Michael BEKERMAN and Raissa BEKERMAN v Liechtenstein - 15994/10 [2005] ECHR 2091 (2 December 2005)

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Application no. 15994/10
by Michael BEKERMAN and Raissa BEKERMAN
against Liechtenstein

The European Court of Human Rights (Fifth Section), sitting
on 29 November 2011 as a Committee composed of:

Ganna Yudkivska, President,
Mark Villiger,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the declaration submitted by the respondent Government on 7 June 2011 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,

The first applicant, Mr Michael Bekerman, and the second applicant, Mrs Raissa Bekerman, are German nationals who were born in 1955 and 1954 respectively and live in Berlin. Mr Bekerman was represented before the Court by Mrs Bekerman, his wife.

The Liechtenstein Government (“the Government”) were represented by Mr D. Ospelt, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Liechtenstein to the Council of Europe.

The Government of Germany, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), did not indicate that they wished to exercise that right.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. The first phase of the proceedings before the Regional Court: The first applicant’s request to be granted legal aid

On 9 August 2005 the first applicant, represented by counsel, brought an action for compensation of some two million eight hundred thousand Swiss francs against the L. bank with the Vaduz Regional Court and requested to be granted legal aid. He claimed that the bank had debited that sum from the accounts of two foundations, of which he was the beneficiary, without his consent.

On 11 November 2005 the Regional Court, having held a hearing, refused to grant the first applicant legal aid for the proceedings as his action lacked prospects of success and had to be considered as wanton. His appeal and his constitutional complaint (file no. StGH 2006/67) were to no avail.

B. The second phase of the proceedings before the Regional Court: The first applicant’s inability to provide a security for the court costs

On 14 November 2006 the Regional Court, having held a hearing on 2 December 2005, declared that the action brought by the first applicant, who was from then on represented by his wife, the second applicant, had to be considered as withdrawn as he had failed to provide a security for the court costs.

On 6 December 2007 the Supreme Court dismissed the defendant bank’s appeal against the Court of Appeal’s decision of 24 May 2007, in which the latter had found that the first applicant’s action could not be considered as withdrawn. The Supreme Court noted, however, that the first applicant led numerous costly legal proceedings before the Liechtenstein courts despite their lack of prospects of success, a fact which had also been confirmed by the Constitutional Court. He lacked the means to conduct these proceedings, which could lead to considerable liabilities and thus cause him great prejudice. It therefore invited the Regional Court to examine whether he was capable of conducting legal proceedings in order to protect him from disadvantages which would be caused by his incapacity to do so.

C. The third phase of the proceedings before the Regional Court: The examination of the applicants’ capacity to conduct legal proceedings

On 23 December 2008 the Regional Court (judge L.), having held a hearing on 15 April 2008, ordered that both applicants’ capacity to conduct legal proceedings be examined by S., a neurologic and psychiatric expert.

In two decisions dated 12 March 2009 the Court of Appeal confirmed the Regional Court’s decision dated 23 December 2008. As to the first applicant’s appeal, it endorsed the reasons given by the Supreme Court.
As to the second applicant’s appeal, it argued that the aim of protecting persons from disadvantages caused by the conduct of legal proceedings despite their incapacity to do so could only be attained in the present proceedings if the capacity of both the party and his representative to conduct proceedings was verified.

On 18 January 2010 the Liechtenstein Constitutional Court dismissed the applicants’ constitutional complaints of 29 March 2009 and of 27 June 2009, which it had joined, as ill-founded (file no. StGH 2009/57 and no. StGH 2009/104).

As to the applicants’ complaint that their right to a fair trial had been breached in that the courts had questioned their capacity to conduct legal proceedings after those proceedings had been pending already for four years, the Constitutional Court considered that the courts’ order in question had not been arbitrary in the circumstances of the case. Therefore, that order could also not be considered to have been made in order to deny the first applicant a decision on the merits of his action in an arbitrary manner.

As to the applicants’ complaints about the impartiality of several judges in both constitutional complaints, the Constitutional Court considered the motions for bias in question to be abusive because the applicants had lodged numerous similar motions for bias against the same judges in several sets of proceedings brought by them, arguing only that the judges concerned had previously taken decisions to their detriment.

