PARTLY DISSENTING OPINION OF JUDGE BAKA

In the present case I am unable to share the view of the majority of the Court that the national law was not foreseeable enough to enable the applicant to regulate his conduct in this matter. That was the reason why the Court found that the restriction was not prescribed by Italian law and that, consequently, there had been a violation of Article 11 of the Convention.

It is true that a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct. On the other hand the Court has pointed out that “the level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed” (see Vogt v. Germany , judgment of 26 September 1995, Series A no. 323, p. 24, § 48).

In my view, whereas certainty is not only highly desirable but is essential, it is practically impossible to define with absolute precision what kind of behaviour and activity is incompatible with the function of a judge. Here I am also taking into account the fact that “many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice” and that “it is primarily for the national authorities to interpret and apply domestic law” (see The Sunday Times v. the United Kingdom (no. 1) , judgment of 26 April 1979, Series A no. 30, p. 31, § 49, and Chorherr v. Austria , judgment of 25 August 1993, Series A no. 266-B, pp. 35-36, § 25).

Applying the above principles to the present case, I reached the conclusion that the different legal norms in Italy, especially Article 18 of Royal Legislative Decree no. 511 of 31 May 1946, its interpretation by the Constitutional Court and the 22 March 1990 guidelines of the National Council of the Judiciary, provided sufficiently clear legal rules and background to enable a highly trained member of the judiciary to regulate his conduct accordingly. The applicant should have known that joining a Masonic lodge would lead to disciplinary sanctions. On the basis of the wording of the 1990 guidelines of the National Council of the Judiciary, and especially after the 1982 dissolution of the P2 lodge, he ought to have been aware, as a member of the judiciary, that membership of the Freemasons could jeopardise the prestige and public confidence vested in the judiciary.

Having regard to these considerations, I find that the interference was prescribed by law for the purposes of Article 11 § 2. Consequently, I find no breach of this Article.

PARTLY DISSENTING OPINION OF JUDGE BONELLO

1. I disagree with the majority’s finding that the State’s interference with the applicant’s enjoyment of his rights under Article 11 was not “in accordance with the law” in so far as that interference lacked the element of foreseeability [See paragraph 32 of the judgment].

2. The applicant, a judge presumed to be versed in the law, knew, or reasonably ought to have known, that joining an Italian Masonic lodge would attract 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 the terms of the guidelines approved by the National Council of the Judiciary on 22 March 1990 were “not sufficiently clear” to forewarn the applicant of disciplinary sanctions in the event of his joining a Masonic lodge. In reaching this conclusion the majority were compelled to disregard the Court’s long-standing case-law and the abundant harvest of factual findings on record.

4. This opinion is solely concerned with establishing whether there existed in Italian law a “sufficient legal basis” on which to discipline the applicant for seeking membership of a Masonic lodge. It refrains from expressing any value judgment on Freemasonry in general or on the propriety, for members of the judiciary, of identifying with Freemasonry’s ideas and ideals, or on the peculiarly Italian phenomenon of degenerate Freemasonry at or around the relevant time.

The case-law of the Court

5. The Court has repeatedly held that any interference with the enjoyment of certain fundamental rights must be “in accordance with the law” and that the law in question must be accessible and foreseeable. To that I 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 that “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” [See Goodwin v. the United Kingdom , judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, pp. 497-98, § 33].

6. 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 the status of those to whom it is addressed ” [See Chorherr v. Austria , judgment of 25 August 1993, Series A no. 266-B, pp 35-36, § 25 (emphasis added)]. 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” [See Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria , judgment of 19 December 1994, Series A no. 302, pp. 15-16, § 31].

7. On the requirement of clarity and foreseeability of the law, the Court has also added 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’ ” [See Vogt v. Germany , judgment of 26 September 1995, Series A no. 323, p. 24, § 48].

8. The Court has, so far, found a “sufficient legal basis” for an interference with a fundamental right in statutes whose wording “is not absolutely 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” [See Kokkinakis v. Greece , judgment of 25 May 1993, Series A no. 260-A, p. 19, § 40].

