Case of Bekerman v. Liechtenstein

7/21/2019 Case of Bekerman v. Liechtenstein

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FIFTH SECTION

CASE OF BEKERMAN v. LIECHTENSTEIN

(Application no. 34459/10)

JUDGMENT

STRASBOURG

3 September 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.


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BEKERMAN v. LIECHTENSTEIN JUDGMENT 1

In the case of Bekerman v. Liechtenstein,The European Court of Human Rights (Fifth Section), sitting as a

Chamber composed of:Angelika Nuberger,President,

Mark Villiger,

Botjan M.Zupani,

Ganna Yudkivska,

Vincent A. De Gaetano,

Andr Potocki,

Helena Jderblom,judges,

and Milan Blako,Deputy Section Registrar,

Having deliberated in private on 7 July 2015,

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

PROCEDURE

1. The case originated in an application (no. 34459/10) against the

Principality of Liechtenstein lodged with the Court under Article 34 of the

Convention for the Protection of Human Rights and Fundamental Freedoms

(the Convention) by a German national, Mr Michael Bekerman (the

applicant), on 9 July 2010.

2. The applicant was represented by Mrs R. Bekerman, his wife. The

Liechtenstein Government (the Government) were represented byMr T. Zwiefelhofer, Deputy Prime Minister, by Mr B. Hammermann,

Director of the Office for Administration of Justice (Amt fr Justiz) and by

their Agent, Mr D. Ospelt, Ambassador Extraordinary and Plenipotentiary,

Permanent Representative of Liechtenstein to the Council of Europe.

3. The applicant alleged, in particular, that the length of the civil

proceedings at issue had been excessive and that he had exhausted all

effective domestic remedies to complain about that length.

4. On 12 July 2013 the complaint concerning the length of the

proceedings was communicated to the Government and the remainder of the

application was declared inadmissible. On 1 October 2013 the Acting

President of the Chamber granted the applicant leave to be furtherrepresented by a person other than an advocate, namely by his wife (Rule 36

2 and 4 (a) of the Rules of Court). The applicant submitted two original

powers of attorney signed both by himself and by his wife as his designated

representative which referred explicitly to the present proceedings, one

when lodging his application and another one when applying for the above-

mentioned leave.


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2 BEKERMAN v. LIECHTENSTEIN JUDGMENT

5. The Government of Germany, having been informed of their right to

intervene in the proceedings (Article 36 1 of the Convention and Rule 44),

did not indicate that they wished to exercise that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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

A. Background to the case

7. The proceedings at issue in the present application are part of a large

number of proceedings which have been brought before the Liechtenstein

courts since 2001. All of these proceedings concern, in substance, questions

relating to the property rights to considerable assets (more than 14 million

Swiss francs (CHF)) which the applicant had brought into five different

foundations (including the H. foundation) set up by him in 1999 in

Liechtenstein and of which he was the beneficiary. The applicant s mother

G.B., represented by her guardian, and the applicants sisters R. and K.

claimed in different sets of proceedings that the applicant had not been the

owner of the assets he had brought into the foundations, but that these assetshad partly belonged to G.B. and partly to their deceased husband and father.

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

first judgment of the Regional Court

8. On 30 August 2001 the Regional Court, on a request lodged by the

applicants sisters R. and K. in interlocutory proceedings, prohibited the

H. foundation and the applicant from disposing of assets amounting to more

than three million euros (EUR) deposited with the P. bank.

9. By submissions dated 27 September 2001, received by the Regional

Court on 28 September 2001, the applicants two sisters brought an actionfor payment of some EUR 3,3 million against both the H. foundation and

the applicant (file no. 2 CG.2001.317).

10. On 12 November 2003 the Regional Court dismissed the applicants

request for legal aid as he had not given sufficient information on his

financial condition despite the courts repeated requests. That decision was

quashed by the Court of Appeal on 3 March 2004, which found that the

Regional Court had been obliged to investigate further into the applicant s

financial condition on its own motion.


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11. On 21 July 2004 the Regional Court, having received further

information from the applicant, granted the latter legal aid.

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

13. On 30 December 2004 the Regional Court, having questioned the

parties and ten witnesses and having inspected numerous documents,

ordered the H. foundation to pay R. and K. some EUR 240,000 each and

dismissed the remainder of their claim. It found that the applicant s

allegation that he had received the assets he had brought into the

H. foundation as a gift from his mother had not been proven. The applicant

had therefore not been authorised to bring the assets of the estate of his

deceased father into the H. foundation. The amounts payable to R. and K.

corresponded to their respective rights to a share in the deceaseds estate.

C. The second phase of the proceedings: Proceedings until the

second judgment of the Regional Court

14. On 8 February 2005 both R. and K. and the H. foundation lodged an

appeal with the Court of Appeal against the Regional Courts judgment.

15. On 7 March 2005 the applicant, being the beneficiary of the

H. foundation, requested leave to intervene in the proceedings as a third

party and applied for legal aid.

16. On 14 June 2005 the Regional Court granted the applicant legal aid

and appointed him a lawyer. On 26 August 2005 the applicant joined theproceedings as an intervening third party.

17. On 7 September 2005 the Court of Appeal, granting the

H. foundations appeal, quashed the Regional Courts judgment and

dismissed the action brought by R. and K. as inadmissible. It found that the

plaintiffs, two of several statutory heirs, had not been authorised to claim

assets from the H. foundation for their own account.

18. On 4 May 2006 the Supreme Court quashed the Court of Appeals

decision and remitted the case to that court. It found that, having regard to

the principle of good faith, the plaintiffs had standing to sue the

H. foundation as the Court of Appeal had accepted that the applicant had

unlawfully brought assets from his deceased fathers estate into thefoundation, of which he was the beneficiary. It ordered the Court of Appeal

to decide upon the plaintiffsand the H. foundations appeals in the light of

its findings.

