JOINT DISSENTING OPINION OF JUDGES BONELLO, STRÁŽNICKÁ, BÎRSAN, JUNGWIERT AND DEL TUFO

1 . We disagree with the majority ' s finding that the State ' s interference with the applicant ' s enjoyment of his rights under Article 11 was “not prescribed by law” in so far as that interference lacked the element of foreseeability [1] .

2 . It is our view that the applicant, a magistrate presumed to be versed in the law, knew, or reasonably ought to have known, that joining an Italian Masonic lodge would have attracted disciplinary sanctions. There were compelling and inescapable pointers scattered throughout the Italian legal system that should have left no doubt in his mind as to the incompatibility of membership of the Italian Freemasons with the exercise of judicial functions.

3 . The majority concluded that none of the measures current in Italy before 1993, including the directive approved by the National Council of the Judiciary on 22 March 1990, were “sufficiently clear” to forewarn the applicant of disciplinary sanctions in the event of his joining a Masonic lodge. To reach this inference the majority were repeatedly compelled to disregard the Court ' s (and the Commission ' s) long-standing case-law and the abundant harvest of factual findings on record.

The interference

4 . It is important to emphasise at the outset that the applicant himself never claimed in his defence before the Italian courts that he could not have foreseen that membership of a Masonic lodge was incompatible, under Italian norms, with the exercise of his judicial functions. It was only as a last resort before this Court that he discovered the non-foreseeability of the prohibition . In the Italian courts he relied exclusively on a defence that, as a matter of fact, he was unaware of the prohibition on judges joining the Freemasons and, in law, that the ban was in breach of his freedom of association guaranteed by the Constitution, and also that insufficient reasons had been given for the penalty imposed on him [2] .

5 . In other words, the applicant always accepted that the Italian system contained norms prohibiting judges from joining the Freemasons, but claimed that these norms were in violation of his fundamental right of freedom of association and that insufficient reasons had been given for the sanction against him. He never asserted in the domestic fora that he could not have foreseen from the existing norms that membership of the Freemasons could lead to disciplinary sanctions.

Who is the best interpreter of domestic law?

6 . The various national adjudicating authorities which were called upon to determine the issue, or to try the applicant, had absolutely no misgivings in finding in the 1990 directive to the judiciary on Freemasonry, and in the norms which preceded it, a sufficiently clear and foreseeable legal basis on which to establish that by joining the Freemasons he had infringed his judicial duties.

Thus, relying on a 1981 judgment of the Constitutional Court [3] , the National Council of the Judiciary (the highest body that regulates the conduct of the judiciary), in its decision of 10 October 1995 in the applicant ' s case, found that the Italian legal system contained a sufficient and clear legal basis for the ban on judges joining the Freemasons [4] . Similarly, on 20 December 1996 the Court of Cassation, on an appeal by the applicant, confirmed the existence of a clear legal basis for the ban [5] .

7 . According to the Court ' s case-law, the national adjudicating authorities are the natural interpreters of domestic law. “The Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation, the Court ' s role being confined to determining whether the effects of that interpretation are compatible with the Convention . ” [6] On norms which could be deemed to have been drafted with insufficient precision, the Court has stressed that “it is primarily for the national authorities to interpret and apply domestic law” [7] when a question arises whether a particular norm is sufficiently clear and foreseeable.

The Court has also underlined that it regards the courts of first instance and appeal as being the most qualified for the task of construing and applying domestic law [8] .

It is thus clear that, at least to date, the Court has declined to interpret domestic law and has taken the domestic courts ' interpretation to be correct and binding. The Court only exceptionally interferes, but not in reinterpreting domestic law; its intervention is limited to enquiring whether domestic law, as established by the national authorities , is compatible with the Convention.

8 . In view of this well-established case-law, it is a matter of notable concern that the majority elected to disregard the unanimous interpretation of Italian law repeatedly made by the highest Italian adjudicating authorities as to the sufficiency of the legal basis in this particular case, and found it expedient to second-guess the consistent and unanimous legal assessment made by the Italian courts.

9 . In our view, the judgment of the majority has totally pushed aside the principle of subsidiarity (and also those of the “fourth-instance” doctrine and the margin of appreciation), so fundamental to the proper application of the Convention.

