A.K. v. LIECHTENSTEIN (No. 2) - 10722/13 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 192 (18 February 2016)

In the case of A.K. v. Liechtenstein (no. 2),

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

Angelika Nußberger, President,
Khanlar Hajiyev,

Erik Møse,

          André Potocki,
          Faris Vehabović,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 26 January 2016,

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

PROCEDURE

1. The case originated in an application (no. 10722/13) 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 A.K. (“the applicant”), on 21 December 2012. 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, in the version then in force).

2. The applicant was represented by Mr M. Kleine-Cosack, of Hiddemann, Kleine-Cosack and co., a law firm in Freiburg, Germany. The Liechtenstein Government (“the Government”) were represented by their Agent, Mr D. Ospelt, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Liechtenstein to the Council of Europe, and by Mr B. Hammermann, Director of the Office for Administration of Justice (Amt für Justiz).

3. The applicant alleged, in particular, that the judges of the Constitutional Court had been partial in the proceedings brought before them, notably as a result of the procedure they had adopted for examining his complaints of bias, in breach of Article 6 § 1 of the Convention. He further complained that the length of the civil proceedings brought against him had not complied with the reasonable-time requirement, under Article 6 § 1 of the Convention. Moreover, he claimed that he had not had an effective remedy before a national authority in order to complain about the excessive length of these proceedings, in breach of Article 13 of the Convention.

4. On 18 June 2013 the complaints concerning the partiality of the Constitutional Court, the length of the proceedings and the availability of an effective remedy to complain thereof were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

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 of the Rules of Court), did not indicate that they wished to exercise that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1970 and lives in St. Gallenkappel, Switzerland.

A. Background to the case

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.

B. Proceedings before the Regional Court

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.

C. The proceedings before the Court of Appeal

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.

D. The proceedings before the Supreme Court

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.

E. The proceedings before the Constitutional Court

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.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant provisions of the Court Organisation Act

39. Sections 46 to 50 of the Court Organisation Act (Gerichtsorganisationsgesetz) of 24 October 2007, which entered into force on 1 July 2008, contain provisions on supervisory review (Dienstaufsicht). Section 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 (section 47(2) of the Act).

40. Anyone who considers himself to be a victim of bias by an act of a court may lodge a supervisory complaint (Dienstaufsichtsbeschwerde) in writing (section 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 section 48(2) of the Act).

41. Under section 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 Supreme Court, with whom such supervisory complaints had to be lodged.

B. Relevant provision of the Official Liability Act

42. Under section (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 corresponding provisions of civil law shall apply unless otherwise determined by the Act (section (3)(4)).

C. Relevant provision of the Code of Civil Procedure

43. Article 415 of the Code of Civil Procedure (Zivilprozessordnung) provides that where a judgment cannot be given directly after the close of the oral hearing, it is to be given within eight days of the closing of the hearing.

D. Relevant provisions of the Constitutional Court Act

44. In line with section (1)(3) of the Constitutional Court Act, the Constitutional Court is constituted by five judges and five substitute judges. Its President and Vice President and one further judge as well as three substitute judges have to be Liechtenstein nationals. At least three judges and three substitute judges have to be legally trained.

45. Section (3)(1) of the Constitutional Court Act provides that the judges’ term of office is five years and that they may be re-elected.

46. In its hearings and deliberations and for voting, the Constitutional Court has to be composed of five judges (section (9)(1) of the Constitutional Court Act). If a judge is prevented from attending, he/she is replaced in the case concerned by a substitute judge (ibid, section (9)(2)). If it is impossible to properly constitute the court even by recourse to a substitute judge, a substitute appointment has to be made for the case at hand (ibid, section (9)(3)).

47. Section 11 of the Constitutional Court Act, on withdrawal and challenge, provides:

“1. A judge of the Constitutional Court may withdraw himself or be challenged by the parties:

a) in matters concerning a legal person of which he is a member;

b) if a particular friendship, a personal animosity or a particular relationship of responsibility or dependence exists between himself and a party;

c) if facts exist indicating that the judge appears biased in relation to the case to be adjudicated.

2. Prior to the session, withdrawal or challenge shall be decided upon by the president, otherwise by the court.”

48. Under sections 15(1) and (2)(a) of the Constitutional Court Act of 27 November 2003, 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 an order of a public authority.

