EGMR: Refusal to provide the Mersin and İzmir Jehovah’s Witnesses with an appropriate place of worship breached their right to freedom of religion

In today’s Chamber judgment in the case of Association for Solidarity with Jehovah Witnesses and Others v. Turkey (applications nos. 36915/10 and 8606/13) the European Court of Human Rights held, unanimously, that there had been a violation of Article 9 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights. The case concerned the inability of the Mersin and İzmir Jehovah’s Witnesses to obtain an appropriate place in order to engage in worship.

On the basis of a law prohibiting the opening of places of worship on sites not designated for that purpose and imposing certain conditions on the building of places of worship, the private premises which the Mersin and İzmir congregations of the Jehovah’s Witnesses had been using were closed by the national authorities and their applications to use those premises as places of worship were rejected. The congregations were also informed that the local development plans comprised no sites which could be used as places of worship.

The Court found in particular that the congregations in question were unable to obtain an appropriate place in which to worship on a regular basis, which amounted to such a direct interference with their freedom of religion that it was neither proportionate to the legitimate aim pursued, that is to say the prevention of disorder, nor necessary in a democratic society. The Court considered that the domestic court had taken no account of the specific needs of a small community of believers and noted that the impugned legislation made no mention of that type of need, whereas, given the small number of adherents, the congregations in question needed not a building with a specific architectural design but a simple meeting room in which to worship, meet and teach their beliefs.

Principal facts

The applicants are, firstly, Hüseyin Sami Gül and Levent Sarkut, the ministers responsible for the Congregation of Jehovah’s Witnesses of the town of Mersin (Turkey), who were born in 1953 et 1952 respectively, and secondly, the Association for Solidarity with the Jehovah’s Witnesses, which was set up on 31 July 2007 to represent the Jehovah’s Witnesses community in Turkey.

For many years the İzmir and Mersin Jehovah’s Witnesses congregations were allowed to worship on private premises. Subsequently the relevant authorities decided to close their prayer rooms on the basis of Law No. 3194 on Urban Planning, prohibiting the opening of places of worship on sites not designated for that purpose and imposing certain conditions on the building of places of worship. In the present case, the apartment in Akdeniz district where the Mersin Jehovah’s Witnesses congregation had been meeting since 1988 was searched on 17 December 2000 and closed down on the ground that assembly on those premises was unlawful. The congregation was also informed that it could also not engage in religious worship in another apartment in Gazi district, which was later closed by the Governor’s Office on 16 August 2003. Finally, on 19 August 2003, the Municipal Urban Planning Department informed the congregation that there were no sites on the local development plans which could be used as places of worship. Mr Gül and Mr Sarkut lodged an appeal to set the decision aside with Mersin Administrative Court, but their application was finally dismissed on 27 October 2008. Their appeal on points of law was dismissed on 6 February 2009.

The İzmir Jehovah’s Witnesses congregation, which had been worshipping on the ground floor of a building located in Karşıyaka, was informed that they would have to apply for a building permit for a new place of worship and request an amendment to the local urban development plan following the entry into force of a law replacing the word “mosque” with “place of worship”. Consequently, on 23 February 2004 the congregation submitted a request for allocation of land to the municipality with a view to building a place of worship. On 3 March 2004 and 17 September 2004 it also applied for an amendment to the local urban development plan to enable it to use the Karşıyaka apartment as a place of worship. These requests were rejected. The congregation lodged an appeal against that decision, but the latter was finally dismissed on 12 May 2010 by İzmir Administrative Court. The Supreme Court upheld the first-instance judgment on 9 November 2010.

Complaints, procedure and composition of the Court

Relying on Article 9 (right to freedom of thought, conscience and religion), Article 6 (right to a fair trial) and Article 11 (freedom of assembly and association) of the Convention, the applicants complained that the national authorities had refused to grant place-of-worship status to the premises in which they worshipped and had rejected their requests for access to a place of worship. Further relying on Article 13 (right to an effective remedy), they complained that they had not benefited from an effective remedy. Lastly, relying on Article 14 (prohibition of discrimination) in conjunction with Articles 9 and 11 of the Convention, they complained that they had suffered discrimination on grounds of their belonging to a minority religious community, that is to say the Jehovah’s Witnesses.

