CASE OF A.K. v. LIECHTENSTEIN (No. 2)
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Impartial tribunal);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits
6. The applicant was born in 1970 and lives in St. Gallenkappel, Switzerland. 7. 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 EMK stock company (hereinafter “EMK”) and EMK Engineering stock company (“EMK Engineering”), companies resident and registered in Liechtenstein. 8. In September 2006 and April 2007 the Regional Court (Fürstliches Landgericht) 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 companies’ respective supervisory boards with power to represent those companies may not be cancelled. 9. On 10 June 2005 F.H. brought an action against the applicant in the Regional Court. He requested that the court oblige the applicant to hand over a specified number of bearer shares in EMK and in EMK Engineering and 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. 10. 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). It found that it had jurisdiction on grounds of location of assets (Vermögensgerichtsstand) to decide upon F.H.’s action. The applicant had assets in Liechtenstein, specifically claims for salary and fees against EMK and EMK Engineering, 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. 11. 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. 12. Following a constitutional complaint of 22 February 2006, on 1 March 2006 the Constitutional Court granted the applicant’s application to have the Court of Appeal’s interlocutory decision be given suspensory effect. It further ordered the Regional Court not to hold any further hearings in the proceedings at issue until the Constitutional Court had taken its decision on the applicant’s constitutional complaint. 13. On 27 March 2007 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded (file no. StGH 2006/16). 14. Following the termination of the proceedings before the Constitutional Court, the Regional Court resumed the proceedings. It heard evidence from the parties, their counsel and twelve witnesses in person in hearings on 31 May, 28 June 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. 15. On 22 April 2009 the applicant asked the Regional Court to deliver its judgment, given that the oral proceedings had concluded on 6 September 2007. 16. On 28 December 2009 the Regional Court, in a judgment running to 66 pages, upheld F.H.’s action (file no. 02 CG.2007.114). It ordered the applicant to hand over a specified number of bearer shares in EMK and in EMK Engineering to F.H. and declared that the applicant did not hold and had never held shares in those companies. 17. Having regard to the evidence before it, the Regional Court considered that F.H.’s submissions regarding the question of who had been the owner of the shares in dispute had been more credible than that of the applicant. It found that the applicant’s mother, I.K., had never obtained ownership 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 companies. The applicant had known this on conclusion of his contract with I.K. transferring the shares to him as a gift in 2003 at the latest. I.K. had not, therefore, been the owner of or authorised to transfer ownership of the shares to the applicant; the latter had not obtained ownership thereof for lack of good faith. 18. Following a hearing, on 27 May 2010 the Court of Appeal, endorsing the findings of the Regional Court, dismissed the applicant’s appeal dated 3 February 2010. 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 judgment was served on the applicant’s counsel on 30 June 2010. 19. In a judgment and decision dated 13 January 2011 the Supreme Court dismissed an appeal on points of law lodged by the applicant on 7 September 2010. It found that the lower courts had not made an error of law in the legal classification of the facts they had established, that they had not failed to take necessary evidence and that they had sufficiently reasoned their judgments. The judgment and decision were served on the applicant’s counsel on 25 January 2011. 20. On 18 February 2011 the applicant lodged a constitutional complaint (running to eighty 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 Protocol 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 an application to speed up the proceedings, in order to enforce his Convention rights. 21. On 3 March 2011 the President of the Constitutional Court granted the applicant’s application to have his complaint given suspensory effect. The court reserved its decision on the costs arguing that the duty to bear the costs depended on the outcome of the main proceedings. The applicant would have only had to bear the decision fee if his constitutional complaint had been dismissed. 22. On 24 March 2011 F.H. lodged a submission in reply to the applicant’s constitutional complaint. 23. On 20 April 2012 the President of the Constitutional Court, B., informed the applicant that he, alongside Judges Bu., Sn., S. and W., would decide on his constitutional complaint in a hearing in camera on 15 May 2012. 24. On 8 May 2012 the applicant lodged a complaint alleging bias (running to twenty-seven pages plus annexes) against the five judges of the Constitutional Court called upon to decide on his complaint. 25. The applicant argued, in particular, that all of the five challenged judges had taken arbitrary decisions to his disadvantage and in breach of his Convention rights in relation to the previous injunction and other proceedings brought by him, and that the court, which was influenced by the executive, discriminated against foreign nationals such as the applicant. 26. The applicant further submitted that, for different reasons, the five judges of the Constitutional Court individually had not been impartial. As regards the court’s President, Judge B., the applicant complained that he had delayed the appointment of the judges who were to decide on his complaint. Moreover, he was a close friend of H., the court’s Vice President and brother of F.H., the party opposing the applicant in the proceedings at issue. 27. According to the applicant’s submission, Judge Bu. was biased because he worked for the Government drawing up expert reports on constitutional questions and giving seminars organised by the Government. He further worked with Judge H. on a regular basis. 28. Judge Sn., for his part, was not impartial as he was also a professor at the Liechtenstein University and had himself argued in a publication that judges should be appointed for life or for a long single term of office. 29. 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. 30. Finally, Judge W. was a partner in a law firm with a lawyer against whom the applicant had brought proceedings concerning an inheritance. Another lawyer of that firm had already represented EMK and EMK Engineering. Moreover, Judge W. had previously worked as a lawyer in Judge H.’s law firm. 31. By a decision of 15 May 2012, the Constitutional Court, with the five judges whom the applicant had challenged for bias comprising the bench, dismissed the applicant’s complaints of bias. 32. The Constitutional Court stated that, in accordance with the principle that, if possible, a complaint of 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 complaint alleging bias against them, which had been decided upon by the four remaining judges. 33. The Constitutional Court considered that the fact alone that several of the challenged judges had already taken part in prior decisions finding against the applicant 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 had been 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. 34. On the same day, on 15 May 2012, the Constitutional Court delivered its judgment (file no. StGH 2011/32). It granted the applicant’s constitutional complaint in part, finding that the applicant’s rights 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 (170 Swiss francs (CHF)) and bear the further court costs, that is to say, the judgment fee (CHF 1,700). It further ordered Liechtenstein to reimburse F.H., who, unlike the applicant, had been represented by counsel in the proceedings before the Constitutional Court, lawyers’ fees of CHF 2,694.40. 35. The Constitutional Court found that the total 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 the 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. Such a period of inactivity 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. 36. The Constitutional Court noted that Liechtenstein law did not contain any provisions stipulating which consequences should result from a breach of the right to proceedings within a reasonable time. However, it would be utterly unjust if a breach of this constitutional right did not have any consequences as a result of a lack of legislative provisions. There was therefore a gap 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 costs and lawyers’ fees) upon the State in order to compensate for and redress the breach of the fundamental right at issue. However, the judgment fee could not be imposed on the State as a measure of compensation as Liechtenstein had to bear that cost anyway. 37. 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. 38. The judgment and the decision of 15 May 2012 were served on the applicant on 27 June 2012.