CEDH · CASELAW;CLIN;ENG — 24 mai 2016

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Turkey - 36915/10 and 8606/13 Judgment 24.5.2016 [Section II] Article 9 Article 9-1 Freedom of religion Planning restrictions making it impossible for small religious community to have a place of worship: violation Facts – In 2003 the Turkish Urban Planning Act, which had previously only been applicable to the building of mosques, was amended to allow the construction, with the prior permission of the authorities, of buildings for other religions. Plots of land had normally to be set aside for that purpose when drawing up urban development plans. However, places of worship still had to have a mandatory minimum surface area of 2,500 m 2 . After the 2003 reform two local Jehovah’s Witness congregations linked to the applicants were denied authorisation to use as places of worship an apartment in a block of flats and the ground floor of another building, on the grounds that a place used for housing could not be used for other purposes and that a place of worship had to comply with the minimum size requirements set out in the relevant statutory provisions. The municipalities also informed them the local development plans included no further available locations that could be used as places of worship or any land suitable for the construction of a place of worship. Law – Article 9: The present applications concerned the applicants’ lack of access to appropriate venues for practising their religion. The fact is that a religious community’s inability to obtain a place of worship nullifies its religious freedom. Consequently, the impugned decisions amounted to an interference with the right guaranteed by Article   9. Given the complexity of such matters, Contracting States normally benefit from a broad margin of discretion in implementing their urban development policies. However, even if it is impossible to derive from the Convention any right on the part of a religious community to obtain a place of worship from the public authorities, the need to preserve genuine religious pluralism which is inherent in the concept of a democratic society requires close scrutiny from the Court. The many cases reported to the Court by applicants and third parties showed that the administrative authorities tended to use the potential of their legislation to impose rigid, or even prohibitive, conditions on the activity of certain minority denominations, such as the Jehovah’s Witnesses. In view of their small numbers, the Jehovah’s Witnesses did not need any special type of building, merely an ordinary meeting room in which to worship, to gather as a community and to teach their beliefs. However, the criteria laid down in the impugned legislation did not mention the particular needs of small communities of believers; nor were those needs taken into account by the courts which dismissed the applicants’ appeals. The Court rejected the Government’s argument that the applicants had repeatedly obtained authorisation to meet on the basis of Act No. 2911 on Meetings and Demonstrations, because the granting of such authorisation depended on the goodwill of the central or local government departments, so the applicants had to secure official authorisation for each religious service they organised. In conclusion, the impugned denials of authorisation had such direct effects on the applicants’ freedom of religious that they could not be regarded as proportionate to the legitimate aim of preventing public disorder. Conclusion : violation (unanimously). Article 41: EUR 1,000 to the applicant association and EUR 1,000 jointly to the other applicants in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes