Constitutional Court decided in favour of individual complaint

The Constitutional Court in Liechtenstein recently decided in favour of an individual complaint brought forward by Schwärzler Attorneys at Law and stated therein that summons relating to judicial assistance in criminal law proceedings also have to be served to the legal representative in Liechtenstein of the addressed person abroad. This is also the case when in the concrete proceedings the legal representative has not been declared as domestic address for service in the sense of Art 58b Abs 1 Z 2 RHG. 

According to Article 58b Abs 1 Z 2 RHG summons and decisions of the judicial assistance court addressing persons abroad have to be served to their address for service in Liechtenstein.

In the present case a decision addressing persons abroad had not been served to their declared legal representative in Liechtenstein. An appeal against this decision had afterwards been rejected by the High Court as belated. The legal representative in question had already acted for the addressees of the decision domiciled abroad in a number of proceedings at the same court. For the most part these proceedings had even been handled by the same judge. The competent judge therefore even had positive knowledge of the representation.

In spite of these facts the Supreme Court (OGH 25.05.2012, 12 RS.2012.47; LES 2012, 146) had argued that a domestic service address does not have to be considered only because the address is known to the court from other related judicial assistance proceedings or from domestic criminal proceedings. According to the Court it was also irrelevant if these proceedings were handled by the same judge. Instead a declaration of a domestic address for service was required for the concrete judicial assistance in criminal law proceedings.

Following the complaint of S-Law to the Constitutional Court (StGH 2012/98) it has now been pointed out that the interpretation of the Supreme Court had been contrary to the prohibition of arbitrariness and is therefore unconstitutional. The Constitutional Court found especially the appellate courts’ interpretation of law excessively formalistic that in the present case the Appellants had disposed of a domestic address for service in the domestic criminal proceedings as well as in former judicial assistance proceedings but not for the newly initiated judicial assistance proceedings although they were related to the same circumstances of the case as the other proceedings. An interpretation of Art 58b Abs 1 Z 2 RHG consistent with the Constitution would therefore stand against a restrictive handling of the requirement of a domestic address for service.

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