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FIFTH
SECTION
CASE OF SCHÄDLER AND OTHERS v. LIECHTENSTEIN
(Application
no. 32763/08)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Schädler and Others v. Liechtenstein,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Isabelle Berro-Lefèvre,
President,
Mark Villiger,
Ganna Yudkivska,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32763/08) 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 ten Liechtenstein nationals, Mr Hans Walter Schädler, Mr
Tobias Johann Schädler, Mr Helmut Julius Beck, Mr Edmund Eugen
Gassner, Mr Herbert Victor Beck, Mr Karl Roman Beck, Mr Werner
Benjamin Hilbe, Mr Franz Josef Schädler, Mr Oswald Schädler
and Mr Norbert Schädler (“the applicants”), on
20 June 2008.
- The
applicants were represented by Mr W.L. Weh, a lawyer practising in
Bregenz, Austria. The Liechtenstein Government (“the
Government”) were represented by their Agent, Ambassador D.
Ospelt, Permanent Representative of Liechtenstein to the Council of
Europe.
- On
25 May 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
- The
parties were consulted on the Court’s intention to assign the
application to a Committee of three judges in accordance with
Protocol no. 14. While the Government agreed to the Court’s
proposal, the applicants objected to it, requesting the Court to hold
an oral hearing. Having examined the parties’ submissions, the
Court decided to assign the application to a Committee.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
first applicant, Mr Hans Walter Schädler, was born in 1945,
Mr Tobias Johann Schädler was born in 1983, Mr Helmut
Julius Beck in 1964, Mr Edmund Eugen Gassner in 1947, Mr Herbert
Victor Beck in 1953, Mr Karl Roman Beck in 1951, Mr Werner Benjamin
Hilbe in 1953, Mr Franz Josef Schädler in 1946, Mr Oswald
Schädler in 1946 and Mr Norbert Schädler in 1960. They
live in Triesenberg (Liechtenstein).
1. Background to the case
- On
25 and 27 February 2000 a land development plan (Zonenplan)
was adopted by referendum in the Municipality of Triesenberg.
According to that plan, the main part of a plot of land owned jointly
by the applicants fell within a zone in which the construction of
buildings was not authorised.
2. The municipality’s decision
- By
submissions dated 3 April 2000 the first applicant lodged an
objection with the Municipality of Triesenberg which received these
submissions on 5 April 2000. He contested the lawfulness of the land
development plan and of the procedure by which it had been approved
and requested that the plot of land in question be designated as
building land.
- On
22 November 2000 the Municipality of Triesenberg dismissed the first
applicant’s objection. It found, in particular, that the
applicants’ plot of land had not been classified as building
land prior to the adoption of the land development plan either. The
decision was issued and sent to the first applicant on 22 January
2001.
3. The Government’s decision
- On
22 October 2002 the Liechtenstein Government dismissed the complaint
made by the first applicant on 6 February 2001 about the
municipality’s decision. That decision was issued on 23 October
2002.
4. The proceedings before the Administrative Court
- By
letter of 11 June 2003 the first applicant informed the
Administrative Court that he intended to pursue his complaint lodged
on 11 November 2002 regarding the Government’s decision in
person, his counsel having informed him that his complaint had no
sufficient prospects of success.
- On
4 August 2003 the Liechtenstein Administrative Court
(Verwaltungsbeschwerdeinstanz), having held a hearing on 25
June 2003 in which it heard a witness and inspected the locus in quo,
dismissed the applicants’ complaint. It noted that the first
applicant, following doubts expressed by it regarding his standing in
the proceedings, now brought the complaint both on his own behalf and
on behalf of ten further joint owners (nine of whom are applicants
before this Court). The latter had also authorised the previous
proceedings instituted by the first applicant alone (a written
authorisation dated 25 June 2003 was submitted in the hearing). The
Administrative Court found that the municipality’s decision not
to incorporate the applicants’ plot of land into an area
designated as building land had not been arbitrary, particularly when
compared to the classification of other plots of land in the land
development plan. The applicants’ plot of land had not
previously been in an area classified as building land and was not
suitable for construction for lack of water installations.
