Illegal obstruction of the construction site of Jehovah’s Witnesses. Violations of the ECHR
JUDGMENT
The Religious Denomination of Jehovah’s Witnesses in Bulgaria v. Bulgaria 10.11.20 (app. no. 5301/11)
SUMMARY
The right of believers of the doctrine of Jehovah’s Witnesses to freely express their faith and to have their own place of worship. Freedom of religion and freedom of assembly.
The applicant is an organization of Jehovah’s Witnesses in Bulgaria. It decided to build a temple, on her own property. The Mayor, by his decision, suspended the reconstruction works due to violation of urban planning provisions.
A court order was issued allowing the construction to continue, but the Mayor, due to legal action, failed to issue a decision to continue the works, instead publicly denouncing the doctrine of Jehovah’s Witnesses as a religion with a negative impact on its believers. The domestic courts did not find the mayor’s refusal to lift the suspension illegal.
The ECtHR found that in so far as the result of those measures and proceedings was the applicant’s inability to construct a place of worship on his property, those measures constituted an interference with the applicant’s rights to freedom of religion. The domestic administrative courts did not take into account the main argument that the motive for preventing the reconstruction was motivated by the mayor’s opposition to the doctrine of Jehovah’s Witnesses.
According to Strasbourg, the possibility of using buildings as places of worship is important for participation in the life of the religious community and for the right to religion.
The ECtHR held that the applicant’s failure to be acquitted by the administrative courts was unlawful and constituted a violation of the right to religious freedom (Article 9) in conjunction with Article 11 of the ECHR (freedom of assembly).
The Court awarded EUR 3,000 in damages, EUR 1,000 in respect of non-pecuniary damage and EUR 5,600 in respect of costs and expenses.
PROVISIONS
Article 9
Article 11
PRINCIPAL FACTS
The case concerned a complaint by a Bulgarian organisation, The Religious Denomination of
Jehovah’s Witnesses in Bulgaria, that the authorities had prevented it from constructing a house of
worship on land it owns.
In 2001 three members of the applicant organisation purchased a plot of land situated in the city of
Varna. The land was designated for construction by way of a mayoral order. Against a background of
challenges to the mayoral order by neighbours living nearby, the organisation obtained title to the
plot of land in 2006 and started to construct a house of worship on the plot in 2007.
However, the local authorities subsequently carried out an inspection of the construction site and
found breaches of the relevant regulatory requirements, which led to the organisation being fined
and the mayor ordering construction to be suspended in July 2007. The organisation unsuccessfully
challenged the suspension order before the administrative courts.
In 2009 the organisation asked the mayor of Varna to allow construction to continue, emphasising
that it had complied with all previous orders issued by the mayor. In the absence of a reply, three
sets of judicial proceedings followed. In one set of proceedings the court found, in December 2010,
that the mayor’s silence had been unlawful, returned the case to the mayor and instructed him to
issue a decision on the applicant’s request. In September 2011 the mayor explicitly refused to allow
resumption of the construction and the courts rejected the applicant’s subsequent challenge to that
refusal.
In parallel, the courts ruled on a further challenge to the mayoral order of 2001 brought by the
neighbours. The courts found that the order was unlawful, a decision upheld in 2010 following an
appeal by the applicant organisation, which had joined the proceedings as an interested party.
In all these proceedings, the courts dismissed the organisation’s allegation of discrimination and an
ulterior motive being behind the refusal to allow construction work.
Meanwhile, in 2007, a well-known Bulgarian nationalist political party held a large-scale protest
against the building project and the municipality issued a declaration in support of the protests,
which was then published in a local newspaper. In 2009, the mayor declared on a local Internet
television channel that the people of Varna had the right to protest against the construction of the
applicant organisation’s house of worship and that he personally was not inclined to issue an order
allowing them to build.
The organisation also unsuccessfully brought proceedings for damages against the municipality in
connection with the suspension of construction, which lasted between October 2009 and November
2011.
Relying in particular on Article 9 (freedom of thought, conscience and religion) and Article 11
(freedom of association) of the European Convention, the applicant organisation complained that
the authorities had prevented it from constructing its house of worship and from using it to hold
religious meetings. The applicant argued in particular that the mayor, who had publicly voiced his
support for protests against Jehovah’s Witnesses, had given in to public pressure and demonstrated
religious intolerance when suspending the construction project.