49. Section (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 - namely, the Court Fees Act (Gerichtsgebührengesetz) of 30 May 1974.

E. Relevant case-law of the Liechtenstein Constitutional Court

50. 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 on its own motion (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 a complainant (see, for instance, file no. StGH 2005/052, judgment of 14 December 2009, § 2.4; and file no. StGH 2010/141, judgment of 19 December 2011, § 5.3).

51. The Constitutional Court assesses the reasonableness of the length of the proceedings having regard to the four criteria developed in the European Court of Human Rights’ 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).

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

53. The Constitutional Court subsequently explained that in such circumstances the State had to bear the costs of the proceedings as “compensation for damage or redress” (Entschädigung bzw. Wiedergutmachung; see file no. StGH 2010/141, cited above, § 9, and the judgment in the present application, 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; see for judgments in which the Constitutional Court still expressed doubts as to whether granting redress for a breach of the reasonable-time requirement was possible in the proceedings before it file no. StGH 2009/177, judgment of 21 May 2010, point 2.3, and file no. StGH 2011/16, judgment of 29 August 2011, §§ 8-9).

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

55. If a constitutional complaint is upheld as the complainant prevailed in at least one of his/her complaints, the State is ordered to reimburse the complainant’s lawyer’s fees (if any) and to bear the court costs, calculated on the basis of the amount in dispute fixed by the Constitutional Court (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, cited above, §§ 7-9). Where the opposing party in the proceedings before the lower courts participated in the proceedings before the Constitutional Court, the opposing party bears its own costs and may be ordered to bear the complainant’s lawyer’s fees and the court costs (see, for instance, the judgments of the Constitutional Court of 30 March 2009, file no. StGH 2008/123, points 1, 3 and 4 of the operative provisions, and file no. StGH 2008/133, points 1, 3 and 5 of the operative provisions).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LACK OF IMPARTIALITY OF THE CONSTITUTIONAL COURT

56. The applicant complained, firstly, that the five judges of the Constitutional Court who had been called upon to decide on his case had not been impartial for the reasons he had set out in detail before the Constitutional Court and, in particular, because each of the challenged judges had taken part in the decisions on the complaints alleging bias against the remaining four judges. 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 fair ... hearing ... by an independent and impartial tribunal established by law.”

57. The Government contested that argument.

A. Admissibility

58. 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.

B. Merits

1. The parties’ submissions

(a) The applicant

59. The applicant submitted that there had been objective grounds raising reasonable doubts as to the judges’ impartiality in his case. The particular friendships and relationships demonstrated in detail by him in the proceedings before the Constitutional Court showed that the judges concerned had been biased.

60. The applicant further argued that the judges of the Constitutional Court had not been impartial in view of the procedure they had chosen to decide on his complaints alleging bias against them. That procedure had failed to comply with the principle that no one should be a judge where they have an interest (nemo iudex in sua causa). He stressed that his complaints alleging bias against the five judges had not been abusive, but had been substantiated by detailed reasons. In such circumstances, the complaints alleging bias against each of the five judges could not be decided upon in turn by the four remaining, equally challenged judges.

(b) The Government

61. In the Government’s view, the Constitutional Court had been an impartial tribunal in the applicant’s case, in compliance with Article 6 § 1 of the Convention. They conceded that the procedure chosen by the Constitutional Court to decide on the applicant’s complaints alleging bias had breached the principle that no one should be a judge in a case where they have an interest (nemo iudex in sua causa). However, this breach had been justified in the specific circumstances of the case. There had been no court of higher instance which could have decided upon the complaints alleging bias. Likewise, the appointment of substitute judges to decide upon the complaints alleging bias would entail considerable delays.

62. In the Government’s opinion, it also had to be taken into account that in a small country like Liechtenstein, excessively strict standards in respect of complaints alleging bias could unduly hamper the administration of justice. Therefore, there had to be factual and objective grounds for bias. Such grounds had not been given by the applicant.

