EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28396/95

Herbert Wille

against

Liechtenstein

REPORT OF THE COMMISSION

(adopted on 17 September 1998)

TABLE OF CONTENTS

                Page

I. INTRODUCTION

            (paras. 1-16) .......................................... 1

A. The application

                        (paras. 2-4) ...................................... 1

B. The proceedings

                        (paras. 5-11) ..................................... 1

C. The present Report

                        (paras. 12-16) .................................... 2

II. ESTABLISHMENT OF THE FACTS

            (paras. 17-42) ......................................... 3

A. The particular circumstances of the case

                        (paras. 17-33 ) ................................... 3

B. Relevant domestic law

                        (paras. 34-42) .................................... 8

III. OPINION OF THE COMMISSION

            (paras. 43-110) ........................................ 11

A. Complaints declared admissible

                        (para. 43) ...................................... 11

B. Points at issue

                        (para. 44) ...................................... 11

C. As regards Article 10 of the Convention

                        (paras. 45-88) ................................... 11

a. Whether there was an interference

                            (paras. 47-61) ................................. 12

b. Whether the interference was justified

                            (paras. 62-87) ................................. 14

CONCLUSION

                        (para. 88) ...................................... 18

D. As regards Articles 6 and 13 of the Convention

                        (paras. 89-101) .................................. 19

a. As regards Article 6 para. 1 of the Convention

                            (para. 93-96) .................................. 19

CONCLUSION

                        (para. 97) ...................................... 20

b. As regards Article 13 of the Convention

                            (paras. 98-101) ................................ 20

CONCLUSION

                        (para. 102) ..................................... 20

E. As regards Article 14 of the Convention

                        (paras. 103-105) ................................. 20

CONCLUSION

                        (para. 106) ..................................... 21

F. Recapitulation

                        (paras. 107-110) ................................. 21

DISSENTING OPINION OF MR F. MARTINEZ

JOINED BY MR K. HERNDL ................................... 22

DISSENTING OPINION OF MRS J. LIDDY ......................... 24

DISSENTING OPINION OF MR B. CONFORTI ...................... 25

APPENDIX : DECISION OF THE COMMISSION AS TO THE

                       ADMISSIBILITY OF THE APPLICATION ................ 26

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Liechtenstein citizen, born in 1944 and resident in Balzers. He was represented before the Commission by Mr. A. Kley-Struller, a lawyer practising in St. Gallen, Switzerland, and by Mr. W.E. Seeger, a lawyer practising in Schaan, Liechtenstein.

3. The application is directed against Liechtenstein. The respondent Government were represented by Mr. N. Marxer, Head of the Legal Division of the respondent Government, and by Mr. H. Golsong, Attorney, as Acting Agent.

4. The case concerns the applicant's complaint that, on account of the views expressed by him in the course of a public lecture at the Liechtenstein-Institut on issues of constitutional law, the monarch of Liechtenstein, His Serene Highness Prince Hans-Adam II, as announced in a letter to the applicant, decided not appoint the applicant to public office in future. In this context, the applicant further complains about lack of access to a tribunal and about discrimination.  The applicant invokes Articles 6, 10, 13 and 14 of the Convention.

B. The proceedings

5. The application was introduced on 25 August and registered on 31 August 1995.

6. On 26 January 1996 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 2 June 1996. The applicant replied on 11 September 1996.

8. On 3 December 1996 the Commission decided to hold a hearing of the parties. The hearing was held on 27 May 1997. The applicant attended the hearing in person and was assisted by Mr. A. Kley-Struller and Mr. W.E. Seeger as advisers. The respondent Government were represented by Mr. N. Marxer, Head of the Legal Division of the respondent Government, Mr. H. Golsong, Attorney, as Acting Agent, Mr. T. Stein, Professor at Saarbrücken University, and Mr. M. Walker, Attorney, as Counsels.

9. On 27 May 1997 the Commission declared the application admissible.

10. The text of the Commission's decision on admissibility was sent to the parties in July 1997 and they were invited to submit further observations on the merits as they wished. The Government submitted observations on 15 October 1997, to which the applicant replied on 20 February 1998.  The Government filed a rebuttal to the applicant's reply on 7 May 1998, to which the applicant replied on 4 June 1998. In their submissions of 7 May 1998, the Government requested the Commission to apply Article 29 of the Convention and to declare the application inadmissible for abuse of the right of petition pursuant to Article 27 para. 2 of the Convention.  The Commission noted that the conditions required for the application of Article 29 were not met.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

M.P. PELLONPÄÄ

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

N. BRATZA

A. PERENIČ

P. LORENZEN

K. HERNDL

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

Mr A. ARABADJIEV

13. The text of this Report was adopted on 8 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. In 1992 a controversy arose between His Serene Highness Prince Hans-Adam II of Liechtenstein (hereafter "the Prince") and the Liechtenstein Government on political competences in connection with the plebiscite on the question of Liechtenstein's accession to the European Economic Area.  At the relevant time, the applicant was a 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.

18. Following elections and the constitution of the new Diet in May 1993, discussions on various constitutional issues took place between the Prince and the Government, when the applicant no longer held a Government office.  The applicant had not stood for re-election in May 1993, and he was appointed President of the Liechtenstein Administrative Court (Verwaltungsbeschwerdeinstanz) in December 1993.

19. 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" ("Entscheidung über die Auslegung der Verfassung bei einem Auslegungsstreit zwischen Fürst (Regierung) und Landtag").

20. 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 Constitutional Court. 

21. 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".

22. The letter, written on heraldic letter paper, read as follows:

(German)

"Schloss Vaduz, 27. Februar 1995

Herrn Dr. Herbert Wille

Präsident der Fürstlich Liecht.

