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FIFTH SECTION

CASE OF A.K. v. LIECHTENSTEIN


(Application no. 38191/12)

JUDGMENT

STRASBOURG
9 July 2015

This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.

A.K. v. LIECHTENSTEIN JUDGMENT

In the case of A.K. 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,
Ale 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 applicants 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 applicants 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.

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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 corporations 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 corporations 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
applicants 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 corporations 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 corporations 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
(Feststellungsansprche) if such a measure was necessary to preserve the

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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
applicants appeal against the order of 30 July 2010.
B. The impugned decision of the Constitutional Court
1. The applicants motion for bias
13. On 22 October 2010 the applicant lodged a constitutional complaint
with the Constitutional Court against the Court of Appeals 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 (Schriftfhrerin), 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 applicants 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 courts 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

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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 applicants 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 Courts decision
23. Three of the judges of the Constitutional Court made statements on
the applicants 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 applicants 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

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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--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 applicants 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:

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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 ber 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.K. v. LIECHTENSTEIN JUDGMENT

A. Admissibility
1. The parties submissions
(a) The Government

39. In the Governments 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 wellestablished 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 Courts
Micallef judgment were therefore not met.
(b) The applicant

41. In the applicants 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

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the development of the stock corporation despite the fact that he had been
the corporations 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 Courts 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,
Knig 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 Debeli v. Croatia (dec.), no. 23060/07,
3 May 2011; and Pekrny a cukrrny 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 Kbler v. Germany, no. 32715/06, 48, 13 January 2011,
and Pekrny a cukrrny Klatovy, a.s., cited above, 65 and 67-70).

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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 corporations 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 corporations 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
corporations 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 corporations 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

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decisions concerning the stock corporations 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 corporations 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 corporations future and
development.
53. In the Courts 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 persons claim (see for examples in this
respect Imobilije Marketing d.o.o. and Ivan Debeli, cited above; and
tokalo 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 Governments objection must therefore
be dismissed.
55. The Court further notes that the applicants 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.

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11

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 applicants 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 countrys 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.

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(b) The Government

60. The Government considered that the Constitutional Court had been
an impartial tribunal in the applicants 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
applicants 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 Governments 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 Governments 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 Courts assessment
(a) Relevant principles

65. The Court reiterates that impartiality denotes the absence of


prejudice or bias. According to the Courts 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,

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13

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 judges 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 legislatures 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

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A.K. v. LIECHTENSTEIN JUDGMENT

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 applicants 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 applicants 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 latters 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 applicants motions for bias

A.K. v. LIECHTENSTEIN JUDGMENT

15

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 applicants
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.

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A.K. v. LIECHTENSTEIN JUDGMENT

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
applicants 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 applicants
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
applicants 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

A.K. v. LIECHTENSTEIN JUDGMENT

17

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 applicants 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 States 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 Governments 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
States 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 applicants
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 applicants motions for bias against them.
85. There has accordingly been a violation of Article 6 1 of the
Convention.

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A.K. v. LIECHTENSTEIN JUDGMENT

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 applicants 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 Courts 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

A.K. v. LIECHTENSTEIN JUDGMENT

19

the proceedings before the lower courts had not served to prevent a violation
of the Convention.
92. 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 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 courts 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
applicants 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

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A.K. v. LIECHTENSTEIN JUDGMENT

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 applicants 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
Registrar

Angelika Nuberger
President