5. The proceedings before the Liechtenstein
Constitutional Court
- By
submissions dated 15 August 2003, which were received at the
Liechtenstein Constitutional Court (Staatsgerichtshof) on 19
August 2003, the applicants lodged a constitutional complaint with
the Liechtenstein Constitutional Court in respect of the decision
taken by the Administrative Court. Relying on the principles of
legality and proportionality, the prohibition of arbitrariness and
the right to property, they argued, in particular, that their plot of
land, designated as non-building land, had been treated less
favourably than other plots of land in a comparable situation.
- The
final deliberations in private fixed for 2 March 2004 had to be
cancelled as, following the withdrawal of several judges, there was
an insufficient number of judges available to hear the case.
- In
April and May 2004 both the first applicant and the Municipality of
Triesenberg informed the Liechtenstein Constitutional Court that they
had entered into negotiations following which the constitutional
complaint might later be withdrawn. The Constitutional Court’s
deliberations in private fixed for 3 May 2004 were accordingly
cancelled. On 21 June 2004 the Municipality informed that court that
it had included a part of the applicants’ plot of land in the
area designated as building land. The applicants did not, however,
withdraw their constitutional complaint thereupon.
- By
submissions dated 4 March 2005 and 9 May 2005 the applicants’
new counsel requested the Constitutional Court to join the
applicants’ complaint to that of K.S. and to hold a hearing.
They further submitted that their right to an independent and
impartial tribunal established by law under Article 6 of the
Convention had been breached in that the relevant provisions of the
Municipality Act (Gemeindegesetz) did not clearly determine
the body competent to decide on land development plans and as the
citizens had adopted the plan. The land development plan of the
Municipality of Triesenberg was void as it had been set up in
violation of the provisions for the protection of property.
Furthermore, their right to property under Article 1 of Protocol no.
1 had been breached as the relevant provisions of the Construction
Code (Baugesetz) were not a sufficiently clear legal basis for
the adoption of land development plans which interfered with the
right to property. The adoption of the land development plan at issue
had excluded the applicants’ plot of land from the area
designated as building land and amounted to an illegal and arbitrary
restriction of the use of their property without payment of
compensation.
- On
10 May 2005 the Liechtenstein Constitutional Court, having
deliberated in private, decided to adjourn its decision in view of
the voluminous observations and requests to take evidence submitted
by the applicants’ counsel the day before.
- On
4 April 2006 the Liechtenstein Constitutional Court, having
deliberated in private, refused to join the applicants’
complaint to that of K.S. and, taking into consideration the
applicants’ request made the same day, adjourned its decision
and decided to hold a public hearing.
- On
15 May 2006 the Liechtenstein Constitutional Court held a public
hearing. In its deliberations (in private), it then decided to
dismiss as inadmissible the applicants’ request to declare void
the vote of 25 and 27 February 2000 in the Municipality of
Triesenberg as the applicants had failed to lodge a separate
complaint in respect of that vote with the Government. It further
rejected the remainder of the applicants’ complaints as
ill-founded (case no. StGH 2003/71).
- The
Liechtenstein Constitutional Court found that there had been no
violation of the applicants’ constitutional right to equality
or of the prohibition of arbitrariness as it had not been
unreasonable not to include the applicants’ entire plot of land
in an area designated as building land. Nor had the applicants’
right to property been violated. The refusal to grant the applicants
a privilege by not including their plot of land in an area designated
as building land did not interfere with their property rights.
- On
20 December 2007 the Liechtenstein Constitutional Court’s
judgment was served on the applicants’ counsel.
6. Subsequent developments
- In
a judgment adopted on 4 November 2008 concerning a complaint brought
by K.S., the Liechtenstein Constitutional Court held that Article 6
§ 1 of the Convention had been breached in the proceedings
before it (file no. StGH 2004/58). The Constitutional Court found
that the length of the proceedings at issue, which equally concerned
the land development plan of the Municipality of Triesenberg and had
been pending for four years and three months before it, had been
excessive. The fact that K.S. had repeatedly asked to adjourn the
proceedings shortly before the date fixed for the final deliberations
did not justify the duration of the proceedings, in particular
because the Constitutional Court had remained inactive for a longer
period of time after having held an oral hearing.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION DUE TO THE LENGTH OF THE PROCEEDINGS
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which 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 ...”
