Permissible restrictions on freedom of assembly and association
II. RELEVANT DOMESTIC LAW A. The Italian Constitution 17. The relevant provisions of the Constitution are the following : Article 18 “Citizens may form associations freely, without authorisation, for purposes not prohibited for individuals by the criminal law. Secret associations and associations pursuing, even indirectly, a political aim through organisations of a military nature shall be prohibited.” Article 25 “No one shall be removed from the jurisdiction of a lawfully established court. No one shall be punished save in accordance with a law in force at the time when the offence was committed. No one shall be subjected to security measures except in cases provided for by law.” Article 54 “All citizens shall have the duty to be loyal to the Republic and to comply with the Constitution and the laws. Citizens to whom public offices are entrusted shall perform them with discipline and honour, and take an oath where it is required by law.” Article 98 “Public officials shall be at the exclusive service of the nation. If they are members of Parliament they shall be promoted only by seniority. The right to become members of political parties may be limited by law in the case of members of the judiciary, professional members of the armed forces on active duty, police officials and officers, and diplomatic and consular representatives abroad.” Article 101 “Justice shall be administered in the name of the people. Judges shall be beholden only to the law.” Article 111 (version applicable in the instant case, before the entry into forceof Constitutional Law no. 2 of 23 November 1999) “Reasons shall be stated for all judicial decisions. An appeal on points of law to the Court of Cassation for a breach of the law shall always be allowed against judgments and measures concerning personal freedom delivered by the ordinary or special courts. This provision may be waived only in the case of sentences pronounced by military courts in time of war. Appeals to the Court of Cassation against decisions of the Consiglio di Stato and the Court of Audit shall be allowed only on grounds pertaining to jurisdiction.” B. Article 18 of Royal Legislative Decree no. 511 of 31 May 1946 18. Royal Legislative Decree no. 511 of 31 May 1946 (“the 1946 decree”) concerns the safeguards afforded to members of the State legal service ( guarentigie della magistratura ). Article 18 of the decree provides that any judge who “fails to fulfil his obligations or behaves, in the performance of his duties or otherwise, in a manner which makes him unworthy of the trust and consideration which he must enjoy or which undermines the prestige of the judiciary” will incur a disciplinary sanction. 19. The Constitutional Court, when asked to give a ruling as to whether Article 18 of the 1946 decree was compatible with Article 25 § 2 of the Constitution, held that, in disciplinary proceedings against judges, the principle of lawfulness applied as a fundamental requirement of the rule of law and was a necessary consequence of the role conferred on the judiciary by the Constitution (judgment no. 100 of 8 June 1981, § 4). However, with regard to the fact that Article 18 did not specify the types of conduct which might be regarded as unlawful, the Constitutional Court pointed out that it was not possible to give examples of every type of conduct which might undermine the values guaranteed by that provision: the trust and consideration which a judge must enjoy and the prestige of the judiciary. It considered that those values amounted to principles of professional conduct which could not be included in “ guidelines laid down in advance, because it [was] not possible to identify and classify every example of reprehensible conduct which might provoke a negative reaction in society” (ibid., § 5). The Constitutional Court subsequently reiterated that the earlier laws governing the same subject matter had included a provision of general scope alongside the provisions penalising specific conduct, that the proposals for reform in this field had always been worded in general terms and that the same was true for other professional categories. It concluded: “The provisions in this area cannot but be of general scope because specific guidelines would have the effect of legitimising types of conduct which were not expressly mentioned, but which nonetheless attracted society's opprobrium.” It added that those considerations justified the broad scope of the rule and the wide margin of appreciation conferred on a body which, acting within the guarantees inherent in any judicial procedure, was – by virtue of its composition – particularly well qualified to assess whether the conduct considered in each case did or did not undermine the protected values (ibid., § 5). The Constitutional Court considered, lastly, that such an interpretation was consistent with its case-law on the subject of lawfulness (ibid., § 6). It stated that, as it had previously held, “the principle of lawfulness [was] applicable not only by means of a rigorous and exhaustive description of individual cases, but sometimes also through the use of expressions that are sufficient to determine the rule with certainty