Liechtenstein und das völkerrecht / Liechtenstein and International Law || Entscheidung der...

Entscheidung der Europäischen Menschenrechtskommission über die Zulässigkeit einerBeschwerde gegen Liechtenstein wegen Verletzung der Meinungsäußerungsfreiheit vom 27.Mai 1997Source: Archiv des Völkerrechts, 36. Bd., 2. H., Liechtenstein und das völkerrecht /Liechtenstein and International Law (Juni 1998), pp. 218-228Published by: Mohr Siebeck GmbH & Co. KGStable URL: http://www.jstor.org/stable/40799088 .

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218 Entscheidungen

interpretieren. Dies bedeutet insbesondere, daß Art. 107 LV im Sinn von Art. 31 LV zu interpetieren ist, zumal Art. 31 im IV. Hauptstück der Verfassung über die allgemeinen Rechte und Pflichten der Landesangehö- rigen enthalten ist und dem Rechtsbetroffenen einen subjektiven Grund- rechtsanspruch einräumt. Somit gilt auch bei Art. 107 LV, daß Ausländer, denen ein Staatsvertrag die Gleichbehandlung mit liechtensteinischen Landesangehörigen im Bereich der öffentlichen Ämter einräumt, im liechtensteinischen Staatsdienst angestellt werden dürfen. Dies ergibt sich auch direkt aus den Worten „unbeschadet weitergehender Bestimmungen die- ser Verfassung" von Art. 107 LV, die also direkt auf Art. 31 Abs. 3 LV und damit auf Art. 31 Abs. 1 LV verweisen. Zudem sind „Ausnahmen mit Zustimmung des Landtages zulässig" (Art. 107 LV); solche Ausnahmen hat der Landtag durch seine Zustimmung zum Staatsvertrag, vorliegen- denfalls zum EWRA, gemäß Art. 8 Abs. 2 LV zugelassen.

Entscheidung der Europäischen Menschenrechtskommission über die Zulässigkeit einer Beschwerde gegen Liechtenstein wegen Verletzung der

Meinungsäußerungsfreiheit vom 27. Mai 1997 Auszug:

Facts The applicant, born in 1944, is a national of Liechtenstein and resident

in Balzers, Liechtenstein. When lodging his application, the applicant, a former member of the Liechtenstein Government, held the office of President of the Liechtenstein Administrative Court (Verwaltungsbe- schwerde-Instanz).

A. Particular circumstances of the case The facts of the case, as submitted by the parties, may be summarised as

follows. In 1992 a controversy arose between His Serene Highness Prince Hans-

Adam II and the Liechtenstein Government on political competences in connection with the plebiscite on the question of Liechtenstein's accessi- on to the European Economic Space. At the relevant time, the applicant was member of the Liechtenstein Government. Following an argument between the Prince and members of the Government at a meeting on 28 October 1992, the matter was settled on the basis of a common declaration by the Prince, the Diet (Landtag) and the Government.

* Quelle: Umdruck der Europäischen Menschenrechtskommission - AZ: Application 28396/95 by Herbert Wille against Liechtenstein.



Entscheidungen 219

On 16 February 1995, in the context of a series of lectures on questions of constitutional jurisdiction and fundamental rights, the applicant gave a public lecture at the Liechtenstein-Institut, a research institute, on the „Nature and Functions of the Liechtenstein Constitutional Court" („Wesen und Aufgaben des Staatsgerichtshofes"). In the course of the lecture, the applicant expressed the view that the Constitutional Court was competent to decide on the „interpretation of the Constitution in case of disagreement between the Prince (Government) and the Diet" („Ent- scheidung über die Auslegung der Verfassung bei einem Auslegungsstreit zwischen Fürst (Regierung) und Landtag").

On 17 February 1995 the newspaper „Liechtensteiner Volksblatt" published an article on the lecture given by the applicant, mentioning inter alia his views on the competence of the Constutitutional Court.

On 27 February 1995 the Prince addressed a letter to the applicant concerning the above lecture, as summarised in the article published in the „Liechtensteiner Volksblatt".

In his letter, the Prince noted the views expressed by the applicant on the competences of the Constitutional Court, in particular on its competence to decide on the „interpretation of the Constitution in case of disagreement between the Prince and the people" („Interpretationsgerichtshof bei unterschiedlichen Auffassungen zwischen Fürst und Volk"). The Prince recalled the political controversy of 1992 and that, at the meeting of 28 October 1992, the applicant had stated that he disagreed with parts of the Constitution and therefore did not to feel bound by the Con- stitution. The Prince continued that, having regard to the report in the

„Liechtensteiner Volksblatt", he had reason to believe that the applicant still did not consider himself bound by the Constitution and expressed views which clearly infringed the Constitution. The relevant provosions of the Constitution could not be understood as granting the Con- stitutional Court the competence to decide, as a court of interpretation, in case of a disagreement between the Prince and the people (Diet). The Prince concluded that, in his view, the applicant's attitude towards the Constitution made him unsuitable for public office. While not intending to get involved in a long public or private debate with the applicant, the Prince wished to inform him in good time that he would not appoint him again to a public office, should he be proposed by the Diet or any other body. The Prince finally expressed the hope that the applicant, for the remainder of his term of office as President of the Administrative Court, would abide by the Constitution and the laws.

By letter of 9 March 1995 the applicant informed the President of the Diet about the letter of 27 February 1995. He denied having ever made a statement to the effect that he did not consider himself bound by the Constitution or parts thereof. He further explained his research on the



220 Entscheidungen

competences of the Constitutional Court in constitutional matters. According to him, the expression of an opinion not shared by the Prince could not be regarded as failure to comply with the Constitution. However, taking into account the conclusions drawn by the Prince in the said letter, his office as President of the Administrative Court was called into question. The President of the Diet subsequently informed the applicant that the Diet had discussed the matter in camera and had unani- mously come to the conclusion that the applicant's office was not called into question an account of his legal opinions as stated in the context of his lecture.

On 20 March 1995 the applicant replied to the letter sent by the Prince on 27 February 1995, and enclosed a copy of his letter to the President of the Diet. He explained in particular that it was his conviction as a lawyer that his statements on the occasion of the lecture of 16 February 1995, namely that the Constitutional Court was competent to decided on the interpretation of the Constitution in case of dispute between the Prince and the people (Diet), were correct and did not infringe the Constitution. The applicant concluded that the declaration made by the Prince that he did not intend to appoint the applicant to a public office amounted to an interference with his rights to freedom of opinion and to freedom of science, as guaranteed under the Constitution and the European Convention on Human Rights. It further called the constitutional right to equal accès to public office into question and constituted an attempt to interfere with judicial independence.

In his letter in reply dated 4 April 1995, the Prince noted that the applicant had distributed the letter of 27 February 1995 to a large group of persons. The Prince stated that it had been his intention to avoid a public dis- cussion in informing the applicant, in a personal letter, about his decussi- on, as early as possible. He considered that a long debate between then on the question of the applicant's qualification for the office as judge was inappropriate, as the applicant had remained in office and his criticism had not been directed at the decisions of the Administrative Court, but against the applicant's general attitude towards the Constitution.

