Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The Grand Chamber of the European Court of Human Rights held that threatening and effectively refusing to re-appoint a civil servant on account of his publicly expressed opinion was a violation of Article 10. The applicant, a Liechtenstein national was the President of the Administrative Court. In a public lecture, he presented his personal views that the constitutional court has a right to interpret the constitution in case of disagreement between the Prince and the Diet. Unhappy and in disagreement with this comment, the Prince sent the applicant a series of letters expressing his intention to not re-appoint the applicant, should he be proposed by the Diet. In 1997, when the applicant was re-nominated for the position, the Prince refused re-appointment. The Court held that the European Convention on Human Rights (ECHR) does not discriminate against public officials. Their rights are protected by the Convention and the Court will look at interference with the freedom of expression of a judge in close scrutiny. The Prince’s decision to not re-elect the applicant was based on his controversial views expressed at the lecture, rather than on his performance of his professional duties. According to the Court, this was a disproportionate interference with the applicant’s freedom of expression as the opinion was neither untenable nor incompatible with his duties as a public officer. The Court further held that Liechtenstein violated Article 13 in connection to Article 10 of the ECHR by failing to provide the means to ensure the applicant’s right to an effective remedy.
Liechtenstein is a constitutional, hereditary monarchy. The Prince is the head of the State, responsible for appointing state officials in consonance with constitutional provisions. The constitutional court is responsible for protecting constitutional rights and rights protected by the Convention.
The applicant, Herbert Wille, was a Liechtenstein national. In 1992, when the applicant was the deputy head of government, a controversy arose between the Prince and the government on the date of the referendum for accession to the European Economic Area. In the course of the controversy, the applicant expressed views on powers of the constitutional court under Article 112 of the constitution. In his view, the constitutional court had the power to interpret the constitution in case of a disagreement between the Prince and the Diet. In contradiction, the Prince believed that according to the Constitution, the Prince was immune from the Liechtenstein judiciary.
Later next year, the applicant was appointed by the Prince as the President of the Administrative Court of Liechtenstein on the recommendation of the Diet for a fixed term.
In February 1995, during a public lecture at a research institute on the competences of the constitutional court under the constitution, the applicant expressed his opinion on Article 112 of the Constitution. Details of the event including the applicants’ opinion were published in a newspaper the next day.
“Astonished” by the applicants’ remarks, the Prince wrote the applicant a letter, accusing him of considering himself above the Constitution and being “unsuitable for public office”. He also stated that should the applicant’s name be proposed for public office in the future, the Prince would not appoint him [para 11].
In response, the applicant sent a copy of the letter to the Diet, seeking their confidence that his position as the Principal of the Administrative Court was not called into question based on his public opinions. Gaining their support, he wrote back to the Prince, claiming that the Prince’s intention of not appointing him to public office in the future violated his freedom of opinion and thought, protected under Article 10.
The Prince replied stating that the appointment of a candidate to a public office was left to his discretion. The applicants’ public statements undermined the rule of law and as head of State, it was the duty of the Prince to appoint someone committed to the Constitution.
In 1995, the applicant instituted proceedings before the Commission, alleging that the Princes’ decision to not appoint the applicant in the future on the basis of his views violated his rights under the Convention, including Article 10. By a 15:2 decision, the Commission upheld the applicant’s claim.
In 1997, when the applicant was nominated by the Diet to be re-elected as the President of the Administrative Court, the Prince refused the appointment.
In a 16:1 majority judgment the court found that the Prince’s letters were a disproportionate interference with the applicant’s freedom of expression. Justice Caflisch, Justice Zupancic and Justice Hedigan delivered a concurring opinion whereas Justice Baretto dissented.
The Court had to decide on two central issues, whether: (a) the refusal to re-appoint the applicant amounted to a violation of Article 10 and (b) there was sufficient justification for the violation.
The applicant argued that the Prince’s announcement to not appoint him in the future was in response to the opinions he expressed which amounted to a sanction against his opinion.
The Government disagreed. The Prince’s letter was sent in his personal capacity, not as a public function. Alternately, even if the letter was considered an act of State, the sanction could not affect a right that did not exist. The applicant had no right to appointment to public office, either under national law or under the Convention. Article 10 did not apply to a case of access to public office.
Moreover, the government also argued that the decision taken by the Prince was necessary in a democratic society, as well as reasonable. The Government asserted that the expressions of the applicant could not be considered only as an innocent lecture or a professional legal opinion but as a highly controversial political one that could impact public order as well as the independence and impartiality of the judiciary. As a result, the Government argued, the actions carried out by the Prince were justified as they were necessary to maintain the rule of law in a democratic society.
In this regard, the Government recalled that the Convention gives an ample margin of appreciation to States in “determining what political conduct was incompatible with the ‘decorum of the judicial office’” [par. 59] and thus every judge must understand that a degree of self-restraint is in order when exercising their right to freedom of expression.