19. Subsequently, the Constitutional Court (file no. StGH 2006/56;

decision of 26 March 2007) dismissed the applicants constitutional

complaint of 26 May 2006 against the Supreme Courts decision of 4 May

2006. It found that the complaint was inadmissible as the Supreme Court s

impugned decision to remit the case to the lower court did not terminate the

proceedings by a final decision on the matter in dispute.


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20. On 21 September 2006 the Court of Appeal, following the remittal

of the case to it by the Supreme Court on 4 May 2006, granted the

H. foundations appeal. It quashed the judgment of the Regional Court dated30 December 2004, finding that the latter had not sufficiently investigated

the facts relevant in order to determine the property of the assets in question,

remitted the case to the Regional Court and ordered that court to further

investigate the facts of the case.

21. On 21 November 2007 the Regional Court, granting the applicants

request, quashed its decision of 14 June 2005 to appoint the applicant a

lawyer. The applicant was from then on represented by his wife.

22. On 10 June 2008 the Regional Court, having examined ten

witnesses, essentially by letters of request, and having inspected numerous

documents, again ordered the H. foundation to pay R. and K. some

EUR 240,000 each (new file no. 02.CG.2006.315-415). The facts itestablished and the grounds it gave corresponded to those given in its

judgment of 30 December 2004.

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

Court of Appeal

23. On 28 June 2008 the applicant and on 9 July 2008 the H. foundation,

R. and K. appealed against the Regional Courts new judgment.

24. On 25 March 2009 the Court of Appeal, allowing the

H. foundations and the applicants appeal, quashed the Regional Courtsjudgment and dismissed the action brought by R. and K. Contrary to the

Regional Court and to the courts in parallel sets of proceedings, the Court of

Appeal, having taken evidence, found that the assets at issue had belonged

to the applicants mother alone, and not jointly to her and to the applicant s

deceased father. The applicant had received these assets as a gift from his

mother in 1993. R. and K. did not, therefore, have a claim against the

applicant as the assets at issue were not part of their deceased fathers estate.

25. On 1 October 2009 the Supreme Court, allowing the appeal on

points of law lodged by R. and K., quashed the judgment of the Court of

Appeal dated 25 March 2009 and remitted the case to that court.

The Supreme Court considered that the Court of Appeal had not sufficientlyestablished the facts which had led it to the conclusion which ran counter

to the conclusions reached by all other courts before in different sets of

proceedingsthat there had been a valid contract of donation between the

applicant and his mother on the assets in question.

26. On 19 October 2009 the applicant lodged a constitutional complaint

against the Supreme Courts decision of 1 October 2009 with the

Constitutional Court. Relying on Article 6 of the Convention, he claimed,

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

violated.


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27. On 21 May 2010 the Constitutional Court rejected the applicant s

motion for bias against the judges of the Constitutional Court as abusive. It

further dismissed the applicants constitutional complaint(file no. StGH 2009/177).

28. The Constitutional Court found that the complaint was inadmissible

as the Supreme Courts impugned decision of 1 October 2009 to remit the

case to the lower court did not terminate the proceedings by a final decision

on the matter in dispute.

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

time, the Constitutional Court found that it could still rule on the alleged

human rights violation after the Supreme Court had handed down a final

decision. In any event, in cases of excessive delays in proceedings the

problem arose that the fundamental rights violation caused thereby could

not be effectively redressed. The Constitutional Court could only declarethat the length of the proceedings had been unreasonable, but could not

undo the delays. It noted in this context that in proceedings before the

administrative authorities, a complainant could assume the rejection of the

request made by him to that authority when the latter had remained inactive

for more than three months and could pursue his case on appeal (see

Article 90 6a of the National Administrative Justice Act (Gesetz ber die

allgemeine Landesverwaltungspflege)). However, this did not apply to the

proceedings before the Constitutional Court.

30. As regards costs and expenses, the Constitutional Court ordered the

applicant to pay R. and K. lawyers costs in the amount of CHF 3,087.05

and declared the court costs uncollectible, referring to its practice in

previous proceedings brought by the applicant before it.

31. It emerged from a letter dated 17 July 2013 from the Court of

Appeal to the applicants wife that the Court of Appeal had stayed the

proceedings before it pending the proceedings before this Court having

regard to a proposal made by the applicant to that effect.

32. By decision of 2 April 2014 the Court of Appeal declared that the

proceedings were terminated and that the court costs were to be borne in

accordance with the Court Fees Act (Gerichtsgebhrengesetz). It noted that

by submissions dated 29 January 2014 the applicant, who had revoked his

wifes power of attorney to represent him in the proceedings before thatcourt, the applicants sisters R. and K. and the H. foundation had informed

the court that they had agreed on a settlement of the case and requested that

the proceedings be stayed perpetually (ewiges Ruhen). This Court has not

been informed of the content of the settlement. The proceedings were thus

stayed ex lege. The Court of Appeal further explained that the proceedings

before it had not been continued following the remittal of the case to it by

the Supreme Courts decision dated 1 October 2009 because the applicant

had lodged a constitutional complaint against that decision with the

Constitutional Court and subsequently an application with the European


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Court of Human Rights. None of the parties to the proceedings before the

Court of Appeal had requested that the proceedings be continued while the

complaint and the application were pending before the Constitutional Courtand the European Court of Human Rights respectively.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant provisions of the Code of Civil Procedure

33. Article 17 1 of the Code of Civil Procedure, on third-party

intervention, provides that anyone with a legal interest that a party in a legal

dispute between other persons prevails may join that party in the

proceedings as intervener. The intervener is entitled to offer evidence and totake procedural actions in support of the main party he has a legal interest in

prevailing. The intervener may, without approval or authorisation of the

main party, lodge all appeals foreseen by law even if the main party does

not appeal (Article 19 1 and 4 of the said Code).