The Prince added that it was left to his discretion whether or not to appoint a candidate for public office and that he was not obliged to give any reasons for such a decision. However, as he had known the applicant for many years he had considered it appropriate to state the reasons for his decision regarding the applicant. Moreover, his decision no longer to appoint the applicant, on account of his attitude in the past as well as the opinion expressed by him, for the office of President of one of the highest Courts did not amount to an interference with the applicant's rights to freedom of expression and freedom of science. All citizens were free to propose and to plead for amendmets to constitutional or other legal provisions. However, the applicant, during his term of office as member of



Entscheidungen 221

the Government and his lecture, had not availed himself of such constitutional and democratic means, but had simply ignored those parts of the Constitution with which he disagreed. The Prince further explained that the relevant constitutional provision,

namely Article 112 of the Constitution, concerned the competence of the Constitutional Court to decide on the interpretation of the Constitution in case of dispute between the Government and the Diet. Confusing the terms „Government" and „Diet" with „Prince" or „people", as done by the applicant, would undermine the rule of law. As Head of State, he was obliged to safeguard the constitutional order and the democratic rights of the people. He would fail to observe his duties if he were to appoint to one of the highest judicial offices a person whom, owing to his attitude and the statements he had made, he had to regard as not being committed to upholding the Constitution.

On 14 April 1997 the Liechtenstein Diet decided to nominate the applicant again as President of the Administrative Court. By letter of 17 April 1997, addressed to the President of the Diet, the Prince did not accept the proposed appointment.

B. Relevant domestic law The Principality of Liechtenstein is a constitutional, hereditary monar-

chy upon democratic and parliamentary basis; the power of the State is inherent in and emanates from the Prince and the people and shall be exercised by both of them in accordance with the provisions of the Constitution (Article 2 of the Constitution).

Chapter II of the Constitution is entitled „The Prince". In its Article 7, it stipulates that the Prince is the head of the State and exercises his souv- ereign authority in conformity with the provisions of the Constitution and of the other laws; and that his person is sacred and inviolable. Further competences are laid down in Article 8 to 13. According to Article 11, the Prince appoints the State officials, in conformity with the provisions of the Constitution (cf., Article 79 concerning the Head of the Government, the Government Councillors and their substitutes; Article 97 concerning the President of the Administrative Court and his deputy; Article 99, in conjunction with the Court Organisation Act, concerning the first instance judges; Article 102 para. 3 concerning the members of the High Court and the Supreme Court of Justice). By letter of 28 April 1997, the Prince informed the Liechtenstein Government that he charged them to exercise within their competence the appointment of State officials in 1997, which, pursuant to Article 11 of the Constitution, have to be appointed by the Prince.

Chapter IV of the Constitution contains the general rights and obligations citizens of the Principality. Article 31 stipulates the equality of all citizens before the law, and also provides that the public offices are equal- ly open to them, subject to observance of the legal regulations.



222 Entscheidungen

Pursuant to Article 97 of the Constitution, all decisions or orders by the Government are subject to appeal befor the Administrative Court. The Administrative Court consists of a president trained in the law, who is appointed by the Prince on the proposal of the Diet, of his deputy, and of four appeal judges and their substitutes elected by the Diet. The president and his deputy must be nationals of Liechtenstein. Their term of office coincides with that of the Diet, and ends at such a time as they are repla- ced.

According to Article 104 of the Constitution, the Constitutional Court is, inter alia, competent to protect rights accorded by the Constitution. S. 23 of the Constitutional Court Act (Staatsgerichtshofgesetz) provides that decisions of a court or of an administrative authority may be chal- lenged before the Constitutional Court, alleging that there has been an infringement of constitutional rights or of rights guaranteed under the European Convention for the Protection of Human Rights and Funda- mental Freedoms.

Complaints 1. The applicant complains under Article 10 of the Convention that the

Prince, having regard to the information contained in his letter of 27 Fe- bruary 1995 and further explained in his letter of 4 April 1995, violated his right to freedom of expression. In this respect the applicant submits that the decision taken by the Prince, namely not to appoint him for any public office, amounts to a sanction for statements in the course of the applicant's lecture on 16 February 1995. According to the applicant, this interference cannot be justified under Article 10 para. 2 of the Convention.

2. The applicant further complains under Article 6 para. 1 of the Convention that he has no accès to a tribunal to defend his reputation and seek protection of his personal rights, including his occupation and professional career, against the statements by the Prince. In this respect, the applicant also invokes, as a subsidiary means, Article 13, taken in conjunction with Article 10, of the Convention.

