CEDH · PRESS;GENERAL;ENG — 17 février 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } 17.02 EUROPEAN COURT OF HUMAN RIGHTS   077 17.02.2004   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT IN THE CASE OF MAESTRI v. ITALY   The European Court of Human Rights has today delivered at a public hearing in Strasbourg its Grand Chamber judgment [1] in the case of Maestri v. Italy (application no.   39748/98). The Court held, by eleven votes to six, that there had been a violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant, by eleven votes to six, 10,000 euros (EUR) for non-pecuniary damage and EUR 14,000 for costs and expenses.   (The judgment is available in French and English.)   1.     Principal facts   The applicant, Angelo Massimo Maestri, is an Italian national who was born in 1944 and lives in Viareggio (Italy). He is a judge and was acting president of the La Spezia District Court when he lodged his application.   In November 1993 disciplinary proceedings were brought against him, under Article 18 of the Royal Legislative Decree of 31 May 1946, for having been a member of a Masonic lodge affiliated to the Grande Oriente d’Italia di Palazzo Giustiniani from 1981 until March 1993.   In a decision of 10 October 1995 the disciplinary section of the National Council of the Judiciary found that the applicant had committed the offence of which he was accused and gave him a reprimand ( censura ). The disciplinary section stated that it was contrary to disciplinary rules for a judge to be a Freemason, on account of the incompatibility between the Masonic and judicial oaths, the hierarchical relationship between Freemasons, the rejection of State justice in favour of Masonic justice and the indissoluble nature of the bond between Freemasons. It also referred to the directives issued by the National Council of the Judiciary in March 1990 and July 1993 which highlighted the conflict between membership of the Freemasons and membership of the judiciary.   The applicant appealed on points of law to the Court of Cassation, which dismissed the appeal on 20 December 1996.   According to Mr Maestri, his career has been at a standstill since the disciplinary sanction was imposed on him.       2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 14 June 1997 and transmitted to the Court on 1 November 1998. It was declared admissible by a Chamber on 4 July 2002. On 10 October 2002 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). The Court held a hearing on 25 June 2003.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Georg Ress (German), Nicolas Bratza (British), Giovanni Bonello (Maltese), Loukis Loucaides (Cypriot) Viera Strážnická (Slovakian) , Corneliu Bîrsan (Romanian) , Karel Jungwiert (Czech) , Volodymyr Butkevych (Ukrainian) , Boštjan Zupančič (Slovenian) , John Hedigan (Irish) , Snejana Botoucharova (Bulgarian) , Elisabeth Steiner (Austrian) , Stanislav Pavlovschi (Moldovan), judges , Mariavaleria Del Tufo (Italian) , ad hoc judge , and also Paul Mahoney , Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant alleged that the imposition of a sanction on him for being a Freemason amounted to a violation of Articles 9 (right to freedom of thought, conscience and religion), 10 (freedom of expression) and 11 (freedom of assembly and association) of the Convention.   Decision of the Court   The European Court of Human Rights considered that the applicant’s complaints fell more particularly within the scope of Article 11 of the Convention. Accordingly, it would consider the complaints submitted to it under that provision alone.   Article 11 of the Convention   The Court considered that there had been interference with the applicant’s right to freedom of association as guaranteed by Article 11. Regarding whether the interference had been prescribed by law, the Court reiterated that the measure in question had to have had a basis in domestic law and to have been accessible and foreseeable.   In that connection the Court observed that Article 18 of the 1946 decree, construed in the light of Law no. 17 of 1982 on the right of association and the 1990 directive, had been the legal provision used as the basis for the sanction imposed on the applicant. Accordingly, the disciplinary measure had had a basis in Italian law.   With regard to the quality of the law, the Court noted at the outset that Article 18 of the 1946 decree was accessible in that it was public and the applicant, on account of his profession, could easily have learned of it. Secondly, as regards whether the law had been foreseeable, namely whether Italian law had laid down with sufficient precision the conditions in which a judge should refrain from joining the Freemasons, the Court observed that Article 18 did not define whether and how a judge could exercise his or her freedom of association. The Court considered that, in the applicant’s case, a distinction had to be made between two periods: the period prior to the adoption by the National Council of the Judiciary of its first directive on 22 March 1990, and the subsequent period. That directive stated that a judge’s membership of lawful associations which, like the Freemasons, were governed by specific rules of conduct could be problematical for him or her.   Regarding the period from 1981 to March 1990, the Court considered that Article 18 did not satisfy the condition of foreseeability and that, even after Italy had passed a law in 1982 on the right of association, the applicant could not have foreseen that a judge’s membership of a Masonic lodge could give rise to a disciplinary issue.   The same was true of the period from the adoption of the directive in March 1990 until March 1993. Although the directive in question had been issued in the context of an examination of the question of judges’ membership of the Freemasons the debate before the National Council of the Judiciary had sought to formulate, rather than solve, a problem. The directive, which had been adopted after the major debate in Italy on the unlawfulness of the secret P2 lodge, had merely stated that members of the judiciary were prohibited by law from joining proscribed associations. Accordingly, the Court held that the wording of the directive had not been sufficiently clear to enable the applicant, despite being a judge, to realise that his membership of a Masonic lodge could lead to sanctions being imposed on him. That being so, the Court concluded that the condition of foreseeability had not been satisfied either. The Court’s assessment was confirmed by the fact that the National Council of the Judiciary had itself felt the need to come back to the issue in July 1993 and state in clear terms that the exercise of judicial functions was incompatible with membership of the Freemasons.   Accordingly, the interference had not been prescribed by law. There had therefore been a violation of Article 11 of the Convention.   Judges Bonello, Strážnická, Bîrsan, Jungwiert and Del Tufo expressed a joint dissenting opinion and Judge Loucaides, joined by Judge Bîrsan, expressed a separate dissenting opinion. Both opinions are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Judgments of the Grand Chamber are final (Article 44 of the Convention). [2] This summary by the Registry does not bind the Court.