THE DECISION OF THE COURT….
The Court reiterates that, while the Convention does not guarantee the right to be given by the authorities a place of worship as such , restrictions on establishment of places of worship may constitute an interference with the right guaranteed by Article 9 .
In the present case, the Court notes that the applicant complained that the authorities continually prevented it, unlawfully and without good reasons, from constructing its house of worship.
The Court observes that the measures complained of were not directly related to the applicant’s freedom to manifest its religion. In that sense the impugned measures and domestic proceedings did not concern matters such as the granting of an authorisation to construct a place of worship, an authorisation to practice one’s religion in it or a closure by the authorities of a place of worship. However, to the extent that the result of those measures and proceedings was an inability for the applicant to construct a house of worship on its own land where to gather its members and practice its religion, the Court finds that the different measures identified in paragraph above represented an interference with the applicant’s rights under Articles 9 of the Convention.
Proceedings related to the 2001 mayoral order
The Court notes that in those judicial proceedings, which lasted between 19 June 2007 and 12 July 2010 and were brought by some of the neighbours the municipality had defended the legality of the 2001 order which had designated the applicant’s plot as constructible
Proceedings related to the suspension of the applicant’s construction
The Court observes that the applicant’s construction was suspended by order of the mayor of 9 July 2007 . That order had been based on a legal provision of general application relevant in the context of constructions which, like the one in the present case, had proceeded in breach of the relevant requirements
The applicant brought subsequent judicial proceedings challenging the mayor’s tacit refusal to lift the suspension order.
The Court observes in September 2009 the mayor was repeatedly reported to have publicly expressed his intention not to allow resumption of the applicant’s construction. This followed a public declaration made by the municipal council earlier in time in which that collective body had expressed their opposition to the construction of the applicant’s house of worship, specifically on the grounds of the applicant’s religion considered as “foreign” and disseminating “dubious religious values”. Furthermore, the mayor continually kept silent on the applicant’s requests to lift the suspension, until 20 September 2011, when he ultimately explicitly refused to allow the construction to continue.
In addition, for the administrative courts, which the applicant had seized with a challenge against that silence, it took more than thirteen months and three separate judicial decisions to decide on the challenge, despite the existence of clear legal provisions and domestic case-law on the questions of what was considered a tacit refusal and what represented a valid administrative act when an administrative body was required in law to issue one. The Court finds, on the basis of the conclusion of the domestic court in the final judgment of 7 December 2010, that the applicant had been unlawfully deprived of the opportunity to proceed with its construction. On the basis of the other elements of relevance, namely that on 20 July 2009 the applicant had demonstrated compliance with the requirements to continue with its construction and that on 12 July 2010 the mayoral order designating the plot in question as “constructible” was quashed as unlawful, the Court considers that this was the case for about a year. The Court therefore finds that it is not unreasonable to consider that a period of about a year is sufficiently long for the applicant to have realistically advanced with and completed the necessary stages of the construction which would have allowed for it to be considered “tolerable” under national law.
A factor of special relevance is the fact that all those measures took place against the background of the mayor’s publicly demonstrated overt opposition to the applicant’s intention to build its house of worship, because of its religious activities , Despite the public opposition and the applicant’s explicit related arguments in the domestic judicial proceedings, namely that the measures preventing it from constructing its house of worship were improperly motivated by an opposition to its religious activities, the administrative courts did not engage with the matter. They failed to address the evidence and arguments submitted by the applicant in this respect, and to rule on the applicant’s complaint about a breach of its rights under Articles 9 and 11 of the Convention, limiting instead their analysis to exclusive examination of the formal legal reasons for unlawfulness of the mayor’s silence The Court thus finds that those measures, and the particular context in which they were implemented, resulted in serious limitations on the applicant’s ability to exercise its freedom to manifest its religion. The measures were either unlawful, or unjustified, and as such consequently not necessary in a democratic society.
Accordingly, the Court finds that there has been a violation of Article 9 of the Convention, interpreted in the light of the protection afforded by Article 11.
Just satisfaction: EUR 3,000 (pecuniary damage), EUR 1,000 (non-pecuniary damage), and EUR 5,600 (costs and expenses)
