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 StephenPhillipsDeputy Section Registrar,
Having deliberated in private on 28 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  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.
2.  The Liechtenstein Government (“the Government”) were represented by their Agent, Ambassador D. Ospelt, Permanent Representative of Liechtenstein to the Council of Europe.
3.  On  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).
4.  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
5.  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
6.  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
7.  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.
8.  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
9.  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
10.  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.
11.  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
12.  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.
13.  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.
14.  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.
15.  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.
16.  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.
17.  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.
18.  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).
19.  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.
20.  On 20 December 2007 the Liechtenstein Constitutional Court’s judgment was served on the applicants’ counsel.
6.  Subsequent developments
21.  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
22.  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 ...”
23.  The Government contested that argument.
24.  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.
25.  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.
26.  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.
27.  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
28.  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.
29.  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.
30.  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.
31.  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
32.  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).
33.  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.
34.  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
35.  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).
36.  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.
37.  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).
38.  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.
39.  There has accordingly been a breach of Article 6 § 1.
II.  REMAINDER OF THE APPLICANTS’ COMPLAINTS
40.  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.
41.  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.
42.  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
43.  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
44.  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.
45.  The Government contested these claims as unsubstantiated and argued that there was no causal link between the alleged violations and the damage allegedly sustained.
46.  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
47.  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.
48.  The Government contested these claims, arguing that a maximum of CHF 11,974,80 of the costs could be considered as having been substantiated.
49.  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
50.  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
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  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;

4.  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