2. The Court’s assessment

(a) Relevant principles

63. As regards the principles relevant in cases concerning complaints about judges’ lack of impartiality, in particular in a situation in which each of the challenged members of a tribunal took part in the decision on the challenges for bias concerning his colleagues, the Court refers to the principles laid down in the case of A.K. v. Liechtenstein (no. 38191/12, §§ 65-68, 9 July 2015).

(b) Application of those principles to the present case

64. The Court observes that in respect of the question of the impartiality of the judges of the Constitutional Court, the present application raises a similar issue as that decided upon by the Court in a previous application brought by the same applicant (A.K. v. Liechtenstein, cited above, §§ 37 et seq.).

65. The Court finds that none of the numerous grounds on which the applicant challenged the five judges of the Constitutional Court for bias were, as such, sufficient to raise legitimate and objectively justified doubts as to the judges’ impartiality. It refers, mutatis mutandis, to the reasons it had given in its judgment in the previous application brought by the applicant (see A.K. v. Liechtenstein, cited above, §§ 74-76). The Court is, however, satisfied that, just as in the applicant’s previous application (A.K. v. Liechtenstein, cited above, § 80), those grounds, which mostly referred to the relationship of the judges to the applicant or to the opposing party in the proceedings at issue and also distinguished between the five judges concerned, were still sufficiently specific and thus cannot be classified as abusive or irrelevant.

66. As to the procedure by which the five challenged judges of the Constitutional Court dismissed the complaints alleging bias against each of them, the Court notes, however, that - just as in application no. 38191/12 - the Constitutional Court decided on the sufficiently substantiated complaints alleging bias against each judge in a formation composed of the four remaining judges, who had equally been challenged for bias by the applicant. That procedure raised an issue in respect of the judges’ impartiality particularly in so far as they all decided upon applications brought against them on identical grounds and thus appear, in substance, to have rejected the complaints concerning themselves (see A.K. v. Liechtenstein, cited above, §§ 79-83).

67. The Court therefore concludes that the applicant’s doubts in respect of the impartiality of the five judges of the Constitutional Court were objectively justified also in the present application in view of the procedure they chose to reject the applicant’s complaints alleging bias against them.

68. There has accordingly been a violation of Article 6 § 1 of the Convention in this respect.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

69. The applicant further claimed that he had not had an effective remedy in the domestic legal system in order to complain about the excessive length of the proceedings before the domestic courts. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

70. The Government contested that argument.

A. Admissibility

71. 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.

B. Merits

1. The parties’ submissions

(a) The applicant

72. The applicant argued that he had not had an effective remedy within the meaning of Article 13 of the Convention under Liechtenstein law to complain about the undue duration of the proceedings at issue, in breach of Article 6 § 1. He notably had not had a remedy he could have used to speed up the proceedings.

73. In the applicant’s submission, neither a complaint lodged with the Constitutional Court nor a supervisory complaint had been suitable to redress the failure to comply with the reasonable-time requirement.

74. The applicant contested firstly that the Constitutional Court usually granted redress for breaches of the reasonable-time requirement. He referred to two judgments of the Constitutional Court of 4 November 2008 (file nos StGH 2007/95 and StGH 2008/3) concerning complaints brought by him before that court, in which the latter had found that there had not been a breach of the reasonable-time requirement, to support his view.

75. The applicant further submitted that the Constitutional Court had not been in a position to grant sufficient redress for breaches of the reasonable-time requirement. Such redress would have had to entail compensation for pecuniary and non-pecuniary damage suffered by the breach of the Convention. A mere reimbursement of costs as granted in his case had therefore been insufficient to redress the considerable losses he had suffered as a result of the protracted length of the proceedings.

76. The applicant argued, secondly, that a supervisory complaint could not be classified as an effective remedy. Such a complaint was only an administrative remedy which did not confer on him a subjective right that the proceedings be conducted within a reasonable time. It further did not have any prospects of success. The applicant pointed out that the Constitutional Court had not considered it necessary for him to lodge a supervisory complaint prior to lodging a constitutional complaint on claims of a breach of the reasonable-time requirement.

77. The applicant further claimed that official liability proceedings could not be considered as an effective remedy either, in particular because bringing such separate proceedings in addition to a supervisory complaint was costly and because such proceedings could not prevent the Convention violation at issue.

