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Article # 249
Discrimination against Freemasonry held illegal

Author: Compiled by Webmaster    Posted on: Monday, June 4, 2007
General Article | 1 comments  | Post your comment

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[ European Court of Human Rights has on 31-5-2007, notified its Chamber Judgment, which is a landmark Judgment relating to the Human Rights of Freemasons. The Judgment proclaims, that Freemasons can not be discriminated against on the ground of their being members of a Masonic Lodge. There has been discrimination against Freemasons in some countries. This Judgment is an eye opener and its declaration that such discrimination violates the Human Rights of Freemasons will ensure, that there can not be any such discriminations anywhere in the world. The Chamber Judgment has been notified by a press release issued by the Registrar of the European Court of Human Rights. The Judgment, which is in French and the notification, translated in English and other languages can be accessed in  http://www.echr.coe.int  . A synopsis of the judgment with the relevant Articles of the European Convention on Human Rights is posted in this Article. The corresponding Articles of the International Convention on Civil and Political Rights have also been included to show that the law is the same in all the countries, who have ratified that Convention and that they are bound to enforce the same. There  can  not therefore be legally any discrimination against Freemasonry anywhere in the world. There are appropriate forums to protect the rights of Freemasonry. Please read on . . .]

 

Grande  Oriente  D`Italia  di  Palazzo Giustiniani, which  filed Application No. 26740/02, on 7 th June 2000, is a Grand Lodge in Italy functioning as such from 1805.  It had averred that Regional  Law  No. 1 dated 15 February 2000, of the Autonomous Region of Friuli-Venezia Giulia had laid down, among other things, the rules to be followed for nominations to public offices, for which the Region was the appointing authority, the same required candidates for such posts to declare to the President of the Regional Executive and the Appointments Board of the Regional Council, 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. Grande Oriente D`Italia di Palazzo Giustiniani contended , that  Section 55 of Regional Law No. 1 of 2000 was discriminatory and incompatible with its right to freedom of association and that the said provision violates Article 11 of the Convention, taken alone, and Article 13 (right to an effective remedy). It was further pointed out that a previous application was filed complaining about a restriction on its freedom of association on account of a Regional Law  enacted by the  Marches Region and that, The European Court of Human Rights  on 2 nd August 2001 had delivered a judgment in Grande Oriente D’Italia di Palazzo Giustiniani v. Italy in its favour.

The Regional Council of Friuli-Venezia Giulia in its counter dated 15 September 2005, had urged 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 his membership of a Masonic Lodge and that nevertheless that person was selected by the Regional Council for appointment.

The Application was heard by a Chamber of Seven Judges consisting of the following.

Christos Rozakis (Greek), President
Elisabeth
Steiner (Austrian), 
Khanlar
Hajiyev (Azerbaijani), 
Dean
Spielmann (Luxemburger), 
Sverre Erik
Jebens (Norwegian), 
Giorgio
Malinverni (Swiss), judges
Annalisa
Ciampi (Italian), ad hoc judge.

 

The majority of Six Judges (there was one dissenting judgment) held that there had been a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights ( hereinafter referred to as The Convention) taken in conjunction with Article 11  (Freedom of Assembly and Association).

 

[ Article-11. “  Freedom of Assembly and Association

1  Everyone has the right to freedom of peaceful assembly and to freedom of association with others,

    including the right to  form and to join trade unions for the protection of his interests.

2  No restrictions shall be placed on the exercise of these rights, other than such as are prescribed by

    law  and are necessary  in a democratic society in the interests of national security or public safety,

    for the  prevention of disorder or crime, for the  protection of health or morals or for the protection

    of the rights and freedoms of others. This article shall  not prevent the  imposition of lawful

    restrictions on the  exercise of these rights by members of the armed forces, of the police or of

    the administration of  the State.”

 

Article-14. “  Prohibition of Discrimination.

        The enjoyment of the rights and freedoms set forth in this Convention shall be secured without

        discrimination on any  ground such as sex, race, colour, language, religion, political or other

        opinion, national or social origin, association  with a national minority, property, birth or

        other status.”

 

The Court held that, having regard to the negative effects that the obligation to declare one’s membership of a Masonic lodge might have on the applicant association’s image and associative life, it could claim to be a “victim” of a breach of Article 11 of the Convention. That conclusion meant that there had been an interference with its right to freedom of association. It followed that the facts in question fell within the ambit of Article 11 and that Article 14 of the Convention was applicable to the case.

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 and could not therefore incur the statutory penalty for an omission and that therefore, there was a difference of treatment between the members of the applicant association 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, which had been introduced in order 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 further reiterated that, examining the issue under Article 11 of the Convention taken alone, it had found that the prohibition on nominating Freemasons to certain public offices for which the Region was the appointing authority was not “necessary in a democratic society”. It had observed that penalising someone for their membership of an association was unjustified, since that fact was not in itself legally reprehensible.

The Court pointed out that the present case differed from the previous one in that, under the Friuli-Venezia Giulia legislation, membership of the Freemasons did not automatically debar the candidate from nomination for one of the offices in question. That a Freemason was not automatically debarred had been demonstrated by the fact, that the only candidate to have declared his membership of a lodge had been chosen by the Regional Council for the office in question.

The Court found, however, that those considerations, which might be relevant under Article 11 taken alone, were not so important, when the case was examined, as in the instant case, from the stand point of  the non-discrimination clause. It considered, that membership of many other non secret associations might create a problem for national security and the prevention of disorder, where members of those associations held public office. This might be the case, for example, for political parties or groups advocating racist or xenophobic ideas, or for sects or associations with a military-type internal structure or those that established a rigid and incompressible bond of solidarity between their members or pursued an ideology, that ran counter to the rules of democracy, which was a fundamental element of “European Public Order”.

The Court pointed out that in Friuli-Venezia Giulia, however, only members of a Masonic Association were under an obligation to declare their membership, when they sought nomination to certain public offices for which the Region was the appointing authority. No objective and reasonable justification, for this difference in treatment  between non-secret and Masonic Associations had been advanced by the Government.

 The Court  held, that there had been a violation of Article 14 taken in conjunction with Article 11 of the Convention. Having regard to the finding in respect of Article 14 of the Convention, the Court held that there was no need to examine whether there had in this case been a violation of Article 11 taken alone and/or of Article 13,(extracted below) and that question was left open.

“Article 13 . Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective

remedy before a national authority notwithstanding that the violation has been committed by persons

acting in an official capacity.”

Under Article 41 of the Convention, providing for just satisfaction,  the Court held, unanimously, that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage and awarded the applicant association 5,000 euros for costs and expenses.

Article 43 of the Convention, extracted below, grants three months time, from the date of a Chamber judgment, to any party to the case to request that the case be referred to the Grand Chamber of the Court consisting of 17 Members. In that event, a panel of five judges will consider, whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three month period or earlier if the parties declare that they do not intend to make a request to refer.

Article 43 . Referral to the Grand Chamber

1 Within a period of three months from the date of the judgment of the Chamber, any party to the case

    may,  in exceptional cases, request that the case be referred to the Grand Chamber.

2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious

    question  affecting the interpretation or application of the Convention or the protocols thereto,

    or a serious issue  of  general importance.

3  If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

 

Article 44 . Final judgments

1  The judgment of the Grand Chamber shall be final.

2  The judgment of a Chamber shall become final

(a)  when the parties declare that they will not request that the case be referred to the Grand

      Chamber; or

(b)  three months after the date of the judgment, if reference of the case to the Grand Chamber

       has not been requested; or

( c)  when the panel of the Grand Chamber rejects the request to refer under Article 43.

3     The final judgment shall be published.”

 

We may have to wait for the expiry of the said  three month period for the judgment to become final.

 

The relevant Articles of The International Convention on Civil and Political Rights are as follows.

 

Article –21.

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

 

Article- 22.

1.     “Everyone shall have the right to freedom of association with others, including

          the right to form  and join trade unions   for the protection of his interests.

2.       No restrictions may be placed on the exercise of this right other than those,

           which are prescribed  by  law and which are necessary in a democratic

           society in the interests of national security or  public  safety, public order

           (ordre public), the protection of public health or morals or the protection

           of the rights and freedoms of others.

          This article shall not prevent the imposition of lawful restrictions on 

          members of the armed forces and of the police in their exercise of this

         right.

3.     Nothing in this article shall authorize States Parties to the International Labour

        Organization  Convention of 1948 concerning Freedom of Association and

        Protection of the Right to Organize to  take legislative measures, which would

         prejudice, or to apply the law in such a manner as to  prejudice,

        the guarantees  provided for in that Convention. “

Article- 26.

          “All persons are equal before the law and are entitled without any discrimination to the

           equal  protection of the law. In this respect, the law shall prohibit any discrimination

           and guarantee to all  persons equal and effective protection against discrimination on

           any ground such as race, colour, sex, language, religion, political or other opinion,

           national or social origin, property, birth or other status.”

It is hoped that all illegal discriminations against Freemasonry will come to an end soon.

 

 

 

 

 

.

 

The webmaster, who has compiled this article is a retired judge and he was also a Member of the State Human Rights Commission in India.


Click Here To Post Your Comment

giovanni wrote on Monday, June 4, 2007:

Subject: human rights

This is the 2nd time that Grande Oriente d'Italia was forced to apply to the Court. The first time was against Regione Marche, which therefore had to edit its Statute. It is difficult to be a mason in Italy, too far from God and too much close to Vatican. Giovanni Lombardo



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