Symposium: The Liechtenstein State Court and the Austrian Federal Constitution

Peter Bußjäger

University of Innsbruck

1. Introduction

Art. 104 par. 1 of the Constitution of the Principality of Liechtenstein provides, inter alia, that a State Court shall be established to protect the constitutional rights of citizens. According to paragraph 2, the State Court shall also have jurisdiction to determine whether laws are in accordance with the Constitution and whether government regulations are in accordance with the laws. If laws or regulations infringe the Constitution or laws, the State Court may declare the annulment of the infringing law or regulation. Finally, the State Court shall act as an electoral tribunal.

The establishment of a constitutional review of laws enacted by Parliament and of judicial and administrative infringements of fundamental rights by the State Court is, apart from the modern catalogue of fundamental rights of citizens, the most prominent achievement of the Constitution of the Principality of Liechtenstein of 1921. The State Court was based on the Austrian model of constitutional review enshrined in the Austrian Federal Constitution (B-VG) of 1920. In the following post I analyze the connections between the Austrian Constitutional Court and the State Court of Liechtenstein.

2. Parallel Pathways: The Making of the Austrian Federal Constitution in 1920 and the Constitution of the Principality of Liechtenstein in 1921

For a long time, Liechtenstein’s judicial system has been partially outsourced. From 1809 onwards, only the court of first instance was located in the Principality. The Princely Court Chancellery in Vienna served as the court of second instance. The Higher Regional Court in Innsbruck (Austria) decided upon appeals as the court of third instance. This illustrates the close ties of the country to Austria at that time, which, moreover, had been economically connected to Austria by a customs treaty since 1852.

After 1918, the country lost its longstanding economic ties to Austria and shifted towards Switzerland, concluding a new customs treaty in 1923. Despite this intensive integration into the Swiss market, developments in Austria still influenced politics in Liechtenstein to some extent.

The revolutionary spirit in neighboring countries favored a movement that demanded more democracy and rule of law in Liechtenstein. “Schlossabmachungen” — negotiations between representatives of the Prince and the new political party, the “People’s party” — took place in a building near the castle of the Princely House. On 11 September 1920 those negotiations resulted in Prince Johann II of Liechtenstein asking the government to draft an amended Constitution, to be submitted in turn to Parliament.

Point 4 of the agreement reached by the negotiations specified the role of the State Court:

“Furthermore, a special law shall establish a constitutional court as a court under public law to safeguard the rights of citizens, to decide upon conflicts of jurisdiction and to serve as a disciplinary court for public officials.” [For more on this point, see Rupert Quaderer, p. 188, in: Vaterländische Union (ed.), Die Schlossabmachungen vom September 1920]

Against the background of past tradition, according to which juridical disputes in Liechtenstein had been decided by foreign courts, it was also agreed that the majority of the State Court’s judges had to be Liechtenstein nationals. The President of the Constitutional Court should also be a native of Liechtenstein.

The Parliament of Liechtenstein, the “Landtag”, passed the new Constitution on 24 August 1921 and the Prince gave his sanction to it on 2 October 1921. The Constitution entered into force on 5 October 1921.

3. The Liechtenstein State Court: Along the Kelsenian Model

The State Court was the third specialized constitutional court worldwide empowered to conduct judicial review, after the constitutional courts established in Austria and Czechoslovakia. The functions of the State Court differed, however, from those of the Austrian Constitutional Court and are rather similar to those of the German Federal Constitutional Court, established by the Basic Law in 1949. A difference is that individual complaints against decisions of courts of last resort (for example, the Supreme Court regarding civil and criminal cases and the Administrative Court regarding administrative matters) may be lodged with the State Court in Liechtenstein, but not in Austria.

Even though the Constitution of 1921 had established the State Court, it took several years until the Court became operational because the corresponding law was missing. The preparatory work was delayed on account of the workload that burdened the authorities in the small state with its limited legal expertise.

In the summer of 1925, however, a draft law and a committee report to establish the State Court were submitted. In its session on 5 November 1925, the Landtag discussed and approved the Law on the State Court (Staatsgerichtshofgesetz). Prince Johann II of Liechtenstein signed the law on 14 December 1925. Fourteen days later, Parliament elected the first judges of the Constitutional Court. From that moment, the State Court became operational and started to carry out its constitutional tasks.

