A.K. v. LIECHTENSTEIN - 38191/12 - Chamber Judgment [2015] ECHR 655 (09 July 2015)

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.

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

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You are here: BAILII >> Databases >> European Court of Human Rights >> A.K. v. LIECHTENSTEIN - 38191/12 - Chamber Judgment [2015] ECHR 655 (09 July 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/655.html Cite as: (2017) 65 EHRR 34, 65 EHRR 34, [2015] ECHR 655