B. Relevant provision of the Official Liability Act

34. Under Article 3 1 of the Official Liability Act

(Amtshaftungsgesetz) of 22 September 1966 public legal entities shall be

liable for damage caused unlawfully to third parties by persons acting in

their official capacity as organs of those legal entities. The provisions ofcivil law shall apply mutatis mutandisunless otherwise determined by the

Act (Article 3 4).

C. Relevant provisions of the Court Organisation Act

35. Articles 46 to 50 of the Court Organisation Act

(Gerichtsorganisationsgesetz) of 24 October 2007 contain provisions on

supervisory review (Dienstaufsicht). Article 47 1 (a) of that Act provides

that supervisory review comprises, inter alia, the supervision of the periods

of time for processing cases and for issuing decisions and the monitoring of

longer periods of procedural inactivity. Supervisory review may not

interfere with judicial independence (Article 47 2 of the Act).

36. Anyone who considers to be prejudiced by an act of a court may

lodge a supervisory complaint in writing (Article 49 of the Court

Organisation Act). Complaints about the denial or delay of administration of

justice may be lodged with the president of the court concerned (see

Article 48 1 of the Act). All complaints which are not manifestly

ill-founded shall be communicated to the court or judge concerned with the

request to take remedial action and to report thereon within a fixed


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time-limit or to report on obstacles to taking remedial action (see Article 48

2 of the Act).

37. Under Article 23 of the previous version of the Court OrganisationAct, of 7 April 1922, it was the president of the Court of Appeal or, if that

court was concerned itself, the president of the Supreme Court with whom

such supervisory complaints had to be lodged.

D. Provisions concerning the Liechtenstein Constitutional Court

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

Constitutional Court decides on individual complaints if the complainant

claims that his rights guaranteed, in particular, by the Constitution or by the

European Convention on Human Rights were breached by a final

last-instance decision or order of a public authority.

39. Article 56 1 of the Constitutional Court Act provides that fees and

costs for the hearing and for the courts decision are to be fixed in

accordance with the rules on court fees, that is, the Court Fees Act

(Gerichtsgebhrengesetz) of 30 May 1974.

E. Relevant case-law of the Liechtenstein Constitutional Court

40. The Constitutional Court may find in an individual application

before it that the complainants right to proceedings within a reasonable

time enshrined in the right to equality under the Liechtenstein Constitutionand guaranteed by Article 6 1 of the Convention was violated in the

proceedings before the lower courts and / or in the proceedings before it. It

may make such a finding either ex officio (see, for example, file

no. StGH 2004/58, judgment of 4 November 2008, 7-8; file no. StGH

2005/13, judgment of 31 March 2009, 10; and file no. StGH 2005/007,

judgment of 14 December 2009, 5) or following a specific complaint in

that respect by the complainant (see, for instance, file no. StGH 2005/052,

judgment of 14 December 2009, 2.4).

41. The Constitutional Court assesses the reasonableness of the length of

the proceedings having regard to the four criteria developed in this Court s

case-law, namely what was at stake for the applicant in the dispute, thecomplexity of the case, the conduct of the applicant and that of the relevant

authorities in the specific circumstances of the case (see, inter alia, file

no. StGH 2004/58, cited above, 7.2; file no. StGH 2005/13, cited above,

10.2; and file no. StGH 2005/007, cited above, 5.2).

42. In cases in which the Constitutional Court finds a breach of the

reasonable-time requirement, it developed, in its more recent case-law, a

right for the complainant to be exempted from certain costs of the

procedure. It considered, in particular, that the complainants lawyers costs

and expenses (in case the complainant was represented by a lawyer before


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the Constitutional Court) had to be reimbursed by the State of Liechtenstein

and that the court costs had to be borne by the State of Liechtenstein despite

the fact that (in case of an ex officio finding of a breach of thereasonable-time requirement) the complaints which the complainant had

brought before that court had been dismissed (see file no. StGH 2004/58,

cited above, 8; and file no. StGH 2005/13, cited above, 11). The

complainant may further be reimbursed the lawyers costs incurred by the

opposing party in the proceedings before the Constitutional Court in case he

had to bear those costs as a result of his constitutional complaint having

been dismissed (see file no. StGH 2005/007, cited above, 6; and file no.

StGH 2005/052, cited above, 4). Where the Constitutional Court found a

breach of the reasonable-time requirement not (only) in the proceedings

before it, but in the proceedings before the lower courts, it may exempt the

complainant also from court costs and lawyers expenses incurred in thelatter proceedings (see, for instance, file no. StGH 2005/052, cited above,

2.4).

43. The Constitutional Court subsequently explained that, in such

circumstances, the State of Liechtenstein had to bear the costs of the

procedure as compensation for damage or redress (Entschdigung bzw.

Wiedergutmachung; see file no. StGH 2010/141, judgment of

19 December 2011, 9; and file no. StGH 2011/32, judgment of 15 May

2012, 9). As Liechtenstein law did not contain an express provision

addressing the breach of the Constitution by a failure to comply with the

reasonable-time requirement and as it would be fundamentally unjust if such

a breach would not entail any consequences for lack of a statutory

regulation, there was a gap in the law which had to be filled by judicial

interpretation (see file no. StGH 2010/141, cited above, 9; and file

no. StGH 2011/32, cited above, 9).