3. Moreover, the applicant considers that, because of his opinion regarding a particular legal issue, he is prejudiced in his access to any public office. He relies on Article 14, taken in conjunction with Article 10, of the Convention.

The law 1. The applicant complains about a breach of his right to freedom of

expression, as guaranteed under Article 10 of the Convention. Article 10, as far as relevant, provides as follows: „1. Everyone has the right to freedom of expression. This right shall include freedom to

hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...



Entscheidungen 223

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial inte- grity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosu- re of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

a. The Government submit that the announcement made by the Prince with respect to his refusal to nominate the applicant to a public office for which the Prince has the power of nomination was a private communica- tion to him and did not constitute an exercise of „jurisdiction" of the Principality within the meaning of Article 1 of the Convention. They explain that the Liechtenstein Constitution combines elements of monarchy and elements of democracy. Thus, the sovereignty of the Principality arises out of the equal sources: the Prince and the People. The relations- hip between these two sources of sovereignty is, compared to other constitutional systems in Europe, sui generis. Insofar as the Prince has the power to engage in a sovereign act, his action requires the countersignature of the Head of the Government in order to make it legally binding. In the present case, there was no such countersignature. The Gouvern- ment also note that under the Liechtenstein constitutional system, the Prince may, without giving reasons, refuse to appoint a person to public office by formal rejection or inaction, and that any such veto is not subject to review.

The applicant submits that the decision of the Prince not to appoint him to public office was not taken in a private capacitiy, but in the exercise of constitutional powers of the Prince.

The Commission recalls that the responsibility of a State under the Convention may arise for acts of all its organs, agents and servants. As in connection with international law generally, the acts of persons acting in an official capacity are imputed to the State. In particular, the obligations of a Contracting Party under the Convention can be violated by a person exercising an official function vested in him, even where his acts are per- formed without express authorisation and even outside or against in- structions (cf. Ireland v. the United Kingdom, Comm. Report 25. 1. 76, Yearbook 19, p. 512, at 758).

The Commission notes at the outset that the Principality of Liechten- stein is a constitutional, hereditary monarchy upon democratic and parliamentary basis; the power of the State is inherent in and emanates from the Prince and the people and shall be exercised by both of them in accordance with the provisions of the Constitution (Article 2 of the Constitution). Chapter II of the Constitution specifies various sovereign powers of the Prince, inter alia, the appointment of the State officials (Article 11 of the Constitution).

In the present case, on 27 February 1995 the Prince adressed a letter to the applicant concerning the public lecture given by the applicant on



224 Entscheidungen

16 February 1995. In his letter, the Prince disagreed with the views expressed by the applicant in his lecture, in particular as far as the competences of the Constitutional Court were concerned. He further announced his decision that he would not appoint the applicant to public office in future. He confirmed his position in his second letter of 4 April 1995, and he in fact refused to appoint the applicant for a further term of office as President of the Administrative Court, when proposed by the Liechten- stein Diet in April 1995.

The Commission, having regard to the terms of the letter of 27 Fe- bruary 1995, considers that the Prince hade come to a resolution regarding his future conduct towards the applicant, which related to the exercise of one of his sovereign powers, i. e. his power to appoint State officials. The said letter was also expressly addressed to the applicant as then President of the Administrative Court, though sent to his place of residence. Having regard to all circumstances, the Commission finds that the decision taken by the Prince not to appoint the applicant to public office in future, as announced in the above letter, constitutes a sovereign act imputable to the Principality of Liechtenstein.

It follows that the applicant's complaint cannot be regarded as incom- patible, ratione personae, with the provisions of the Convention.

b. The Government, referring to the Court's case-law, consider that Article 10 does not apply when the central issue - as in the instant case - is a question of accès to public office.