(b) The Government

78. In the Government’s submission, the applicant had at his disposal two effective domestic remedies within the meaning of Article 13 of the Convention to complain about the allegedly excessive length of the proceedings at issue, namely a constitutional complaint to the Constitutional Court and a supervisory complaint.

79. The Government explained that under section 15(1) and (2)(a) of the Constitutional Court Act (see paragraph 48 above), individuals had standing to lodge a constitutional complaint with the Constitutional Court claiming a breach of their Convention rights. Having regard to the Constitutional Court’s new practice of granting compensation or redress in the form of an award of costs to a complainant in cases in which it found that the proceedings had lasted unreasonably long, a constitutional complaint had to be classified as an effective remedy to assert the right to a hearing within a reasonable time under Article 6 § 1.

80. The Government submitted that starting with a judgment of 4 November 2008 (file no. StGH 2004/58, see paragraph 52 above), the Constitutional Court, in its now established case-law (the Government referred, in particular, to the Constitutional Court’s judgments in applications nos. StGH 2005/7, StGH 2005/13, StGH 2005/52, StGH 2010/141 and in the present application no. StGH 2011/32 (see paragraphs 50-54 and 34-36 above), granted redress for breaches of the right to a hearing within a reasonable time under the Constitution and under Article 6 § 1 of the Convention by ordering the reimbursement of lawyer’s fees and the exemption from court costs. This applied even if the remainder of the constitutional complaint was dismissed as ill-founded. The Constitutional Court granted such redress either on its own motion, if it found that the proceedings, including the proceedings before the lower courts, had lasted unreasonably long, or at a complainant’s request.

81. As to the amount of costs of the proceedings which the Constitutional Court could award the complainant or charge Liechtenstein with in a case where 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 proceedings. These comprised a maximum of CHF 2,694.40 in lawyer’s fees 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 a case of a request for interim measures plus CHF 170 per hour in fees in a case of a hearing before the Constitutional Court.

82. The Government further argued that a supervisory complaint under sections 46 to 50 of the Court Organisation Act about delays in the proceedings or in the issuing of the judgment had been an effective remedy which had been available to the applicant. That complaint served both to prevent delays and to redress grievances which had occurred.

83. The Government argued that, had the applicant lodged a supervisory complaint with the President of the Court of Appeal or, following the entry into force of the new Court Organisation Act on 1 July 2008, with the President of the Regional Court (see paragraphs 39-41 above), the latter would have speedily set the competent judge of the Regional Court a time-limit for issuing the judgment in the applicant’s case, in order to ensure compliance with Article 6 § 1 of the Convention. If the judge concerned failed to comply with the time-limit, he/she would be liable to receive disciplinary sanctions. The Government added that it was also possible to obtain compensation for damage caused by unduly lengthy of civil proceedings which had already occurred in separate official liability proceedings under section (3)(1) of the Official Liability Act (see paragraph 42 above).

2. The Court’s assessment

(a) Relevant principles

84. The Court reiterates that Article 13 requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

85. Remedies available to a litigant at the 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). If a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Kudła, cited above, § 157; and Hartman, cited above, § 81).

86. As regards the adequacy and sufficiency of redress afforded by domestic remedies for a breach of the reasonable-time requirement, the Court accepted, in particular, that such redress may in principle 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 (compare, 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).

87. 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 under 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; and Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 202 and 213, ECHR 2006-V).

(b) Application of those principles to the present case

88. The Court considers, without anticipating the examination of whether the reasonable-time requirement in Article 6 § 1 of the Convention was complied with, that the applicant’s complaint concerning the length of the proceedings is prima facie “arguable”, having regard, in particular, to the duration of the proceedings of more than four and a half years before the Regional Court and to the fact that the Constitutional Court itself found a breach of Article 6 § 1 of the Convention in this respect (see paragraphs 34-35 above).

(i) Complaint to the Constitutional Court

89. The Court shall determine firstly, in the light of the principles developed in its case-law, whether a complaint to the Constitutional Court was an effective remedy in the circumstances of the case for the applicant to complain about the unreasonable duration of the proceedings.

90. 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 paragraph 48 above).

91. 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 v. Germany, no. 20027/02, §§ 65-66, 11 January 2007). 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) and as demonstrated in the applicant’s case, 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 proceedings, in particular lawyer’s fees and court costs, as redress for such damage (see in detail paragraphs 52-54 above).