44. As to the calculation of the amounts payable in lawyers costs and

court costs, the Constitutional Court, in its well-established case-law, fixes

the amount in dispute (Streitwert) before it at a maximum of EUR 100,000

(see file no. StGH 2004/58, cited above, 8 with further references; and file

no. StGH 2005/052, cited above, 4). Calculated on that basis, the lawyers

costs which may be reimbursed to the complainant amount to a maximum of

CHF 2,694.40 including VAT (see file no. StGH 2004/58, cited above, 8).As to the court costs to be borne by Liechtenstein or reimbursed to the

complainant for the proceedings before the Constitutional Court, these

comprise a judgment fee of CHF 1,700 (see file no. StGH 2004/58, cited

above, 8; and Article 56 1 of the Constitutional Court Act, read in

conjunction with Article 19 1 and 5 of the Court Fees Act) and a fee for

lodging the complaint (usually CHF 170, see file no. StGH 2011/32, cited

above, point 3 of the operative provisions and 9; and Article 56 1 of the

Constitutional Court Act, read in conjunction with Article 17 1 of the

Court Fees Act).


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45. If a constitutional complaint is allowed as the complainant prevailed

with at least one of his complaints, the State of Liechtenstein is ordered to

reimburse the complainant his lawyers costs (if any) and to bear the courtcosts, calculated on the basis of the amount in dispute fixed by the

Constitutional Court respectively (see, inter alia, file no. StGH 2008/48,

judgment of 9 December 2008, points 1 and 3-4 of the operative provisions;

file no. StGH 2009/14, judgment of 30 March 2009, points 1 and 3-4 of the

operative provisions; and also, in respect of complaints about the length of

proceedings, file no. StGH 2011/16, judgment of 29 August 2011, 7-9;

and file no. StGH 2011/32, cited above, points 3 and 5 of the operative

provisions and 9).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

46. The applicant complained that the length of the proceedings at issue

had been excessive. He relied on Article 6 1 of the Convention, which, in

so far as relevant, reads as follows:

In the determination of his civil rights and obligations ... everyone is entitled to a ...

hearing within a reasonable time by [a] ... tribunal ...

47. The Government contested that argument.

A. Application of Article 37 of the Convention

1. The partiessubmissions

48. Following the exchange of observations between the parties, the

Government, by submissions dated 14 March 2014, requested that the

present application be struck off the list of cases under Article 37 of the

Convention. They submitted that the applicant, by a statement dated

27 January 2014 to the Regional Court, had revoked the power of attorney

given to his wife in the proceedings before the domestic courts underlyingthis application. He had further expressly revoked the power of attorney

given to his wife in different proceedings before the Constitutional Court.

They argued that the applicant was therefore no longer validly represented

by his wife also in the proceedings before this Court. Moreover, as the

applicant had concluded a settlement in the proceedings before the domestic

courts, there was no clear indication that the applicant intended to pursue his

application before this Court.

49. The applicant, represented by his wife, contested the Governments

submissions which he considered as being out of time. He argued that the


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separate power of attorney submitted to the Court, authorising his wife to

represent him in the proceedings before this Court, had not been revoked

and was thus valid. He further submitted that the conclusion of a settlementin the proceedings before the domestic courts could not undo the damage

suffered by him as a result of the breaches of his Convention rights in those

proceedings.

2. The Courts assessment

50. In order to decide whether the application should be struck out of the

list in application of Article 37 1 (c) of the Convention, the Court must

consider whether the circumstances lead it to conclude that for any other

reason ... it is no longer justified to continue the examination of [it].The

Court reiterates that it has proceeded in that manner, inter alia, in cases

where the applicant was not properly represented before the Court in

accordance with Rule 36 2 and 4 (a) of its Rules of Court (see, among

others, Grimaylo v. Ukraine(dec.), no. 69364/01, 7 February 2006;Akulov

v. Russia (dec.), no. 74688/01, 8 March 2007; and Abulail and Ludneva

v. Bulgaria (dec.), no. 21341/07, 26, 13 November 2014). It has also

proceeded in that way in cases where the applicants had reached an

agreement or settlement with the domestic authorities which largely

satisfied the demands that they had made under the Convention, and had

thus lost their victim status (see Association SOS Attentats and de Boery

v. France[GC] (dec.), no. 76642/01, 37, ECHR 2006-XIV).

51. The Court notes that the applicant has been authorised by the ActingPresident of the Chamber to be represented by his wife and submitted two

powers of attorney signed both by himself and by his wife as his designated

representative, referring explicitly to the present proceedings before the

Court (see paragraph 4 above). Other than in the proceedings before the

domestic courts, he did not revoke the power of attorney given to his wife in

the proceedings before this Court. He has therefore been properly

represented before the Court in accordance with Rule 36 2 and 4 (a).

Moreover, there is nothing to indicate that the settlement, reached between

the parties to the proceedings before the domestic courts and not with the

domestic authorities, concerned or covered the breach of Article 6 of the

Convention owing to the length of the proceedings alleged by the applicantin the present proceedings. The requirements of Article 37 1 (c) are

therefore not met.

52. Furthermore, since the applicant gave a clear indication that he

intended to pursue his application, sub-paragraph (a) of Article 37 1 is not

applicable (compare also, mutatis mutandis, Pisano v. Italy (striking out)

[GC], no. 36732/97, 41, 24 October 2002; and Ohlen v. Denmark (striking

out), no. 63214/00, 25, 24 February 2005).

53. Consequently, the Court rejects the Governments objection in this

regard.


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B. Admissibility

1. The applicants victim status

(a) The partiessubmissions

54. In the Governments submission the applicant could not claim to be

the victim, within the meaning of Article 34 of the Convention, of a breach

of Article 6 of the Convention. They argued that the applicant had been

aware of the fact that his constitutional complaint in the proceedings at issue

(file no. StGH 2009/177) had had no prospects of success. Following a

previous decision taken by the Constitutional Court on a complaint brought

by him (file no. StGH 2006/56), he had known that the decision of the

Supreme Court remitting the case to the lower court he had complained of

was not final and a constitutional complaint against the decision was thusinadmissible.