Verwaltungsbeschwerdeinstanz

Rietle 22

9496 Balzers

Sehr geehrter Herr Präsident

Mit Erstaunen habe ich im Liechtensteiner Volksblatt vom 17. Februar den Bericht über Ihren Vortrag am Liechtenstein Institut zum Thema 'Wesen und Aufgaben des Staatsgerichtshofes' gelesen. Ich nehme an, dass Ihre Aussagen über die Zuständigkeitsbereiche des Staatsgerichtshofes in diesem Bericht korrekt wiedergegeben wurden, insbesondere jene, in der Sie feststellen, dass der Staatsgerichtshof als Interpretations-gerichtshof bei unterschiedlichen Auffassungen zwischen Fürst und Volk angerufen werden könne.

Sie werden sich bestimmt noch an die Auseinandersetzung zwischen der Regierung und mir vor dem 28. Oktober 1992 erinnern, bei der Sie als stellvertretender Regierungschef anwesend waren. Ich habe damals bei der Aussprache auf Schloss Vaduz die Regierung darauf aufmerksam gemacht, dass sie sich nicht an die Verfassung hält, und die entsprechenden Artikel aus der Verfassung der Regierung vorgelesen. Sie haben dazumal sinngemäss geantwortet, dass Sie mit diesen Teilen der Verfassung sowieso nicht einverstanden seien, und sich deshalb auch nicht an die Verfassung gebunden fühlten. Nachdem die anderen Regierungsmitglieder Ihrer Aussage nicht widersprochen haben, musste ich davon ausgehen, dass die gesamte Regierung der Auffassung ist, dass sich zwar die beiden Souveräne, Volk und Fürst, an Verfassung und Gesetze zu halten haben, nicht aber die Regierungsmitglieder, welche einen Eid auf die Verfassung abgelegt haben.

Ich habe Ihre damalige Aussage sowie die Haltung der Regierung als unglaubliche Arroganz empfunden, und deshalb habe ich der Regierung in sehr klaren Worten mitgeteilt, dass sie mein Vertrauen verloren hat. Beim Kompromiss, der glücklicherweise etwas später zwischen Regierung und Landtag auf der einen Seite und mir auf der anderen Seite erzielt wurde, habe ich der Regierung wieder mein Vertrauen ausgesprochen. Ich habe dies auch in der Hoffnung getan, dass die einzelnen Regierungsmitglieder ihre unentschuldbare Haltung gegenüber unserer Verfassung eingesehen haben und die Verfassung für sie wieder als bindend anerkennen. Ebenso wie ich Herrn Brunhart bei einem Sieg seiner Partei wiederum zum Regierungschef ernannt hätte, so habe ich Sie über Vorschlag des Landtages zum Präsidenten der Verwaltungs-beschwerdeinstanz ernannt.

Leider muss ich aufgrund des Berichtes im Liechtensteiner Volksblatt nun feststellen, dass Sie sich nach wie vor nicht an die Verfassung gebunden fühlen und Auffassungen vertreten, die eindeutig gegen Sinn und Wortlaut der Verfassung verstossen. Jeder wird beim Lesen der einschlägigen Verfassungsartikel feststellen können, dass der Staatsgerichtshof eben nicht Interpretationsgerichtshof bei unterschiedlichen Auffassungen zwischen Fürst und Volk (Landtag) ist. In meinen Augen sind Sie, Herr Dr. Wille, aufgrund Ihrer Haltung gegenüber der Verfassung ungeeignet für ein öffentliches Amt. Ich habe nicht die Absicht, mich mit Ihnen öffentlich oder privat in eine lange Auseinandersetzung einzulassen, aber ich möchte Ihnen rechtzeitig mitteilen, dass ich Sie nicht mehr für ein öffentliches Amt

ernennen werde, sollten Sie mir vom Landtag oder sonst irgendeinem Gremium vorgeschlagen werden. Es verbleibt mir die Hoffnung, dass Sie sich während des Restes Ihrer Amtszeit als Präsident der Verwaltungsbeschwerdeinstanz in Ihren Urteilen an Verfassung und Gesetze halten.

Mit vorzüglicher Hochachtung

Hans-Adam II.

Fürst von Liechtenstein"

(Translation)

"Vaduz Castle, 27 February 1995

Dr Herbert Wille

President of the Liechtenstein

Administrative Court

Rietle 22

9496 Balzers

Sir,

I was astonished to read the report in the 17 February issue of the Liechtensteiner Volksblatt on your lecture on the theme of the 'Nature and functions of the Liechtenstein Constitutional Court. I assume that the statements you made on the Court's areas of responsibility have been correctly reproduced in this report, in particular the comment that the Constitutional Court can, as a court that interprets the law, be appealed to in the event of a disagreement between the Prince and the people.

You will doubtless remember the discussion between the Government and me in the period before 28 October 1992, at which you were present as deputy head of Government. I drew the Government's attention during this exchange of views at Vaduz Castle to the fact that it was not abiding by the Constitution and read out the relevant Articles thereof. You replied that you did not agree (or words to that effect) with these parts of the Constitution in any case and that you therefore did not consider yourself bound by it. Since the other members of the Government did not contradict you, I was forced to assume that the entire Government was of the opinion that the two bodies that hold supreme power, the people and the Prince, must observe the Constitution and the ordinary laws but not the members of the Government, who have sworn an oath of allegiance to the Constitution.

I considered your statement at that time and the Government's attitude to be incredibly arrogant and therefore informed the Government in no uncertain terms that it had lost my confidence. Following the compromise that was fortunately reached a little later between the Government and the Diet, on the one hand, and myself, on the other, I declared that I once again had confidence in the Government, doing so in the hope that individual members had realised that they had taken up an inexcusable position in relation to our Constitution and now recognised that they were bound by it. Like I would have appointed Mr Brunhart head of Government, had his party won the election, I appointed you President of the Administrative Court on the Diet's recommendation.