4. Milestones in jurisprudence

During the following years, the State Court dealt with few, but sometimes highly significant, cases:

a)      Impeachment against the Head of Government, Gustav Schädler

In 1931, the impartiality and independence of the State Court were challenged on account of impeachment proceedings: A bank scandal (the so-called “Sparkassenskandal”) in 1928 brought Liechtenstein close to bankruptcy. At the time, Liechtenstein’s finances were seriously affected by economic depression and natural disasters. By attributing responsibility for the criminal acts of bank employees to the People’s Party, Parliament – which was dominated by the Citizens’ Party – brought charges against the former Head of Government, Gustav Schädler.

Apart from two foreign judges (an attorney from St. Gallen, Switzerland, and a judge of the regional court at Feldkirch, Austria), the judicial Senate was composed solely of persons who were closely aligned with the Citizens’ Party. Nonetheless, the State Court acquitted the former Head of Government of the politically motivated charges and thereby proved its independence.

The impeachment proceedings against Gustav Schädler remained the only case where a member of Government was charged before the State Court.

b)      Evolution of the interpretation of fundamental rights

Apart from the above, the State Court only heard few complaints in its first decades. The State Court exercised restraint in particular with regard to individual constitutional complaints against decisions of ordinary courts. Until the beginning of the 1960s, questions concerning violations of fundamental rights were heard only where they related to whether the courts had acted arbitrarily.

In the following years, the State Court developed a more nuanced understanding of fundamental rights like other constitutional courts in the liberal world. Liechtenstein’s accession to the European Court of Human Rights (ECtHR) was an important factor for this new perspective. Similarly to courts in other states that have a progressive understanding of fundamental rights, the State Court has since held that the ECtHR enjoys a quasi-constitutional rank.

Today, the jurisprudence of the State Court is largely consistent with the ECtHR and further inspired by the German Federal Constitutional Court, the Austrian Constitutional Court and the Swiss Federal Court.

c)       Rank of European Law

Liechtenstein’s accession to the European Economic Area (EEA) proved to be a legal challenge. The State Court found that, in principle, EEA law enjoys precedence over national law to the extent that basic principles and the essence of the Constitution and fundamental rights are respected. In this regard, the State Court has already repealed national norms that violated EEA law.

5. Constitutional developments

Since 1921, the Constitution of Liechtenstein has been amended many times. With respect to the State Court, the constitutional amendment of 2003 (see LGBl. 2003 No. 186) was particularly significant. Among other major changes, the State Court was empowered to assess the constitutionality of international treaties. In turn, however, the competence of the State Court to interpret the Constitution where questions cannot be resolved by agreement between the Government and the Diet (Art. 112) was abolished.

Moreover, a new procedure for the election of judges was introduced: according to Art. 96 LV, a joint body for the selection of judges chaired by the Prince and composed of members chosen by the parliamentary groups, the Government and the Prince, proposes suitable candidates to the Landtag. After being elected by the Landtag, the Prince appoints the candidates as judges. In Opinion no. 227/2002, the Venice Commission criticized that provision because of the strong position of the Prince in the election procedure. In practice, however, the new procedure has performed well and not been disputed in public.

6. Summary

The State Court of the Principality of Liechtenstein is one of the oldest constitutional courts in the world. Its tasks include the constitutional review of laws as well as the review of international treaties and governmental decrees. The influence of the Austrian model of constitutional review cannot be ignored. However, the State Court is by no means a copy of the Austrian Constitutional Court. It also has characteristics of its own. This can be seen particularly in its broad powers of review exercised over the decisions of other courts.

Peter Bußjäger is Professor at the Institute of Public Law, State and Administrative Theory at the University of Innsbruck and Director of the Institute of Federalism in Innsbruck (Austria). Moreover, he is a member of the State Court of the Principality of Liechtenstein. He is also Liechtenstein’s member in the Venice Commission and Austrian member of the Group of Independent Experts on the European Charter of Local Self-Government.

Suggested citation: Peter Bußjäger, ‘The Liechtenstein State Court and the Austrian Federal Constitution’ IACL-AIDC Blog (20 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/20/the-liechtenstein-state-court-and-the-austrian-federal-constitution