Case of a.k. v. Liechtenstein

FIFTH SECTION

CASE OF A.K. v. LIECHTENSTEIN

(Application no. 38191/12)

JUDGMENT

STRASBOURG

9 July 2015

This judgment will become final in the circumstances set out in Article 44

§ 2 of the Convention. It may be subject to editorial revision.

A.K. v. LIECHTENSTEIN JUDGMENT 1

In the case of A.K. 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,

Aleš Pejchal, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 9 June 2015,

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

PROCEDURE

1. The case originated in an application (no. 38191/12) 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

14 May 2012. On 27 June 2013 the Vice-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 and Kleine-Cosack, lawyers practising in Freiburg in 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.

3. The applicant alleged, in particular, that the five judges of the

Constitutional Court had been partial, notably as a result of the procedure

they had adopted for rejecting his motions for bias, in breach of Article 6 of

the Convention.

4. On 11 July 2013 the applicant’s complaint concerning the alleged lack

of impartiality of the Constitutional Court was communicated to the

Government and the remainder of the application was declared

inadmissible.

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.

2 A.K. v. LIECHTENSTEIN JUDGMENT

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 and proceedings at issue

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 the EMK stock corporation and the EMK Engineering

stock corporation, companies resident and registered in Liechtenstein which

trade in building units.

8. By an immediately enforceable interim injunction dated 28 December

2009, taken in accordance with Article 276 § 1 of the Act on Enforcement

and Injunction Proceedings (see paragraph 36 below), the Regional Court

granted F.H.’s request to prohibit the Real Property and Commercial

Registry to register certain changes concerning the EMK Engineering stock

corporation which had been decided in the corporation’s extraordinary

shareholders’ meeting of 23 July 2004 (file no. 02.CG.2007.83). It thereby

confirmed its provisional order of 21 March 2007 to that effect.

The Regional Court notably prohibited registering the decisions taken in

that meeting that F.H. had been voted out of his office as a representative

and member of the corporation’s supervisory board with power to represent

the corporation and that the applicant had been elected managing director of

the corporation with power to represent the corporation alone.

9. On 25 March 2010 the Court of Appeal quashed that decision on the

applicant’s request and the case was remitted to the Regional Court for a

further investigation of the facts.

10. On 30 July 2010 the Regional Court issued a fresh identical interim

injunction. It stated that the interim order served to secure F.H.’s claim in

the main proceedings for a declaration that the decisions taken in the EMK

Engineering stock corporation’s extraordinary shareholders’ meeting of

23 July 2004 were null and void and for a prohibition of the entry of those

decisions in the real property and commercial register.

11. The Regional Court confirmed that the applicant had not obtained

property of 75% of the bearer shares in the EMK Engineering stock

corporation and had not therefore validly represented 75% of the shares in

the corporation’s extraordinary shareholders’ meeting. The decisions taken

in that meeting were thus unlawful. It further found that interim injunctions

under Article 276 § 1 of the Act on Enforcement and Injunction Proceedings

could also be taken in order to secure claims for a declaration

(Feststellungsansprüche) if such a measure was necessary to preserve the


status quo of either an object or a legal relationship. For such interim orders

the restriction that interim injunctions should not anticipate the outcome of

the main proceedings did not apply. In the present case, it was necessary to

maintain the status quo in the commercial register in order to prevent F.H.

from suffering irreversible damage. F.H. could suffer such damage if the

changes in question were made in the real property and commercial register

as dispositions could then be taken for the stock corporation without his

participation.

12. On 23 September 2010 the Court of Appeal dismissed the

applicant’s appeal against the order of 30 July 2010.

B. The impugned decision of the Constitutional Court

1. The applicant’s motion for bias

13. On 22 October 2010 the applicant lodged a constitutional complaint

with the Constitutional Court against the Court of Appeal’s decision dated

23 September 2010.

14. On 7 November 2011 the Constitutional Court informed the

applicant that judges B., Bu., S., V. and W. would deliberate on his

complaint in private on 28 November 2011.

15. By submissions dated 18 November 2011, which were received at

the court on 21 November 2011, the applicant, who was not represented by

counsel at that stage of the proceedings, lodged motions for bias against all

five judges called upon to decide on his complaint and against the secretary

in charge (Schriftführerin), V.

16. The applicant argued, in particular, that the Constitutional Court had

to his disadvantage not quashed previous decisions of the lower courts in

related proceedings. Moreover, he complained that it had taken the

Constitutional Court more than one year to assign the judges who were to

decide on his complaint despite the importance of the proceedings for him

and that the court discriminated against German nationals.

17. Furthermore, in the applicant’s submission, judges B., V. and W. and

secretary V. had failed to take measures to remedy the disadvantages

resulting from the fact that the commercial register did not reflect his rights

concerning the EMK Engineering stock corporation and had arbitrarily

disregarded his rights under Article 6 of the Convention and Article 1 of

Protocol no. 1 to the Convention in previous related proceedings.

