Information Note on the Court’s case-law 33
August 2001
Grande Oriente d'Italia di Palazzo Giustiniani v. Italy - 35972/97
Judgment 2.8.2001 [Section IV]
Article 11
Article 11-1
Freedom of association
Legal prohibition on freemasons holding public offices: violation
Article 34
Victim
Association complaining of measures affecting its members: victim status accepted
Facts: In 1996 the Marches region enacted a regional law laying down the principles governing appointments to public offices within its gift. The law requires candidates for such posts to produce a declaration certifying that they are not Freemasons. The applicant association is an Italian Masonic Order enjoying the status of an association governed by private law. Acting through its Grand Master, it complained of the damage it had suffered on account of the law in question.
Law: Article 11 – The Convention applied to associations, even if their activities were thought by the national authorities to undermine the constitutional foundations of the State and to need restricting. That was all the truer in the case of an association which, like the applicant association, had not in fact been suspected of undermining the constitutional order. The obligation on candidates for public office to declare that they did not belong to a Masonic lodge might damage the applicant association by causing its members to leave and harming its prestige. There had consequently been interference and the applicant association could claim to be a victim. The interference had been prescribed by law, as the impugned measure was provided for in the 1996 regional law. The Government maintained that the law had been passed in order to reassure the public at a time when the role of certain Freemasons in public life in Italy was the focus of national debate. The aim of the interference in issue had therefore been to strengthen national security and protect public order. As to whether it was necessary in a democratic society even though few members of the applicant association were likely to be faced with the dilemma of choosing between the association and the posts covered by the 1996 law, freedom of association was of such importance that it could not be restricted – a principle that would remain valid even if just one member of the applicant association was a candidate for public office, in so far as that person did not commit any reprehensible act by being members of the association. Moreover, the applicant association was affected by decisions taken by its members. In the end, therefore, the measure in issue did not appear necessary in a democratic society. It remained to be determined whether the measure was justified by the last sentence of Article 11 § 2, under which States were entitled to impose lawful restrictions on the exercise of the right to freedom of association by members of certain categories, including the administration of the State. While it was, in principle, for the national authorities to interpret and apply domestic law, the applicant association in the instant case had had no possibility of challenging the constitutionality of the impugned provision in the courts. Consequently, the legal position had been sufficiently clear to enable the applicant association to regulate its conduct; the requirement of foreseeability had therefore been satisfied and the restriction in issue had been lawful within the meaning of Article 11 § 2. As to whether the posts covered by the 1996 law fell within the category of the administration of the State, that concept had to be interpreted narrowly, regard being had to the post held by the official concerned. In the Vogt v. Germany case (judgment of 26 September 1995, Series A no. 323) the Court had refrained from determining whether a teacher was part of the administration of the State. In the instant case, however, the link between the posts covered by the 1996 law and the Marches region was probably not as close as that which had existed between Mrs Vogt, a teacher appointed to a permanent civil-service post, and her employer. Accordingly, the interference was not justified by the second sentence of Article 11 § 2.
Conclusion: violation (unanimously).
Article 41: The Court awarded 10,000,000 Italian lire for costs and expenses.
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This summary by the Registry does not bind the Court.
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