and to ascertain whether a particular type of conduct has breached the principle”. It further held: “'open-ended'provisions which penalise unlawful types of conduct by reference to concepts based on common experience or objectively understandable ethical and social values are fully compatible with the principle of lawfulness. ” The Constitutional Court added that, with regard to the provisions in issue, such interpretation criteria appeared more valid in a disciplinary context because, in comparison with criminal offences, disciplinary offences aroused less of a reaction in society and had less of an impact on the personal situation of the individual concerned, and also because the possibility of conduct undermining the protected values was greater than in the case of criminal offences. It further stated that the reference in Article 18 to the trust and consideration which a judge must enjoy and to the prestige of the judiciary was not objectionable as those concepts could be determined according to general opinion. Accordingly, the Constitutional Court held that the constitutional provisions in issue had not been infringed, since there had been no breach of the principles of lawfulness and of the independence of the judiciary. C. Law no. 17 of 25 January 1982 20. Law no. 17 of 25 January 1982 contains provisions on the implementation of Article 18 of the Constitution (right of association) in respect of secret associations and on the dissolution of the “ P2 ” lodge. Section 2 provides that membership of a secret association is a criminal offence. With regard to civil servants, section 4 provides that disciplinary proceedings must also be brought against them before a special committee constituted according to very precise rules. However, where judges of the ordinary, administrative and military courts are concerned, jurisdiction is vested in the relevant disciplinary bodies. D. The directives of the National Council of the Judiciary 1. The directive of 22 March 1990 21. On 22 March 1990 the National Council of the Judiciary adopted a directive after holding a debate – further to a message from the Head of State, who acts as its president – on the incompatibility of judicial office with membership of the Freemasons. The proceedings of that meeting ( the debate and the text of the directive ) were published in the Official Bulletin ( Verbali consiliari, pp. 89-129) under the heading “Report on the incompatibility of judicial office with membership of the Freemasons”. An introductory note states that the report was compiled by the Committee on Reform of the Judicial System. A copy of the report was sent to the President of Italy and the speakers of the Senate and the Chamber of Deputies. According to the directive, “judges'membership of associations imposing a particularly strong hierarchical and mutual bond through the establishment, by solemn oaths, of bonds such as those required by Masonic lodges raises delicate problems as regards observance of the values enshrined in the Italian Constitution”. The National Council of the Judiciary added that it was “undoubtedly [within its] powers to verify compliance with the fundamental principle of Article 101 of the Constitution, according to which'judges are beholden only to the law'”. It continued: “ this scrutiny entails ... taking care to ensure that, in discharging their duties, all judges respect – and are seen to respect – the principle of being beholden to the law alone. ” The National Council of the Judiciary then referred to the Constitutional Court's judgment no. 100 of 8 June 1981, in which judges'freedom of thought had been weighed against their obligation to be impartial and independent (see paragraph 19 above). It added: “ it has to be stressed that among the types of conduct of a judge to be taken into consideration for the requirements of the exercise of the administrative activity peculiar to the Council, there is also, beyond the limit laid down by Law no. 17 of 1982 [see paragraph 20 above], the acceptance of constraints which (a) are superimposed on the obligation of loyalty to the Constitution and of impartial and independent exercise of judicial activity and (b) undermine the confidence of citizens in the judiciary by causing it to lose its credibility. ” Lastly, the National Council of the Judiciary considered it necessary “ to suggest to the Minister of Justice that consideration be given to the advisability of proposing restrictions on judges'freedom of association, to include a reference to all associations which – on account of their organisation and ends – entail for their members particularly strong bonds of hierarchy and solidarity”. 