18. The applicant further submitted that, for different reasons, the five

judges of the Constitutional Court individually were not impartial. As

regards the court’s president, judge B., the applicant complained that the

latter had not granted his constitutional complaint suspensory effect and had

refused to order interim measures in related proceedings. Furthermore,

judge B. was a member of different committees and commissions of which


judges of the Supreme Court, which had given a decision contested by him

in the main proceedings, and judge H., who was a judge at the

Constitutional Court and F.H.’s brother, were equally members.

19. In the applicant’s submission, judge Bu., for his part, was biased

because he worked for the Government in that he drew up expert reports on

constitutional questions and taught at seminars organised by the

Government. He further worked with judge H. on a regular basis.

20. 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.

21. Judge V., for his part, had been a professor at the Liechtenstein

University and was, therefore, not independent as he had worked for the

Government and as judges had short terms of office. Moreover, he was

biased as he was a good friend of judge H., F.H.’s brother.

22. Finally, judge W., in his law firm, was the partner of a lawyer

against whom the applicant had brought proceedings concerning an

inheritance. Another lawyer of that law firm had already represented the

EMK Engineering stock corporation. Moreover, judge W. had previously

worked as a lawyer in judge H.’s law firm.

2. The Constitutional Court’s decision

23. Three of the judges of the Constitutional Court made statements on

the applicant’s motions for bias. Judge Bu. stated that he had not drawn up

any expert reports for the Government since his appointment as a judge.

Judge S. submitted that he did not draw considerable income from his work

as a member of the supervisory board of a state-owned stock corporation.

Judge W. explained that he did not have any knowledge of whether his

partner in the law firm, who was currently absent, was involved in unrelated

legal proceedings with the applicant. His work for judge H. dated back ten

years and he had been working as a self-employed counsel for some nine

years already since then.

24. On 28 November 2011 the Constitutional Court, composed of judges

B., Bu., S., V. and W., dismissed the applicant’s motion for bias against

them (file no. StGH 2010/141).

25. The Constitutional Court stated that, in accordance with the principle

that, if possible, a motion for bias should not be decided upon by the

challenged judge, the challenged judges, respectively, had not participated

in the deliberations and the decision on the respective motion for bias

against them, which had been decided upon by the four remaining judges.

26. The Constitutional Court considered that the fact alone that judges

B., V. and W. had already taken part in decisions finding against the

applicant in related proceedings did not suffice to substantiate that there

were objectively justified doubts as to their impartiality. Likewise, the fact


that the judges were elected for a period of five years did not compromise

their impartiality.

27. The independence of the judges of the Constitutional Court vis-à-vis

the executive was guaranteed by the Constitution. The applicant further had

not substantiated that the executive had influenced the judges of the

Constitutional Court in the present proceedings in any way. The fact that

some of the judges had previously worked for the executive did not suggest

that the executive had influenced the present proceedings.

28. Finally, the fact that the challenged judges worked together with

F.H.’s brother, the vice-president of the Constitutional Court, on a regular

basis and were friends of the latter did not objectively cast doubts on their

impartiality in the circumstances of the present case. In a small country like

Liechtenstein, excessively strict standards in this respect would

disproportionately obstruct the administration of justice.

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

30. On 19 December 2011 the Constitutional Court, composed of judges

B., Bu., V., S. and W., allowed the applicant’s constitutional complaint in so

far as he had complained under Article 6 of the Convention about the

unreasonable length of the proceedings and dismissed the remainder of his

complaint (file no. StGH 2010/141). The applicant complained about that

judgment in a new, separate application (no. 67213/12) to the Court.

II. RELEVANT DOMESTIC LAW

A. Relevant provisions of the Constitutional Court Act

31. Pursuant to Article 1 § 3 of the Constitutional Court Act, the

Constitutional Court is constituted of 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.

32. Article 3 § 1 of the Constitutional Court Act provides that the

judges’ term of office is five years and that they may be re-elected.

33. In its hearings and deliberations and for voting, the Constitutional

Court has to be composed of five judges (Article 9 § 1 of the Constitutional

Court Act). If a judge is prevented from attending, he is replaced in the case

concerned by a substitute judge (Article 9 § 2 of the said Act). 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 issue

(Article 9 § 3 of the said Act).

34. Article 11 of the Constitutional Court Act, on recusal and challenge,

provides:


“1. A judge of the Constitutional Court may recuse 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, recusal or challenge shall be decided upon by the President,

otherwise by the Court.”

B. Relevant provisions of the Act of Enforcement and Injunction

Proceedings

35. Article 270 § 1 of the Act on Enforcement and Injunction

Proceedings (Gesetz über das Exekutions- und Rechtssicherungsverfahren)

provides that both before the initiation of a legal dispute and during a legal

dispute, as well as during the enforcement proceedings, interim injunctions

may be granted on request to secure the rights of a party.

36. Under Article 276 § 1 of the Act on Enforcement and Injunction

Proceedings interim injunctions (so-called official orders (Amtsbefehle))

may be granted to secure claims other than monetary claims, in particular if

it is probable that the realisation of the claim would be frustrated otherwise

or in order to preserve the status quo of either an object or a legal

relationship if the court considers such measures necessary to avert

irreparable harm or other substantial disadvantage.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

37. The applicant complained 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 motions for bias against the remaining four

judges. He relied on Article 6 of the Convention, which, in so far as

relevant, reads as follows:

“1. 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.”

38. The Government contested that argument.


A. Admissibility

1. The parties’ submissions

(a) The Government

39. In the Government’s submission, Article 6 § 1 of the Convention

was not applicable to the interim injunction proceedings at issue. Under the

criteria set up by the Court in the case of Micallef v. Malta ([GC],

no. 17056/06), in order for Article 6 to be applicable to interim injunction

proceedings, it was necessary, in particular, that the interim injunction could

be considered effectively to determine the claim at issue.

40. The Government argued that, in accordance with the well-

established case-law of the Liechtenstein courts, an interim injunction was

not allowed to prejudice the final decision in the main proceedings. Its

purpose was not to enforce the performance of a claim, but only to prevent

frustration of the enforcement of a claim or to protect a party to the

proceedings concerned from a change in the status quo which risked

entailing irreparable damage. It followed that in the interim injunction

proceedings at issue, the domestic courts could not yet effectively determine

the claim in question as it was reserved for the court in the main

proceedings to take that decision. The requirements for Article 6 § 1 to be

applicable to interim injunction proceedings as defined in the Court’s

Micallef judgment were therefore not met.

(b) The applicant

41. In the applicant’s view, Article 6 § 1 of the Convention was

applicable to the interim proceedings at issue.

42. The applicant submitted that in accordance with the criteria set up by

the Court in the case of Micallef v. Malta, the right at stake in the dispute

was “civil”. The proceedings concerned a legal dispute between two

individuals, F.H. and himself, over private property rights, namely the

property in bearer shares in a stock corporation.

43. Moreover, as required in the above-mentioned case of Micallef, the

interim injunction proceedings at issue led to a – at least provisional –

determination of the civil claim in question. F.H. had been re-entered into

the commercial register as a person authorised to represent the EMK

Engineering stock corporation by the impugned interim injunction. The

changes in the commercial register, which had started in July 2004 and had

been prolonged by the interim injunction in the present proceedings, had

been of such a duration that the claim in dispute in the main proceedings

had de facto been determined already at least in part. That injunction had

therefore gone beyond a preservation of the status quo authorised by law.

44. The applicant further stressed that the interim injunction at issue had

resulted in him being unable for a period of almost ten years to determine


the development of the stock corporation despite the fact that he had been

the corporation’s elected representative. The impossibility to exercise his

rights resulting from the property in the shares of the corporation at least

during that period was irreparable.

2. The Court’s assessment

(a) Relevant principles

45. The Court reiterates that Article 6 of the Convention in its civil

“limb” applies only to proceedings determining civil rights or obligations.

In its judgment in the case of Micallef v. Malta the Court found it no longer

justified to consider injunction proceedings automatically as not

determinative of civil rights or obligations and to reject complaints in this

respect as incompatible ratione materiae with the provisions of the

Convention in all circumstances (see Micallef v. Malta [GC], no. 17056/06,

§§ 80, 83, ECHR 2009).

46. In its Micallef judgment, the Court set forth the following criteria

under which Article 6 § 1 of the Convention is applicable to proceedings

concerning interim measures. Firstly, the right at stake in both the main and

the injunction proceedings should be “civil” within the autonomous

meaning of that notion under Article 6 of the Convention (see, inter alia,

König v. Germany, 28 June 1978, §§ 89-90, Series A no. 27; Stran Greek

Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 39,

Series A no. 301-B; Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31,

ECHR 2001-VII; and Roche v. the United Kingdom [GC], no. 32555/96,

§ 119, ECHR 2005-X). Secondly, the nature of the interim measure, its

object and purpose as well as its effects on the right in question should be

scrutinised. Whenever an interim measure can be considered effectively to

determine the civil right or obligation at stake, notwithstanding the length of

time it is in force, Article 6 will be applicable (Micallef, cited above,

§§ 83-85; see also Udorovic v. Italy, no. 38532/02, § 36, 18 May 2010;

Imobilije Marketing d.o.o. and Ivan Debelić v. Croatia (dec.), no. 23060/07,

3 May 2011; and Pekárny a cukrárny Klatovy, a.s. v. the Czech Republic,

nos. 12266/07, 40059/07, 36038/09 and 47155/09, § 64, 12 January 2012).

