicant before it prematurely in the present case, expressed doubts whether it could effectively redress a breach of the reasonable-time requirement (see paragraph 29 above).

77. Furthermore, the Court notes that the Constitutional Court occasionally exempted a complainant also from court costs and lawyer’s expenses incurred in the proceedings before the lower courts (see paragraph 42 above). However, the Government, on whom the burden of proof lies in this respect, failed to demonstrate if and to what extent the Constitutional Court was capable of providing redress in this respect in the proceedings at issue.

78. The Court further observes that the proceedings in question lasted from 28 September 2001 (when the action was brought against the applicant) until 2 April 2014 (when the case was declared terminated by the Court of Appeal) at four levels of jurisdiction. The proceedings thus lasted a considerable time. If the applicant had to bring a complaint to the Constitutional Court about the length of the proceedings, the duration of the proceedings before that court would have to be added.

79. In the light of the foregoing, the Court is not convinced that the redress which the Constitutional Court could grant the applicant in the circumstances of the case would be reasonable having regard to the awards of just satisfaction provided for under Article 41 of the Convention. Whilst the Court cannot exclude that this remedy would be effective in other circumstances, the Government therefore failed to demonstrate that a complaint to the Constitutional Court about the duration of the proceedings was an effective remedy which the applicant was obliged to exhaust prior to lodging his application with the Court in the proceedings here at issue.

(β) Supervisory complaint

80. Second, as regards the effectiveness of a supervisory complaint the Court observes that Articles 48 and 49 of the Court Organisation Act and Article 23 of the previous version of the Court Organisation Act respectively provide that following a supervisory complaint about undue delays in court proceedings, the competent court president may request the court or judge concerned to take remedial action within a fixed time-limit (see paragraphs 35-37 above). However, the Government failed to submit examples of domestic court decisions showing the existence of settled case‑law proving the effectiveness in practice of that remedy for speeding up pending court proceedings.

81. In any event, the Court has repeatedly found that appeals to a higher authority could not be regarded as an effective remedy because, just as the supervisory complaint in the present case, they did not generally give litigants a personal right to compel the State to exercise its supervisory powers (see, inter alia, Horvat, cited above, § 47; Hartman, cited above, § 66; and Sürmeli, cited above, § 109).

(γ) Official liability proceedings

82. Third, the Court shall examine whether, as submitted by the Government, bringing a claim for compensation of damage suffered as a result of the length of the proceedings in official liability proceedings under the Official Liability Act was an effective remedy which the applicant had been obliged to exhaust. It observes that under Article 3 § 1 of the Official Liability Act, 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 (see paragraph 34 above).

83. However, the Court observes that the Government, on whom the burden of proof falls in this respect, have not submitted examples from domestic practice showing the existence of settled case-law proving the effectiveness of that remedy (compare, mutatis mutandis, Horvat, cited above, § 44; Hartman, cited above, § 68; Sürmeli, cited above, § 113; and Herbst, cited above, § 67). The Court refers in that connection to its well‑established case-law indicating that it must be shown that compensation for non-pecuniary damage can be obtained through the action for damages as in cases concerning the length of civil proceedings the applicant sustains above all damage under that head (see, inter alia, Hartman, cited above, § 68; and Sürmeli, cited above, § 113). Furthermore, the sufficiency of such a remedy may be affected by excessive delays in an action for compensation itself and depends on the level of compensation which may be granted (see Scordino, cited above, § 195; and Sürmeli, cited above, § 101 with further references).

(δ) Conclusion

84. Having regard to the foregoing, the Court concludes that the Government failed to demonstrate that there was an effective domestic remedy whereby the applicant could have complained about the unreasonable length of the proceedings at issue and which he had therefore been obliged to use for the purposes of Article 35 § 1 of the Convention. It therefore dismisses the Government’s objection of non-exhaustion of domestic remedies.

3. Other grounds of inadmissibility

85. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

C. Merits

1. The parties’ submissions

86. The applicant argued that Article 6 § 1 of the Convention had been violated as the duration of the civil proceedings at issue had been excessive. It had been the Liechtenstein courts which had been responsible for the length of the proceedings because they had repeatedly rendered unlawful decisions. The applicant contested in that context that the proceedings before the Court of Appeal had been stayed on his request or in his interest since he had lodged his constitutional complaint. He had particularly suffered from the duration of the proceedings because as a result of the blockage of the assets of the H. foundation of which he was the beneficiary throughout the proceedings, he had been deprived of his property and means of subsidy.