2. The directive of 14 July 1993 22. On 14 July 1993 the National Council of the Judiciary adopted a further directive. It stated that the question whether membership of the Freemasons was compatible with judicial office had hitherto given rise solely to considerations concerning judges'career development and access to positions of leadership. Following criticism from certain political figures, including the Italian President, to the effect that such an approach was unconstitutional, it had proved necessary to clarify the matter from a legal point of view. Referring to judges'duties of loyalty and obedience, and having pointed out that the freedom of association for the purpose of professing Masonic ideas was not being called into question on a general level, the National Council of the Judiciary emphasised, however, that the performance of judicial duties was incompatible with membership of the Freemasons in Italy on account of the association's secret nature and the means of action and aims of the country's Masonic lodges. THE LAW I. THE APPLICANT'S COMPLAINTS 23. Relying on Articles 9, 10 and 11 of the Convention, the applicant alleged a violation of his right to freedom of thought, conscience and religion, his right to freedom of expression and his right to freedom of peaceful assembly and association. 24. The Court considers that the applicant's complaints fall most naturally within the scope of Article 11 of the Convention. Accordingly, it will consider them under that provision only. II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 25. The applicant complained that the decision by the National Council of the Judiciary, upheld by the Court of Cassation, to impose a disciplinary sanction on him in the form of a reprimand for being a Freemason had infringed his right to freedom of assembly and association. He relied on Article 11 of the Convention, which provides: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Whether there was interference 26. The Court considers that there was interference with the applicant's right to freedom of association as guaranteed by Article 11 of the Convention. The Government did not dispute this. 27. In order to be compatible with Article 11, such interference must satisfy three conditions. It must be “prescribed by law”, pursue one or more legitimate aims under paragraph 2 and be “necessary in a democratic society” for the achievement of the aim or aims. B. Whether the interference was “prescribed by law” 1. The parties'submissions (a) The applicant 28. The applicant asserted that there were no laws in Italy prohibiting judges from being members of the Freemasons, a political party, a trade union or a Church. He considered that Article 18 of Royal Legislative Decree no. 511 of 1946 was obsolete and served a purely formal purpose in that it did not specify the types of conduct and action that were prohibited for judges but merely conferred power on the National Council of the Judiciary to determine which types of conduct and action were concerned. He further submitted that the only associations prohibited by the Italian Constitution were secret ones and those which pursued political aims by means of military organisations. He argued that Freemasonry was not a secret association, but rather a private association like other Italian associations such as political parties and trade unions; however, lists of such associations'members were not made public, contrary to the practice adopted by the Freemasons. Moreover, Freemasonry was not a paramilitary organisation and pursued purely cultural, humanitarian and philanthropic aims. (b) The Government 29. Relying on N.F. v. Italy (no. 37119/97, §§ 14-19 and 27, ECHR 2001 ‑ IX), the Government observed that the Court had already found in a similar case that domestic law provided a “sufficient and accessible legal basis” for the interference complained of, namely Article 18 of the 1946 decree (ibid., § 27). Turning to the quality of the law, the Government argued that, with regard to the condition of foreseeability, all the rules existing in Italian law, namely the relevant provisions of the Constitution, Article 18 of the 1946 decree and the two directives issued by the National Council of the Judiciary, constituted a clear legislative framework with foreseeable effect, particularly on account of the “personal status ” of those to whom they were addressed and the field they covered. 2. The Court's assessment 30. The Court notes that it has already had occasion to rule on whether the enforcement of a disciplinary sanction imposed on a judge, on the basis of Article 18 of the 1946 decree, for belonging to the Freemasons is compatible with Article 11 of the Convention (see N.F. v. Italy, cited above). In that judgment the Court found that the disciplinary sanction had had a basis in Italian law ( § 27) and that the “law” on which it was based had been accessible ( § 28). However, it considered that the condition of foreseeability had not been satisfied ( §§ 29-34). The Court reiterates that the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49; Larissis and Others v. Greece, judgment of 24 February 1998, Reports of Judgments and Decisions 1998-I, p. 378, § 40; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, ECHR 2001 ‑ XII). For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, and N.F. v. Italy, cited above, § 29). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup, cited above, § 31). 31. In the instant case, the Court notes that Article 18 of the 1946 decree, construed in the light of Law no. 17 of 1982 and the 1990 directive, was the legal provision used as the basis for the sanction imposed on the applicant. It therefore concludes that the disciplinary measure had a basis in domestic law. 32. The Court must next determine whether, in the light of the particular circumstances of the case, the condition relating to the quality of the law was also satisfied. It must therefore ascertain whether the law was accessible and foreseeable as to its effects. 