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Grande Oriente d’Italia di Palazzo Giustiniani v Italy, 2 August 2001 [ECtHR]

Case no 35972/97

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

12. The applicant association submitted that section 5 of the 1996 Law infringed its right to freedom of association as guaranteed by Article 11 of the Convention (...) According to the applicant association, section 5 of the 1996 Law forced its members to choose between two alternatives: either renounce membership or forgo public office in a regional body. It thus restricted not only the freedom of association of every member, but also that of the association itself.

A. Whether there was interference

(...) 15. The Court reiterates that Article 11 applies to associations, including political parties (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III). It has indicated in general that “an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions” (see United Communist Party of Turkey and Others, cited above, p. 17, § 27). The Court is of the opinion that this reasoning applies all the more to an association which, like the applicant association, is not suspected of undermining the constitutional structures. Additionally, and above all, the Court accepts that the measure in question may cause the applicant association – as it submits – damage in terms of loss of members and prestige.
16. The Court therefore concludes that there has been interference. It follows that the applicant association can claim to be a victim of the alleged violation and that, accordingly, the Government’s objection must be dismissed.

B.  Whether the interference was justified

   1) In the light of the first sentence of paragraph 2 of Article 11

17. Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.

      (a)  “Prescribed by law”

18. The applicant association did not dispute that the interference was “prescribed by law”, seeing that the impugned measure was based on a regional law (see paragraphs 16-17 above).

      (b)  Legitimate aim

(...) 21. The Court notes that, according to the Government, section 5 of the 1996 Law was introduced to “reassure” the public at a time when there was controversy surrounding the role played by certain Freemasons in the life of the country. The Court therefore accepts that the interference was intended to protect national security and prevent disorder.

      (c)  “Necessary in a democratic society”

         (ii)  Decision of the Court

24. The Court has examined the impugned measure in the light of the case as a whole in order to determine, in particular, whether it was proportionate to the legitimate aim pursued.
25. The proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 of the Convention and those of the free exercise of freedom of association. The pursuit of a just balance must not result in individuals being discouraged, for fear of having their applications for office rejected, from exercising their right of association on such occasions.
26. Compared with the total number of members of the applicant association, the number of actual or potential members of the association who may be confronted with the dilemma of choosing between being Freemasons and competing for the public offices referred to in section 5 of the 1996 Law cannot be said to be large. Consequently, the damage which the applicant association may suffer is likewise limited. The Court considers, however, that freedom of association is of such importance that it cannot be restricted in any way, even in respect of a candidate for public office, so long as the person concerned does not himself commit any reprehensible act by reason of his membership of the association. It is also clear that the association will suffer the consequences of its members’ decisions. In short, the prohibition complained of, however minimal it might be for the applicant association, does not appear “necessary in a democratic society”. 

   2) In the light of the second sentence of paragraph 2 of Article 11

27. Having arrived at that conclusion, the Court must determine whether the prohibition in issue was justified by the last sentence of Article 11 § 2, since this empowers States to impose “lawful restrictions” on the exercise of the right to freedom of association by the members of certain groups, including “the administration of the State”. (...)
30. The Court reiterates that the term “lawful” in the second sentence of Article 11 § 2 alludes to the same concept of lawfulness as that to which the Convention refers elsewhere when using the same or similar expressions, notably the expression “prescribed by law” found in the second paragraphs of Articles 9 to 11. The concept of lawfulness used in the Convention, apart from positing conformity with domestic law, also implies qualitative requirements in the domestic law such as foreseeability and, generally, an absence of arbitrariness (see Rekvényi v. Hungary [GC], no. 25390/94, § 59, ECHR 1999-III).
In so far as the applicant association criticised the basis of the impugned restriction in domestic law, the Court reiterates that it is primarily for the national authorities to interpret and apply domestic law, especially if there is a need to elucidate doubtful points (see S.W. v. the United Kingdom, judgment of 22 November 1995, Series A no. 335-B, p. 42, § 36). In the present case, however, the applicant association could not challenge the constitutionality of the impugned provision in the courts, a fact which was not disputed by the Government. That being so, the Court concludes that the legal position was sufficiently clear to enable the applicant association to regulate its conduct and that the requirement of foreseeability was consequently satisfied. The contested restriction was therefore “lawful” within the meaning of Article 11 § 2.
31. As to whether the offices covered by section 5 of the 1996 Law fall within the scope of “the administration of the State”, the Court notes that the offices listed in Schedules A and B to the 1996 Law were not part of the organisational structure of the Region, but fell into two other categories: regional organisations and nominations and appointments for which the Regional Council was responsible. According to the Court’s case-law, “the notion of ‘administration of the State’ should be interpreted narrowly, in the light of the post held by the official concerned” (see Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, p. 31, § 67). The Court reiterates that in Vogt it did not consider it necessary to determine the issue whether a teacher – a permanent civil servant – was part of the administration of the State (ibid., p. 31, § 68). In the present case it notes on the basis of the evidence before it that the link between the offices referred to in Schedules A and B to the 1996 Law and the Marches Region is undoubtedly looser than the link which existed between Mrs Vogt, a permanent teacher, and her employer.
32. Accordingly, the interference in question cannot be justified under the second sentence of Article 11 § 2 either.
33. In conclusion, there has been a breach of Article 11 of the Convention.

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