The application was lodged with the European Court of Human Rights on 28 June 2010.

Judgment was given by a Chamber of seven judges, composed as follows:

Julia Laffranque (Estonia), President,

Işıl Karakaş (Turkey),
Nebojša Vučinić (Montenegro),
Paul Lemmens (Belgium),
Jon Fridrik Kjølbro (Denmark),
Stéphanie Mourou-Vikström (Monaco),
Georges Ravarani (Luxembourg),

and also Stanley Naismith, Section Registrar.

Decision of the Court

Article 9 (right to freedom of thought, conscience and religion)

The Court noted that the İzmir and Mersin Jehovah’s Witnesses congregations had been deprived of access to a place of worship and considered that there had been an interference in their right to freedom of religion, which interference was prescribed by law (Section 24 of Law No. 634 and Additional Section 2 of Law No. 3194) and pursued a legitimate aim, namely that of preventing disorder. As regards the proportionality of that interference, the Court noted that legislation imposed certain conditions on the building of places of worship, in particular the allocation on the urban development plan of plots of land designated for building places of worship, with due regard to the specificities and needs of the town and region, prior authorisation from the relevant administrative authority and project compliance with urban-planning legislation. Furthermore, the domestic courts had specified, with reference to the relevant legislation, the minimum dimensions to be observed: small places of worship had to have a minimum surface area of 2,500 m2, with 5,000 m2 for medium-sized places of worship and 10,000 m2 for large ones. Moreover, the Supreme Court had held that land earmarked for housing on the local urban development plan could not be used for other purposes. Consequently, the congregations’ requests for a place of worship had been rejected because they had been deemed contrary to urban planning regulations.

Although the Court considered that in such a complex and difficult area as spatial planning the States benefited from a wide margin of appreciation in implementing their urban planning policies, it noted that the domestic courts had not attempted to weigh up the various competing interests or to assess the proportionality of the measures vis-à-vis the right of the congregations in question to manifest their religion. In particular, the Court noted that a small faith community such as the Jehovah’s Witnesses found it difficult to satisfy the criteria laid down in legislation in order to have access to an appropriate place of worship. The Court therefore concluded that the domestic courts had taken no account of the specific needs of a small community of believers, and noted that the impugned legislation was completely silent on this type of need on the part of small communities, even though the small number of adherents meant that the congregations in question needed not a building with a specific architectural design but a simple meeting room in which to worship, meet and teach their beliefs. Furthermore, the Court noted that the administrative authorities tended to use the potential of the legislation at issue to impose rigid, indeed prohibitive, conditions on the exercise of worship by minority denominations, in particular the Jehovah’s Witnesses.

The Court also rejected the Government’s argument that the congregations in question had on many occasions obtained authorisation to meet under Law No. 2911, considering that that possibility depended on the authorities’ goodwill, that there was always a risk of interference by the authorities and that the congregations in question were required to obtain the authorities’ authorisation for each religious service.

The Court therefore concluded that the impugned rejections by the authorities amounted to such a direct interference with their freedom of religion that it was neither proportionate to the legitimate aim pursued nor necessary in a democratic society. It therefore found a violation of Article 9 of the Convention.

Other articles

The Court considered that the complaints under Articles 6, 11, 13 and 14 of the Convention should be declared admissible, although there was no need to examine their merits on the grounds that they had been adequately covered by the assessment leading up to its finding of a violation of Article 9 of the Convention.

Just satisfaction (Article 41)

The Court held that Turkey was to pay € 1,000 jointly to the applicants in application no. 36915/10 and € 1,000 to the applicant association in application no. 8606/13 in respect of nonpecuniary damage, and € 4,000 to the applicants jointly in respect of costs and expenses.

Press release ECHR 168 (2016) 24/05/2016

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