On 17 May 2011 the Regional Court, by an interim decision, found that the applicants were incapable of conducting the proceedings before it.

The applicants lodged an appeal against this decision. The proceedings are currently still pending.

The applicants complained under Article 6 of the Convention that their right to a hearing within a reasonable time had been violated in the proceedings before the Liechtenstein courts.

The applicants further complained under Article 6 of the Convention that they had been refused access to court and a fair trial by an independent and impartial tribunal. They argued that the Liechtenstein courts had ordered to have their capacity to conduct legal proceedings examined instead of taking a decision on the merits of the first applicant’s action. The domestic courts had treated them in an arbitrary and discriminatory manner thereby and had also breached their personality rights.

The first applicant complained about the length of the civil proceedings at issue. He relied on Article 6 of the Convention which, in so far as relevant, provides as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Following unsuccessful friendly settlement negotiations conducted in accordance with Article 39 of the Convention, the Government informed the Court by letter dated 6 June 2011 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

“In this case the Court proposed a friendly settlement which was rejected by the Applicants with letters dated 24 and 26 April 2011 and 5 May 2011.

The Government would wish to acknowledge – by way of a unilateral declaration – that the length of the proceedings at issue was incompatible with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention.

If the Court strikes this case from the list, the Government is willing to offer compensation in the amount of EUR 6,000. This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

In letters of 4 and 6 July 2011 the first applicant, represented by the second applicant, expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. It did not constitute adequate compensation for the continuing violation of the applicants’ human dignity by the Liechtenstein courts and the damage of more than two million Swiss francs at issue in the proceedings before those courts. The first applicant therefore requested the Court to examine the application on the merits.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if an applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law (see, in particular, Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003 VI; and also Spółka z o.o. WAZA v. Poland (dec.) no. 11602/02, 26 June 2007; and Genth v. Germany (dec.), no. 34909/04, 13 May 2008).

The Court has established in a number of cases, including those brought against Liechtenstein, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, §§ 43 et seq., ECHR 2000-VII; Sürmeli v. Germany [GC], no. 75529/01, §§ 128 et seq., ECHR 2006-VII; and von Hoffen v. Liechtenstein, no. 5010/04, §§ 47 et seq., 27 July 2006).

Having regard to the nature of the admissions contained in the Government’s declaration, the Court notes that the Government clearly acknowlegded that the length of the proceedings at issue was in breach of the “reasonable time” requirement of Article 6 § 1. Moreover, the Government proposed to provide redress to the first applicant by paying him compensation for pecuniary and non-pecuniary damage as well as costs and expenses. The amount of that compensation is consistent with the amounts awarded in similar cases and thus adequate.

The Court therefore considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

In view of the above, it is appropriate to strike this part of the application out of the list.

The second applicant, being the first applicant’s representative in the proceedings before the domestic courts at issue, equally complained under Article 6 of the Convention that her right to a hearing within a reasonable time had been violated in these proceedings.

The applicants further complained under Article 6 of the Convention that the order of the Liechtenstein courts to have their capacity to conduct legal proceedings examined had breached their right of access to court and their right to a fair trial by an independent and impartial tribunal. The domestic courts had thereby treated them in an arbitrary and discriminatory manner and had also breached their personality rights.

The Court has examined the remainder of the applicants’ complaints as submitted by them. However, having regard to all material in its possession, the Court finds that, even assuming their compatibility ratione materiae and the exhaustion of domestic remedies in all respects, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that the remainder of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

Takes note of the terms of the respondent Government’s declaration in respect of the first applicant’s complaint under Article 6 § 1 of the Convention regarding the excessive length of the proceedings and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the above complaint;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Michael BEKERMAN and Raissa BEKERMAN v Liechtenstein - 15994/10 [2005] ECHR 2091 (2 December 2005) URL: http://www.bailii.org/eu/cases/ECHR/2011/2091.html Cite as: [2005] ECHR 2091