- The
Government contested that argument.
- In
the Government’s submission, the proceedings began for the
purposes of Article 6 on 5 April 2000 when the first applicant’s
objection was received at the Municipality of Triesenberg. The
applicants consider that the proceedings started already in February
2000 when the land development plan was adopted. The parties agree
that the proceedings ended on 20 December 2007 when the judgment of
the Constitutional Court was served on the applicants’ counsel.
- The
Court reiterates that the proceedings before an administrative body
are to be included when calculating the length of the civil
proceedings for the purposes of Article 6 if, under the national
legislation, an applicant has to exhaust a preliminary administrative
procedure before having recourse to a court. In such cases, the
relevant period starts running as soon as a “dispute”
arises (see, inter alia, Janssen v. Germany, no.
23959/94, § 40, 20 December 2001; and Christensen
v. Denmark, no. 247/07, §
77, 22 January 2009 with further references). It therefore
considers that the relevant period started for the first applicant on
5 April 2000, when his objection against the land development plan,
which was a necessary first step before proceedings could be brought
in the Administrative Court, was received at the Municipality of
Triesenberg.
- As
regards the remaining nine applicants, the Court observes that its
case-law on the intervention of third parties in civil proceedings
makes the following distinction: where the applicant has intervened
in domestic proceedings only on his or her own behalf the period to
be taken into consideration begins to run from that date, whereas if
the applicant has declared his or her intention to continue the
proceedings as heir he or she can complain of the entire length of
the proceedings (see, inter alia, M.Ö. v. Turkey,
no. 26136/95, § 25, 19 May 2005; and Cocchiarella v. Italy
[GC], no. 64886/01, § 113, ECHR 2006 V). As the remaining
applicants joined the proceedings in their own names, as
co-proprietors of the plot of land concerned, only in the hearing
before the Administrative Court, submitting a written authorisation
of the same day, the proceedings started in their respect only on 25
June 2003. The proceedings ended for all applicants on 20 December
2007 when the decision of the Constitutional Court was served on
their counsel.
- The
proceedings therefore lasted in respect of the first applicant more
than seven years and eight months for the preliminary administrative
proceedings and two levels of jurisdiction and in respect of the
remaining nine applicants more than four years and five months for
two levels of jurisdiction of which less than six weeks were before
the Administrative Court.
A. Admissibility
- The
Government argued that, as was shown by the first applicant’s
letter of 11 June 2003 to the Administrative Court (see paragraph 10
above), the applicants had been informed by their counsel that their
complaint lacked prospects of success. As a consequence, they could
not claim to have suffered any prejudice as a result of the
proceedings’ duration after that date as they no longer
suffered from uncertainty concerning the outcome of these
proceedings. Their complaint was therefore inadmissible in respect of
the subsequent length of the proceedings.
- In
the applicants’ submission, the fact that their counsel had
predicted that the Liechtenstein courts would not allow their
complaint neither meant that their complaint was ill-founded nor did
that view affect the admissibility of their complaint before the
Court.
- The
Court considers that an applicant’s actual or presumed view on
the prospects of success of proceedings initiated by him or her does
not affect as such his or her ability to claim to be the victim of
unreasonably long proceedings for the purposes of Article 34 of the
Convention. It therefore dismisses the Government’s preliminary
objection.
- The
Court further notes that the complaint about the duration of the
proceedings, which concerned the question whether the applicants’
real property could be used for construction and thus the
determination of a civil right within the meaning of Article 6, is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further observes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicants argued that the proceedings had lasted unreasonably long
at all stages. They submitted that the proceedings had not been
complex because no witnesses had been heard or experts consulted and
that they had not contributed to the proceedings’ duration.
They underlined that in parallel proceedings brought by K.S., which
had taken almost exactly the same time as the present proceedings,
the Constitutional Court had itself found that the length of those
proceedings had failed to comply with the requirements of Article 6 §
1 (see paragraph 21 above).
- The
Government took the view that the duration of the proceedings brought
by the applicants had not been excessive. They argued that the
proceedings had been very complex because they concerned the first
land development plan ever adopted in Triesenberg. Moreover, the
proceedings, in which the applicants had made voluminous submissions
containing many different arguments, had been pending at the same
time as numerous further proceedings concerning that plan, which had
temporarily led to the Liechtenstein authorities and courts facing a
heavy workload.
