CASE OF GRANDE ORIENTE D'ITALIA DI PALAZZO GIUSTINIANI v. ITALY
Preliminary objection rejected (victim);Violation of Art. 11;Not necessary to examine Art. 13;Not necessary to examine Art. 14+11;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Georg Ress
8. The applicant association is an Italian masonic association which groups together several lodges. It has been in existence since 1805 and is affiliated to Universal Freemasonry. In Italian law the applicant association has the status of an unrecognised private-law association under Article 36 of the Civil Code. It therefore does not have legal personality. It has filed its Articles of Association with a notary (notaio) and anyone can have access to them. By Regional Law no. 34 of 5 August 1996 (“the 1996 Law”), published in the Official Gazette of 14 August of the same year, the Marches Region (“the Region”) laid down the rules to be followed for nominations and appointments to public office for which the Region was the appointing authority (Norme per le nomine e designazioni di spettanza della Regione). Before the Court the applicant association complained of the damage allegedly sustained by it as a result of the content of section 5 of the 1996 Law. Section 1 of the 1996 Law provides that the rules shall apply to all nominations and appointments by the bodies constituted according to the Region’s Statute pursuant to laws, rules, statutes and agreements to posts in “departments of public-law and private-law authorities and bodies other than the Region”. It also provides that the rules shall likewise apply to nominations to fifteen regional bodies (listed in Schedule A to the 1996 Law) and, in some cases, to other regional bodies for which the Regional Council is the appointing authority (Schedule B to the 1996 Law). Section 5 of the Law sets out the terms and conditions for submitting applications for nominations and appointments. It provides, inter alia, that candidates must not be Freemasons. It is worded as follows: “1. Applications may be submitted by regional councillors and council groups and by professional bodies, organisations and associations active in the fields concerned to the President of the Regional Council and the President of the Regional Government respectively until thirty days before the period allowed for a nomination or appointment expires. 2. Applications must be accompanied by a statement of supporting reasons and a report containing the following particulars: (a) municipality of residence, date and place of birth; (b) qualifications; (c) career to date, usual occupation, list of currently and previously held public offices or positions in majority State-owned companies and publicly registered private companies; (d) lack of conflict of interest with the office proposed; (e) declaration of non-membership of a masonic lodge; (f) declaration, signed by the candidate, accepting the public office and stating that there is nothing to debar him from office on criminal, civil or administrative grounds. 3. The declaration of acceptance signed by the candidate must be certified authentic and contain a statement by him of any grounds of incompatibility and of the absence of any grounds debarring him from applying or making it impossible for him to do so, regard being had also to section 15 of Law no. 55 of 19 March 1990 as subsequently amended.” 9. In June 1999 the first committee of the Marches Regional Council rejected a regional bill (no. 352/98) proposing amendments and additions to Law no. 34 of 1996. The bill was intended, among other things, to abolish the declaration provided for in section 5 of the 1996 Law. 10. Article 18 of the Constitution provides: “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.” Law no. 17 of 25 January 1982 contains the implementing provisions for Article 18 of the Constitution with regard to secret associations and provided for the dissolution of the association called “P2 Lodge”. Section 1 lays down the criteria for regarding an association as being a secret one. Section 4 sets out the measures to be taken in respect of persons employed in the civil service or appointed to a public office who are suspected of belonging to a secret association. That section also provides that the regions shall enact regional laws for their officials and persons nominated or appointed by a region to a public office. These regional laws must respect principles laid down in the same provision. According to the information supplied to the Court by the applicant association, such laws have been enacted by the regions of Tuscany (Law no. 68 of 29 August 1983), Emilia-Romagna (Law no. 34 of 16 June 1984), Liguria (Law no. 4 of 22 August 1984), Piedmont (Law no. 65 of 24 December 1984) and Lazio (Law no. 23 of 28 February 1985). Two of these regional laws provide that persons nominated or appointed to public office must name the associations to which they belong (section 12 of the Tuscany law and section 8 of the Lazio law). The other laws lay down the penalties to be imposed on persons so nominated or appointed if it transpires that they are members of a secret association (section 7 of the Emilia-Romagna law, section 8 of the Liguria law and section 8 of the Piedmont law). The Emilia-Romagna law also contains a prohibition on nominating or appointing persons affiliated to secret associations (section 7 of the Emilia-Romagna law).