Unfortunately, I had to realise following the publication of the report in the Liechtensteiner Volksblatt that you still do not consider yourself bound by the Constitution and hold views that are clearly in violation of both the spirit and the letter thereof. Anyone reading the relevant Articles of the Constitution will be able to establish that the Constitutional Court has no competence to decide as a court of interpretation in the event of a disagreement between the Prince and the People (the Diet). In my eyes your attitude, Dr Wille, makes you unsuitable for public office. I do not intend to get involved in a long public or private debate with you, but I should like to inform you in good time that I shall not appoint you again to a public office should you be proposed by the Diet or any other body. I only hope that in your judgments as President of the Administrative Court you will abide by the Constitution and the ordinary laws for the rest of your period of office.

Yours sincerely,

Hans-Adam II

Prince of Liechtenstein"

23. 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 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 a 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 unanimously come to the conclusion that the applicant's office was not called into question on account of his legal opinions as stated in the context of his lecture.

24. 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 decide 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 thought, as guaranteed under the Constitution and the European Convention on Human Rights.  It further called into question the constitutional right to equal access to public office and constituted an attempt to interfere with judicial independence.

25. 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 discussion in informing the applicant, in a personal letter, about his decision as early as possible.  He considered that a long debate between them 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.

26. 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 to the office of President of one of the highest Courts, on account of his attitude in the past as well as the opinions expressed by him,  did not amount to an interference with the applicant's rights to freedom of expression and to freedom of thought.  All citizens were free to propose and to plead for amendments to constitutional or other legal provisions.  However, the applicant, during his term of office as a member of the Government and in 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.

27. 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 the applicant had done,  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.

28. On 2 June 1995 the Prince addressed an open letter to the applicant, President of the Administrative Court, which was published in Liechtenstein newspapers.  The Prince noted that the applicant had made at least part of the Prince's letter of 27 February 1995 publicly known.  As this had given rise to various comments, the Prince considered it necessary to explain his point of view in an open letter.

29. In his opinion, in a democratic constitutional State (demokratischer Rechtsstaat), a distinction had to be drawn between  freedom of expression and the means used by an individual for imposing his views in such a society.  In the latter respect, the individual should respect the rules defined in the Constitution and other statutory provisions.  The Prince further stated that it was the right of the applicant, in his position as a judge, to express the opinion that the monarchy was no longer opportune; that Article 7 of the Constitution should be amended; that the Prince should be subjected to the jurisdiction of the Liechtenstein judiciary and the Liechtenstein Constitutional Court be given supplementary competences.  However, the applicant was not entitled to place himself above the existing Constitution or incite the Constitutional Court to lay claim to competences which were not vested in it in the Constitution.  The Prince considered that the applicant, having regard to his education and professional experience, knew that the terms "people" ("Volk"), "Diet" ("Landtag"), "Government" ("Regierung") and "Prince" ("Fürst") and their respective rights and obligations were clearly defined in the Constitution.  The applicant's contention that these terms were interchangeable would jeopardise the Constitution and the constitutional State as a whole.

30. The Prince also made reference to the political events in autumn 1992 and, lastly, he stated that, on the basis of the article in a Liechtenstein newspaper of 17 February 1995, he was forced to conclude that the applicant continued to have the intention to place himself above the Liechtenstein Constitution.  He explained that he had therefore intended to inform the applicant, in a personal letter and as early as possible, about his decision not to appoint him to public office in future.

31. In spring 1997 the applicant's term of office as President of the Administrative Court expired.  On 14 April 1997 the Liechtenstein Diet decided to propose the applicant again as President of the Administrative Court.

32. By letter of 17 April 1997, addressed to the President of the Diet, the Prince did not accept the proposed appointment.  He explained that, considering his experiences with the applicant, he had become convinced that the applicant did not feel bound by the Liechtenstein Constitution.  In these circumstances, he would violate his duties as Head of State if he were to appoint the applicant as President of the Administrative Court.  The Prince further stated that the applicant,  on account of his other professional qualifications, made important contributions as a judge of the Administrative Court and that he (the Prince) could therefore have some understanding for the proposal made.  If the Diet did not share his doubts regarding the applicant, it could elect him as associate judge of the Administrative Court.

33. The applicant is currently employed by the Liechtenstein-Institut.

B. Relevant domestic law

34. The Principality of Liechtenstein 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 of 24 October 1921).

35. 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 sovereign 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 Articles 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, who, pursuant to Article 11 of the Constitution, have to be appointed by the Prince.

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

37. Pursuant to Article 97 of the Constitution, all decisions or orders by the Government are subject to appeal before the Administrative Court.  The Administrative Court consists of a President trained in the law, and of his Deputy,  who are appointed by the Prince on the proposal of the Diet, and of four appeal judges and their substitutes, who are 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 time as they are replaced.

38. 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 (Staats-gerichtshofgesetz) provides that decisions of a court or of an administrative authority may be challenged 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 Fundamental Freedoms.

39. Pursuant to Article 105 of the Constitution, in conjunction with S. 4 of the Constitutional Court Act, the judges of the Constitutional Court are elected by the Diet; the election of the President and the Deputy President are subject to confirmation by the Prince.

40. Article 112 of the Constitution reads as follows:

(German)

"Wenn über die Auslegung einzelner Bestimmungen der Verfassung Zweifel entstehen und nicht durch Übereinkunft zwischen der Regierung und dem Landtage beseitigt werden können, so hat hierüber der Staatsgerichtshof zu entscheiden."

(Translation)

"If doubts arise as to the interpretation of specific provisions of the Constitution and cannot be dispelled on the basis of an agreement between the Government and the Diet, the Constitutional Court is called upon to decide on the matter."