55. The applicant argued that he had initially been sued and had been a

co-defendant in the proceedings at issue. He had subsequently been obliged

to protect his rights as beneficiary of the H. foundation by intervening in the

proceedings as a third party in support of the foundation.

(b) The Courts assessment

56. In order to claim to be the victim of a violation of a Convention

right, for the purposes of Article 34 of the Convention, a person must be

directly affected by the impugned measure (see Micallef v. Malta [GC],no. 17056/06, 44, ECHR 2009). In its autonomous interpretation of the

concept of victim, the Court has regard, inter alia, to the fact that an

applicant had been a party to the domestic proceedings (ibid., 48; compare

alsoNeves e Silva v. Portugal, 27 April 1989, 39, Series A no. 153-A).

57. The Court observes that the applicant, who was the founder and

beneficiary of the H. foundation, was initially a co-defendant in the civil

proceedings brought by R. and K. against both himself and the

H. foundation. After R. and K. had withdrawn the action against the

applicant, the latter joined the H. foundation in the proceedings as an

intervening third party. In his position as a third party, the applicant had a

number of procedural rights under domestic law (see paragraph 33 above)which he could exercise in support of the main party whom he had a legal

interest in prevailing. The Court considers that in these circumstances, the

applicant was directly affected by the allegedly excessive duration of the

proceedings during his participation therein as a defendant or third party

intervener.

58. Accordingly, the applicant could claim to be the victim of a breach

of Article 6 of the Convention, for the purposes of Article 34 of the

Convention.


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2. Exhaustion of domestic remedies

(a) The partiessubmissions

(i) The Government

59. In the Governments view the applicant failed to exhaust domestic

remedies as required by Article 35 1 of the Convention. They argued that

the applicant neither lodged an admissible constitutional complaint, nor a

supervisory complaint (Aufsichtsbeschwerde). He also did not claim

compensation for damage caused by the allegedly undue length of the

proceedings in official liability proceedings. These remedies would have

been effective within the meaning of Article 13 of the Convention to

complain about the unreasonable length of the proceedings and the applicant

had therefore been obliged to exhaust them.60. The Government argued that in the proceedings at issue the

applicants constitutional complaint, as the Constitutional Court had found,

had been inadmissible for being premature. The applicant had brought his

complaint against the decision of the Supreme Court dated 1 October 2009

which had not been final, that court having remitted the case to the lower

court.

61. However, once a complainant had obtained a final last-instance

decision of the civil courts, the Constitutional Court, under its new case-law,

granted redress to the complainant in form of an award of costs of the

procedure, including court costs and lawyers expenses, if it found that the

proceedings had lasted unreasonably long (the Government referred, inparticular, to the Constitutional Courts judgments in applications nos.

StGH 2004/58, StGH 2010/141 and StGH 2011/32 (see paragraphs 40-45

above) to support their view). This applied even if the remainder of the

constitutional complaint was dismissed as ill-founded. The Constitutional

Court granted such redress either ex officioif it found that the proceedings,

including the proceedings before the lower courts, had lasted unreasonably

long or on a complainants request.

62. As to the amount of costs of the procedure which the Constitutional

Court could award the complainant or charge Liechtenstein with in case it

found the length of the proceedings to have been excessive, the Government

explained that the Constitutional Court, in its well-established case-law,

fixed the value in dispute at a maximum of CHF 100,000. Therefore, a

complainant could be awarded or Liechtenstein could be charged with a

maximum of approximately CHF 5,500 in costs of the procedure. These

comprised a maximum of CHF 2,694.40 for lawyers expenses and a

maximum of CHF 1,870 in court costs (including CHF 170 in fees for

lodging the complaint and CHF 1,700 in fees for the court s decision), plus

CHF 680 in court costs in case of a request for interim measures plus

CHF 170 per hour in fees in case of a hearing.


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63. As to supervisory complaints under Articles 46 to 49 of the Court

Organisation Act (see paragraphs 35-37 above) the Government submitted

that the president of the Regional Court or of the Court of Appeal could takemeasures following a partys complaint within a short period of time and

could, in particular, set a time-limit for a judge to draft his judgment. If the

judge concerned failed to comply with the time-limit, he was liable to

disciplinary sanctions.

64. The Government added that it was also possible to obtain

compensation for damage caused by the undue length of civil proceedings

in official liability proceedings under the Official Liability Act (see

paragraph34 above).

(ii) The applicant

65. In the applicants submission, the Constitutional Court had

repeatedly refused to redress the breaches of the Convention by the lower

courts. There was nothing to indicate that the court would do so in the

proceedings at issue.

66. The applicant further contested that a supervisory complaint would

have been an effective remedy against the protracted length of the

proceedings as such a complaint could not serve to redress the breaches of

his rights. Furthermore, all official liability proceedings he had brought in

Liechtenstein until now had been unsuccessful.

(b) The Courts assessment

(i) Relevant principles

67. The Court reiterates that the rule of exhaustion of domestic remedies

in Article 35 1 is based on the assumption, reflected in Article 13 of the

Convention, with which it has a close affinity, that there is an effective

remedy available in respect of the alleged breach of a Convention right in

the domestic system (see Kuda v. Poland [GC], no. 30210/96, 152,

ECHR 2000-XI; and Horvat v. Croatia, no. 51585/99, 37,

ECHR 2001-VIII). Remedies available to a litigant at domestic level for

raising a complaint about the length of proceedings are effective within

the meaning of Article 13 if they prevent the alleged violation or itscontinuation, 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 (seeMifsud 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

Srmeli v. Germany [GC], no. 75529/01, 99, ECHR 2006-VII).