The s pecific historical and social context in Italy

10 . In our view it is important from the outset to recall very briefly some facts that deeply affected Italian Freemasonry from the 1970s onwards: the detection of “ P2 ” , a secret and deviant Masonic lodge; the Licio Gelli affair; the suspicion that some Masonic lodges were implicated in subversive plots to overthrow Italian democracy; the Gladio affair; and indications that part of Italian Freemasonry had close links with the Mafia, terrorism and organised crime. The report by the p arliamentary c ommission of i nquiry on the P2 lodge, sub mitted by President Tina Anselmi in 1984, should be kept in mind too, as should, inter alia, the fact that a Grand Master of the Grande Oriente of Italy left the association and founded a new observance in consequence of the disreputable situation Italian Freemasonry was in, and the fact that, for the same reasons, British Freemasonry formally decided to withhold recognition of the Grande Oriente (the official Masonic association) of Italy and banned its affiliates from having connections with their Italian brothers.

It is against this social and historic al background that the events in issue took place, and that the applicant remained affiliated to the Freemasons.

The l egal basis for the interference

11 . Concerning the legal context in the light of which the facts should be evaluated, we observe the following.

(a) The Italian Constitution

As the Court ' s judgment points out, the Constitution of the Italian Republic enshrines:

(i) the principle of free association for individuals, for purposes not prohibited by the criminal law (Article 18);

(ii) the principle of legality (Article 25);

(iii) the duty for all citizens to be loyal to the Republic and its laws (Article 54 § 1);

(iv) the duty for persons to whom public offices are entrusted to perform them with discipline and honour, taking an oath where this is required by law (Article 54 § 2);

(v) the duty for public officials to be at the exclusive service of the nation (Article 98 § 1);

(vi) the possibility of limiting by law the right to become members of political parties in the case of, inter alia , members of the judiciary (Article 98 § 3); and

(vii) the duty for judges to be beholden only to the law (Article 101 § 2).

Article 104 § 1, which asserts the autonomy of the judiciary and its independence from any other power, is also to be borne in mind.

(b) Article 18 of Royal Legislative Decree no. 511 of 31 May 1946

Article 18 of Royal Legislative Decree no. 511 of 31 May 1946 ( Guarentigie della magistratura ) 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 disciplinary sanctions.

(c) Law no. 17 of 25 January 1982

Law no. 17 of 25 January 1982 laid down restrictions on the right of association (Article 18 of the Constitution) in respect of secret associations and provided for the dissolution of the P2 lodge.

This law is not relevant in this case. It merely implements the provisions of Article 18 § 2 of the Constitution (prohibition of secret associations and associations pursuing, even indirectly, political aims through organisations of a military nature) in the very particular context of Italian history during this period.

(d) Judgments of the Constitutional Court

Two judgments of the Constitutional Court (on penalising certain types of conduct by members of the judiciary) are relevant.

Judgments nos. 145/1976 and 100/1981 state that judges enjoy the rights granted to all citizens. Nevertheless, their function and the role they are called upon to play legitimise certain re strictions o n their enjoyment of such rights, on two conditions: the restrictions must be provided for by law and their legal basis must be of a constitutional nature.

The impartiality and independence of judges are enshrined in Article 101 § 2 and Article 104 § 1 of the Constitution. These principles are aimed both at protecting the trust and consideration which a judge must enjoy in public opinion and ensuring the dignity of the judiciary.

Impartiality and independence are constitutional principles which must have priority over the rights and liberties granted by the Constitution when judges exercise “atypically” such rights and such liberties.

As the Court noted, these judgments of the Constitutional Court also recognised the compatibility of Article 18 of the 1946 decree with Article 25 § 2 of the Constitution. The Constitutional Court pointed out that an enumeration by Article 18 of all the types of conduct which might be regarded as unlawful would be impossible, while the use of a wider and more flexible wording allows a better balance between the two different interests: trust, consideration and prestige of the judiciary, on the one hand, and the rights of individuals on the other. In penal matters, too, where the rule of legality should receive stronger protection, the principle of legality is respected, even when the provision is not very detailed, where it is possible to identify the proscribed conduct by making reference to parameters which are objective or capable of being inferred.

