DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGE BÃŽRSAN

I disagree with the majority. Although I could agree with the substance of the dissenting opinion of Judge Bonello, I prefer to base my dissent more specifically on the following reasoning .

As rightly observed by the Court in Chorherr v. Austria ( judgment of 25 August 1993, Series A no. 266-B, pp. 35-36, § 25) , the level of precision required of domestic legislation “depends to a considerable degree on the contents of the instrument considered, the field it is designed to cover and the number and status of those to whom it is addressed” (emphasis added). Therefore, the requirement for law to be clear and foreseeable depends on the subject matter it is intended to cover and the degree to which it is possible to make such subje ct matter clear and foreseeable.

The point I wish to stress in this respect is that achieving the requisite level of clarity and foreseeability may in some areas simply be impossible. And the law does not compel the impossible ( lex non cogit ad impossibilia ).

In the present case, we are in the field of disciplinary offences and it is an elementary rule of disciplinary law of universal recognition that it is impossible to cover exhaustively or specify all the different acts or omissions which may constitute disciplinary offences.

This in fact has been recognised to a certain extent by the Court in dealing with disciplinary law in Vereinigung demokratischer Soldaten Ö sterreichs and Gubi v. Austria (judgment of 19 December 1994, Series A no. 302, pp. 15-16, § 31), where the Court stated:

“As far as military discipline is concerned, it would scarcely be possible to draw up rules describing different types of conduct in detail. It may therefore be necessary for the authorities to formulate such rules more broadly. The relevant provisions must, however, afford sufficient protection against arbitrariness and make it possible to foresee the consequences of their application.”

The requirement that “the relevant provisions must ... make it possible to foresee the consequences of their application” in the third sentence of that quotation is formulated in more absolute terms than the principle in the preceding sentence logically allows. For, if it is accepted that there are many types of conduct which cannot be described in detail, the possibility that it may not prove possible to foresee the consequences of such conduct in some cases cannot be excluded.

The fact remains that in disciplinary law there may be certain types of conduct which cannot be specified expressly and these are usually covered by a general prohibition formulated in broad terms, the interpretation and application of which depends on the social and moral attitudes of society as understood by the competent disciplinary body at the specific time the prohibition is applied. This point is aptly made by the Italian Constitutional Court (see paragraph 19 of the judgment). And it is not difficult to accept , because disciplinary law does not seek to bar specific acts or omissions but rather to condemn general conduct or behaviour which in most disciplinary codes is referred to in broad terms such as “conduct incompatible with the duties or status” of the public officer or other person to whom the disciplinary code applies.

Take for example the “ obligation de réserve ” applicable in French law to members of the public service. It is impossible to enumerate the specific cases in which a breach of this obligation will occur.

We can even borrow an example from the Convention itself regarding the dismissal of a judge from office on the ground “that he has ceased to fulfil the required conditions” (Article 24), one of which is that “he shall be of high moral character” (Article 21 § 1). One cannot seriously deny the fact that it is impossible to define or describe in detail or exhaustively the different types of conduct that may be considered incompatible with “a high moral character”.

Therefore, it is inevitable in the field of disciplinary law that only a general indication (accompanied perhaps by certain specific prohibitions) as to the kind of behaviour that may be considered as amounting to a disciplinary offence will be possible and that the degree of foreseeability will often be less than in other cases where a higher level of clarity and foreseeability of the law is in fact possible.

The result is that there may be disciplinary offences which cannot be foreseen with the requisite degree of certainty in all cases, though it is necessary, in my view, to afford the best possible protection against arbitrariness. This can be achieved first ly by ensuring that the description of the prohibited conduct, though broad, is capable of indicating the type of conduct for which there is a reasonable risk of its being considered to constitute prohibited conduct. And, secondly, by providing the possibility of independent judicial review of the relevant decision by the competent disciplinary body.

In the present case, Article 18 of the 1946 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. This provision is in line with the general prohibition found in disciplinary law as explained above. As in other legal systems, it is left to the competent disciplinary body to decide whether any particular conduct in an individual case amounts to behaviour that is incompatible with the general prohibition concerned. The question is whether, in the case under consideration, the conduct found to be incompatible with that prohibition (membership of a Masonic lodge) in the light of the disciplinary body ' s factual findings was behaviour which it was reasonably possible would be considered as falling within the scope of the prohibited conduct. In this connection , it should be noted that the record shows that the disciplinary body took the following elements into account in reaching the conclusion that the applicant had engaged in prohibited conduct.

(a) “Loss of integrity resulting from membership of the Freemasons ... because of the degeneration brought about when a number of people came together within the P2 lodge with plans to take control of the public authorities and subvert democratic institutions, and because of the collusion of certain Masonic lodges with the Mafia and organised crime” (see paragraph 13 of the judgment).