68. The Court repeatedly had to address the adequacy and sufficiency of

redress afforded by domestic remedies in the context of the question


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whether the applicant lost his status as a victim of a breach of the

reasonable-time requirement as a result of compensation awarded at

domestic level. Such redress may, in particular, be granted by a reductionof, or exemption from, costs and expenses which an applicant would have

had to pay otherwise in the legal proceedings at issue (see, for instance,

Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; Hansen and

Others v. Denmark (dec.), no. 26194/03, 29 May 2006; and Brsted

v. Denmark (dec.), no. 21846/04, 30 August 2006). The issue of an

applicants victim status is indeed linked to the question of whether a

domestic remedy is effective in which event the applicant is obliged to

exhaust that remedy in that the applicants ability to claim to be a victim

will depend on the adequacy and sufficiency of redress the domestic remedy

will have afforded him or her for the breach of the Convention right

(compare Scordino v. Italy (no. 1) [GC], no. 36813/97, 182,ECHR 2006-V).

69. The Court further clarified that the redress afforded at domestic level

on the basis of the facts about which the applicant complained before the

Court had to be adequate and sufficient having regard to the awards of just

satisfaction provided for under Article 41 of the Convention. While there

was no requirement that the domestic authorities should award the same

sum by way of compensation as the Court would be likely to award under

Article 41, the level of just satisfaction granted at national level nevertheless

had to be reasonable in the particular circumstances of the case (see Ohlen

v. Denmark (striking out), no. 63214/00, 30-31, 24 February 2005;

Horvthov v. Slovakia, no. 74456/01, 32, 17 May 2005; Scordino, cited

above, 202 and 213; andHansen and Others, cited above).

70. It is incumbent on the Government claiming non-exhaustion to

convince the Court that the remedy was an effective one available in theory

and in practice at the relevant time, that is to say that it was accessible, was

capable of providing redress in respect of the applicants complaints, and

offered reasonable prospects of success (see Horvat, cited above, 39;

Herbst v. Germany, no. 20027/02, 62, 11 January 2007; and Ommer

v. Germany (no. 2), no. 26073/03, 55, 13 November 2008).

(ii) Application of these principles to the present case

() Complaint to the Constitutional Court

71. The Court shall determine, first, in the light of the principles

developed in its case-law, whether a complaint to the Constitutional Court

was an effective remedy which the applicant had, consequently, been

obliged to exhaust prior to lodging his application with the Court.

72. The Court notes that it is uncontested that the Liechtenstein

Constitutional Court is not empowered to take practical steps to expedite the

proceedings before the lower courts, including sanctions for failure to


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comply (compare, mutatis mutandis,Hartman,cited above, 67 in respect

of the Czech Constitutional Court; and Srmeli, cited above, 105 in

respect of the German Constitutional Court). Constitutional complaints to itare in fact inadmissible for being premature prior to the termination of the

proceedings before the lower courts by a final decision (see paragraphs 19,

28 and 38 above).

73. The Court further observes that the Liechtenstein Constitutional

Court does not have a statutory power to grant compensation for pecuniary

and non-pecuniary damage incurred by a complainant as a result of the

undue duration of proceedings (compare, mutatis mutandis,Hartman,cited

above, 68; Srmeli, cited above, 105; and Herbst, cited above,

65-66). However, the Constitutional Court, in its more recent case-law as

established at the time when the applicant lodged his application with this

Court (see for the relevance, in principle, of that date, inter alia, Scordino,cited above, 144), no longer restricted itself to a finding of a breach of

Article 6 1 of the Convention where the proceedings before the lower

courts and / or those before itself, having regard to the criteria developed in

this Courts case-law, had lasted unreasonably long. Filling a gap in

Liechtenstein law which, in its view, did not provide for compensation for

damage suffered by a complainant as a result of a breach of the reasonable-

time requirement, the Constitutional Court developed a right for the

complainant to be exempted from, or be reimbursed, certain costs of the

procedure, in particular lawyers costs and expenses and court costs as

redress for such damage (see in detail paragraphs 40-45 above).

74. The Court welcomes the Constitutional Courts initiative and

measures taken in order to bring Liechtensteins legal system in line with

this Courts 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 applicants case, the Court must assess whether the

redress which the Constitutional Court could grant him was reasonable

having regard to the awards of just satisfaction provided for under

Article 41 of the Convention (see paragraph 69 above).

75. The Court notes in that context that, in the Governments

submission, a complainant could be awarded or Liechtenstein could becharged with a maximum of approximately CHF 5,500 (that is,

approximately EUR 5,268) in costs of the procedure by the Constitutional

Court (comprising a maximum of CHF 2,694.40 for lawyers expenses

before that court and the remainder of the sum in court costs before that

court) in compensation for the unreasonable length of the proceedings.

76. The Court observes, however, that in the proceedings at issue, the

applicant has no longer been represented by a lawyer, but by his wife, since

the Regional Court, on 21 November 2007, quashed the decision to appoint

him a lawyer following the grant of legal aid (see paragraph 21 above). It


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does not appear, therefore, that he could have been reimbursed any lawyers

expenses incurred in proceedings before the Constitutional Court. As to

court costs, the Court notes that the Constitutional Court, in previousproceedings brought by the applicant, has declared the court costs before it

uncollectible (see paragraph 30 above). In addition, assuming that the

applicants constitutional complaint about the length of the proceedings was

allowed, it appears that the applicant would be reimbursed his necessary

lawyers expenses and the State of Liechtenstein would have to bear the

court costs in any event, as a result of the outcome of the proceedings (see

paragraph 45 above). The Court further observes in that context that the

Constitutional Court, in the proceedings brought by the applicant before it

prematurely in the present case, expressed doubts whether it could

effectively redress a breach of the reasonable-time requirement (see

paragraph 29 above).77. Furthermore, the Court notes that the Constitutional Court

occasionally exempted a complainant also from court costs and lawyers

expenses incurred in the proceedings before the lower courts

(see paragraph 42 above). However, the Government, on whom the burden

of proof lies in this respect, failed to demonstrate if and to what extent the

Constitutional Court was capable of providing redress in this respect in the

proceedings at issue.