33. As regards accessibility, the Court observes that Article 18 of the 1946 decree satisfied that condition because it was public and, moreover, readily accessible to the applicant on account of his profession. The fact that both the disciplinary section of the National Council of the Judiciary and the Court of Cassation also referred in their reasoning to the 1993 directive, which was issued after the material events, is irrelevant. Article 18 and the first directive adopted by the National Council of the Judiciary in themselves constituted provisions that satisfied the condition of accessibility (see, mutatis mutandis, Autronic AG v. Switzerland, judgment of 22 May 1990, Series A no. 178, p. 25, § 57). 34. As regards foreseeability, the Court must determine whether domestic legislation laid down with sufficient precision the conditions in which a judge should refrain from joining the Freemasons. In this connection, regard should also be had to the particular requirements of disciplinary regulations. 35. The Court notes, firstly, that Article 18 of the 1946 decree does not define whether and how a judge can exercise his or her freedom of association. Furthermore, while holding that Article 18 was compatible with the Italian Constitution, the Constitutional Court noted that that provision was of general scope (see paragraph 19 above). 36. The Court considers that, in the applicant's case, a distinction should be made between two periods: the period from 1981, when he joined the Freemasons, to 22 March 1990, when the National Council of the Judiciary adopted its first directive, and the period between that date and March 1993, when the applicant left the Freemasons. The directive adopted by the National Council of the Judiciary in 1990 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 (see paragraph 21 above). 37. With regard to the first period, the Court considers that Article 18 of the decree on its own did not contain sufficient information to satisfy the condition of foreseeability. The fact that Italy passed a law in 1982 on the right of association – which also ordered the dissolution of the secret P2 lodge (see paragraph 20 above) and prohibited membership of secret associations – could not have enabled the applicant to foresee that a judge's membership of a legal Masonic lodge could give rise to a disciplinary issue. 38. With regard to the second period, the Court must determine whether Article 18, combined with the 1990 directive (see paragraph 21 above), supports the proposition that the sanction in question was foreseeable. 39. It notes in that connection that the directive in question was issued in the context of an examination of the specific question of judges'membership of the Freemasons. Furthermore, the title of the report was clear: “Report on the incompatibility of judicial office with membership of the Freemasons. ” However, although the title was unambiguous and the directive was primarily concerned with membership of the Freemasons, the debate held on 22 March 1990 before the National Council of the Judiciary sought to formulate, rather than solve, a problem. That is demonstrated by the fact that the directive was adopted after the major debate in Italy on the unlawfulness of the secret P2 lodge. Furthermore, the directive merely stated: “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 directive contained the following passage: “the [National] Council [of the Judiciary] considers it necessary to suggest to the Minister of Justice that consideration be given to the advisability of proposing restrictions on judges'freedom of association, to include a reference to all associations which – on account of their organisation and ends – entail for their members particularly strong bonds of hierarchy and solidarity” (see paragraph 21 above). 40. Lastly, the Court considers it important to emphasise that the debate of 22 March 1990 did not take place in the context of disciplinary supervision of judges, as was the case for the directive of 14 July 1993, but in the context of their career progression ( see paragraph 22 above). It is therefore clear from an overall examination of the debate that the National Council of the Judiciary was questioning whether it was advisable for a judge to be a Freemason, but there was no indication in the debate that membership of the Freemasons could constitute a disciplinary offence in every case. 41. Accordingly, the wording of the directive of 22 March 1990 was not sufficiently clear to enable the applicant, who, being a judge, was nonetheless informed and well - versed in the law, to realise – even in the light of the preceding debate and of developments since 1982 – that his membership of a Masonic lodge could lead to sanctions being imposed on him. The Court's assessment is confirmed by the fact that the National Council of the Judiciary itself felt the need to come back to the issue on 14 July 1993 (see paragraph 22 above) and state in clear terms that the exercise of judicial functions was incompatible with membership of the Freemasons. 