92. 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 granted him was reasonable having regard to the awards of just satisfaction provided for under Article 41 of the Convention (see paragraph 87 above).

93. The Court notes in that context that, in the Government’s submission (see paragraph 81 above), a complainant could be awarded or Liechtenstein could be charged with a maximum of approximately CHF 5,500 (roughly EUR 5,100) in costs of the proceedings by the Constitutional Court (comprising a maximum of CHF 2,694.40 for his lawyer’s fees before that court and the remainder of the sum in court costs before that court) in compensation for the unreasonable length of the proceedings.

94. The Court further observes that in the present case, the Constitutional Court, having upheld the applicant’s constitutional complaint in so far as he had complained about a breach of the reasonable-time requirement, ordered that Liechtenstein reimburse the applicant the fee for lodging the constitutional complaint (CHF 170) and bear the other court costs, specifically the judgment fee (CHF 1,700). As regards the judgment fee, the Constitutional Court itself found that that fee could not be imposed on the State in compensation for the breach of the reasonable-time requirement as the State would have to bear the court costs in any event (see paragraph 36 above), as a result of the outcome of the proceedings. The same appears to apply to the decision fee which was due for the applicant’s application to grant his constitutional complaint suspensory effect (see paragraph 21 above). The Court, having regard to the Constitutional Court’s case-law (see paragraph 55 above) further finds that the Government did not demonstrate that the applicant would equally not have been reimbursed the fee for lodging his constitutional complaint as a result of his having been successful, in part, in his constitutional complaint.

95. Moreover, the Court notes that the applicant was not reimbursed lawyers’ fees incurred in the proceedings before the Constitutional Court -which, as the Government pointed out, he could, in principle, have obtained in compensation for the breach of the reasonable-time requirement - because he had not been represented by counsel in the proceedings before that court.

96. Furthermore, the Court observes that the Constitutional Court ordered Liechtenstein to reimburse F.H., who, unlike the applicant, was represented by counsel in the proceedings before the Constitutional Court, lawyers’ fees of CHF 2,694.40. It appears from its reasoning (see paragraphs 34 and 36 above) that this order was made to redress the breach of the reasonable-time requirement. However, it is unclear whether that order was made to afford redress to the applicant or - given that the Constitutional Court also finds breaches of the reasonable-time requirement on its own motion (see paragraph 50 above) - whether it was aimed at granting redress to F.H. himself, who was the opposing party in the proceedings at issue and as such equally affected by the non-compliance with the right to a hearing within a reasonable time. The Court notes in this context that the Government do not appear to have argued that the State had been charged with payment of F.H.’s lawyers’ fees in order to grant compensation to the applicant for the breach of the reasonable-time requirement found by the Constitutional Court. Having regard to the Constitutional Court’s case-law (see paragraphs 52 and 55 above), the Court considers that the Government, in any event, did not demonstrate that the applicant, who had succeeded in part in his constitutional complaint, would have been ordered to pay F.H.’s lawyers’ fees in the proceedings before that court otherwise.

97. The Court finally notes that the proceedings at issue lasted more than four and a half years in the Regional Court, a considerable period of time. In the light of the foregoing, the Court is not convinced that the redress which the Constitutional Court granted the applicant in the circumstances of the case went beyond the sum the applicant would have obtained in any event as a result of his having been partly successful in his constitutional complaint. It is therefore not satisfied that the redress granted was reasonable having regard to the awards of just satisfaction provided for under Article 41 of the Convention. Whilst the Court cannot exclude the possibility that this remedy would be effective in other circumstances, it finds that in the proceedings here at issue a complaint to the Constitutional Court about the duration of the proceedings was not an effective remedy for the applicant to complain about a breach of the reasonable-time requirement.

(ii) Supervisory complaint

98. Second, as regards the effectiveness of a supervisory complaint the Court observes that sections 48 and 49 of the Court Organisation Act and section 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 40-41 above). However, the Government did not 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.

99. In any event, the Court has repeatedly found that appeals to a higher authority could not be regarded as an effective remedy because, 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 v. Croatia, no. 51585/99, § 47, ECHR 2001-VIII; Hartman, cited above, § 66, and Sürmeli, cited above, § 109).