78. The Court further observes that the proceedings in question lasted

from 28 September 2001 (when the action was brought against the

applicant) until 2 April 2014 (when the case was declared terminated by the

Court of Appeal) at four levels of jurisdiction. The proceedings thus lasted a

considerable time. If the applicant had to bring a complaint to the

Constitutional Court about the length of the proceedings, the duration of the

proceedings before that court would have to be added.

79. In the light of the foregoing, the Court is not convinced that the

redress which the Constitutional Court could grant the applicant in the

circumstances of the case would be reasonable having regard to the awards

of just satisfaction provided for under Article 41 of the Convention. Whilst

the Court cannot exclude that this remedy would be effective in other

circumstances, the Government therefore failed to demonstrate that a

complaint to the Constitutional Court about the duration of the proceedingswas an effective remedy which the applicant was obliged to exhaust prior to

lodging his application with the Court in the proceedings here at issue.

() Supervisory complaint

80. Second, as regards the effectiveness of a supervisory complaint the

Court observes that Articles 48 and 49 of the Court Organisation Act and

Article 23 of the previous version of the Court Organisation Act

respectively provide that following a supervisory complaint about undue

delays in court proceedings, the competent court president may request the


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court or judge concerned to take remedial action within a fixed time-limit

(see paragraphs 35-37 above). However, the Government failed to submit

examples of domestic court decisions showing the existence of settledcase-law proving the effectiveness in practice of that remedy for speeding

up pending court proceedings.

81. In any event, the Court has repeatedly found that appeals to a higher

authority could not be regarded as an effective remedy because, just as the

supervisory complaint in the present case, they did not generally give

litigants a personal right to compel the State to exercise its supervisory

powers (see, inter alia, Horvat, cited above, 47; Hartman, cited above,

66; andSrmeli, cited above, 109).

() Official liability proceedings

82. Third, the Court shall examine whether, as submitted by the

Government, bringing a claim for compensation of damage suffered as a

result of the length of the proceedings in official liability proceedings under

the Official Liability Act was an effective remedy which the applicant had

been obliged to exhaust. It observes that under Article 3 1 of the Official

Liability Act, public legal entities shall be liable for damage caused

unlawfully to third parties by persons acting in their official capacity as

organs of those legal entities (see paragraph 34 above).

83. However, the Court observes that the Government, on whom the

burden of proof falls in this respect, have not submitted examples from

domestic practice showing the existence of settled case-law proving theeffectiveness of that remedy (compare, mutatis mutandis, Horvat, cited

above, 44; Hartman,cited above, 68; Srmeli, cited above, 113; and

Herbst, cited above, 67). The Court refers in that connection to its

well-established case-law indicating that it must be shown that

compensation for non-pecuniary damage can be obtained through the action

for damages as in cases concerning the length of civil proceedings the

applicant sustains above all damage under that head (see, inter alia,

Hartman,cited above, 68; and Srmeli, 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 Srmeli, citedabove, 101 with further references).

() Conclusion

84. Having regard to the foregoing, the Court concludes that the

Government failed to demonstrate that there was an effective domestic

remedy whereby the applicant could have complained about the

unreasonable length of the proceedings at issue and which he had therefore

been obliged to use for the purposes of Article 35 1 of the Convention.


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It therefore dismisses the Governments objection of non-exhaustion of

domestic remedies.

3. Other grounds of inadmissibility

85. The Court notes that this complaint is not manifestly ill-founded

within the meaning of Article 35 3 (a) of the Convention. It further notes

that it is not inadmissible on any other grounds. It must therefore be

declared admissible.

C. Merits

1. The partiessubmissions

86. The applicant argued that Article 6 1 of the Convention had beenviolated as the duration of the civil proceedings at issue had been excessive.

It had been the Liechtenstein courts which had been responsible for the

length of the proceedings because they had repeatedly rendered unlawful

decisions. The applicant contested in that context that the proceedings

before the Court of Appeal had been stayed on his request or in his interest

since he had lodged his constitutional complaint. He had particularly

suffered from the duration of the proceedings because as a result of the

blockage of the assets of the H. foundation of which he was the beneficiary

throughout the proceedings, he had been deprived of his property and means

of subsidy.

87. The Government took the view that the proceedings had complied

with the reasonable-time requirement under Article 6 1 of the Convention.

The proceedings had been very complex owing to their international

context, necessitating the taking of evidence by mutual legal assistance

abroad and the application of foreign law. The length of the proceedings had

been caused by the conduct of the parties to them and of the intervening

applicant, who had all made use of their right to appeal with success.

Moreover, the applicant himself had asked the Court of Appeal to stay the

proceedings pending the decisions of the Constitutional Court and the

European Court of Human Rights and none of the parties to the proceedings

had requested the Court of Appeal to continue the proceedings.