47. In the Micallef case, the Court found that Article 6 was applicable

because the purpose of the injunction was to determine, albeit for a limited

period, the same civil right as the one being contested in the main

proceedings, and which was immediately enforceable (see Micallef, cited

above, § 87; and also RTBF v. Belgium, no. 50084/06, § 65, 29 March

2011). The Court subsequently applied Article 6 of the Convention also to

interim proceedings in which the “right at stake”, referred to in the Micallef

judgment, was not the same right as that which was the subject of the main

proceedings (see Kübler v. Germany, no. 32715/06, § 48, 13 January 2011,

and Pekárny a cukrárny Klatovy, a.s., cited above, §§ 65 and 67-70).


48. Furthermore, the Court accepts that in exceptional cases – where, for

example, the effectiveness of the measure sought depends upon a rapid

decision-making process – it may not be possible immediately to comply

with all of the requirements of Article 6. However, the independence and

impartiality of the tribunal or the judge concerned is an indispensable and

inalienable safeguard in such proceedings, while other procedural

safeguards may apply only to the extent compatible with the nature and

purpose of the interim proceedings at issue (see Micallef, cited above, § 86).

(b) Application of those principles to the present case

49. In order to determine whether Article 6 of the Convention is

applicable to the interim proceedings here at issue, the Court must examine,

first, whether the right at stake in both the main and the injunction

proceedings is “civil”. It observes that in the main proceedings –

proceedings brought by F.H. against the applicant before the civil courts –

F.H. sought to obtain a declaration that the decisions taken in the EMK

Engineering stock corporation’s extraordinary shareholders’ meeting of

23 July 2004 were null and void and that it was therefore prohibited to enter

those decisions in the real property and commercial register (see

paragraph 10 above). The said decisions notably concerned the rights of

F.H. and of the applicant to manage and represent the stock corporation.

The Court considers that the dispute at issue between two individuals about

the right to take decisions, as a majority shareholder, for a private-law stock

corporation and to act as a representative for the latter, and thus to use the

property in the corporation’s shares, is “civil” within the autonomous

meaning of that notion under Article 6 of the Convention.

50. The Court further notes that in the interim proceedings between the

same parties, the Real Property and Commercial Registry was prohibited

from registering the decisions taken in the EMK Engineering stock

corporation’s extraordinary shareholders’ meeting of 23 July 2004

concerning the right to manage and represent the corporation. Having regard

to the foregoing considerations, the right at stake in the interim proceedings

must equally be regarded as “civil”. The first criterion of the Micallef test is

therefore satisfied.

51. The Court must decide, second, whether the interim order at issue

can be considered effectively to determine the civil right at stake,

notwithstanding the length of time it is in force. It notes in this respect that

the scope of the main proceedings went beyond that of the interim

proceedings. The former essentially aimed at a finding of nullity of the

decisions concerning the stock corporation’s management and

representation taken in the extraordinary shareholders’ meeting which, as a

consequence, should not be entered in the real property and commercial

register. The interim order was aimed at preserving the status quo pending

the outcome of the main proceedings by prohibiting the entry of the said


decisions concerning the stock corporation’s management and

representation in the real property and commercial register.

52. Despite the broader scope of the main proceedings, the Court

considers that the interim order at issue, which was immediately

enforceable, determined, albeit for a limited period, the same civil right as

the one being contested in the main proceedings (see for an example in this

respect also Micallef, cited above, § 87). Unless the decisions concerning

the stock corporation’s management and representation taken in the

extraordinary shareholders’ meeting were not registered in the real property

and commercial register, the right to manage and represent the corporation

remained unchanged, which was also the aim of the main proceedings.

During that period, the applicant was therefore unable to represent the stock

corporation alone and to determine alone the corporation’s future and

development.

53. In the Court’s view, the interim order in the present case thus went

beyond a purely protective measure the purpose of which was only to

safeguard the future satisfaction of person’s claim (see for examples in this

respect Imobilije Marketing d.o.o. and Ivan Debelić, cited above; and

Štokalo and Others v. Croatia (dec.), no. 22632/07, 3 May 2011). As the

Regional Court itself conceded (see paragraph 11 above), the restriction that

interim injunctions should not anticipate the outcome of the main

proceedings did not apply, and was not complied with, in the interim

injunction proceedings at issue. The interim order at issue must be

considered to determine, during the time it remained in force, the right to

manage and represent the EMK Engineering stock corporation.

Accordingly, the second criterion of the Micallef test has equally been met.

54. It follows that Article 6 is applicable to the interim injunction

proceedings complained of ending with the Constitutional Court judgment

of 19 December 2011 and that the Government’s objection must therefore

be dismissed.