In the present case, the applicant should reasonably have foreseen that his conduct could incur a disciplinary sanction in the light of Article 18 of the decree.

He had joined the judiciary in 1972 and should have known of the decisions of the Italian Constitutional Court, delivered some years before his affiliation to the Freemasons in 1982. He should have known, in particular, that the right of association can be restricted on the basis of the constitutional principles of impartiality and independence, where those principles require, respectively, the appearance of independence and the absence of any appearance of bias.

Also, in the light of the specific social, historical and legal context of the Italian system , it was already inevitable that the applicant ' s conduct w ould be deemed to be in violation of Article 18 of the 1946 d ecree.

(e) The directive of 22 March 1990 by the National Council of the Judiciary

Over and above this, on 22 March 1990, the National Council of the Judiciary adopted a directive to the effect that “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”.

12 . That directive was adopted on the initiative of the President of the Italian Republic, the titular head of the National Council of the Judiciary. The Official Bulletin ( Verbali consi liari ) formally published the directive under the following heading: “Extract of the minutes of the sitting held in the morning of 22 March 1990, concerning the incompatibility of judicial office with membership of the Freemasons . ” [9]

13 . The President of the Council opened the sitting by reminding members of the Italian President ' s message “ concerning the incompatibility of judicial office with membership of the Freemasons ” [10] .

14 . The rapporteur on the directive (Dr Racheli), tabling the motion, resorted to language that could hardly have been more explicit and forceful. He referred repeatedly, and with approval, to the distressing findings of the report by the p arliamentary c ommission of i nquiry (the Tina Anselmi R eport) into the scandals rocking Italy at and prior to that time as a result of the infiltration of degenerate Freemasonry into all spheres of power, an infiltration which had resulted in a stranglehold of all democratic institutions, including the judiciary, and had compromised every sector of Italian public life and Italian Freemasonry as a whole.

The rapporteur left positively no room for equivocation that the directive was exclusively aimed at asserting the functional incompatibility between the holding of judicial office and membership of Italian Masonic lodges. “Applying the above standpoint of the Constitutional Court, it is to be excluded that judges can be members of associations that, through the bonds of hierarchy and professed and practised ideologies, may induce citizens to believe that the exercise of judicial power can be distorted to the advantage of the association or its individual members. As far as Freemasonry is concerned, there is no doubt that it is widely agreed that the image of the judiciary is greatly blackened . ” [11]

15 . The basis in Italian law on which the directive rested was explained in detail by the rapporteur and various other members of the Council who intervened in the debate. Very briefly, the incompatibility of the exercise of judicial power with Italian Freemasonry derives from the violation of the constitutional precept that judges are beholden only to the law, whereas a Freemason is bound solemnly to “swear to obey without hesitation or dissent such orders as are given to me by the Sovereign Tribunal of the 31st Degree and by the Council of the 33rd Degree of the Ancient and Accepted Scottish Rite” [12] . Moreover, the bond of solidarity between Italian Freemasons – confirmed on oath – is incompatible with the independence and impartiality indispensable in the judiciary. The regulations of the Loggia Montecarlo, as one example, further impose on members a duty “to study and analyse power with the aim of gaining it, exercising it, retaining it and rendering it ever more solid”.

16 . The debate and the directive of the National Council of the Judiciary were not generated in a vacuum (see paragraph 10 of this opinion). The applicant knew, or manifestly had the duty to know (though he claims he did not), that the highly publicised official report of the p arliamentary c ommission of i nquiry into Freemasonry in Italy had laid bare the colossal damage which the image, credibility and authority of official institutions, including the judiciary, had suffered through their infiltration by degenerate Italian Freemasonry. That report should have left absolutely no doubt in the bona fide conscience of any Italian judge about the irreversible conflict arising between the exercise of judicial power and membership of Masonic lodges. The widely distributed report, as the rapporteur remarked, did not record the feelings of individuals, but “registered the beliefs of the Italian people” about the noxious infestation of degenerate Freemasonry throughout the vital organs of the State. The applicant showed scant regard for the “beliefs of the Italian people”, so publicly and alarmingly expressed by the legislature of the Republic which he had undertaken to serve.

