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The European Court of Human Rights
(ECHR) has handed down a landmark
judgment under Article 14 of the European
Convention on Human Rights – prohibition
of discrimination – in an application
involving public appointments brought
by the Grand Orient of Italy.
The decision was taken by six votes to
one. Under Article 41 of the Convention,
the court held, unanimously, that the
finding of a violation constituted sufficient
just satisfaction for non-pecuniary damage.
They awarded the Grand Orient of Italy
5,000 euros (£3,400) costs and expenses.
The Grand Orient of Italy, which is not
recognised by the United Grand Lodge of
England, had complained about a law laid
down by the Region of Friuli-Venezia
Giulia regarding rules to be followed for
nominations to public offices for which
the
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Region was the appointing authority.
In particular, this law, enacted in February
2000, required candidates for such posts to
declare whether they were members of a
Masonic or, in any event, a secret association.
The absence of a declaration constituted
a ground for refusing appointment.
In a note of 15 September 2005, the
regional council showed 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
they were a Mason. This individual
eventually got the job.
Regarding the negative effects that the
obligation to declare one’s membership of
a Masonic Lodge might have on the image
and associative life of the Grand Orient of
Italy, the court held that it could claim to
be a ‘victim’ of a breach of Article 11 of the
Convention.
The ECHR added: “That conclusion
meant that there had been an interference
with its rights 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.”
Furthermore, 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. They could not, therefore,
incur the statutory penalty for an omission.
Accordingly, there was a difference of
treatment between members of the Grand
Orient of Italy 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, introduced 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
those requirements remained valid.
On Article 11, the ECHR found that
the prohibition on nominating Masons
to certain public offices for which the
Region was the appointing authority was
not “necessary in a democratic society.”
Penalising someone for their membership
of an association was unjustified, since that
fact was not in itself legally reprehensible.
The Grand Orient of Italy had previously
complained about another Region, in
which the court had delivered a judgment
in August 2001. In the present case, being
a Freemason did not automatically bar a
person from nomination for a public office,
because the only candidate for a particular
job, declaring himself to be a Mason, had
nevertheless been appointed to the post.
However, the ECHR found that those
considerations, which might be relevant
under Article 11, were not so important
where the case was examined – as in this
case – from the standpoint of the nondiscrimination
clause.
In Friuli-Venezia Giulia, only Masons
were under an obligation to declare their
membership when they sought nomination
to certain public offices for which the
Region was the appointing authority.
As such “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.
Chamber judgment: Grande Oriente D’Italia
di Palazzo Giustiniani v Italy (No. 2)
(Application No. 26740/02)
Jean-Philippe Ksiazek/AFP/Getty Images
The court gave judgment in favour of the Grand Orient of Italy
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