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CASE OF GRANDE ORIENTE D'ITALIA v. ITALY · редакция 1 → 2 · зафиксировано 2026-08-22 05:18 · +10 −10 строк

GRAND CHAMBER
CASE OF GRANDE ORIENTE D’ITALIA v. ITALY
10. In 2013, Parliament enacted Law no. 87 of 19 July 2013 establishing the Parliamentary Commission of Inquiry on the phenomenon of mafias and other criminal associations, including foreign ones ( Commissione parlamentare d’inchiesta sul fenomeno delle mafie e sulle altre associazioni criminali anche straniere – “the Commission”).
11 . In the second half of 2016 the Commission opened a line of inquiry into the capacity of mafia-type organised crime to infiltrate and influence the activity of Italian Freemasonry. In so doing, it relied on data gathered by it during a fact-finding mission to the city of Trapani, judicial investigations carried out in the Sicilian and Calabrian regions, and a decision of the Council of Ministers to dissolve the municipal council of Castelvetrano, the stronghold of M.M.D., who was at that time one of the most wanted leaders of Cosa Nostra.
12. On 3 August 2016 the Commission heard, in an “informal hearing” ( libera audizione ), the association’s Grand Master. In a letter of 28 July 2016, he had asked to meet with the Commission following a series of articles in the press reporting on the Commission’s fact-finding mission in Trapani and on the fact that certain members of the recently dissolved Castelvetrano municipal council were Freemasons. During the hearing, the Grand Master refused to provide the lists of members of the lodges, relying on those individuals’ right to protection of their private life.
12. On 3 August 2016 the Commission heard, in an “informal hearing” ( libera audizione ), the applicant association’s Grand Master. In a letter of 28 July 2016, he had asked to meet with the Commission following a series of articles in the press reporting on the Commission’s fact-finding mission in Trapani and on the fact that certain members of the recently dissolved Castelvetrano municipal council were Freemasons. During the hearing, the Grand Master refused to provide the lists of members of the lodges, relying on those individuals’ right to protection of their private life.
13. On the following day the President of the Commission wrote to the Grand Master, asking him to provide the full membership list of the Masonic association. In a letter of 11 August 2016, he refused once again to do so, arguing that the request was vague and indeterminate and that it did not mention any ongoing criminal investigations. He also reiterated his obligation to protect the personal data of the members of the association.
14. On 19 September 2016 the Grand Master of the applicant association requested the National Data Protection Authority (“the Authority”) to determine whether the transmission of data relating to members of the Masonic lodges could constitute “authorised processing” in accordance with the rules in force or whether, on the contrary, there was a risk that it would be in breach of the relevant obligations.
President – I propose that we sit in camera .
(So decided. The proceedings continued in camera , before resuming in public.)
Let me rephrase the question. We are asking about the members in Sicily and Calabria because, having conducted an investigation into the relationship between Freemasonry and ‘Ndrangheta, we believe that by checking these members, there is a possibility of identifying potential collusion, which is very important to us.
Presidente – Let me rephrase the question. We are asking about the members in Sicily and Calabria because, having conducted an investigation into the relationship between Freemasonry and ‘Ndrangheta, we believe that by checking these members, there is a possibility of identifying potential collusion, which is very important to us.
Today, in fact, the way the Mafia infiltrates the economic and political world is precisely by using public employees, professionals, all the people you tell us are members ... You are refusing to provide us with [their details], for reasons that we naturally consider legally unfounded, though of course these are opinions. But if I ask you questions about individuals, whether they are registered or not, do you agree to telling me yes or no?
S.B. – If your questions fall within the scope of this Commission, I will answer ... If saying yes or no can help with your investigation into collusion between mafia-type activities and Masonic organisations – or, rather, Grande Oriente d’Italia – ... I am at your disposal.
(2) The Commission shall ensure that secrecy is maintained where the acts and documents copied in accordance with subsection 1 are covered by secrecy.
(3) The Commission may obtain, from bodies and offices of the public administration, copies of acts and documents held, produced or otherwise acquired by them on matters pertaining to the purposes of this Law.
(4) The judicial authorities ... may delay the transmission of copies of requested actsand documents, by means of a reasoned decision, only for investigatory reasons. ... When the reasons for the order cease to exist, they shall transmit the requested material without delay ...
(4) The judicial authorities ... may delay the transmission of copies of requested acts and documents, by means of a reasoned decision, only for investigatory reasons. ... When the reasons for the order cease to exist, they shall transmit the requested material without delay ...
(5) Where acts and documents have been made subject to secrecy ( segreto funzionale ) by parliamentary commissions of inquiry, that secrecy cannot be relied upon against the Commission established by this Law.
(6) The Commission shall determine which acts and documents must not be disclosed ...”