2. The Courts assessment

88. The period to be taken into consideration began on 28 September

2001 (when the action against the applicant was received at the Regional

Court) and ended on 2 April 2014 (when the Court of Appeal declared the

proceedings stayed perpetually). From that period, the period from 28 July

2004 to 7 March 2005 (some seven months) during which the applicant was

no longer a defendant in the proceedings and had not yet requested leave to

intervene as a third party (see paragraphs 12 and 15 above) shall be


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deducted (compare, mutatis mutandis, the references in paragraph 56

above). The period thus lasted some eleven years and eleven months at four

levels of jurisdiction.89. The Court reiterates that the reasonableness of the length of

proceedings must be assessed in the light of the circumstances of the case

and with reference to the following criteria: the complexity of the case, the

conduct of the applicant and of the relevant authorities and what was at

stake for the applicant in the dispute (see, among many other authorities,

Frydlender v. France[GC], no. 30979/96, 43, ECHR 2000-VII).

90. The Court notes that the civil proceedings at issue were of some

complexity as it was necessary to question several witnesses by letters of

request.

91. As to the conduct of the proceedings by the Liechtenstein courts, the

Court observes that the proceedings were pending for some twelve yearsand, following repeated remittals, were terminated at second instance

following a settlement reached by the parties out of court. It notes, in

particular, that the proceedings were stayed from 1 October 2009 until their

termination on 2 April 2014 in view of individual applications brought by

the applicant pending before the Constitutional Court and before this Court,

none of the parties to the proceedings having requested that the proceedings

be continued. However, the Court reiterates in this respect that even in civil

proceedings, where it is for the parties to take the initiative with regard to

the progress of the proceedings, the national courts are not dispensed from

ensuring compliance with the requirements of Article 6 of the Convention

as regards the reasonable-time requirement (see, for example, Duclos

v. France, 17 December 1996, 55, Reports of Judgments and Decisions

1996-VI;H.T. v. Germany, no. 38073/97, 35-36, 11 October 2001; and

Laudon v. Germany, no. 14635/03, 71, 26 April 2007). Moreover, when

staying proceedings pending the outcome of different proceedings, the

domestic courts must duly establish the relevance of those proceedings for

the case before them (compare, inter alia, H.T. v. Germany, cited above,

36). Having regard to the fact that at the time of the Supreme Courts

remittal on 1 October 2009, the proceedings as a whole had already been

pending for more than eight years and that this Court communicated the

applicants application (on 12 July 2013) only in respect of the allegedlyunreasonable length of the proceedings, the Court considers that the

domestic courts did not duly further the proceedings at issue.

92. Having regard to the findings concerning the stay of the proceedings,

the Court further considers that the applicants conduct as a third party in

the present proceedings did not contribute to a considerable extent to the

duration of the proceedings in which a substantial amount of money which

the applicant intended to use for his living was at stake.

93. In view of the foregoing, the Court considers that in the instant case

the length of the proceedings was excessive and failed to meet the


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reasonable-time requirement. There has accordingly been a violation of

Article 6 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

94. Article 41 of the Convention provides:

Ifthe Court finds that there has been a violation of the Convention or the Protocols

thereto, and if the internal law of the High Contracting Party concerned allows only

partial reparation to be made, the Court shall, if necessary, afford just satisfaction to

the injured party.

A. Damage

95. The applicant claimed at least eight million euros (EUR) in respect

of pecuniary damage, comprising, in particular, damage caused by the

H. foundations loss of assets and claims by the tax authorities. He further

claimed EUR 100,000 in compensation for non-pecuniary damage, arguing

that he and his family had suffered damage to their health and anxiety as a

result of the protracted length of the proceedings.

96. The Government argued that, even assuming that there had been a

breach of the Convention, there was no causal link between that breach and

the pecuniary damage claimed by the applicant, who also failed to

substantiate his claim. As to the non-pecuniary damage alleged, the

Government contested that the applicant had suffered such damage, giventhat the stay of the proceedings at issue was in accordance with his request.

97. The Court considers that the applicant failed to show that there was a

causal link between the violation found and the pecuniary damage alleged;

it therefore rejects this claim. Having regard to the material in its

possession, it awards the applicant EUR 6,000 in respect of non-pecuniary

damage, plus any tax that may be chargeable.

B. Costs and expenses

98. The applicant also claimed EUR 325,000 for estimated costs and

expenses incurred before the domestic courts and EUR 10,000, or a sumfixed by the Court, for those incurred before the Court (inter aliafor copies

of voluminous documents and postage expenses).

99. The Government contested the applicants claims for costs and

expenses incurred before the domestic courts, arguing that he had neither

substantiated them nor shown any causal link to the alleged breach of the

Convention. They further submitted that the costs and expenses incurred

before this Court should be fixed at CHF 2,494.80, which would be the

amount calculated in comparable proceedings before the Constitutional

Court.


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100. According to the Courts 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 toquantum. In the present case, regard being had to the documents in its

possession and the above criteria, the Court rejects the claim for costs and

expenses incurred in the domestic proceedings for lack of substantiation. It

considers it reasonable to award the sum of EUR 250, plus any tax that may

be chargeable to the applicant, for costs and expenses incurred in the

proceedings before the Court.

C. Default interest

101. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Dismisses the Governments request to strike the application out of its

list of cases;

2. Declares the complaint concerning the length of the proceedings

admissible;

3. Holdsthat there has been a violation of Article 6 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months

from the date on which the judgment becomes final in accordance with

Article 44 2 of the Convention, the following amounts, to be converted

into the currency of the respondent State at the rate applicable at the date

of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be

chargeable, in respect of non-pecuniary damage;

(ii) EUR 250 (two hundred and fifty euros), plus any tax that may

be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until

settlement simple interest shall be payable on the above amounts at a

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

during the default period plus three percentage points;

5. Dismissesthe remainder of the applicants claim for just satisfaction.


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Done in English, and notified in writing on 3 September 2015, pursuant

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

Milan Blako Angelika Nuberger

Deputy Registrar President

Case of Bekerman v. Liechtenstein

Documents

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