The rapporteur ' s analysis, published officially together with the directive , stressed that “membership of the Freemasons – as of any association with a strong hierarchical structure and an iron bond of solidarity – brings about, as such, a falling-off, not only in appearances, but also and primarily, in substance ... Belonging to the Freemasons appears, then, as an obligation that objectively superimposes itself on the oath of loyalty required by Article 54 of the Constitution, and on the primary obligation that every judge must be beholden only to the law” [13] .

17 . The directive, put to the vote in the context of the aforementioned preparatory work , was approved by the National C ouncil of the Judiciary, with twenty-four votes in favour and five abstentions.

18 . These extensively broadcast, precise and unequivocal forewarnings, disseminated officially alongside the directive itself, could have left the applicant with no residue of doubt that membership of a Masonic lodge constituted an actionable disciplinary offence. It is frivolous, in our view, for him to hold (very belatedly, in an extreme line of defence) that he could have believed, in good faith, that an Italian judge could embrace Freemasonry with the blessing of the law – a claim so far-fetched that he never saw fit to raise it in the disciplinary proceedings against him in Italy.

The case-law of the Court and the Commission on accessibility and foreseeability

19 . We cannot accept that the Italian norms on the compatibility between the exercise of judicial functions and Freemasonry in Italy can in any way be deemed vague, inaccessible or unforeseeable as to their consequences. On the contrary, they are as positive and forceful as can be. However, if, for the sake of argument, they could be deemed to suffer from a margin of ambiguity, we find it useful to recapitulate the Court ' s stand, at least to date, on this issue.

20 . The Court has repeatedly held that any interference with the enjoyment of certain fundamental rights must be “prescribed by law” and that the restrictive law in question must be accessible and foreseeable. To that we subscribe without reservation. But the Court, in its case-law, has been attentive to the necessity of tempering this general recital with the inescapable exigencies of practical reason. It has acknowledged ( and this should be particularly obvious where disciplinary measures are concerned ) that (as in the present case) “it may be difficult to frame laws with absolute precision and that a certain degree of flexibility may even be desirable to enable the national courts to develop the law in the light of their assessment of what measures are necessary in the interests of justice” [14] .

21 . Concerning the requirement of foreseeability, the Court has recognised the need for flexibility. Legal certainty can be established taking account not only of the wording of the relevant provisions, but also of the national courts ' interpretation of them, and of other readily available forms of guidance as to their meaning and application.

22 . The Commission has stressed that different criteria of foreseeability should apply in the case of disciplinary offences. In a case concerning the dismissal of a government employee, in which the issue of foreseeability was raised, it found that the disciplinary proceedings against him were “prescribed by law” (the regulations are not quoted), emphasising that “ disciplinary law is necessarily drafted in general terms ” [15] .

23 . The level of precision required of domestic legislation, the Court has found, “depends to a considerable degree on the content of the instrument considered, the field it is designed to cover, and the number and status of those to whom it is addressed ” [16] . In other words, a law aimed at experts need not be as explicit as one addressed to laymen. In the specific field of (military) discipline the Court has observed that “it would scarcely be possible to draw up rules describing different types of conduct in detail” [17] .

24 . On the requirement of clarity and foreseeability of the law, the Court has also found that “the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion ' prescribed by law ' ” [18] .

25 . In another leading judgment , the Court analysed the element of foreseeability essential in any law relied on as the legal basis for limiting a fundamental right. It observed: “The Swedish legislation applied in the present case is admittedly rather general in terms and confers a wide measure of discretion ... On the other hand, the circumstances ... in which a care decision may fall to be implemented are so variable that it would scarcely be possible to formulate a law to cover every eventuality ... Moreover, in interpreting and applying the legislation, the relevant preparatory work ... provides guidance as to the exercise of the discretion it confers ... The Court thus concludes that the interferences in question were ' in accordance with the law . ' ” [19]

26 . The latest pronouncement of the Court on the accessibility and foreseeability of norms restricting the enjoyment of fundamental rights was handed down today in Gorzelik and Others v. Poland . The findings there, and in previous pronouncements, are in direct contradiction to what has been held by the majority in the present case: “ i t is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice . ” [20]

The Court added: “It must also be borne in mind that, however clearly drafted a legal provision may be, its application involves an inevitable element of judicial interpretation, since there will always be a need for clarification of doubtful points and for adaptation to particular circumstances. A margin of doubt in relation to borderline facts does not by itself make a legal provision unforeseeable in its application. Nor does the mere fact that a provision is capable of more than one construction mean that it fails to meet the requirement of ' foreseeability ' for the purposes of the Convention. The role of adjudication vested in the [domestic] courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice . ” [21]

27 . The restriction on the enjoyment of a fundamental right, that judgment insisted, must be formulated with sufficient precision to enable the citizen to regulate his conduct. The applicant must have been able “to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”. However, “ those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable ” [22] .

28 . The Commission was the organ charged by the Convention with deciding matters of admissibility, and had many occasions to evaluate the issue of foreseeability in disciplinary law. It held that the dismissal of an employee in the Netherlands on disciplinary grounds was “prescribed by law” in the light of Article 1639w of the Civil Code, which states only that “contracts [of employment] may be terminated when new circumstances make it necessary to do so” [23] .

29 . Similarly, the Commission upheld the legality of a disciplinary sanction (compulsory relief of the applicant from her job duties) on the strength of staff regulations that stated that “members of staff must behave in all circumstances in a dignified and correct manner and perform no act likely to set a bad example”. This norm was sufficient for the sanction applied to be foreseeable and “prescribed by law” [24] .

30 . In another case in 1995 the Commission approved as sufficiently foreseeable and thus “prescribed by law” a disciplinary regulation governing the legal profession, by which any “breach of integrity, honour or discretion ... shall render the avocat responsible liable to ... sanctions ...” [25] .

31 . The Court has also found that judicial interpretation taking account of social changes is in conformity with Article 7 [26] .

32 . The majority, in assessing the 1990 directive on the Italian judiciary and Freemasonry, and the other measures which preceded it, failed to take into consideration any of the many criteria required by the Court ' s and the Commission ' s case-law to determine whether the interference with the applicant ' s rights had a sufficient legal basis. They ignored the fact that general norms are sufficient (and indispensable) in disciplinary law, and did not give adequate weight to “the status of those to whom the norm is addressed” (in the present case a person presumed to be immersed in legal expertise). More lamentably, nor was due consideration given to the “relevant preparatory work” concomitant with the enactment of that norm. In the present instance, the relevant preparatory work, published in official form, leaves not the flimsiest penumbra of doubt that the norms in question prohibited Italian judges, in totally unequivocal terms, from being members of Italian Masonic lodges.

Different requirements of foreseeability between criminal laws and norms which interfere with the enjoyment of fundamental rights

33 . The Convention stresses the requirement of “clarity” of the law in two circumstances: firstly, in defining proscribed criminal behaviour in penal statutes (the “void for vagueness” doctrine enshrined in Article 7) [27] and secondly, in the norms that interfere with the enjoyment of certain fundamental rights (such as those enshrined in Articles 8 to 11). The requirement of clarity obviously appears necessary to a higher degree in the “criminal” context of Article 7.

34 . And yet the Court quite recently accepted as sufficiently precise, in an Article 7 case, a criminal statute which states: “Any person who is a public officer and abuses his office in any manner other than that defined in this Code shall be sentenced to imprisonment of not less than six months but not more than three years, depending on the gravity of the offence” ( Article 240 of the Turkish Criminal Code) [28] . The applicant in that case was sentenced on the strength of this provision of the law to one year ' s imprisonment, a heavy fine and disqualification from holding public office. No violation of Article 7 was found by the Court; in fact the application was rejected as inadmissible.

35 . It is bewildering that this vague and equivocal criminal non-law passed the stringent test of clarity required under Article 7, while the emphatic, public and reiterated proscription of Freemasonry for Italian judges now fails the less stringent test of clarity required by Article 11.

36 . This opinion is solely concerned with establishing whether there existed in Italian legislation a “sufficient legal basis” on which to discipline the applicant for being a member of a Masonic lodge. We have not analysed the necessity, in a democratic society, of the restriction in question.