55. The Court further notes that the applicant’s complaint about the

impartiality of the Constitutional Court is not manifestly ill-founded within

the meaning of Article 35 § 3 (a) of the Convention. It observes in this

context that the impartiality of the tribunal concerned is an indispensable

and inalienable safeguard in interim injunction proceedings (see

paragraph 48 above) and that the scope of Article 6 of the Convention is

therefore not restricted in view of the preliminary nature of the proceedings

here at issue. It further notes that the complaint is not inadmissible on any

other grounds. It must therefore be declared admissible.


B. Merits

1. The parties’ submissions

(a) The applicant

56. The applicant took the view that the judges of the Constitutional

Court had not been impartial in the proceedings at issue, in breach of

Article 6 § 1 of the Convention. He argued that when deciding on his

motions for bias, the Constitutional Court had not sat in a formation of five

judges as required by Articles 9 §§ 2 and 3 and 11 § 2 of the Constitutional

Court Act (see paragraphs 33-34 above). There had been an impediment for

the judges of the Constitutional Court to whom his case had been assigned

to attend, following his motions for bias against them, for the purposes of

those provisions. However, the Constitutional Court had failed to have

recourse to the existing substitute judges, or to make a substitute

appointment, if necessary, under Article 9 §§ 2 and 3 of the Constitutional

Court Act, in order to ensure that the court was constituted of five judges, as

required by Article 9 § 1 of the Constitutional Court Act.

57. The applicant stressed that his motions for bias against the five

judges of the Constitutional Court had not been abusive, but had been

supported by specific reasons. In such circumstances, the motions for bias

against each of the judges could not be decided upon in turn by the four

remaining, equally challenged judges. Moreover, even though the fifth

judge formally had not participated in the vote, it had not been shown that

he had left the session during the vote on the motion concerning that judge.

This procedure had thus clearly breached the principle that no one should be

a judge in his own cause (nemo iudex in sua causa).

58. In the applicant’s view, there was no different standard for

compliance with the requirement of an impartial tribunal under Article 6 § 1

for Liechtenstein as a result of the country’s limited size. In view of the fact

that under the Constitutional Court Act it was only necessary for the

majority of the judges to be Liechtenstein nationals and to be legally trained

(see paragraph 31 above), appointing substitutes, if necessary, to decide on

his motions for bias would not have posed any problems.

59. The applicant submitted that there had been objective grounds

raising reasonable doubts as to the judges’ impartiality in his case. Had the

judges of the Constitutional Court not been biased, they would not have

arbitrarily confirmed the interim injunction in question, for which the

Liechtenstein courts lacked jurisdiction and which did not have a legal

basis. Moreover, the particular friendships and relationships demonstrated

in detail by him confirmed that the judges concerned had not been impartial.


(b) The Government

60. The Government considered that the Constitutional Court had been

an impartial tribunal in the applicant’s case, as required by Article 6 § 1 of

the Convention.

61. The Government explained that in the present case, for reasons of

time constraints the Constitutional Court as a whole had decided on the

applicant’s motions for bias under Article 11 § 2 of the Constitutional Court

Act. That Act did not lay down any procedural requirements in this respect.

In these circumstances, it complied with the Constitution and with the

requirement to conduct proceedings within a reasonable time that the Court

decided on the motion for bias in the absence of the challenged judge.

62. The Government conceded that this procedure breached the principle

that no one should be a judge in his own cause (nemo iudex in sua causa).

However, this breach was justified in the specific circumstances of the case.

There was no court of higher instance which could have decided upon the

motions for bias. An indefinite number of instances for deciding on motions

for bias would have to be created otherwise. Likewise, the appointment of

substitute judges to decide upon the motions for bias would entail

considerable delays as the proceedings would have to be adjourned until

after the decision on the motions for bias.

63. Furthermore, in the Government’s view, the fact that the applicant

had challenged the Constitutional Court as a whole for bias did not raise a

legitimate fear that the judges of that court who were involved in deciding

on the motions for bias against their colleagues were biased themselves in

respect of those motions.

64. 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 motions for bias could unduly hamper the administration of

justice. There was a limited number of public officials who could not be

exchanged at will. 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

65. The Court reiterates that impartiality denotes the absence of

prejudice or bias. According to the Court’s settled case-law, the existence of

impartiality for the purposes of Article 6 § 1 must be determined according

to (i) a subjective test, where regard must be had to the personal conviction

and behaviour of a particular judge – that is, whether the judge held any

personal prejudice or bias in a given case; and (ii) an objective test, that is to

say by ascertaining whether the tribunal itself and, among other aspects, its

composition, offered sufficient guarantees to exclude any legitimate doubt

in respect of its impartiality (see, among other authorities, Fey v. Austria,


24 February 1993, §§ 28 and 30, Series A no. 255-A; Wettstein

v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII; Frankowicz v. Poland,

no. 53025/99, § 62, 16 December 2008; Micallef, cited above, § 93; and

Oleksandr Volkov v. Ukraine, no. 21722/11, § 104, ECHR 2013).