51 . As to the possibility for an individual to have direct access to the Constitutional Court in order to raise a conflict of jurisdiction between the branches of State power, in Order no. 85 of 20 March 2009 it reiterated its well-established case-law, noting the following:
“As concerns the subjective element, the application alleging a conflict of jurisdiction is manifestly inadmissible because it was lodged by an individual, who [has not demonstrated] in any way that he holds any constitutionally recognised public office which would confer on him the status of a ‘State authority’.
This Court has always held that ‘under no circumstances ... may a private individual ... consider himself or herself as vested with relevant constitutional authority to raise a conflict of jurisdiction within the meaning of Article 134 of the Constitution and section 37 of Law no. 87 of 1953’ (unnumbered Order of 27 July 1988, and Orders nos. 434, 284 and 189 of 2008 and no. 57 of 1971).
This Court has always held that ‘under no circumstances ... may a private individual ... consider himself or herself as vested with relevant constitutional authority to raise a conflict of jurisdiction within the meaning of Article 134 of the Constitution and section 37 of Law no. 87 of 1953’ (unnumbered Order of 27 July 1988, and Orders nos. 434, 284 and 189 of 2008, no. 296 of 2006 and no. 57 of 1971).
The objective element of a conflict of jurisdiction is also lacking, in so far as the appellant, rather than alleging a failure to respect constitutionally assigned roles, complained solely of a possible violation of personal and third parties’ subjective legal rights.
In consequence, the purpose of the application is not to raise a conflict of jurisdiction between the branches of State power within the meaning of Article 134 of the Constitution and section 37 of Law no. 87 of 1953, but rather to obtain – on the appellant’s own admission – a kind of direct access to this Court for the protection of individual rights.”
90. With regard to the possibility, as submitted by the Government, of requesting the Commission to reconsider the search and seizure order, the Court would begin by observing that the applicant association expressly attempted to use this remedy, requesting that the contested order be amended and set aside, but that, in the absence of a formal reply, its attempt was unsuccessful (see paragraph 30 above).
91. Admittedly, the Government maintained that the applicant association had attempted this remedy too soon, namely during the selection phase of the seized documents, whereas, in their view, it ought to have submitted a new request at the end of the proceedings. The Court notes, however, that it has not been established that doing so would have been capable of leading to amendment or setting aside by the Commission of its search and seizure order. In the Court’s view, given the nature and characteristics of the procedure in question, there is considerable uncertainty as to whether persons wishing to use this remedy in order to obtain reconsideration of a contested decision would be successful.
92. While referring to the general principles set out in its case-law (see Vučković and Others , cited above, §§ 69-77), the Court reiterates that the Convention mechanism requires the exhaustion of available domestic remedies which are capable of providing redress in relation to the complaints raised and which offer a reasonable prospect of success. By contrast, discretionary or extraordinary remedies are not remedies requiring exhaustion for the purposes of Article 35 § 1 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 36, 24 October 2002; Goulandris and Vardinogianni v. Greece , no. 1735/13, § 27, 16 June 2022; and Šimkus v. Lithuania , no. 41788/11, § 33, 13 June 2017). The applicant association was not therefore required to submit a new request for the Commission to reconsider its decision nor, a fortiori , to renew such a request at a later stage.
92. While referring to the general principles set out in its case-law (see Vučković and Others , cited above, §§ 69-77), the Court reiterates that the Convention mechanism requires the exhaustion of available domestic remedies which are capable of providing redress in relation to the complaints raised and which offer a reasonable prospect of success. By contrast, discretionary or extraordinary remedies are not remedies requiring exhaustion for the purposes of Article 35 § 1 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 36, 24 October 2002; Goulandris and Vardinogianni v. Greece , no. 1735/13, § 27, 16 June 2022; and Šimkus v. Lithuania , no. 41788/11, § 33, 13 June 2017). The applicant association was not therefore required to submit a request for the Commission to reconsider its decision nor, a fortiori , to renew such a request at a later stage.
(ii) Action to establish civil or criminal liability of the Commission’s members
93. The Government submitted that another effective and available remedy existed, namely a civil or criminal action against the members of a commission of inquiry in respect of acts exceeding the limits of that body’s powers. In their submission, the applicant association could have challenged the Commission’s order before the ordinary courts in this way, relying on the individual liability of its members. In support of this argument, the Government cited the Gatto case (cited above), in which the Court had examined the alleged breach of an applicant’s right to respect for his private and family life following the disclosure of the content of certain transcripts of sessions of the parliamentary commission on combating the Mafia of the XV Legislature.
