CEDH · CASELAW;CLIN;ENG — 2 août 2001

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Italy - 37119/97 Judgment 2.8.2001 [Section II] Article 11 Article 11-1 Freedom of association Disciplinary sanction imposed on a judge on account of his membership of a masonic lodge: violation Facts : The applicant, a judge, joined a Masonic lodge. The Minister of Justice and Principal State Counsel at the Court of Cassation instituted disciplinary proceedings against judges who were Freemasons after a list had been provided by the National Council of the Judiciary. The applicant was summoned before the disciplinary section of the National Council of the Judiciary and given a warning. He appealed on points of law but the appeal was dismissed. Subsequently the National Council of the Judiciary twice indicated that it was not in favour of the applicant’s promotion in view of the disciplinary sanction that had been imposed on him. Law : Article 11 – The disciplinary sanction had amounted to interference with the applicant’s freedom of association. In order to determine whether that interference had been prescribed by law, it had to be established not only that it had some basis in law but also that the relevant provisions were both accessible and foreseeable in their effect. In the instant case the disciplinary sanction had had a basis in law, namely Article 18 of a 1946 decree, which was public and accessible. As regards foreseeability, the provision was of a general nature and did not specify whether and in what way judges could exercise their right to freedom of association. However, in guidelines issued in 1990 the National Council of the Judiciary had emphasised that problems might arise if members of the judiciary were also members of lawful associations which, like the Freemasons, were governed by specific rules of conduct. Although the guidelines had been primarily concerned with membership of the Freemasons, the wording used to refer to that society had been equivocal. The guidelines had stated clearly only that “naturally, members of the judiciary are prohibited by law from joining the associations proscribed by Law no. 17 of 1982”. With regard to other associations, the guidelines had alerted the Minister of Justice to the need to look into the advisability of placing restrictions on judges’ freedom of association, and had referred in that connection to all associations whose members were united by particularly strong bonds of hierarchy and solidarity. The wording of the 1990 guidelines had consequently not been sufficiently clear to enable even a person well versed in the law, such as the applicant, to realise that membership of a Masonic lodge could lead to a disciplinary sanction. Since the requirement of foreseeability had not been satisfied, the interference could not be regarded as having been prescribed by law. Conclusion : violation (four votes to three). Article 8 – As regards the disclosure of the applicant’s membership of the Freemasons, the concept of “private life” encompassed a person’s physical and psychological integrity. The guarantee in Article 8 of the Convention was primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. In the instant case the applicant had failed to establish that disclosure to the press of his membership of the Freemasons had caused him any damage in that regard; indeed, he had acknowledged that anyone could have discovered that he was a member by consulting the list of members. Conclusion : no violation (unanimously). Articles 8, 9 and 10 read separately or in conjunction with Article 14, and Article 11 taken together with Article 14 – In the light of the Court’s reasoning in respect of Article 11, it was unnecessary to examine separately the applicant’s complaint under Article 8 inasmuch as it concerned the imposition of a disciplinary sanction on account of his membership of the Freemasons or his complaints under any of the other Articles relied on. Conclusion : no need to examine separately (unanimously). Article 41: The Court awarded the applicant 20,000,000 Italian lire in respect of the damage sustained, and 27,312,012 Italian lire for costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes