In 2004 the Jehovah’s Witnesses bought a residential building in Kryvyi Rih with the intention of building a Kingdom Hall on the site. In February 2005 the city’s Architecture and Planning Council approved their planning application and, seven months later, the planning authority submitted a draft decision to approve the proposal and grant the JWs a lease – but the proposal was not adopted at subsequent City Council meetings. There were also objections from those living near the proposed site. The JWs sought judicial review and in June 2007 the Regional Court allowed the claim, but in August 2007 a draft decision on the project failed to get enough votes in the City Council to be adopted. In January 2008, the community lodged a second claim against the Council for a declaration that it had the right to lease the plot of land and for an order to oblige the Council to enter into a lease agreement. In December 2008, the Regional Court rejected the second claim, holding that land allocation decisions fell within the exclusive competence of councils and that the courts could not override the City Council and take the decision in its place. All further appeals were rejected.

The JWs argued that the City Council’s refusal to allow it to establish a place of worship contravened its rights under Article 9 (thought, conscience, and religion) and Article 1 of Protocol No 1 (property): further, because the domestic courts had refused to order the City Council to issue the necessary decision, the Council had been allowed to exercise its discretion in an arbitrary and illegal manner, contrary to Article 6 §1 (access to court), and Article 13 (effective remedy).

The arguments

The Government submitted that general legislation which applies neutrally without any link whatsoever to an applicant’s personal beliefs could not in principle be an interference with Article 9 rights. The legislation provided that allocation of land was within city councils’ jurisdiction and this jurisdiction extended to all “participants in land relations” irrespective of their nationality, language, religious views or other factors. The City Council had neither allocated land to the applicant community nor refused to do so. There was no indication that the Council had examined the issue “through the prism of the applicant community’s views. Likewise, there was nothing to indicate that the neighbours’ opposition to the placement of a Kingdom Hall in their neighbourhood had been motivated by religious prejudice”. Therefore, that part of the application was manifestly ill-founded [43].

The JWs argued that their present building was totally inadequate for its purposes: it was too small for a congregation of over 240 and its plumbing, sewage, electricity, ventilation and lighting were inadequate: “This placed the community in a ‘situation of perceived inferiority’ vis-à-vis other mainstream religions. [44] Further, the interference had not arisen from the legislation itself, which had been neutral, but from the arbitrary refusal to apply it. It had not been “prescribed by law”, because the domestic courts had recognised that the JWs had met all requirements of the Land Code to be granted a lease to the land. Article 123 §6 of the Land Code had required the City Council to decide within a month, but it had never done so. The City Council’s inaction had been attributable solely to complaints from “religiously intolerant” neighbours [46]. Finally, the Council’s unfettered discretion went against the principle in the Court’s case-law that “it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power”: Hasan and Chaush v Bulgaria 30985/96 [2000] ECHR 511.

The judgment

The Court began by pointing out that, while the Convention did not guarantee the right to be given a place of worship, restrictions on establishment of places of worship might engage Article 9 [49] because the possibility of using buildings as places of worship was important for participation in the life of a religious community and, therefore, important to the right to manifest [50]. That said, it was a well-established principle of the Court’s case-law that domestic authorities enjoyed a wide margin of appreciation in the choice and implementation of planning policies – and the Government had argued that the difficulties faced by the JWs were caused by such neutral considerations [51].

The Court saw no reason to doubt that the JWs faced practical difficulties in using the building that it currently owned as a place of worship; moreover, while the authorities tolerated its de facto for the JWs’ purposes, their refusal officially to recognise that use created legal uncertainty for the Witnesses [53]. Nor did the Court agree that their inability to build a place of worship was a mere effect of the application of generally applicable neutral rules precisely because the domestic authorities failed to cite any valid neutral planning-related reason for failure to grant the applicant community’s application. The domestic court had dismissed the opposition from neighbouring owners as insufficient legal grounds for the refusal. On the contrary, the domestic court had held that the Witnesses had complied with all domestic legal requirements needed to build its place of worship [54].

The Court concluded that the City Council’s failure to permit the construction of a new place of worship and to enter a lease , in spite of a final domestic judicial decision holding that the community met the domestic legal requirements to be granted a permit and lease brought the situation within the ambit of Article 9 of the Convention. Moreover:

“56. 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 Council’s failure to approve the applicant community’s application (see paragraph 20 above). It implicitly reaffirmed that finding in the second set of proceedings (see paragraph 25 (iv) above). 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.

57.  It follows that the municipal authorities’ conduct was arbitrary and not ‘in accordance with the law’.”

There had therefore been a violation of Article 9 [59]. Given that, in the first set of proceedings, the domestic court had held that the Council’s refusal to approve the land allocation application and to grant the Witnesses a lease had been unlawful (and implicitly reaffirmed that conclusion in the second set of proceedings) [69], there had also been a violation of Article 1 of Protocol No 1 [71].

Judge Vehabović’s partial dissent – and a comment

Vehabović J (the judge in respect of Bosnia and Herzegovina) dissented over the violation of Article 9, though he agreed with the conclusion on the violation of A1P1. In his view, the JWs already had three places of worship in Kryvyi Rih without any interference by the State, and the possibility or otherwise for them to have their religious services in a particular location did not prevent them from manifesting their religion:

“If the decision of the local authorities imposed any additional obligations on the Jehovah’s Witnesses, I would regard that as coming within the ambit of Article 9. But in the present case no burden is imposed on the Jehovah’s Witnesses on account of their religion. The applicant community simply complains that, as the owner of a residential house located on land belonging to the municipality, it cannot obtain permission to have that house converted into a new place of worship on the land. That seems to me an altogether different matter. Furthermore, I think that it may relate only to Article 1 of Protocol No. 1.”

And, for what it’s worth, so do I. In England, for example, what the exempt denominations are exempted from is the operation of listed building controls – but the ecclesiastical exemption does not exempt them from the general requirement to seek planning consent where necessary. And if, for example, a congregation was refused planning consent to add a wholly-inappropriate extension to its building, it might appeal and argue aesthetics, but could it seriously argue that the refusal engaged Article 9? I don’t think so.