According to the applicant, the decision complained of was taken outside a specific appointment procedure and did not, therefore, raise an issue of accès to the civil service. Rather, the Prince's general refusal to appoint him again to public office, irrespective of his personal capabilities, was a ban from his profession and the direct consequence of his statements made in the course of the lecture at the Liechtenstein Institute.

The Commission recalls that the right of access to the civil service was deliberately omitted from the Convention. Consequently, the refusal to appoint a person as a civil servant cannot as such provide the basis for a complaint under the Convention. This does not mean, however, that in other respects civil servants fall outside the scope of the Convention. In Article 1 and 14, the Convention stipulates that „everyone within [the] jurisdiction" of the Contracting States must enjoy the rights and freedoms in Section I „without discrimination on any ground" (cf. Eur. Court HR, Glasenapp and Kosiek v. Germany judgments of 28 August 1986, Series A nos. 104, p. 26, para. 49, and 105, p. 20, para. 35; Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 22, para 43).

The present case relates to the applicant's complaint under Article 10 of the Convention that, on account of the views expressed by him in the course of a public lecture at the Liechtenstein-Institute on issues of constitutional law, the Prince, as announced in his letter of 27 February 1995, decided not appoint the applicant to public office in future.



Entscheidungen 225

Such a complaint does not fall „clearly outside the provisions of the Convention" (cf. mutatis mutandis, Eur. Court HR, Glasenapp and Kosiek v. Germany judgments, op. cit., p. 23, para. 41, and p. 19, para. 32). The fact that the right of accès to or continued employment in the public service is not one of the rights or freedoms guaranteed by the Convention and its Protocols cannot restrict the scope of operation and the protection of these instruments in respect of rights which they do guarantee, and cannot prevent the Commission from investigating whether the acts complained of amounted to a violation with applicant's rights guaranteed by Article 10 para. 1 (No. 9228/80, Dec. 16.12.82, D.R. 30, p. 132; No. 9704/82, Dec. 16.12.82, D.R. 30, p. 243).

It follows that the applicant's complaint cannot be regarded as incom- patible, ratione materiae, with the provisions of the Convention and particular with Article 10 thereof.

c. The Government also maintain that the applicant failed to comply with Article 26 of the Convention as he failed to avail himself of any domestic remedy.

The Government consider in particular that, pursuant to Article 104 of the Constitution and S. 23 para. 1 of the Constitutional Court Act, the Constitutional Court is competent to examine complaints about a judicial decision or about a decision taken by an administrative authority, alleging an infringement of the rights guaranteed by the Convention. They submit that the Constitutional Court may decide questions of its own jurisdiction. In their view, even if the Prince were not expressly mentioned in these provisions, the question of the Constitutional Court's competence was open and it was, therefore, mandatory for the applicant to attempt first to seek redress in the Constitutional Court. In this respect, the Government refer to a Constitutional Court decision of 21 June 1993 where judicial review of a practice of the Prince was exercised.

In the submission of the Government, mere doubts as to the prospects of success of these proceedings could not absolve the applicant from his obligation to exhaust the domestic remedies, or to try to exhaust them. In this context, the Government emphasize that not only the case-law of the Convention organs determines the scope and content of Article 26 which refers to the „generally recognised rules of international law". Accor- dingly, in the interpretation of Article 26, regard must also be had to judgments of the International Court of Justice inasmuch as they stand for general principles of international law. However, in the case-law of the Hague Court a contention that the rule as to the exhaustion of local remedies does not apply in a particular case because the domestic law affords no means of redress could only be accepted if it had been clearly shown that the local courts had no jurisdiction. In this respect, the Government rely on the judgment of the Permanent Court of International Justice in the Panavezys-Saldutiskis Railways case of 1938 (Series A/B no. 76).