(iii) Official liability proceedings

100. In so far as the Government must be understood to consider that bringing a claim for compensation for damage suffered as a result of the length of the proceedings in official liability proceedings under the Official Liability Act was part of the existing effective remedies for breaches of the reasonable-time requirement, the Court notes the following.

101. Under section (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 42 above). However, the Court observes that the Government 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; and Sürmeli, cited above, § 113). 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).

(iv) Conclusion

102. Having regard to the foregoing, the Court concludes that none of the remedies advocated by the Government can be considered effective within the meaning of Article 13 of the Convention. As regards the effectiveness of these remedies in the aggregate, the Court notes that the Government have not shown that a combination of two or more of them would satisfy the requirements of Article 13.

103. Accordingly, the applicant did not have an effective remedy within the meaning of Article 13 which could have expedited the proceedings in the Regional Court or provided adequate redress for delays that had already occurred. There has therefore been a violation of Article 13 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS

104. The applicant lastly complained that the length of the proceedings before the Liechtenstein courts had been excessive. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides:

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

105. The Government contested that argument.

A. Admissibility

1. The parties’ submissions

106. In the Government’s view, the applicant lost his status as a victim of a breach of Article 6 § 1 of the Convention within the meaning of Article 34 of the Convention in view of the redress he had been granted by the Constitutional Court to compensate for the breach of the reasonable-time requirement.

107. Moreover, in the Government’s submission, the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They argued that the applicant had not lodged a supervisory complaint to the competent court president claiming that the duration of the proceedings before the Regional Court had been excessive.

108. The applicant contested that view.

2. The Court’s assessment

109. In the Court’s view, the issue whether the applicant is deprived of his status as a victim within the meaning of Article 34 of the Convention is closely linked to the questions raised with respect to his complaint under Article 6 § 1 of the Convention about the length of the proceedings. It therefore joins this issue to the merits of the application.

110. As regards the Government’s objection of non-exhaustion of domestic remedies, the Court refers to its above finding (see paragraphs 98-99 above) that a supervisory complaint could not be considered as an effective remedy within the meaning of Article 13 of the Convention to complain about breaches of the reasonable-time requirement. As Article 35 § 1 of the Convention requires an applicant to exhaust only effective domestic remedies (compare Kudła, cited above, § 152, and Horvat, cited above, §§ 37 and 39), the Government’s objection must therefore be dismissed.

111. 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.

B. Merits

1. The parties’ submissions

(a) The applicant

112. The applicant claimed that the length of the proceedings at issue had breached his right to a hearing within a reasonable time guaranteed by Article 6 § 1.

113. In the applicant’s submission, the duration of the proceedings, which had been simple both in respect of the facts and of the applicable law and had been of fundamental importance for his professional life, the use of his property and his means of subsistence, was entirely attributable to the Liechtenstein courts. The latter had arbitrarily assumed having jurisdiction and had lost time by failing to assess the essential evidence. The Regional Court, in particular, had been inactive during the period from 6 September 2007 to 28 December 2009 and the Constitutional Court itself had confirmed that the proceedings before that court had failed to comply with Article 6 § 1 of the Convention. In the applicant’s view, the proceedings before the higher courts, which had not re-examined the facts of the case, had equally not complied with the reasonable-time requirement.

(b) The Government

114. The Government took the view that the applicant’s right to a hearing within a reasonable time under Article 6 § 1 of the Convention had not been violated in the proceedings at issue.

115. The Government submitted that the proceedings had been complex as the establishment of the relevant facts had necessitated hearing evidence from twelve witnesses and the parties and examining voluminous case-files. They further argued that, as the Constitutional Court had itself found, the civil courts had conducted the proceedings speedily, with the exception of the delay between the last hearing before the Regional Court and the issuing of the Regional Court’s judgment. The Constitutional Court’s finding that there had been a breach of Article 6 § 1 as a result of that delay had to be classified as an excessively generous expansion of the protection afforded by the Convention. It had essentially been the applicant who had delayed the proceedings by his conduct, in particular by contesting the Liechtenstein courts’ jurisdiction.