42. That being so, the Court concludes that the condition of foreseeability was not satisfied in respect of the period after March 1990 either and that, accordingly, the interference was not prescribed by law. There has therefore been a violation of Article 11 of the Convention. C. Compliance with the other requirements of paragraph 2 of Article 11 43. Having reached the conclusion that the interference was not prescribed by law, the Court does not consider it necessary to ascertain whether the other requirements of paragraph 2 of Article 11 of the Convention were complied with in the instant case – namely, whether the interference pursued a legitimate aim and whether it was necessary in a democratic society. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 45. In his claims submitted under Rule 60 of the Rules of Court the applicant asked the Court to order the respondent State to put an end to the violations found by taking any measures available at national level. On the basis of Recommendation Rec(2000) 2 of the Committee of Ministers to the member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (adopted by the Committee of Ministers on 19 January 2000 at the 694th meeting of the Ministers'Deputies), the applicant sought the reopening of the disciplinary proceedings. He argued that the Court's judgment was to be regarded as a “new fact” which, under Article 37 § 6 of the 1946 decree, entitled him to apply for those proceedings to be reopened. During the oral proceedings the applicant also sought an award for non-pecuniary damage. He stated, however, that he was not seeking financial gain but, rather, a moral victory which would dispel any doubts as to whether his membership of the Freemasons had been lawful. He left it to the Court's discretion to determine the amount. 46. The Government observed that the applicant's claim for non-pecuniary damage had been submitted for the first time at the hearing on 25 June 2003. They considered, however, that a finding of a violation would constitute in itself sufficient just satisfaction under that head. They further submitted that the applicant had not proved that he had sustained any such damage. 47. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII, and Pisano v. Italy (striking out) [GC], no. 36732/97, § 43, 24 October 2002). Furthermore, it follows from the Convention, and from Article 1 in particular, that in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it. Consequently, it is for the respondent State to remove any obstacles in its domestic legal system that might prevent the applicant's situation from being adequately redressed. In the instant case, it is for the respondent State to take appropriate measures to redress the effects of any past or future damage to the applicant's career as a result of the disciplinary sanction against him which the Court has found to be in breach of the Convention. 48. The Court notes that the applicant did not submit a quantified claim for non-pecuniary damage. At the hearing on 25 June 2003, however, he left the matter to the Court's discretion. The Court considers that the applicant must have sustained damage on account of the psychological and mental suffering caused by the imposition and enforcement of the disciplinary sanction against him. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of 10,000 euros (EUR) under this head. B. Costs and expenses 49. The applicant sought reimbursement of the costs incurred in the disciplinary proceedings, namely EUR 8,500, and of the expenses incurred in the proceedings before the Court, which he put at EUR 12,000. 50. The Government left the matter to the Court's discretion. 51. As regards the proceedings before the domestic courts, the Court observes that they were instituted with a view to redressing the grievance that led to its finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court, having regard to the work incontestably performed by his lawyer during the written and oral stages of the proceedings, awards the applicant EUR 4,000, a similar amount to that awarded to the applicant in N.F. v. Italy (see paragraph 47 of that judgment ). As regards the costs incurred in the proceedings before it, the Court notes that the Chamber to which the case was initially allocated relinquished jurisdiction in favour of the Grand Chamber (Rule 72). It therefore considers it reasonable to award the applicant the sum of EUR 10,000. C. Default interest 52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 11 (freedom of association) of the Convention, finding that the interference with the applicant’s right to freedom of association had not been foreseeable and had therefore not been prescribed by law. It noted in particular that, although a directive on the incompatibility of judicial office with membership of the Freemasons had been adopted by the National Council of the Judiciary in 1990, the debate before the Council had sought to formulate, rather than solve, a problem. Furthermore, 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 condition of foreseeability had not been satisfied either. The Court’s assessment was lastly 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.