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.

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 by
Mr 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 further
represented 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 abovementioned leave.

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 applicants 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 assets
had 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 action
for 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 applicants
financial condition on its own motion.

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 applicant
and 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 applicants
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 the
proceedings 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 the
foundation, of which he was the beneficiary. It ordered the Court of Appeal
to decide upon the plaintiffs and 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 Courts
impugned decision to remit the case to the lower court did not terminate the
proceedings by a final decision on the matter in dispute.

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 dated
30 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 it
established 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 Courts
judgment 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 applicants
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 sufficiently
established 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
proceedings that 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.

BEKERMAN v. LIECHTENSTEIN JUDGMENT

27. On 21 May 2010 the Constitutional Court rejected the applicants

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 declare
that 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 that
court, 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

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 Court
and 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 to
take 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 of
civil law shall apply mutatis mutandis unless 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

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 Organisation
Act, 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 Constitution
and guaranteed by Article 6 1 of the Convention was violated in the
proceedings before the lower courts and / or in the proceedings before it. It
may make such a finding either 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 Courts
case-law, namely what was at stake for the applicant in the dispute, the
complexity of the case, the conduct of the applicant and that of the relevant
authorities in the specific circumstances of the case (see, inter alia, file
no. StGH 2004/58, cited above, 7.2; file no. StGH 2005/13, cited above,
10.2; and file no. StGH 2005/007, cited above, 5.2).
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

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 the
reasonable-time requirement) the complaints which the complainant had
brought before that court had been dismissed (see file no. StGH 2004/58,
cited above, 8; and file no. StGH 2005/13, cited above, 11). 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 the
latter 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).

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 court
costs, 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 parties submissions
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 underlying
this 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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BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 settlement
in 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 Acting
President 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 applicant
in 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.

BEKERMAN v. LIECHTENSTEIN JUDGMENT

11

B. Admissibility
1. The applicants victim status
(a) The parties submissions

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 thus
inadmissible.
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
also Neves 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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BEKERMAN v. LIECHTENSTEIN JUDGMENT

2. Exhaustion of domestic remedies

(a) The parties submissions
(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, in
particular, 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 officio if 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 courts 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.

BEKERMAN v. LIECHTENSTEIN JUDGMENT

13

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 take
measures 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 its
continuation, or provide adequate redress for any violation that has already
occurred. A remedy is therefore effective if it can be used either to expedite
a decision by the courts dealing with the case, or to provide the litigant with
adequate redress for delays that have already occurred (see Mifsud v. France
(dec.) [GC], no. 57220/00, 17, ECHR 2002-VIII; Hartman
v. the Czech Republic, no. 53341/99, 81, ECHR 2003-VIII (extracts); and
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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BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 reduction
of, 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; and Hansen 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

BEKERMAN v. LIECHTENSTEIN JUDGMENT

15

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 it
are 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 reasonabletime 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 be
charged 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

16

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 previous
proceedings 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 proceedings
was 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

BEKERMAN v. LIECHTENSTEIN JUDGMENT

17

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 settled
case-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; and Srmeli, 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 the
effectiveness 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, cited
above, 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.

18

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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 parties submissions
86. The applicant argued that Article 6 1 of the Convention had been
violated 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

BEKERMAN v. LIECHTENSTEIN JUDGMENT

19

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 years
and, 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 allegedly
unreasonable 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

20

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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:
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
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, given
that 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 sum
fixed by the Court, for those incurred before the Court (inter alia for 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.

BEKERMAN v. LIECHTENSTEIN JUDGMENT

21

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 to
quantum. 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. Holds that 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. Dismisses the remainder of the applicants claim for just satisfaction.

22

BEKERMAN v. LIECHTENSTEIN JUDGMENT

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
Deputy Registrar

Angelika Nuberger
President