2. The Court’s assessment

(a) Compliance with Article 6 § 1

116. The Court observes that the proceedings at issue started on 10 June 2005 when F.H. brought his action against the applicant in the Regional Court, and ended on 27 June 2012 when the judgment of the Constitutional Court was served on the applicant (compare, mutatis mutandis, Kaemena and Thöneböhn v. Germany, nos. 45749/06 and 51115/06, § 61, 22 January 2009). They thus lasted some seven years through four levels of jurisdiction.

117. 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).

118. The Court considers that the proceedings at issue, in which testimony was heard from twelve witnesses in three hearings and numerous documents had to be taken into account, were of some complexity. As for the conduct of the applicant, the Court considers, in particular, that in contesting the Liechtenstein courts’ jurisdiction, he availed himself of his procedural rights in a reasoned manner from the outset. He cannot, therefore, be considered to have unduly delayed the proceedings. It is further clear that the outcome of the proceedings, which concerned, in substance, the right to determine the economic activities of, and participate in the profits made by, two stock companies, were of significant importance to the applicant’s professional life and means of subsistence.

119. As for the conduct of the proceedings by the domestic courts, the Court finds that the proceedings were conducted speedily before the Court of Appeal and the Supreme Court and relatively speedily before the Constitutional Court. However, they had been pending from 10 June 2005 until 28 December 2009, that is to say for more than four and a half years, before the Regional Court. The proceedings before that court were delayed, in particular, from 6 September 2007 until 28 December 2009, that is to say for more than two years and three months, the period which it took the Regional Court to draft its judgment following the close of the hearing. The Court shares the view taken by the Constitutional Court that this delay in giving judgment, which the Constitutional Court considered as a “period of inactivity”, was unreasonable. It has also regard, in this context, to Article 415 of the Code of Civil Procedure which provides that where a judgment cannot be given directly after the close of the oral hearing, it is to be given within eight days from the close of the hearing. Moreover, the applicant did not contribute in any way to the duration of the proceedings at that stage and even urged the Regional Court on 22 April 2009 to deliver its judgment (see paragraph 15 above). The Court further considers that this delay in the proceedings before the first-instance court could not be made up by the fact that the proceedings were not unduly delayed by the higher courts and that the overall length of the proceedings was not as such unreasonable (compare, mutatis mutandis, for cases in which protracted periods of inactivity in the proceedings led to a breach of Article 6 § 1, despite the fact that the overall duration of the proceedings was not as such unreasonable, Guincho v. Portugal, 10 July 1984, §§ 35-36 and 41, Series A no. 81; B. v. Austria, 28 March 1990, §§ 52-55, Series A no. 175, and Abdoella v. the Netherlands, 25 November 1992, §§ 22-25, Series A no. 248-A).

120. In view of the foregoing, the Court concludes that in the present case the duration of the proceedings did not meet the reasonable-time requirement.

(b) Loss of victim status

(i) The parties’ submissions

121. The Government argued that, even if the Court shared the Constitutional Court’s view that the length of the proceedings at issue had breached Article 6 § 1, the applicant could no longer claim to be the victim of a violation of that provision. In its judgment of 15 May 2012, the Constitutional Court had recognised that there had been a breach of the reasonable-time requirement under Article 6 § 1. In line with its recent practice, it had further granted the applicant adequate redress by its decision that the applicant be reimbursed costs and be exempted from paying fees.

122. The applicant contested that view.

(ii) The Court’s assessment

123. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him/her of his/her status as a “victim” of a violation of a Convention right unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). The issue of an applicant’s victim status is linked to the question of the existence of an effective domestic 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, cited above, § 182).

124. The Court notes that in the present case, the Constitutional Court expressly acknowledged, in line with the Court’s finding, that there had been a breach of the reasonable-time requirement under Article 6 § 1 of the Convention owing to the delay in giving judgment in the proceedings before the Regional Court (see paragraphs 34-35 above). However, as regards the adequacy and sufficiency of the redress afforded to the applicant by the Constitutional Court’s ruling in respect of court costs and lawyers’ fees, the Court refers to its above findings in respect of Article 13 of the Convention. It is not convinced that the Constitutional Court’s order in respect of costs granted the applicant adequate redress for the breach of the reasonable-time requirement in the circumstances of the case (see paragraphs 89-97 above).