- The
Government further submitted, in particular, that the proceedings had
not been pending for an unreasonably long period of time before the
Constitutional Court, whose judges did not work full time. The
applicants had considerably delayed the proceedings by repeatedly
submitting observations the day before or on the day fixed for the
final deliberations and had not suffered any prejudice from the
proceedings’ duration as they had been aware that their
complaint had no prospects of success. Moreover, the adoption of the
final text of the judgment following a public hearing instead of
deliberations in camera had been more difficult.
2. The Court’s assessment
- 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court observes that, whereas the proceedings were conducted before
the Municipality of Triesenberg, the Liechtenstein Government and the
Administrative Court without undue delay, they were pending before
the Constitutional Court for more than four years and four months.
The Court accepts that the proceedings at issue, which concerned
numerous complaints in respect of a land development plan, were not
simple. It further agrees with the Government that the applicants,
represented by counsel, caused some delays in the proceedings by
submitting voluminous observations and requests only the day before
or on the day fixed for the final deliberations in camera of the
Constitutional Court, which, in the interest of a proper
administration of justice, led to the deliberations being adjourned
on two occasions.
- However,
the Court considers that the applicants’ conduct did not
justify the long overall duration of the proceedings before the
Constitutional Court. In particular, the proceedings were
unreasonably delayed following the public hearing, after which more
than one year and seven months elapsed before the judgment was
delivered in writing. The outcome of the proceedings, which were to
determine the use the applicants could make of a plot of land
belonging jointly to them and its value, must further be considered
to have been important to them. The Court also cannot but note in
this connection that the Constitutional Court itself considered, in
subsequent proceedings concerning a similar subject-matter and having
lasted almost exactly the same time before it, that the duration of
the proceedings had disregarded Article 6 § 1 (see paragraph 21
above).
- Having
regard to its case-law on the subject and to the foregoing
considerations, the Court finds that in the instant case the length
of the proceedings was excessive and failed to meet the “reasonable
time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. REMAINDER OF THE APPLICANTS’ COMPLAINTS
- The
applicants further complained under Article 6 that they had not had
access to an independent and impartial tribunal, in particular
because the land development plan of the Municipality of Triesenberg
had been adopted by a secret vote of its citizens. Relying on Article
6, read in conjunction with Article 1 of Protocol No. 1, the
applicants also argued that the Municipality’s land development
plan violated their right to use their property in that, in
particular, the legality of the land development plan and of the
procedure for its adoption had not been fully examined in the
domestic proceedings, but only tested for lack of arbitrariness.
- 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 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 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicants claimed 1,6 million euros (EUR) in compensation for damage
they claimed to have suffered by the fact that a state of uncertainty
about the status of their real property had persisted for almost ten
years and that they had been unable to use or dispose of that
property.
- The
Government contested these claims as unsubstantiated and argued that
there was no causal link between the alleged violations and the
damage allegedly sustained.
- The
Court considers that the applicants failed to substantiate any
pecuniary damage suffered and cannot discern any causal link between
the violation found and the pecuniary damage alleged; it therefore
rejects the claim in this respect. On the other hand, it considers
that the applicants must have sustained non-pecuniary damage. Ruling
on an equitable basis, it awards them jointly EUR 6,000 under that
head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicants, submitting some documentary evidence, also claimed a
total of EUR 34,113.80 for costs and expenses, including
EUR 20,735.40 in counsel’s fees incurred before the
domestic courts and EUR 13,378.40 for fees incurred before the Court.
- The
Government contested these claims, arguing that a maximum of CHF
11,974,80 of the costs could be considered as having been
substantiated.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
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 as the applicants failed to demonstrate that, and if so,
which additional costs and expenses they incurred as a result of the
protracted length of the proceedings before the Liechtenstein
Constitutional Court. It further considers it reasonable to award the
sum of EUR 2,000 for costs and expenses incurred in the proceedings
before the Court in relation to the violation found, plus any tax
that may be chargeable to the applicants.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months,
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicants, 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Isabelle Berro-Lefèvre
Deputy
Registrar President