66. As regards the subjective test, the Court reiterates that the personal

impartiality of a judge must be presumed until there is proof to the contrary

(see Debled v. Belgium, 22 September 1994, § 37, Series A no. 292-B;

Frankowicz, cited above, § 63; and Micallef, cited above, § 94).

67. As regards the objective test, even appearances may be of a certain

importance or, in other words, “justice must not only be done, it must also

be seen to be done”. What is at stake is the confidence which the courts in a

democratic society must inspire in the public (see De Cubber v. Belgium,

26 October 1984, § 26, Series A no. 86; Micallef, cited above, § 98; and

Oleksandr Volkov, cited above, § 106). The question of a lack of

impartiality under the objective test may notably arise on functional

grounds, where the judge’s personal conduct is not at all impugned, but

where, for instance, the exercise of different functions within the judicial

process by the same person (see Piersack v. Belgium, 1 October 1982,

§ 30 (b), Series A no. 53), or hierarchical or other links with another actor in

the proceedings objectively justify misgivings as to the impartiality of the

tribunal (see Kyprianou v. Cyprus [GC], no. 73797/01, § 121,

ECHR 2005-XIII; and Micallef, cited above, § 97). Moreover, in order that

the courts may inspire in the public the confidence which is indispensable,

account must also be taken of questions of internal organisation (see

Piersack, cited above, § 30 (d)). The existence of national procedures for

ensuring impartiality, namely rules regulating the withdrawal of judges, is a

relevant factor. Such rules manifest the national legislature’s concern to

remove all reasonable doubts as to the impartiality of the judge or court

concerned (see Micallef, cited above, § 99).

68. As regards the procedure to decide upon challenges for bias, the

Court already had to assess 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. It found that the participation of judges in a

decision concerning challenges against one of their colleagues can affect the

impartiality of each of the challenged members if identical challenges have

been directed against them (see Debled, cited above, § 37; and, a contrario,

Frankowicz, cited above, § 63). However, the Court has considered that

such a procedure did not affect the impartiality of the judges concerned in

the specific circumstances of a case in which the applicant had based his

motions for bias on general and abstract, almost identical grounds, without

making any reference to specific, material facts that could have revealed

personal animosity or hostility towards him. It noted in that context that the

exclusion of all challenged judges from the decisions concerning those


challenges would have paralysed the whole judicial system at issue (see

Debled, cited above, § 37).

(b) Application of those principles to the present case

69. In determining whether the judges of the Constitutional Court who

adjudicated on the applicant’s case were impartial, as required by Article 6

§ 1 of the Convention, the Court observes at the outset that the applicant

challenged the five judges of that court on numerous grounds.

70. These grounds comprised, on the one hand, objections the applicant

made against all judges of the Constitutional Court or against several of

them for (almost) identical reasons. The applicant mentioned, in this

respect, that the Constitutional Court, and in particular judges B., V. and

W., had taken decisions to his disadvantage in related proceedings, had

delayed the assignment of his case to five judges and discriminated against

German nationals. Moreover, he challenged judges B., Bu. and W. for

having a close working relationship with judge H., who was a judge at the

Constitutional Court and F.H.’s brother, and judge V. for having a close

personal relationship with judge H.

71. On the other hand, the applicant, in addition, challenged each of the

five judges of the Constitutional Court on different, individual grounds. The

applicant stated in this respect that judge B. had failed to grant his

constitutional complaint in the present proceedings suspensory effect and

was the member of different committees and commissions in which a judge

who had taken a decision in related proceedings was equally a member. He

challenged judge Bu. because the latter had worked for the Government as

an expert and lecturer. The applicant further contested judge V.’s

independence as, being a professor at the Liechtenstein University, he had

worked for the Government and as judges had short terms of office. He

considered judge S. to be biased as the latter was a member of the

supervisory board of a state-owned company. Finally, judge W. was

challenged as, in his law firm, he was the partner of a lawyer against whom

the applicant had brought inheritance proceedings and as another lawyer of

that law firm had already represented the EMK Engineering stock

corporation.

72. In the impugned decision, the five challenged judges of the

Constitutional Court dismissed the applicant’s motions for bias against them

by proceeding in the following manner: Four of the judges of the

Constitutional Court in turn deliberated on and decided upon the motions

for bias against the fifth judge without the latter’s participation. According

to the operative part of the decision, the decision as a whole on all motions

for bias was taken by the five challenged judges (see paragraph 24 above).