41. In 1991 the Liechtenstein Government introduced a bill in Parliament with the object of amending the Constitutional Court Act of 1925.  In their comments on the provision regarding the Constitutional Court's competence to decide on the interpretation of specific provisions of the Constitution, the Government explained, inter alia, their views on the wording and purpose of Article 112 of the Constitution and in particular on the term "Government" which should be understood as referring to the Prince.  In the preparatory stage, the Prince, in a letter addressed to the applicant who held the office of Deputy Head of the then Liechtenstein Government, had stated his disagreement with the proposed interpretation.  The applicant explained the bill in Parliament when it received its first reading in April 1992.  In the course of the discussions, the President of the Parliament questioned the interpretation of Article 112 of the Constitution, as contained in the Government's comments.  The bill was passed by the Diet on 11 November 1992; however, the Prince failed to sign it so that it did not enter into force.

42. Under S. 20 of the Liechtenstein Court Organisation Act (Gerichtsorganisations-Gesetz, LGBL 1922 Nr. 16), judges are required to swear an oath, including the duties of loyalty to the Prince and of obedience to the laws and the Constitution.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

43. The Commission has declared admissible the applicant's complaints:

- that his right to freedom of expression had been violated;

- that he had not had access to a tribunal for the protection of his professional reputation;

- that he had not had access to a remedy before a national authority;

- that he had been discriminated against on account of his legal opinion.

B. Points at issue

44. Accordingly, the points at issue are:

- whether there has been a violation of Article 10 of the Convention;

- whether there has been a violation of Article 6 para. 1 of the Convention;

- whether there has been a violation of Article 13, in conjunction with Article 10, of the Convention;

- whether there has been a violation of Article 14, in conjunction with Article 10, of the Convention.

C. As regards Article 10 of the Convention

45. The applicant complains that, on account of the views expressed by him in the course of a public lecture at the Liechtenstein-Institut on issues of constitutional law, the monarch of Liechtenstein, His Serene Highness Prince Hans-Adam II, as announced in a letter to the applicant, decided not to appoint the applicant to public office in future.  He considers that this constitutes a breach of his right to freedom of expression secured under Article 10 of the Convention.

46. 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.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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 integrity 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 disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

a. Whether there was an interference

47. The applicant submits that the Prince's decision constitutes a sanction for the legal opinion stated by him in the course of the lecture on constitutional issues of 16 February 1995.  Referring to the case-law of the Convention organs, he states that his case does not relate to a specific procedure for recruitment to the civil service, but concerns the general decision taken by the Prince, as an immediate reaction to the views expressed at his lecture, not to appoint him to any public office in future, irrespective of his professional performance or personal qualifications.

48. The Government contend that the present application primarily raises the question of access to public office, and more precisely, the question whether, in the case of a limited term of office, access to public office which has been available to an individual in the past is required to be made available to that individual when his term of office expires.  However, the Convention does not provide a right of access, or of fair, or equal access, to public office.

49. The Government maintain that there is a limitation inherent in the Convention where high governmental officials who disagree with the persons appointing them, or reappointing them, are concerned.  Furthermore, the holder of high judicial office has a special reason to exercise extreme caution in public statements which have political overtones, as a judge, like the head of state, is directly responsible for maintaining public order and must be seen by the public to be acting in concert with the other branches of government (notably the sovereign) in order to promote civil stability.  The Government also mention a more pragmatic reason that a judicial candidate for appointment or reappointment should exercise restraint in his public statements, namely not to render himself unpalatable as a candidate or lose the support of the authorities having the discretion to decide whether or not to reappoint him.  However, according to them, these considerations are no issues under the Convention.

50. In the Government's opinion, the advance announcement that access to a particular public office, or to any public office, will be denied because of an individual's political expression is not, therefore,  covered by Article 10.  In the present case, the applicant could finish, without any interference, the remaining term of his office as President of the Administrative Court.  The Prince's decision not to reappoint him to public office was based on a determination that the applicant no longer possessed a necessary qualification, as he had breached his duties of obedience and of loyalty.

51. Since 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.

52. Moreover, the Government submit that, even if an interference with the applicant's right of free expression had occurred, no injury resulted therefrom.  They note that several posts in the Liechtenstein civil service do not require appointment or confirmation by the Prince.  Furthermore, as regards any possible damage to the applicant's reputation and standing, the Government note that the Prince's letter of 27 February 1995 was private and that the applicant himself published its contents.  In any event, the applicant did not suffer any such damage in an objective sense, as shown by his renomination in 1997.  Finally, in the Government's view, there is no cognisable injury to the applicant's ability to earn his living.

53. The Commission observes at the outset that the existence of a violation of the Convention is conceivable even in the absence of prejudice, the latter being relevant only in the context of Article 50 (cf. Eur. Court HR, Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, para. 36, with further reference).

54. According to the case-law of the Convention organs, the responsibility of a Contracting State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction (cf. Eur. Court HR, Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, p. 14, para. 27 with further reference).

55. The Commission recalls, and in this respect reference is made to its decision on admissibility in the present case (cf. Appendix), that the right of recruitment 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 a person who has been appointed as a civil servant cannot complain of being dismissed if that dismissal violates one of his or her rights under the Convention.  Civil servants do not fall outside the scope of the Convention.  In Articles 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".  Moreover, Article 11 para. 2 in fine, which allows States to impose special restrictions on the exercise of the freedoms of assembly and association by "members of the armed forces, of the police or of the administration of the State", confirms that as a general rule the guarantees in the Convention extend to civil servants (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, pp. 22-23, para. 43).

56. Accordingly, the status of civil servant that the applicant had obtained when he was appointed member and President of the Liechtenstein Administrative Court did not deprive him of the protection of Article 10.

57. In order to determine whether this provision was infringed, it must be ascertained whether the disputed measure amounted to an interference with the exercise of freedom of expression - in the form, for example, of a "formality, restriction or penalty" - or whether the measure lay within the sphere of the rights of access to the civil service, a right that is not secured in the Convention (cf. Eur. Court HR, Glasenapp and Kosiek judgments, op. cit.).