226 Entscheidungen

The applicant submits that he did not fail to fulfil the obligation to exhaust all domestic remedies, as required by Article 26 of the Convention. He considers that the remedy indicated by the Government was not sufficiently certain, in practice as well as in referred to by the Government was taken in the context of proceedings with a view to challenging an election, a remedy provided for under the Liechtenstein Electoral Act.

Under Article 26 of the Convention, the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Commission recalls that the supervision machinery set up by the Convention is subsidiary to the national human rights protection systems. That principle is reflected in the rule set forth in Article 26, which „dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right therough their own legal systems" (cf. Eur. Court HR, Sadik v. Greece judgment of 15 November 1996, para. 30, to be published in Reports of Judgment and Decisions 1996, with reference to the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 29, para. 50).

Under Article 26 normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (cf. Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996, paras. 66, 67, to be published in Reports of Judgments and Decisions 1996).

In the area of the exhaustion of domestic remedies there is a distributi- on of the burden proof. It is incumbent on the Government claiming non- exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (cf. Eur. Court HR, Akdivar v. Turkey judgment, op. cit., para. 68 with further references).

In its judgment in the case of Akdivar v. Turkey, the Court emphasised that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up (Eur. Court HR, Akdivar v. Turkey judgment, op. cit. para. 69; Sadik v. Greece judgment, loc. cit.).



Entscheidungen 227

The Commission notes that S. 23 of the Constitutional Court Act provides for a complaint with the Constitutional Court, alleging an infringement of constitutional and Convention rights, against decisions taken by the courts or by administrative authorities. The Commission considers that, in the light of the wording of this provision and in the absence of sufficiently relevant precedents in the case-law of the Constitutional Court, the Government failed to show the existence of an effective remedy which the applicant ought to have attempted.

It follows that the applicant's complaint about an infringement of his right to freedom of expression cannot be rejected for non-exhaustion of domestic remedies.

d. The Government submit that, sine the Prince's announcement could not be equated to a sanction, it did not constitute an interference with the applicant's rights under Article 10 para. 1 of the Convention. They further explain that beyond a certain level in the public service, dissenting from those who are free to appoint, re-appoint or dismiss high-ranking officials, including (high-ranking) judges, carries a certain risk, a risk known to all concerned and so far not regarded as a violation of human rights.

The applicant contends that the Prince's decision constitutes a sanction for the statements which he made in the course of the lecture of 16 February 1995. This interference with his right to freedom of expression could not be justified under paragraph 2 of Article 10.

The Commission finds that the applicant's complaint about a breach of his right to freedom of expression raises serious issues of such complexi- ty that they require an examination of the merits. This part of the application cannot, therefore, be considered manifestly ill-founded, and there is no other ground on which it could be declared inadmissible.

2. The applicant further complains under Article 6 para. 1 of the Convention that he has no access to a tribunal to defend his reputation and seek protection of his personal rights, including his occupation and professional career, against the statements by the Prince. In this respect, the applicant also invokes, as a subsidary means, Article 13, taken in conjunction with Article 10, of the Convention.

Article 6 para. 1 secures that ,,[i]n the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal". Article 13 provides that „everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".

According to the Government, the remedies suggested in the context of its submissions under Article 26 of the Convention provide an effective legal protection for the purpose of Article 13.

The applicant disputes the Government's view.



228 Entscheidungen

The Commission, having regard to its above considerations under Article 10 of the Convention, considers that the present aspect of the application cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2. Accordingly, it reserves also this issues for an examination as to its merits.

3. Moreover, the applicant considers that, because of his opinion regarding a particular legal issue, he is prejudiced in his access to any public office. He relies on Article 14, taken in conjunction with Article 10, of the Convention.

According to Article 14, „the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, pro- perty, birth or other status".

The Commission considers that this complaint is closely related to the applicant's complaint under Article 10 and that it must therefore also be declared admissible.

For these reasons, the Commission, by a majority, declares the application admissible, without prejudging the merits of

the case.



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