87. The Government took the view that the proceedings had complied with the reasonable-time requirement under Article 6 § 1 of the Convention. The proceedings had been very complex owing to their international context, necessitating the taking of evidence by mutual legal assistance abroad and the application of foreign law. The length of the proceedings had been caused by the conduct of the parties to them and of the intervening applicant, who had all made use of their right to appeal with success. Moreover, the applicant himself had asked the Court of Appeal to stay the proceedings pending the decisions of the Constitutional Court and the European Court of Human Rights and none of the parties to the proceedings had requested the Court of Appeal to continue the proceedings.

2. The Court’s assessment

88. The period to be taken into consideration began on 28 September 2001 (when the action against the applicant was received at the Regional Court) and ended on 2 April 2014 (when the Court of Appeal declared the proceedings stayed perpetually). From that period, the period from 28 July 2004 to 7 March 2005 (some seven months) during which the applicant was no longer a defendant in the proceedings and had not yet requested leave to intervene as a third party (see paragraphs 12 and 15 above) shall be deducted (compare, mutatis mutandis, the references in paragraph 56 above). The period thus lasted some eleven years and eleven months at four levels of jurisdiction.

89. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

90. The Court notes that the civil proceedings at issue were of some complexity as it was necessary to question several witnesses by letters of request.

91. As to the conduct of the proceedings by the Liechtenstein courts, the Court observes that the proceedings were pending for some twelve years and, following repeated remittals, were terminated at second instance following a settlement reached by the parties out of court. It notes, in particular, that the proceedings were stayed from 1 October 2009 until their termination on 2 April 2014 in view of individual applications brought by the applicant pending before the Constitutional Court and before this Court, none of the parties to the proceedings having requested that the proceedings be continued. However, the Court reiterates in this respect that even in civil proceedings, where it is for the parties to take the initiative with regard to the progress of the proceedings, the national courts are not dispensed from ensuring compliance with the requirements of Article 6 of the Convention as regards the reasonable-time requirement (see, for example, Duclos v. France, 17 December 1996, § 55, Reports of Judgments and Decisions 1996‑VI; H.T. v. Germany, no. 38073/97, §§ 35-36, 11 October 2001; and Laudon v. Germany, no. 14635/03, § 71, 26 April 2007). Moreover, when staying proceedings pending the outcome of different proceedings, the domestic courts must duly establish the relevance of those proceedings for the case before them (compare, inter alia, H.T. v. Germany, cited above, § 36). Having regard to the fact that at the time of the Supreme Court’s remittal on 1 October 2009, the proceedings as a whole had already been pending for more than eight years and that this Court communicated the applicant’s application (on 12 July 2013) only in respect of the allegedly unreasonable length of the proceedings, the Court considers that the domestic courts did not duly further the proceedings at issue.

92. Having regard to the findings concerning the stay of the proceedings, the Court further considers that the applicant’s conduct as a third party in the present proceedings did not contribute to a considerable extent to the duration of the proceedings in which a substantial amount of money which the applicant intended to use for his living was at stake.

93. In view of the foregoing, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the reasonable-time requirement. There has accordingly been a violation of Article 6 § 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

94. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

95. The applicant claimed at least eight million euros (EUR) in respect of pecuniary damage, comprising, in particular, damage caused by the H. foundation’s loss of assets and claims by the tax authorities. He further claimed EUR 100,000 in compensation for non-pecuniary damage, arguing that he and his family had suffered damage to their health and anxiety as a result of the protracted length of the proceedings.

96. The Government argued that, even assuming that there had been a breach of the Convention, there was no causal link between that breach and the pecuniary damage claimed by the applicant, who also failed to substantiate his claim. As to the non-pecuniary damage alleged, the Government contested that the applicant had suffered such damage, given that the stay of the proceedings at issue was in accordance with his request.

97. The Court considers that the applicant failed to show that there was a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Having regard to the material in its possession, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

98. The applicant also claimed EUR 325,000 for estimated costs and expenses incurred before the domestic courts and EUR 10,000, or a sum fixed by the Court, for those incurred before the Court (inter alia for copies of voluminous documents and postage expenses).

99. The Government contested the applicant’s claims for costs and expenses incurred before the domestic courts, arguing that he had neither substantiated them nor shown any causal link to the alleged breach of the Convention. They further submitted that the costs and expenses incurred before this Court should be fixed at CHF 2,494.80, which would be the amount calculated in comparable proceedings before the Constitutional Court.

100. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses incurred in the domestic proceedings for lack of substantiation. It considers it reasonable to award the sum of EUR 250, plus any tax that may be chargeable to the applicant, for costs and expenses incurred in the proceedings before the Court.

C. Default interest

101. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Dismisses the Government’s request to strike the application out of its list of cases;

2. Declares the complaint concerning the length of the proceedings admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 250 (two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 September 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

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