58. The Commission recalls that, in the cases of Glasenapp and Kosiek, the authorities' action was analysed as a refusal to grant the applicants access to the civil service on the ground that they did not possess one of the necessary qualifications.  Access to the civil service had therefore been considered to be at the heart of the issue submitted to the Court, which accordingly concluded that there had been no interference with the right protected under paragraph 1 of Article 10 (Eur. Court HR, Glasenapp and Kosiek judgments, op. cit., p. 27, para. 53, and p. 21, para. 39).  In the Vogt case, the Convention organs found an interference with the exercise of the right protected by Article 10.  The applicant, who had been a permanent civil servant for more than seven years, was first suspended and subsequently dismissed, as a disciplinary penalty, for having allegedly failed to comply with the duty owed by every civil servant to uphold the free democratic system within the meaning of the German Basic Law.  She had, according to the authorities, expressed views inimical to the said system (cf. Eur. Court HR, Vogt judgment,  op. cit., p. 23, para. 44).

59. In the present case, the applicant had been appointed President of the Liechtenstein Administrative Court in December 1993.  On 27 February 1995 the Prince of Liechtenstein, in a letter to the applicant, informed him of his decision that he would not appoint him again to public office, should he be proposed by the Diet or any other body.   The Commission notes that the power to make appointments to a range of posts in the Liechtenstein civil service is vested in the Prince under the relevant provisions of the Liechtenstein Constitution.  The Prince's decision was prompted by a report in the "Liechtensteiner Volksblatt" of the applicant's lecture of 16 February 1995 on the nature and functions of the Liechtenstein Constitutional Court, including a statement that the competences of this Court under the Constitution could, in matters of interpretation of the Constitution, extend to disputes involving the Prince.  According to the Prince, the views expressed by the applicant infringed the Constitution, and the applicant's attitude towards the Constitution made him unsuitable for public office. The Prince confirmed his intention in subsequent statements.

60. The Commission considers that the measure complained of occurred in the middle of the applicant's term of office as President of the Administrative Court; it was unconnected with any concrete recruitment procedures involving an appraisal of personal qualifications.  In these circumstances, the Prince's action constituted a censure of the opinion expressed by the applicant in the course of a lecture on issues of constitutional law.  The Commission, taking further into account the Prince's firm intention, as formulated in his letter of 27 February 1995, to refuse the applicant's reappointment to public office in future, finds that this reaction was a sanction for the applicant's statement at his lecture.

61. It follows that there was an interference with the exercise of the applicant's right to freedom of expression, as secured in Article 10 para. 1.

b. Whether the interference was justified

62. Such interference constitutes a breach of Article 10, unless it was "prescribed by law", pursued one or more legitimate aim or aims as defined in paragraph 2 and was "necessary in a democratic society" to attain them.

63. The applicant submits that the interference complained of did not have any legal basis under Liechtenstein law.  Moreover, on the basis of the domestic practice, he could not have expected that the Prince would sanction his lecture in such a way.  The applicant further contends that the interference pursued no legitimate aim.

64. The Government submit that, if there had been an infringement of the applicant's right under Article 10, it was justified on account of his violation of judicial norms of conduct and of his oath of office under Liechtenstein law, which includes swearing loyalty to the Prince and obedience to the Constitution and the laws.  In this context, they explain that, under the current Liechtenstein Constitution, the Prince is not only the Head of State, he is one of the dual sovereigns.

65. Furthermore, in the Government's submissions, the aim of the interference was to maintain public order and promote civil stability, and to preserve judicial independence and impartiality.

66. The Commission notes that the questions whether there was a legal basis in Liechtenstein law and whether the interference pursued a legitimate aim within the meaning of paragraph 2 of Article 10 are in dispute between the parties.

67.  While each of these two questions could well merit a thorough analysis in the present case, the third condition referred to in paragraph 2 of Article 10, i.e. that an interference must be "necessary in a democratic society", appears, in the Commission's opinion, to be the central issue. In view of the conclusion which the Commission has reached in regard to that third condition (see  paragraphs 0-0 below), it does not find it necessary to pursue its examination by analysing also the compliance with the first two conditions relating to the existence of a sufficient basis for the interference in domestic law and the legitimate aim of the interference.

68. As regards the third criterion, the applicant maintains that the interference complained of was not "necessary in a democratic society".  In this context, he also refers to the absence of subsequent judicial control.

69. The Government submit that Article 10 para. 2 grants States a large margin of appreciation in determining what political conduct is incompatible with the "decorum of judicial office".  They 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.  In their view, it is inherent in the nature of judicial office that a particularly high degree of self-restraint must be observed by the holder of judicial office in making public pronouncements which have a political flavour.

70. The Government consider that the applicant's lecture on the functions of the Liechtenstein Constitutional Court contained a controversial political statement and a subtle, but significant provocation of one of the sovereigns of Liechtenstein.  The applicant had been aware that his statement on the competence of the Constitutional Court to decide in case of conflict between the Prince and the Parliament contradicted the Prince's view, supported by the text of the Constitution, that he was completely immune from the compulsory jurisdiction of any court.  In their submission, the applicant was invited as a judge to give a lecture, and he used the opportunity to make his own political and legal beliefs public.  He had thereby put the public trust in judicial independence and impartiality at risk.

71. According to the Government, the Prince's reaction, communicated in private, could not be said to be arbitrary.

72. In the case-law of the Convention organs, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment.  Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".  Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established (cf. Eur. Court HR, Handyside v. the United Kingdom, 7 December 1976, Series A no. 24, p. 23, para. 49; Lingens v. Austria, 8 July 1986, Series A no. 103, p. 26, para. 41; Jersild v. Denmark, 23 September 1994, Series A no. 298, p. 26, para. 37; Vogt judgment, op. cit., pp. 25-26, para. 52).

73. The adjective "necessary", within the meaning of Article 10 para. 2, implies the existence of a "pressing social need".  The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts.

74. The task of the Convention organs, in exercising their supervisory functions, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation.  This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Convention organs have to do is to look at the interference complained of in the light of the case as a whole and determine whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient" (cf. Eur. Court HR, Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 29, para. 50; Vogt judgment, loc. cit.).