125. In view of the foregoing, the Court concludes that the applicant has not lost his status as a victim of a breach of the reasonable-time requirement for the purposes of Article 34 of the Convention. Accordingly, the Court rejects the Government’s objection to that effect and finds that there has been a violation of Article 6 § 1 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

126. 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

127. The applicant claimed EUR 12,360,000 (some CHF 13,317,315) in respect of pecuniary damage. This comprised CHF 2,331,667 for loss of the salary he had received from EMK, CHF 395,870 for loss of his mother’s salary (who had transferred her claim to him), CHF 261,412 for loss of social security payments as a consequence of the loss of his job, CHF 201,972 in costs and expenses incurred in proceedings concerning his dismissal from EMK, CHF 44,585.04 and CHF 17,873.87 in costs and expenses incurred in two related interim injunction proceedings, CHF 1,462,268 for the loss of a sales licence following the loss of his job, CHF 2,331,667 for the losses of possible dividends from shares in the company and CHF 6,270,000 for his having lost title to the companies. He argued that without the Convention violations at issue, the Liechtenstein courts would have decided the case in his favour.

128. The applicant further claimed EUR 23,200 (CHF 25,000) in compensation for non-pecuniary damage. He argued that he had suffered from the undue length of the proceedings amounting to some ten years during which he had wasted his time processing the case instead of working for the companies the shares of which were in dispute.

129. The Government contested that there was a causal link between the alleged Convention violations and the damage claimed by the applicant. In any event, the applicant had failed to sufficiently substantiate his excessive claims.

130. The Court considers that the applicant failed to demonstrate a causal link between the violations of Articles 6 § 1 and 13 of the Convention found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, deciding on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

131. Submitting documentary evidence, the applicant also claimed a total of some EUR 269,000 (CHF 289,357.02) for the costs and expenses incurred before the domestic courts. This sum comprised CHF 142,001.93 in lawyers’ fees incurred from 2005 to 2010 in the proceedings before the Liechtenstein civil courts, CHF 2,296.70 in court costs (for witnesses and translations) incurred in the proceedings before the Regional Court, CHF 10,350 in further court costs incurred in the proceedings before the Liechtenstein civil courts, CHF 123,408.49 in lawyers’ fees which he had been ordered to reimburse to the opposing party after having lost the case, and CHF 11,299.90 in costs for expert legal opinions. He further claimed EUR 1,520 in lawyers’ fees incurred in the proceedings before this Court.

132. The Government argued that the costs before the Liechtenstein civil courts had not been incurred in order to redress the alleged breaches of the Convention. Any claims for reimbursement of costs exceeding the costs of the proceedings fixed by the courts were excessive.

133. 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. The Court observes that the applicant, represented by counsel, in order to prevent a breach of the reasonable-time requirement, asked the Regional Court to speed up the proceedings and, without being represented by counsel, lodged a constitutional complaint and a complaint alleging bias raising the breaches of Articles 6 § 1 and 13 of the Convention found by the Court. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for costs and expenses incurred in the domestic proceedings and to award the applicant the sum claimed, namely EUR 1,520, for costs and expenses incurred in the proceedings before this Court. It thus awards a total of EUR 2,520 under this head, plus any tax that may be chargeable to the applicant.

C. Default interest

134. 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. Decides to join to the merits the Government’s objection that the applicant lost his victim status in respect of a breach of Article 6 § 1 of the Convention, but rejects it after an examination on the merits;

2. Dismisses the Government’s objection of non-exhaustion of domestic remedies in respect of the applicant’s complaint under Article 6 § 1 of the Convention;

3. Declares the complaints under Article 6 § 1 of the Convention concerning the impartiality of the judges of the Constitutional Court and the length of the proceedings and the complaint under Article 13 of the Convention admissible;

4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the procedure the Constitutional Court had chosen in order to reject the applicant’s complaints of bias;

5. Holds that there has been a violation of Article 13 of the Convention;

6. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings;

7. 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 2,520 (two thousand five hundred and twenty 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;

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

Done in English, and notified in writing on 18 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> A.K. v. LIECHTENSTEIN (No. 2) - 10722/13 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 192 (18 February 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/192.html Cite as: [2016] ECHR 192