98. The Court notes that the Court of Cassation held, in a judgment of the Combined Civil Divisions of 12 May 2022, that the ordinary courts were not obliged to refer a conflict of jurisdiction to the Constitutional Court “merely because, in the course of the proceedings, ... such an issue arises”, but that they had to assess and decide, in the exercise of their discretion, whether there was a conflict of jurisdiction or whether, on the contrary, the powers of one or other State body should prevail (see paragraph 54 above).
99. The Court further notes that the Constitutional Court has explicitly held that a conflict of jurisdiction raised directly by an individual did not satisfy domestic admissibility requirements. In particular, the Constitutional Court held that an individual application lacked both the subjective element, as the individual did not hold any constitutionally recognised public office conferring on him or her the status of a “public authority”, and the objective element, as the appellant had complained solely of a violation of personal subjective legal rights and not of a breach of “constitutional powers” (see paragraph 51 above).
100. Moreover, the Court notes that the conflict of jurisdiction procedure enables the Constitutional Court to resolve disputes between State bodies concerning conduct or acts infringing the powers conferred by the Constitution (see paragraph 50 above). It observes that, according to domestic case-law, in order for there to be a conflict of jurisdiction between a parliamentary commission of inquiry and the judicial authorities, there has to be a situation of genuine and ongoing interference between those two bodies. Indeed, the examples of constitutional case-law cited by both parties demonstrate that the conflicts of jurisdiction complained of always concern the implementation or execution of an act liable to encroach upon the powers of the other body: judgment no. 231 of 1975 concerned the refusal by the parliamentary commission of inquiry to transmit certain documents in its possession to the relevant judicial authorities; judgment no. 379 of 1996 concerned an inquiry opened by the Rome public prosecutor’s office into two MPs who were suspected of having voted in place of fellow MPs; and judgment no. 26 concerned a complaint by the Rome public prosecutor about the refusal of the parliamentary commission of inquiry to carry out a joint expert examination (see paragraphs 48 et seq. above).
100. Moreover, the Court notes that the conflict of jurisdiction procedure enables the Constitutional Court to resolve disputes between State bodies concerning conduct or acts infringing the powers conferred by the Constitution (see paragraph 50 above). It observes that, according to domestic case-law, in order for there to be a conflict of jurisdiction between a parliamentary commission of inquiry and the judicial authorities, there has to be a situation of genuine and ongoing interference between those two bodies. Indeed, the examples of constitutional case-law cited by both parties demonstrate that the conflicts of jurisdiction complained of always concern the implementation or execution of an act liable to encroach upon the powers of the other body: judgment no. 231 of 1975 concerned the refusal by the parliamentary commission of inquiry to transmit certain documents in its possession to the relevant judicial authorities; judgment no. 379 of 1996 concerned an inquiry opened by the Rome public prosecutor’s office into two MPs who were suspected of having voted in place of fellow MPs; and judgment no. 26 of 2008 concerned a complaint by the Rome public prosecutor about the refusal of the parliamentary commission of inquiry to carry out a joint expert examination (see paragraphs 48 et seq. above).
101. Interference by one branch of State power with the powers of another is therefore a necessary condition for the existence of a conflict of jurisdiction. In the present case, however, as indicated by the Rome public prosecutor’s office when rejecting the applicant association’s request, no conflict of jurisdiction could be established, given the absence of the prerequisite fact of ongoing judicial proceedings, which meant that no actual interference with the judiciary could be attributed to the Commission and that there was therefore no conflict of jurisdiction between it and the relevant judicial body (see paragraph 35 above).
102. Lastly, the Government submitted that the applicant association could have objected to the request to discontinue the proceedings and lodged a fresh request for an application to the Constitutional Court. The Court notes, however, that the Government have not justified the effectiveness of such a remedy (see, among many other authorities, Communauté genevoise d’action syndicale (CGAS) , cited above, § 143, and Vučković and Others , cited above, § 77).
178. The purpose of the inquiry was to gather evidence concerning the infiltration by organised crime into Freemasonry, in two Italian regions in particular, in order to provide Parliament with information enabling it to take effective action against this particularly dangerous phenomenon for Italian public institutions and society (see paragraphs 11 and 41 above). The Court sees no reason to doubt that there existed the minimum nexus, which is required in order to exercise these powers, between that purpose and the measure ordered by the parliamentary commission of inquiry.
179 . As to the scope of the search and seizure order, the Grand Chamber notes, as did the Chamber, that it was particularly broad and sought to obtain the lists of the Calabrian and Sicilian lodge members’ names over a period of 25 years and information on their rank and role within the association in each case, and also any internal decisions taken by those same lodges during the period in question (see paragraph 27 above). The scope of the search was significant, as were the potential implications for the applicant association, given the particularly large number of persons concerned, which the Government estimated to be around 6,000 (see paragraph 120 above), comprising current and former lodge members.