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

10. The majority, in reading the 1990 guidelines on the Italian judiciary and Freemasonry, failed to take into account any of the many criteria demanded by the Court’s case-law to determine whether the interference with the applicant’s rights had a sufficient legal basis. No weight at all was given 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 regrettably, nor was any 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.

Legal basis of the interference

11. On 22 March 1990 the National Council of the Judiciary issued guidelines to the effect that “judges’ membership of associations imposing a particularly strong hierarchical and mutual bond through the establishment, by solemn oaths, of ties such as those required by masonic lodges raises delicate problems as regards observance of the values enshrined in the Italian Constitution”.

12. Those guidelines were issued on the initiative of the President of the Italian Republic , the titular head of the National Judiciary Council. The Official Bulletin ( Verbali consiliari ) published the guidelines under the following heading: “Extract of the minutes of the sitting held in the morning of 22 March 1990 , concerning the incompatibility between judicial functions and membership of the Freemasons. ” [Emphasis added]

13. The President of the Italian Republic opened the sitting by reminding members of the President of the Republic’s message “ concerning the incompatibility between the exercise of judicial functions and membership of the Freemasons ” [Emphasis added].

14. The rapporteur on the guidelines (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 Parliamentary Commission of Inquiry 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 guidelines were 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” [ Verbali consiliari , p. 103].

15. The basis in Italian law on which the guidelines 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 only to obey the law, whereas a Freemason is bound to solemnly “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” [ Verbali consiliari , p. 103]. 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 impose on its 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 guidelines by the National Council of the Judiciary were not generated in a vacuum. The applicant knew, and manifestly had the duty to know, that the official report of the Parliamentary Commission of Inquiry 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 hesitation in the bona fide conscience of any Italian judge about the irresolvable conflict arising between the exercise of judicial power and membership of Masonic lodges. The widely publicised 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.

17. It is disingenuous, to say the least, on the part of the applicant to profess that he neither knew nor could have foreseen that membership of a Masonic lodge was incompatible, pursuant to Italian norms, with the exercise of his judicial functions.

18. The rapporteur’s analysis, published officially together with the guidelines , 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 shall be subject only to the law” [Ibid., p. 104].

19. The guidelines, put to the vote in the context of the aforementioned preparatory work, were approved by the National Council of the Judiciary, with twenty-four votes in favour and five abstentions.

20. These public, precise and unequivocal forewarnings, disseminated officially alongside the guidelines, could have left the applicant with no residue of hesitation that membership of a Masonic lodge constituted an actionable disciplinary offence. It is risible, in my view, to hold that he could have believed in good faith that an Italian judge could embrace Freemasonry with the blessing of the law.

21. In fact, the various national adjudicating authorities which were called upon to try the applicant had absolutely no misgivings in finding in the guidelines and in the norms which preceded them a sufficiently clear and foreseeable legal basis on which to establish whether he had infringed his judicial duties. According to the Court’s case-law, the national adjudicating authorities are the natural interpreters of domestic law. Applying the principles of the Court’s subsidiarity and the margin of appreciation, the Court has consistently held that it should only revise the national courts’ interpretation of domestic law in exceptional cases involving a manifest miscarriage of justice. It is a matter of notable concern that the majority elected to disregard the unanimous interpretation of Italian law by the highest Italian adjudicating authorities in a case in which the facts and the law conspired to demonstrate the naivety of the applicant’s plea that he did not know, and could not have foreseen, the consequences of his action.

22. One final observation. The Convention stresses the requirement of “clarity” of the law in two circumstances: firstly, in the definition of proscribed criminal behaviour in penal statutes (the “void for vagueness” doctrine enshrined in Article 7) [See Kokkinakis , cited above, p. 22, §§ 51-53], and secondly, in the interferences permitted 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 context of Article 7. And yet the Court has accepted as sufficiently precise, in an Article 7 case, a criminal statute which read: “Any person who is a public officer and abuses his office in any manner other than that defined in this Code ...” (the criminal penalties are then listed) [See Ugur v. Turkey (dec.), no. 30006/96, 8 December 1998, unreported]. It is bewildering that this equivocal non-law passed the stringent test of clarity required under Article 7, while the emphatic proscription of Freemasonry for Italian judges now fails the less stringent test of clarity required by Article 8.