Information Note on the Court’s case-law 61
February 2004
Maestri v. Italy [GC] - 39748/98
Judgment 17.2.2004 [GC]
Article 11
Article 11-1
Freedom of association
Imposition of disciplinary sanction on a judge on account of his membership of the Freemasons: violation
Facts: The applicant is a judge. Disciplinary proceedings were instituted against him on account of his membership of a Masonic lodge between 1981 andMarch 1993. The national authorities imposed a disciplinary sanction on him in the form of a reprimand.
Law: Article 11 – There had been interference with the applicant’s right to freedom of association. The sanction had had a basis in domestic law, namely Article 18 of a 1946 decree on the safeguards afforded to members of the State legal services, interpreted in the light of a 1982 law on the right of association and a directive issued on 22 March 1990 by the National Council of the Judiciary. Those instruments had been public and readily accessible to the applicant. Between the time when the applicant had joined the Freemasons and the adoption of the directive in 1990, Article 18 on its own had not contained sufficient information to satisfy the condition of foreseeability, and the enactment of the 1982 law had not enabled the applicant to foresee that a judge’s membership of a legal Masonic lodge could give rise to a disciplinary issue.The National Council of the Judiciary had subsequently adopted its directive sur on the “incompatibility of judicial office with membership of the Freemasons, which had been primarily concerned with that issue. It was clear from an overall examination of the debate on 22 March 1990 that the National Council of the Judiciary had been questioning whether it was advisable for a judge to be a Freemason, but there had been no indication in the debate that membership of the Freemasons could constitute a disciplinary offence in every case.The wording of the directive of 22 March 1990 had therefore not been sufficiently clear to enable the applicant, despite the fact that he was a judge, to realise – even in the light of the debate prior to the adoption of the directive – that his membership of a Masonic lodge could lead to sanctions being imposed on him. Accordingly, the interference had not been foreseeable and had therefore not been “prescribed by law”.
Conclusion: violation (eleven votes to six).
Article 41 – The Court awarded the requérantapplicant 10 000,000 euros for non-pecuniary damage and a specified sum for costs and expenses.
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This summary by the Registry does not bind the Court.
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