180. The same conclusion must be reached as regards the measures authorised. The Court notes that those measures concerned a search of the applicant association’s main premises, and of all associated premises, in addition to the seizure of documents, computers and, in general, IT equipment (see paragraphs 27-28). The search record drawn up by the relevant police department attests to the substantial volume of documents seized and the extent of the operations carried out.
180. The same conclusion must be reached as regards the measures authorised. The Court notes that those measures concerned a search of the applicant association’s main premises, and of all associated premises, in addition to the seizure of documents, computers and, in general, IT equipment (see paragraphs 27-28 above). The search record drawn up by the relevant police department attests to the substantial volume of documents seized and the extent of the operations carried out.
181 . The Court points out, however, that Law no. 87 of 19 July 2013 establishing the Commission essentially reproduced the terms of the provisions of Article 82 of the Constitution, in addition to providing certain clarifications as to the restrictions on the possibility of ordering the interception of conversations and communications and measures affecting personal freedom (see paragraph 45 above). On the other hand, it provided no indications concerning the limits on the exercise of the Commission’s search powers. In this connection, the Court considers that a mere reference to the Code of Criminal Procedure norms applicable to the judicial authorities cannot suffice, particularly since, while the domestic case-law permits the relevant provisions to be transposed to parliamentary commissions of inquiry, this is without reference to any review mechanism (see judgment no. 4 of 1984 of the Combined Criminal Divisions of the Court of Cassation, cited above, paragraph 52). It is therefore left to the Commission to exercise its own discretion, one that, moreover, is particularly broad and devoid of any form of authorisation or scrutiny.
182. The Court also notes that, according to the applicant association, whose allegations have not been disputed by the Government, copies of those documents are still stored in Parliament’s archives (see paragraph 113 above). It notes in that connection that the relevant domestic provisions, namely Regulation 20 of the Commission’s Internal Regulations (see paragraph 46 above) and the Rules of the Historical Archives of the Chamber of Deputies (see paragraph 121 above), appear to allow the Commission to keep documents classified as secret throughout the duration of its existence, which the Government has moreover confirmed.
199. In view of the foregoing, the Court considers that the impugned interference with the applicant association’s right to respect for its home, in so far as it was not accompanied by sufficient safeguards against abuse and arbitrariness, cannot be regarded as having been “necessary in a democratic society” (see, mutatis mutandis , Karácsony and Others , cited above, § 161).
200. There has accordingly been a violation of Article 8 of the Convention on that account.
IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
201. The applicant association also complained of an infringement of its right to freedom of association in breach of Article 11 of the Convention, the relevant parts of which read:
“ 1. Everyone has the right ... to freedom of association ...
206. The Court notes that the applicant association’s submissions under Article 11 overlap with its submissions on the complaints under Article 8, which were repeated without the provision of any additional arguments warranting a separate examination. In addition, the Court refers to its examination of the issues under Article 8 of the Convention, in the context of which it expressly took into account the applicant’s associative nature in finding a violation of that provision (see, in particular, paragraphs 175 ‑ 176 and 179 above).
207. Accordingly, the Court considers that it is not necessary to examine separately the complaint under Article 11 (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, Tsaava and Others v. Georgia [GC], nos. 13186/20 and 4 others, §§ 225 and 228, 11 December 2025).
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
208. The applicant association complained that it had not had an effective remedy in respect of its complaints under Articles 8 and 11 of the Convention. It relied on Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth in [the] 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.”
C. The Court’s assessment
212. Having regard to its finding of a violation of Article 8 of the Convention, in particular as regards the lack of any available remedy to challenge the search and seizure order made by the Commission, the examination of the complaint under Article 13 has, in the present case, been absorbed by that of the issues previously dealt with by the Court under Article 8. Accordingly, it is not necessary to examine this complaint separately under Article 13 (see, in respect of parliamentary immunity, Karácsony and Others , cited above, § 174; Ikotity and Others , cited above, § 48; G.K. v. Belgium , cited above, § 69; Cordova v. Italy (no. 1) , no. 40877/98, § 71, ECHR 2003-I; and Podkolzina v. Latvia , no. 46726/99, § 42, ECHR 2002-II; see also, more generally under Article 8, Roman Zakharov v. Russia , no. 47143/06, § 307, ECHR 2015, and Centrum för rättvisa v. Sweden [GC], no. 35252/08, § 377, 25 May 2021).
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
213. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
[8] Venice Commission – “Rule of Law Checklist”, CDL-AD(2016)007 , adopted by the Venice Commission at its 106th plenary session, 11-12 March 2016. See also “The Updated Rule of law Checklist”, CDL-AD(2025)002, adopted by the Venice Commission at its 145th plenary session, 12-13 December 2025.