73. The Court considers that neither the grounds given by the applicant

for considering the judges of the Constitutional Court biased nor the

procedure in which the latter rejected the applicant’s motions for bias


discloses any personal prejudice of any of the judges against the applicant

(subjective test). The latter failed to substantiate, in particular, that the

judges of the Constitutional Court discriminated against him because of his

German nationality.

74. As regards the objective test, the Court finds that none of the

numerous grounds as such on which the applicant challenged the five judges

of the Constitutional Court for bias were sufficient to raise legitimate and

objectively justified doubts as to the judges’ impartiality. The Court

considers, in particular, that the fact that some of the judges of the

Constitutional Court already dealt with different cases involving the

applicant in which his claims were not allowed, even if there was a factual

nexus between those cases, does not as such suffice to give rise to legitimate

doubts as to their impartiality (compare, mutatis mutandis, for instance,

Gillow v. the United Kingdom, 24 November 1986, § 73, Series A no. 109).

Likewise, different standard procedural decisions taken in the applicant’s

case, such as the allegedly delayed assignment of the judges for the case and

the refusal to grant the constitutional complaint suspensory effect do not as

such disclose any appearance of partiality.

75. Furthermore, as regards the challenges relating to judge H., the

vice-president of the Constitutional Court and brother of F.H., the party

opposing the applicant in the proceedings at issue, the Court observes that

judge H. himself did not participate in the impugned decision. The existing

working relationship of the five challenged judges of the Constitutional

Court with their colleague, judge H., and the alleged friendship of one of

them with judge H. does not suffice to make an objective observer

legitimately fear that the five judges would not regard their oath on taking

judicial office as taking precedence over any social commitments. The

professional relationships of judges B. and W. to persons having previously

dealt with different proceedings involving the applicant involve only a

remote link to the proceedings at issue and therefore equally do not raise

legitimate fears as to the impartiality of those judges themselves.

76. Moreover, the judges’ independence was not compromised by their

term of office of five years (compare, mutatis mutandis, Campbell and Fell

v. the United Kingdom, 28 June 1984, §§ 78 and 80, Series A no. 80). There

is also nothing to indicate that university lectures or legal opinions given by

some of the judges or their membership in the supervisory board of a

state-owned company shed legitimate doubts on those judges’ independence

from the executive in the circumstances of the case.

77. However, when examining the procedure by which the five

challenged judges of the Constitutional Court dismissed the motions for bias

against each of them, the Court notes that the Constitutional Court decided

on the motions for bias against each judge in a formation composed of the

four remaining judges, who had equally been challenged for bias by the

applicant.


78. In determining whether that procedure affected the impartiality of

each of the challenged members of the Constitutional Court the Court,

having regard to its case-law (see paragraph 68 above), must examine the

nature of the grounds on which the challenges for bias were based. Firstly,

such a procedure will particularly put into question the impartiality of the

judges involved if identical challenges have been brought against the judge

concerned and the four remaining judges deciding on the motions for bias

against him. In such a situation, the remaining judges may be seen as

deciding, in substance, also on the respective motion(s) for bias against

themselves. Secondly, the substantiation, by the applicant, of the reasons

invoked for the judges’ lack of impartiality must be taken into account. If an

applicant based his motions for bias on general and abstract grounds,

without making reference to specific and/or material facts which could have

raised reasonable doubts as to the judges’ impartiality, his motions for bias

could be classified as abusive. In such circumstances, the fact that judges

who had been challenged themselves on such grounds decided on that

applicant’s motion(s) for bias does not raise legitimate doubts as to their

impartiality.

79. The Court observes that in the present case, the five judges of the

Constitutional Court were partly rejected on different grounds (in particular

in so far as their previous work for the government or university or in a law

firm was concerned) and partly on identical grounds (in particular as they

had previously found against the applicant in different proceedings and due

to their working relationship with the brother of the opposing party). Having

regard to the foregoing considerations, the Court considers that the

procedure chosen by the Constitutional Court to dismiss the applicant’s

motions raised an issue in respect of the judges’ impartiality particularly in

so far as they all decided upon motions brought against them on identical

grounds and thus appear, in substance, to have rejected the motions

concerning themselves. The Court considers, in addition, that the fact that

judges of the Constitutional Court, despite the fact that they had been

challenged by the applicant and no decision had been taken yet on the

applicant’s motion for bias against them, nevertheless decided upon motions

for bias against other judges of that Court could shed further doubts upon

those judges’ impartiality.

80. As regards the substantiation by the applicant of the reasons invoked

in arguing the judges’ lack of impartiality, the Court would note at the

outset, in general terms, that the fact that an applicant challenges for bias all

the judges of the court to whom his or her case has been assigned could be

considered as an attempt to paralyse the administration of justice and is

therefore indicative of the abusive nature of the motion for bias. In the

present case it observes that the applicant invoked numerous grounds for

which he considered the different judges of the Constitutional Court biased.