75. These principles apply also to civil servants.  Although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 of the Convention.  It therefore falls to the Convention organs, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 para. 2.  In carrying out this review, it has to be borne in mind that whenever civil servants' right to freedom of expression is in issue the "duties and responsibilities" referred to in Article 10 para. 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim (cf. Eur. Court HR, Vogt judgment, op. cit. p. 26, para. 53; see also No. 10279/83, Dec. 7.5.84, D.R. 38, p. 124).

76. In the present case, it has to be determined whether the sanction imposed by the Prince as a reaction to the applicant's statement on the occasion of a public lecture on the Liechtenstein Constitutional Court corresponded to a "pressing social need" and whether it was "proportionate to the legitimate aim pursued".

77. For this purpose, the Commission will consider the impugned measure in the light of the case as a whole, including the applicant's statement and the context in which it was made.

78. The Prince, as announced in his letter of 27 February 1995, decided that he would not appoint the applicant again to public office, should he be proposed by the Diet or any other body.  It was a reaction to views expressed by the applicant, in the course of a lecture on the nature and functions of the Liechtenstein Constitutional Court, which was reported by the Liechtenstein press.  The Prince considered in particular that the applicant's statement on the competence of the Constitutional Court to decide on the "interpretation of the Constitution in case of disagreement between the Prince (Government) and the people" clearly infringed the Liechtenstein Constitution.  In this context, the Prince also made reference to a political controversy with the Liechtenstein Government in October 1992 and, in conclusion, he reproached the applicant, who had been member of Government at that time and President of the Liechtenstein Administrative Court since 1993, with not regarding himself as bound by the Constitution.   In the Prince's view, the applicant's attitude towards the Constitution made him unsuitable for public office (see paragraph 0 above).

79. The Commission notes at the outset that although the Prince's action did not have any direct effect on the applicant's legal status, the reproach that he was unfit for public office and the statement by the Prince that he would not in future appoint the applicant to public office, constituted a severe measure for the applicant in his position as a high-ranking judge.  This represented a serious slur upon his professional reputation and could negatively affect his career. 

80. The Commission notes further that the lecture given by the applicant on 16 February 1995 formed part of a series of scientific lectures at a Liechtenstein legal research institute on questions of constitutional jurisdiction and fundamental rights (see paragraph 0 above).

81. The applicant's discourse included a statement on the competences of the Constitutional Court under Article 112 of the Liechtenstein Constitution.  It was the applicant's view that the term "Government" used in this provision included the Prince, an opinion allegedly conflicting with the principle of the Prince's immunity from jurisdiction of the Liechtenstein judiciary (see paragraphs 0 and 0).

82. In the context of introducing a bill amending the Constitutional Court Act in 1991, the Liechtenstein Government had, in accompanying comments, held a similar view which had been opposed by the Prince and had found agreement in the Liechtenstein Diet, although only by majority (see paragraph 0 above).  The opinion expressed by the applicant cannot therefore be regarded as an untenable proposition but was shared by a considerable number of persons in Liechtenstein.

83. The Commission also notes that the Prince, in spite of his conclusion that the applicant was unsuitable for public office, himself expected the applicant to abide by the Constitution and the laws until the end of his term of office.  Moreover, in 1997 the Prince acknowledged that the applicant, on account of "his other professional qualifications", had made important contributions in his functions as President of the Administrative Court and stated that he was not opposed to the applicant holding judicial office, provided he did not have to appoint him (see paragraph 0 above).

84. Furthermore, the Prince's sanction was based on general inferences drawn from the applicant's previous conduct in his position as member of Government, in particular on the occasion of the political controversy in 1992, and his brief statement, as reported in the press, on a particular, though controversial, constitutional issue of judicial competence.  No reference was made to any incident suggesting that the applicant's view, as expressed at the lecture in question, had a bearing on his performance as President of the Administrative Court or on any other pending or imminent proceedings.  Nor had the Prince given the applicant any opportunity to comment on the reproach levelled against him.

85. It is true that the Prince chose the form of a letter addressed to the applicant to inform him about his position on the matter and that it was the applicant who made publicthe Prince's letter and the conclusions drawn in that he informed the President of the Liechtenstein Diet, raising the question of whether or not he could remain in office.  However, given the importance of the issue and its implications for the applicant's professional status, it was bound to become known at least to a limited circle of third persons.  Moreover, the Prince himself addressed an open letter to the applicant which was published in the Liechtenstein press (see paragraph 0 above).

86. The Commission further finds that the Government did not refer to any instance where the applicant, in the pursuit of his judicial duties or otherwise, had acted in an objectionable way.  Indeed, in 1995 the Liechtenstein Diet, after deliberations, had come unanimously to the conclusion that the applicant's office was not called into question on account of his legal opinions as stated in the context of the lecture at issue, and in 1997 decided to nominate him again as President of the Administrative Court (see paragraphs 0 and 0 above).  There are no other relevant reasons to conclude that the applicant's views on the competences of the Constitutional Court could call the authority and the impartiality of the judiciary into question, or give rise to disorder. 

87. In these circumstances, the Commission, having regard to all the material before it, finds that the arguments put forward by the Government in order to justify the interference with the applicant's right to freedom of expression are, while relevant, not sufficient to establish convincingly that it was necessary in a democratic society to sanction the applicant's statement and exclude him from future appointment to a large range of high-ranking posts in the Liechtenstein civil service.  Even allowing for a certain margin of appreciation, the Prince's action was disproportionate to the aim pursued.

CONCLUSION

88. The Commission concludes, by 15 votes to 4, that in the present case there has been a violation of Article 10 of the Convention.

D. As regards Articles 6 and 13 of the Convention

89. The applicant complains that he did not have an effective judicial or other remedy enabling him to challenge the action taken by the Prince with regard to the opinion expressed on the occasion of his lecture and the resulting damage to his reputation and personal rights, including his professional and personal rights.  He invokes Article 6 para. 1 of the Convention.