Referring to Article 1 and 14 of the Convention as well as Glasenapp and Kosiek v. Germany App No. 9228/80 (August 28, 1986) and Vogt v. Germany App No. 17851/91 (September 26, 1995) the Court held that the rights guaranteed under the Convention extend to everyone, including civil servants. Although public officials have no right to appointment, if their dismissal violates a right under the Convention, a complaint is warranted.
The court reviewed the letters sent by the Prince and noted that through the series of letters, the Prince consistently re-iterated his intention of not appointing the applicant and eventually refused the reappointment. This cannot be considered to be private correspondence.
Appointment to a public office was a sovereign function, engaging the responsibility of a State under the Convention. The Prince’s intention to refuse re-appointment was based on the applicants’ views, not on his lack of personal qualifications or the recruitment procedure. This “had a chilling effect on the exercise by the applicant of his freedom of expression, as it was likely to discourage him from making statements of that kind in the future” [para 50].
(b) there was no sufficient justification for the violation:
Under Article 10 (2), an interference with the right to expression is justified when it is prescribed by law to pursue a legitimate aim and is necessary for a democratic society.
Assuming the action was prescribed by law, the Court concluded that the measures taken by the Prince were not necessary for a democratic society.
The court recalled the basic principles laid down in the Vogt decision:
In a democratic society, freedom of speech 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.” The exceptions to freedom of expression should be narrowly interpreted, necessary only when there is a pressing social need. In exercising supervisory jurisdiction to determine whether it was proportionate to the legitimate aim pursued, the Court should have regard to the circumstances of the case as a whole, assessing whether the national authorities have struck a fair balance between the freedom of expression and protecting legitimate State interest [para 62].
In case of the rights of a public official, the duties and responsibilities of the officer assume special significance, “which justifies leaving to the national authorities a certain margin of appreciation” in evaluating the proportionality of the measure [para 63].
Especially in the case of a judicial officer, the officer should apply some restraint where his statement may cast doubt on the authority and impartiality of the judiciary. However, “an interference with the freedom of expression of a judge in a position such as the applicant’s calls for close scrutiny on the part of the Court” [para 64].
In the Court’s view, the applicant’s lecture inevitably had political implications as it dealt with matters of constitutional law. However, his opinion was not untenable, it was held by a number of people in Liechtenstein. He did not breach his judicial duties, criticize public office or officials or remark on the number of pending cases.
Referring to the applicant’s views on Article 112 expressed as the deputy head of government and later at the lecture, the Prince concluded that the applicant considered himself above the Constitution. This made him unsuitable for public office. The conclusion was based on the statements alone, without reference to any impact that the statements had on the applicant’s performance as a judge.
The Court concluded that despite the margin of appreciation granted to the Government, the interference was disproportionate to the right of free speech because the reasons were not sufficient to demonstrate that they were necessary in a democratic society. This decision was based mainly on the contents of the first letter, taken in the context of the subsequent communications.
Regarding the alleged violation of Article 13, as the Government could not point to a precedent in which the Constitutional Court had ever accepted a complaint against an act of the Prince, the Court concluded that Lichtenstein had no effective remedy to guarantee the right to freedom of expression of the applicant. Therefore, it held that there had also been a violation of Article 13 of the Convention.
Regarding the alleged violations under Articles 6 and 14 of the Convention in conjunction with Article 10, the Court found it unnecessary to deal with these matters as the applicant did not reiterate these complaints.
The applicant’s claim for costs and expenses was allowed. For the distress that the applicant may have suffered, the court awarded 10,000 Swiss Francs (approximately $6,600 USD in 1999) as non-pecuniary damages.
Joint Concurring Opinion of Judges Caflisch, Zupanic and Hedigan
In the concurring opinion, the judges expressed their reservation in concluding a violation of Article 10 from the first letter alone. Taken alone, the first letter could be considered a personal opinion. The intention of the Prince “crystallised into an interference” and confirmed it to be an act of State only with the Prince’s subsequent communications [p. 25].
Dissenting Opinion of Judge Cabral Barreto
In his dissenting opinion, Justice Baretto found that the letters were sent by the Prince in his personal capacity and could not be considered an act of State. The message of the letter could not be considered a reprimand. In his view, the Prince only communicated in advance his intention of taking a course of action if the opportunity arose. Moreover, the refusal to appoint the applicant was a legal act. It was unnecessary to determine whether it pursued a legitimate aim and was necessary in a democratic society since the question was mainly in the field of access to public office, a subject deliberately excluded from the Convention.
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The decision expands the right to freedom of expression. The court limited the power of the State in imposing sanctions on State officials for their personal opinions. It recognized the value of controversial opinions in a democratic society and the chilling effect that sanctions can produce on an officials behavior in the future.
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