(b) Incompatibility between the Masonic and judicial oaths, the hierarchical relationship between Freemasons, the “rejection” of State justice in favour of Masonic “justice” and the indissoluble nature of the bond between Freemasons, even in the case of a member who wished to leave the organisation (ibid . ).

All these elements existed before 1982.

It is true that reference was also made to the directive of 14 July 1993, which was issued after the applicant had left the Freemasons and which, for this reason, the Court in this case rightly disregarded. However, this directive simply expressed formally what was already known to be the position in practice, for example the fact that the association was secretive. The fact that Masonic lodges kept their functions, ceremonies and procedures secret is a matter of public knowledge and should have been known to the applicant. The directive of 14 July 1993 did not make that fact known for the first time but simply confirmed it formally. The other elements also relied on by the disciplinary body, as mentioned above, should also have been known to any person in the applicant ' s position and by themselves justify the conclusion that it would not have been difficult for him in the circumstances to foresee at least that there was a risk that his membership of a Masonic lodge might reasonably be considered a disciplinary offence. That is so even if we act on the premiss that the directive of 22 March 1990 did not clearly state in so many words that membership of the Freemasons constituted a disciplinary offence for a judge.

Even if nothing was said on this subject in a directive, there was, in my opinion, sufficient indication in the circumstances of the case that a judge ran a reasonably foreseeable risk of committing a disciplinary offence by joining the Freemasons.

I do not agree with the Court ' s statement that the fact that the National Council of the Judiciary issued the directive of 14 July 1993 stating in clear terms that the exercise of judicial functions was incompatible with membership of the Freemasons confirms the view that until then such membership could not be considered a disciplinary offence. As I have already said, the directive in question simply expressed formally the existing position regarding conduct which any person in the applicant ' s position would regard as being reasonably likely to constitute a disciplinary offence. The directive did not purport to introduce for the first time a new principle. It merely clarified an already existing principle , thus removing any doubts. In any event, the other facts on which the disciplinary decision was based did exist and were undisputed at the material time and could, as I have already explained, reasonably support a finding that a disciplinary offence had been committed.

For all the above reasons , I find that there has been no violation of the Convention in this case.

[1] 1. See paragraph 42 of the judgment.

[2] 2. See paragraph 14.

[3] 1. No. 100 of 8 June 1981.

[4] 2. See paragraph 13 of the judgment.

[5] 3. See paragraph 15.

[6] 4. See Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I, and Gorzelik and Others v. Poland [GC], no. 44158/98, § 100, also published in this volume .

[7] 5. See Vogt v. Germany , judgment of 26 September 1995, Series A no. 323, p. 24, § 48.

[8] 6. See Gitonas and Others v. Greece , judgment of 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV, p. 1235, § 44.

[9] 1. Emphasis added.

[10] 2. Emphasis added.

[11] 3. Verbali consi liari , p. 103.

[12] 4. Ibid.

[13] 1. Ibid., p. 104.

[14] 1. See Goodwin v. the United Kingdom , judgment of 27 March 1996, Reports 1996 ‑ II, p p . 497 -98 , § 33.

[15] 2. See Haseldine v. the United Kingdom , no. 18957/91, Commission decision of 13 May 1992, Decisions and Reports (DR) 73, p. 231 (emphasis added).

[16] 3. See Chorherr v. Austria , judgment of 25 August 1993, Series A no. 266-B, pp. 35-36, § 25 (emphasis added).

[17] 4. See Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria , judgment of 19 December 1994, Series A no. 302, pp. 15-16, § 31.

[18] 5. See Vogt , cited above, p. 24, § 48.

[19] 1. See Olsson v. Sweden (no. 1) , judgment of 24 March 1988, Series A no. 130, pp. 30-31, §§ 62-63 (emphasis added).

[20] 2. See Gorzelik and Others , cited above, § 64, and also the following judgments: Kokkinakis v. Greece , 25 May 1993, Series A no. 260-A, p. 19, § 40; The Sunday Times v. the United Kingdom (no. 1) , 26 April 1979, Series A no. 30, p. 31, § 49; and Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III.

[21] 3. See Gorzelik and Others , cited above, § 65; see also Cantoni v. France , judgment of 15 November 1996, Reports 1996-V, p. 1628, § 32.

[22] 1. See Rekvényi , cited above, § 34 (emphasis added).

[23] 2. See Van der Heijden v. the Netherlands , no. 11002/84, Commission decision of 8 March 1985, DR 41, p. 270.

[24] 3. See Morissens v. Belgium , no. 11389/85, Commission decision of 3 May 19 88, DR 56, p. 135.

[25] 4. See Zihlmann v. Switzerland , no. 21861/93, Commission decision of 28 June 1995, DR 82-B, p. 18.

[26] 5. See S.W. v. the United Kingdom , judgment of 22 November 1995, Series A no. 335-B.

[27] 1. See Kokkinakis , cited above, p. 22, §§ 51-53.

[28] 2. See Ugur v. Turkey (dec.), no . 30006/96, 8 December 1998.