PROCEDURE

The case was referred to the Court, as established under former Article 19 of the Convention, by the European Commission of Human Rights (“the Commission”) and by the Liechtenstein Government (“the Government”) on 24 and 27 October 1998 respectively, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 28396/95) against the Principality of Liechtenstein lodged with the Commission under former Article 25 by a Liechtenstein citizen, Mr Herbert Wille, on 25 August 1995. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Liechtenstein recognised the compulsory jurisdiction of the Court (former Article 46); the Government’s application referred to former Article 48. The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 10 and 13 of the Convention.

After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Mr L. Caflisch, the judge elected in respect of Liechtenstein (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mrs E. Palm and Mr C.L. Rozakis, the Vice-Presidents of the Court, and Mr J.‑P. Costa and Mr G. Ress, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr I. Cabral Barreto, Mr W. Fuhrmann, Mr K. Jungwiert, Mr B. Zupancic, Mrs N. Vajic, Mr J. Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr T. Pantîru, Mr E. Levits and Mr K. Traja (Rule 24 § 3 and Rule 100 § 4).

The applicant designated the lawyers who would represent him (Rule 36). The lawyers were given leave by the President of the Grand Chamber, Mrs Palm, to use the German language (Rule 34 § 3).

As President of the Grand Chamber, Mrs Palm, acting through the Deputy Registrar, consulted the Agent of the Government, the applicant’s lawyers and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 25 February 1999 and the Government’s memorial on 30 March 1999.

In accordance with the decision of the President of the Grand Chamber, a hearing took place in public in the Human Rights Building, Strasbourg, on 2 June 1999. There appeared before the Court: (a) for the Government Mr H. Golsong, Attorney, Co-Agent, Mr N. Marxer, Mr T. Stein, Mr M. Walker, Counsel; (b) for the applicant Mr W.E. Seeger, Rechtsanwalt, Mr A. Kley, Rechtsanwalt, Counsel. Mr Wille was also present. The Court heard addresses by Mr Seeger, Mr Kley, Mr Golsong and Mr Stein.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

In 1992 a controversy arose between His Serene Highness Prince Hans-Adam II of Liechtenstein (“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.

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 for a fixed term of office (see paragraph 26 below).

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”).

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 competences of the Constitutional 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.

The letter, written on heraldic letter paper, read as follows: “Vaduz Castle, 27 February 1995 Dr Herbert Wille President of the Liechtenstein Administrative Court [applicant’s private address] 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. Just as 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 term of office. Yours sincerely, Hans-Adam II Prince of Liechtenstein” “Schloss Vaduz, 27. Februar 1995 Herrn Dr. Herbert Wille Präsident der Fürstlich Liecht. Verwaltungsbeschwerdeinstanz ... 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”

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 come to the unanimous 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.

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 a 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.

In his letter in reply dated 4 April 1995, the Prince noted that Mr Wille 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 Mr Wille, in a personal letter, about his decision as early as possible. He considered that a long debate between them on the question of Mr Wille’s qualification for the office of judge was inappropriate, as Mr Wille had remained in office and the Prince’s criticism had not been directed at the decisions of the Administrative Court, but at Mr Wille’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 Mr Wille for many years, he had considered it appropriate to state the reasons for his decision regarding him. Moreover, the decision no longer to appoint him 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 Mr Wille’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, Mr Wille, 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.

The Prince further explained that the relevant 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 a dispute between the government and the Diet. Confusing the terms “Government” and “Diet” with “Prince” or “people”, as Mr Wille 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 be failing in 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 could not regard as being committed to upholding the Constitution.

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

In his opinion, in a democratic State based on the rule of law (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 that connection, the individual should respect the rules defined in the Constitution and other statutory provisions. The Prince further stated that it was the right of Mr Wille, 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 subject to the jurisdiction of the Liechtenstein judiciary; and that the Liechtenstein Constitutional Court should be given supplementary competences. However, Mr Wille 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 by virtue of the Constitution. The Prince considered that Mr Wille, 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.

The Prince also made reference to the political events in the autumn of 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 Mr Wille continued to have the intention of placing himself above the Liechtenstein Constitution. He explained that he had therefore intended to inform Mr Wille, in a personal letter and as early as possible, about his decision not to appoint him to public office in future.

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.

In a letter of 17 April 1997 to the President of the Diet the Prince refused to accept the proposed appointment. He explained that, considering his experiences with Mr Wille, he had become convinced that Mr Wille did not feel bound by the Liechtenstein Constitution. In these circumstances, he would be failing in his duties as head of State if he were to appoint Mr Wille as President of the Administrative Court. The Prince further stated that Mr Wille, on account of his other professional qualifications, had made important contributions as a judge of the Administrative Court and that he (the Prince) could therefore understand the proposal made to a certain extent. If the Diet did not share his doubts regarding Mr Wille, it could elect him as associate judge of the Administrative Court.

The applicant is currently employed as a researcher by the Liechtenstein-Institut.