European Court of Human Rights: Italian Regional Law is discriminatory
01.06.2007
EUROPEAN
COURT OF HUMAN RIGHTS
351
31.5.2007
Press
release issued by the Registrar
CHAMBER
JUDGMENT
GRANDE ORIENTE D`ITALIA DI PALAZZO GIUSTINIANI v. ITALY (No. 2)
The European Court of Human Rights
has today notified in writing its Chamber judgment
in the case of Grande
Oriente D`Italia di Palazzo Giustiniani v. Italy (No. 2) (application no. 26740/02).
The Court held by six votes to one
that there had been a
violation of Article
14 (prohibition of discrimination) of the European Convention on Human
Rights taken in conjunction with Article
11 (freedom of assembly and association).
Under Article 41 (just satisfaction)
of the Convention, the Court held, unanimously, that the finding of a violation
constituted in itself sufficient just satisfaction for the non-pecuniary damage
and awarded the applicant association 5,000 euros for costs and expenses. (The
judgment is available only in French.)
1. Principal
facts
The applicant association, Grande
Oriente D’Italia di Palazzo Giustiniani, is an Italian Masonic association
which groups together several lodges. It has been in existence since 1805 and is
affiliated to Universal Freemasonry.
The applicant association had
previously introduced an application complaining about a restriction on its
freedom of association on account of a regional law enacted by the Marches
Region. On 2 August 2001 the European Court of Human Rights delivered a judgment
(Grande Oriente D’Italia
di Palazzo Giustiniani v. Italy).
The present application concerns
Regional Law no. 1 of 15 February 2000 of the Autonomous Region of
Friuli-Venezia Giulia. That law laid down, among other things, the rules to be
followed for nominations to public offices for which the Region was the
appointing authority. In particular, it required candidates for such posts to
declare to the president of the regional executive and the appointments board of
the Regional Council whether they were a member of a Masonic or, in any event, a
secret association. The absence of a declaration constituted a ground for
refusing appointment.
A note by the Regional Council of
Friuli-Venezia Giulia of 15 September 2005 shows that only one of the 237
candidates for a post on the executive board of a company in which the Region
was a stakeholder had declared their membership of a Masonic lodge. That person
was chosen by the Regional Council to carry out those duties.
2. Procedure
and composition of the Court
The application was lodged with the
European Court of Human Rights on 7 June 2000.
Judgment was given by a Chamber of
seven judges, composed as follows:
Christos Rozakis
(Greek), President,
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian),
Giorgio Malinverni (Swiss),
judges,
Annalisa Ciampi (Italian),
ad hoc judge,
and also Søren Nielsen,
Section
Registrar.
3. Summary
of the judgment
Complaints
Relying on Article 14 of the
Convention, taken in conjunction with Article 11, the applicant association
complained that section 55 of
Regional Law no. 1 of 2000 was discriminatory and incompatible with its right to
freedom of association.
It alleged that section 55 of
Regional Law no. 1 of 2000 had also violated Article 11 of the Convention, taken
alone, and Article 13 (right to an effective remedy).
Decision
of the Court
Article
14 taken together with Article 11
The Court held that, having regard to
the negative effects that the obligation to declare one’s membership of a
Masonic lodge might have on the applicant association’s image and associative
life, it could claim to be a “victim” of a breach of Article 11 of the
Convention. That conclusion meant that there had been an interference with
its right to freedom of association. It followed that the facts in question fell
within the ambit of Article 11. Article 14 of the Convention was
therefore applicable.
The Court observed that the provision
in question distinguished between secret and Masonic associations, membership of
which had to be declared, and all other associations. Members of the latter were
exempted from any obligation to make such a declaration when seeking nomination
for public office, and could not therefore incur the statutory penalty for an
omission.
Accordingly, there was a difference
of treatment between the members of the applicant association and the members of
any other non-secret association.
Regarding whether there was an
objective and reasonable justification for such a difference, the Court
reiterated that it had already held that the prohibition on nominating
Freemasons to public office, which had been introduced in order to
“reassure” the public at a time when there had been controversy surrounding
their role in the life of the country, had pursued the legitimate aims of
protecting national security and preventing disorder. The Court considered that
those requirements remained valid.
The Court further reiterated that,
examining the issue under Article 11 of the Convention taken alone, it had
found that the prohibition on nominating Freemasons to certain public offices
for which the Region was the appointing authority was not “necessary in a
democratic society”. It had observed that penalising someone for their
membership of an association was unjustified, since that fact was not in itself
legally reprehensible.
The present case differed from the
previous one in that, under the Friuli-Venezia Giulia legislation, membership of
the Freemasons did not automatically debar the candidate from nomination for one
of the offices in question. That a Freemason was not automatically debarred had
been demonstrated by the fact that the only candidate to have declared his
membership of a lodge had been chosen by the Regional Council for the office in
question.
The Court found, however, that those
considerations, which might be relevant under Article 11 taken alone, were
not so important where the case was examined, as in the instant case, from the
standpoint of the no-discrimination clause. It considered that membership of
many other non-secret associations might create a problem for national security
and the prevention of disorder where members of those associations held public
office. This might be the case, for example, for political parties or groups
advocating racist or xenophobic ideas, or for sects or associations with a
military-type internal structure or those that established a rigid and
incompressible bond of solidarity between their members or pursued an ideology
that ran counter to the rules of democracy, which was a fundamental element of
“European public order”.
In Friuli-Venezia Giulia, however,
only members of a Masonic association were under an obligation to declare their
membership when they sought nomination to certain public offices for which the
Region was the appointing authority. No objective and reasonable justification
for this difference in treatment between non-secret associations had been
advanced by the Government.
Accordingly, the Court held
that there had been a violation of Article 14 taken in conjunction with Article
11 of the Convention.
Articles
11 and 13
Having regard to the finding in
respect of Article 14 of the Convention, the Court held that there was no need
to examine whether there had in this case been a violation of Article 11 taken
alone and/or of Article 13.
***
The Court’s judgments are
accessible on its Internet site (http://www.echr.coe.int).
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.
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