90. This provision, as far as relevant, reads:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."

91. As a subsidiary means, he maintains that there has been a violation of Article 13 of the Convention, which reads:

"Everyone whose rights and freedoms as set forth in [the] 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."

92. In their submissions, the Government state that, as regards the alleged violation of his right to freedom of expression, there was a remedy before the Constitutional Court of which the applicant failed to avail himself.

a. As regards Article 6 para. 1 of the Convention

93. The Commission recalls that the right of access to a court in civil matters constitutes one aspect of the "right to a court" embodied in Article 6 para. 1 (cf. Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2285, para. 92; MenteÅŸ and Others v. Turkey judgment of 28 November 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2714-2715, para. 86).

94. In the present case, the applicant refers to repercussions on his reputation and personal rights.

95. The Commission observes that the right to enjoy a good reputation and the right to have determined before a tribunal the justification of attacks on such reputation must be considered to be civil rights within the meaning of Article 6 para. 1 (cf. No. 11826/85, Dec. 9.5.89, D.R. 61, p. 138).  However, the applicant complains essentially of the lack of a remedy in respect of the Prince's interference with his right to freedom of expression regarding the statements made on the occasion of his lecture at the Liechtenstein-Institut in February 1995.

96. In these circumstances, the Commission finds it appropriate to examine this complaint in relation to the more general obligation on States under Article 13 to provide an effective remedy in respect of violations of the Convention (cf., mutatis mutandis,  Eur. Court HR, Aksoy judgment, op. cit., p. 2286, para. 94; Menteş and Others judgment, op. cit., p. 2715, para. 88).

CONCLUSION

97. The Commission concludes, by 17 votes to 2, that in the present case it is not necessary to determine whether there has been a violation of Article 6 of the Convention.

b. As regards Article 13 of the Convention

98. Article 13 guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the "competent national authority" both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The remedy must be "effective" in practice as well as in law (cf. Eur. Court HR, MenteÅŸ and Others judgment, op. cit., p. 2715, para. 89, with further references).

99. The Commission finds that, in the light of its conclusion under Article 10 (see above para. 0), the requirement that the complaint be "arguable" is satisfied in the present case in respect of the submission in question (cf. Eur. Court HR, Vereinigung Demokratischer Soldaten Österreichs and Gubi judgment, op. cit., p. 20, para. 53 with further reference).

100. As regards the possible remedy cited by the Government, they have not put forward any example showing its application in a case similar to the present one.  They have therefore failed to show that a complaint with the Liechtenstein Constitutional Court would have been effective (cf. Commission's decision on the admissibility of 27 May 1997).

101. In these circumstances, the Commission finds that the applicant has been the victim of a violation of Article 13.

CONCLUSION

102. The Commission concludes, by 16 votes to 3, that in the present case there has been a violation of Article 13, in conjunction with Article 10, of the Convention.

E. As regards Article 14 of the Convention

103. The applicant submits that, because of his opinion regarding a particular legal issue, he is prejudiced in his access to public office.  He relies on Article 14, taken in conjunction with Article 10, of the Convention.  The Government do not agree.

104. Article 14 of the Convention states:

"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, property, birth or other status."

105. The Commission, having regard to its conclusions concerning Article 10, does not find it necessary to consider the applicant's complaint under Article 14.

CONCLUSION

106. The Commission concludes by 17 votes to 2 that no separate issue arises under Article 14, in conjunction with Article 10, of the Convention.

F. Recapitulation

107. The Commission concludes, by 15 votes to 4, that in the present case there has been a violation of Article 10 of the Convention (see para. 0 above).

108. The Commission concludes,  by 17 votes to 2, that in the present case it is not necessary to determine whether there has been a violation of Article 6 of the Convention (see para. 0 above).

109. The Commission concludes, by 16 votes to 3, that in the present case there has been a violation of Article 13, in conjunction with Article 10, of the Convention (see para. 0 above).

110. The Commission concludes by 17 votes to 2 that no separate issue arises under Article 14, in conjunction with Article 10, of the Convention (see para. 0 above).

        M. de SALVIA                                                             S. TRECHSEL

         Secretary                                                                       President

      to the Commission                                                       of the Commission

(Or. français)

OPINION DISSIDENTE DE M. F. MARTINEZ A LAQUELLE

M. K. HERNDL DECLARE SE RALLIER

Je ne partage pas l'opinion de la majorité: à mon avis, il n'y a pas eu de violation au droit du requérant à la liberté d'expression.

Tout d'abord concernant les paragraphes 56 et 57 du rapport de la Commission, je ne crois pas que le requérant ait eu le statut de fonctionnaire public  au sens réel du mot. Il n'est pas ce fonctionnaire type  qui fait toute sa carrière au service de l'administration publique ou de la justice.

Je considère le requérant comme une personne impliquée dans les plus hautes activités publiques de son pays: il a été tantôt membre du Gouvernement, tantôt Président de la Cour Administrative. Ce dernier poste n'est pas ouvert aux fonctionnaires. Il concerne l'une des plus hautes fonctions de l'Etat, et la nomination à ce poste requiert l'accord du Parlement (qui propose) et du Souverain (qui décide). Par conséquent, le poste de Président de la Cour Administrative est généralement accordé à une personne impliquée dans la vie politique, sans aucun égard à une éventuelle carrière de fonctionnaire.

Le poste de Président de la Cour Administrative de Liechtenstein ne donne pas le statut de fonctionnaire, mais le statut propre à cette fonction. Pour ce qui nous intéresse, c'est un poste à durée limitée, de libre choix et qui n'ouvre pas de droit à réélection. En conclusion, le requérant n'a été privé d'aucun droit.

Concernant le paragraphe 61 du rapport, j'ajouterais que la lettre du Prince n'est pas un acte d'Etat. L'acte d'Etat doit être un acte juridique. Et je n'ai trouvé aucun acte juridique jusqu'à ce que le Prince ait refusé la nomination du requérant, proposée par la Diète.

