Failure to issue a city council decision authorizing a community of Jehovah’s Witnesses to rebuild a worship site violated their religious freedom.

JUDGMENT 

Religious Community of Jehovah’s Witnesses of Kryvyi Rih’s Ternivsky District v. Ukraine (no. 21477/10) 03.09.2019 

see here

SUMMARY

Licensing to a community of Jehovah’s Witnesses to rebuild their place of worship. Failure to take legal action by the city council.

The applicant community of Jehovah’s Witnesses has appealed before the domestic courts to declare as illegal the Municipal Council’s refusal to issue a decision authorizing the reconstruction of an existing building as a place of worship owned by the applicant.

The Court found that the applicant community was experiencing practical difficulties in worship and the fact that the Municipal Council did not allow the construction of a new place of worship and did not sign the lease of the property despite a court order issued by the domestic courts according to which the community complies with national legal requirements for such permission and hire, has infringed Article 9 of the ECHR (right to religious freedom), and Article 1 of the First Additional Protocol which a argues that the actions of a public authority related to the enjoyment of assets must be in accordance with the law.

PROVISIONS

Article 6 par.1,

Article 9,

Article 13,

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant community is the Religious Community of Jehovah’s Witnesses of Kryvyi Rih, Ternivsky
District, Dnipropetrovsk Region.

The case concerned the community’s complaint that it had not been able to construct a building for
worship on land it had purchased owing to the domestic authorities’ inactivity.

In 2004 the applicant community purchased a residential building in Kryvyi Rih in order subsequently
to erect a place of worship, a “Kingdom Hall”, on the site. In February 2005 the city’s Architecture
and Planning Council approved the placement of the Kingdom Hall on the land and seven months
later the city’s planning authority submitted a draft decision to approve a land allocation project and
to grant the applicant community a lease, but this plan was not adopted at subsequent City Council
meetings.

In February 2007 the applicant community initiated a first set of proceedings against the City
Council, seeking to have its lack of activity declared unlawful. In June 2007 the Regional Court
allowed the claim, but in August 2007 a draft decision on the applicant community’s project failed to
get enough votes to be adopted by the City Council.

In January 2008 the community lodged a second claim against the City Council for a declaration that
it had the right to lease the plot of land and for the City Council to be ordered to enter into a lease
agreement. In December 2008 the Regional Court rejected the claim, holding in particular that land
allocation decisions fell within the exclusive competence of councils and that the courts could not
replace the City Council and take the decision in its place. All further appeals by the religious
community were rejected.

Relying in particular on Article 9 (freedom of thought, conscience, and religion) and Article 1
(protection of property) of Protocol No. 1, the applicant community alleged that the City Council’s
failure to allow it to establish a place of worship had breached its rights.

THE DECISION OF THE COURT..

ARTICLE 9 OF THE CONVENTION

Turning to the circumstances of the present case the Court notes that the applicant community is the owner of a residential house located on land belonging to the municipality. For a number of years it has been using that house as a place of worship. The applicant community sought a lease of the plot and a permission to build a new place of worship on it. It considered that the existing residential house measuring 50 sq.m did not meet its needs as a place of worship as regards available space and facilities.

The Court considers that, in such circumstances, having regard to the practical difficulties and legal uncertainty the applicant community faces in using its building as a place of worship, the City Councils failure to permit the construction of a new place of worship and to enter into a lease agreement for that purpose, in spite of a final domestic judicial decision holding that the community met the domestic legal requirements to be granted such a permit and lease brought the situation within the ambit of Article 9 of the Convention.

This conclusion is supported by the fact that in the first set of proceedings the domestic court declared unlawful, in terms of domestic law, the City Councils failure to approve the applicant communitys application . It implicitly reaffirmed that finding in the second set of proceedings . There is no indication that, after that decision, there was any relevant change in the circumstances which would make that assessment not valid or no longer applicable. The City Council failed to respect those decisions and persisted in its failure to act without citing any relevant reasons to justify its conduct.

The Court held by a majority (6 for 1) that there had been a violation of Article 9 of the Convention

 ARTICLE 1 OF PROTOCOL NO. 1

 The Court reiterates that in this area, the planning policy, the domestic authorities enjoy a wide margin of appreciation. However, Article 1 of Protocol No. 1 above all requires that any interference by a public authority with the enjoyment of possessions be in accordance with the law: under the second sentence of the first paragraph of this Article, any deprivation of possessions must be “subject to the conditions provided for by law”; the second paragraph entitles the States to control the use of property by enforcing “laws”. Moreover, the rule of law, which is one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention.

In the first set of proceedings the domestic court found the Councils refusal to approve the land allocation application and to grant the applicant community the land lease unlawful . They implicitly reaffirmed that conclusion in the second set of proceedings . There is no indication that, after that decision, there was any relevant change in the circumstances which would invalidate that assessment or make it no longer applicable.

The Court sees no reason to question that conclusion and finds that the interference was not lawful.

There has, accordingly, been a violation of Article 1 of Protocol No. 1.

ARTICLES 6 AND 13 OF THE CONVENTION

The Court considers that, in the particular circumstances of the present case and in view of its findings above, the above complaints are subsumed by the applicant communitys complaints under Article 9 of the Convention and Article 1 of Protocol No. 1 and raise no separate issue.

Just satisfaction: 1,000 euros (EUR) (non-pecuniary damage) and EUR 6,000 (costs and expenses).


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