In the circumstances of the case, it is satisfied that 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 (compare, a contrario, Debled, cited

above, § 37). It also observes in that context that the Constitutional Court

itself, which had addressed the applicant’s different motions in detail, had

not itself qualified those motions as being abusive.

81. The Court must further have regard to appearances in order that the

courts in a democratic society inspire in the public the confidence which is

indispensable (see the case-law cited in § 67 above). In the present case, the

judges of the Constitutional Court in fact gave the impression that they were

themselves deciding on the motion for bias directed against them.

82. It is true that motions for bias should not be capable of paralysing

the defendant State’s legal system. This aspect bears special importance

where courts of last instance are concerned and where a motion for bias

cannot, therefore, be decided upon by the appeal court. In addition, the

Court agrees with the Government’s argument that in small jurisdictions,

excessively strict standards in respect of motions for bias could unduly

hamper the administration of justice.

83. However, in the present case, it had been possible under the

applicable provisions of the Constitutional Court Act (see paragraphs 33-34

above) for the Constitutional Court to decide upon the motions for bias in a

composition of five substitute judges and to make a substitute appointment

if one or more of the substitute judges had to withdraw. The defendant

State’s judicial system would not, therefore, have been paralysed by

proceeding in accordance with the rules laid down in that Act (compare, a

contrario, Debled, cited above, § 37).

84. In the light of the foregoing, the Court concludes that the applicant’s

doubts in respect of the impartiality of the five judges of the Constitutional

Court were objectively justified in view of the procedure they chose to

reject the applicant’s motions for bias against them.

85. There has accordingly been a violation of Article 6 § 1 of the

Convention.


II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

86. 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

87. The applicant claimed a total of 473,350 euros (EUR) in respect of

pecuniary damage (consisting of loss of earnings amounting to

EUR 396,000 and additional office costs of EUR 77,350). He further

claimed EUR 25,000 in respect of non-pecuniary damage which he had

personally incurred and another EUR 25,000 in respect of non-pecuniary

damage suffered by the EMK Engineering stock corporation. He claimed

that he had suffered distress and damage to his health as a result of his

“tilting at windmills” before the Liechtenstein courts for almost ten years.

88. The Government contested the applicant’s claims. They argued that

there was no causal connection between the alleged violation of the

Convention and the excessive damage claimed by the applicant.

In particular, the applicant had not proven the physical and mental damage

alleged.

89. The Court considers that the applicant failed to demonstrate a causal

link between the violation of Article 6 § 1 of the Convention on account of

the Constitutional Court’s lack of impartiality found and the pecuniary

damage alleged; it therefore rejects this claim. It further finds that the

finding of a violation constitutes in itself sufficient just satisfaction for any

non-pecuniary damage suffered by the applicant.

B. Costs and expenses

90. Submitting copies of lawyers’ bills, the applicant also claimed a total

of EUR 29,615 for the costs and expenses incurred before the domestic

courts (EUR 28,195.50 for lawyers’ costs incurred until August 2010 and

EUR 1,419.50 for court costs incurred before the Regional Court, Court of

Appeal and Supreme Court). Submitting a bill claiming an advance payment

of EUR 1,520, he further claimed EUR 1,858.26 for the lawyers’ costs

incurred before the Court.

91. The Government argued that the costs and expenses claimed by the

applicant were excessive. If at all, the applicant could only claim

compensation for the costs and expenses incurred for lodging a complaint

with the Constitutional Court about a breach of his Convention rights since


the proceedings before the lower courts had not served to prevent a violation

of the Convention.

92. 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 observes that in the domestic

proceedings, only the costs relating to the motion for bias lodged by the

applicant, who was not represented by counsel at that stage of the

proceedings, with the Constitutional Court in November 2011 and the costs

relating to that court’s decision on those motions were incurred in order to

prevent a breach of the Convention. However, the applicant failed to submit

documentary evidence proving his costs and expenses in this respect.

The Court therefore rejects the claim for costs and expenses in the domestic

proceedings. As regards the proceedings before this Court, the Court,

having regard to the documents submitted by the applicant, awards the sum

of EUR 1,520 for costs and expenses incurred, plus any tax that may be

chargeable to the applicant.

C. Default interest

93. 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. Declares the complaint under Article 6 § 1 of the Convention concerning

the impartiality of the judges of the Constitutional Court admissible;

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

on account of the procedure that court had chosen in order to reject the

applicant’s motions for bias;

3. 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, EUR 1,520 (one 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 amount at a rate


equal to the marginal lending rate of the European Central Bank during

the default period plus three percentage points;

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

Done in English, and notified in writing on 9 July 2015, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger

Registrar President

Case of a.k. v. Liechtenstein

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