La lettre du Prince, qui n'est donc pas un acte juridique, n'est pas une sanction non plus: elle est purement et simplement une déclaration d'intention. Cette déclaration d'intention pourrait être considérée comme une gentillesse  à l'égard du requérant, pour que celui-ci sache bien, avant la fin de son mandat, qu'il ne sera pas reconduit dans ces fonctions. La lettre ne heurte pas le droit du requérant. Tout le droit du requérant ne consiste qu'à poursuivre ses activités de Président de la Cour Administrative, jusqu'à l'expiration de son mandat, et c'est tout.

Bref, la lettre n'est pas un acte juridique, le lettre n'empiète pas le droit du requérant, la lettre n'engage pas la responsabilité de l'Etat.

Contrairement à ce qui est écrit au paragraphe 62 du rapport de la Commission, ni la lettre ni même l'acte juridique de refus de la nomination ne constituent une ingérence dans la liberté d'expression du requérant.

Même si la raison du refus se trouve dans les propos du requérant, le Prince a pu ne pas nommer celui dont il ne veut pas. Et le refus de la nomination ne constitue point une entrave à la liberté d'expression du requérant.

Le Prince et le requérant ont des opinions différentes sur un sujet constitutionnel. Le requérant est libre de s'exprimer, mais il faut respecter l'opinion du Prince et sa liberté de l'exprimer.

L'opinion contraire du requérant ne saurait créer, à la charge du Prince, une obligation de le confirmer à son poste. La liberté d'expression ne fait pas obstacle à ce que l'individu subisse les conséquences de ce qu'il a exprimé. Il est tout à fait normal que l'expression d'une opinion sur un point de vue qui n'est pas partagé par le détenteur du pouvoir politique, entraîne un choix négatif de la part de ce dernier.

Ainsi, par exemple, lorsqu'une personne veut devenir ministre et qu'elle a exprimé une opinion contraire à celle du Premier Ministre, il est tout à fait normal que celui-ci refuse au dissident un poste de son Cabinet. Cela ne saurait constituer la violation du droit à la liberté d'expression.

Il est paradoxal qu'en matière de libre choix une opinion contraire à celle de celui qui a le pouvoir de choisir puisse obliger à choisir le dissident. Dans un pareil cas, ce n'est pas la liberté d'expression, mais la liberté de choisir qui l'emporte.

Je ne finirais pas sans préciser deux points. D'une part, pour ce qui est de la publicité du cas, c'est le requérant qui a voulu rendre public l'épisode. Il aurait pu garder la lettre du Prince par-devers lui, sans avoir besoin de la publier ... D'autre part, en dehors des cas de nomination exercée par le Prince - très peu de postes publics - le requérant peut être nommé à n'importe quelle autre fonction.

Le Prince a dit lui-même à la Diète qu'il refusait la nomination du requérant comme Président de la Cour Administrative, mais que rien n'empêchait la Diète de le nommer juge à la même cour.

J'ai le sentiment que la présente espèce n'est que l'illustration d'un rapport de force entre le requérant et le Prince, d'une situation conflictuelle: ce n'est pas l'apanage de la Commission européenne des Droits de l'Homme.

(or. English)

DISSENTING OPINION OF MRS J. LIDDY

The Prince's reaction to a prima facie arguable proposition of law was a letter to the applicant to the effect that the applicant was a person who did not consider himself bound by the Constitution and that he was unsuitable for public office. I appreciate the hurtful effect of such comment and its consequences for the renewal of the applicant's position as President of the Administrative Court, and can understand the reasoning that lead the majority to conclude that, as in the Vogt case (Judgment of 26 September 1995, Series A No.323), there had been a violation of Article 10. Nonetheless, in the light of the considerations put forward by Mr Martinez it appears that the preponderant aspect of the case is one of access to public service so that, as in the Glasenapp and Kosiek Judgments of 28 August 1986 (Series A Nos. 104 and 105), there has been no interference with the right to freedom of expression within the meaning of the Convention.

(Or. français)

OPINION DISSIDENTE DE M. B. CONFORTI

Dans cette affaire, je me suis posé la question de savoir si le requérant pouvait venir se plaindre devant les organes de Strasbourg ou si, au contraire, l'on ne devait pas plutôt conclure qu'il en était "empêché"  en raison de son propre comportement et que c'était donc la qualité de victime qui faisait défaut en l'espèce. Après réflexion, je suis justement arrivé à cette conclusion et c'est la raison pour laquelle je n'ai pas suivi l'opinion de la majorité concernant la violation de l'article 10.

Au paragraphe 80 du Rapport, la majorité reconnaît que l'action du Prince n'avait pas eu un effet direct sur la position du requérant en sa qualité de Président de la Cour administrative, mais elle ajoute qu'en tout état de cause les déclarations du Prince, selon lesquelles le requérant n'était plus apte (et n'aurait plus été appelé) à remplir des fonctions publiques, constituaient une attaque sérieuse à sa réputation professionnelle. Je ne suis pas d'accord. Comment une attaque à la réputation peut-elle se produire moyennant une lettre privée, adressée directement et exclusivement à la personne interessée, et non accompagnée par une action externe visant à empiéter d'une manière ou d'une l'autre sur les fonctions exercées par le destinataire ? Comment une lettre de ce genre est-elle susceptible de constituer une ingérence dans la liberté d'expression du destinataire ? Si, comme je le crois, cela n'est pas possible, tout ce qui s'est passé après la lettre, et en particulier la publicité donnée à celle-ci moyennant sa distribution parmi les membres de la Diète et la réaction qui s'ensuivit, cette fois de manière publique, du Prince, a été dû exclusivement au comportement du requérant. En conséquence, il ne peut pas échapper à l'application du principe qui interdit de venire contra factum proprium.