Published on 19 February 2024
FIRST SECTION
Application no. 4311/22
ASSOCIAZIONE CULTURALE ASSALAM DI CANTÙ
against Italy
lodged on 12 January 2022
communicated on 1 February 2024
SUBJECT MATTER OF THE CASE
The applicant is a Muslim association which originally had religious and worship purposes. It subsequently amended its statute and currently pursues cultural purposes.
The applicant association was denied by the competent domestic authority the authorisation to use as place of worship a building originally rent and subsequently purchased by it. The dismissal was based on section 72 of Law no. 12 of 31 March 2015 of the Lombardia Region. This provision was subsequently declared unconstitutional by the Constitutional Court’s judgment no. 254 of 5 December 2019. Accordingly, the dismissal of the applicant’s request to establish its place of worship was quashed by the Lombardia Regional Administrative Court (tribunale amministrativo regionale, “TAR”) on 18 January 2021.
However, pending the proceedings, the applicant association amended its statute and declared to the competent domestic authority that it would have used the building for “cultural” and not “religious” activities.
On 29 May 2015 the Municipality of Cantù had intimated the applicant not to use the building for religious purposes. On 22 June 2017 the applicant was further intimated not to use the building as a place of worship, in the absence of the authorisation provided for by section 52 (3-bis) of Law no. 12 of 11 March 2005 of the Lombardia Region. The Municipality warned the applicant that the use of the building for religious purposes would have entailed a transformation of the property in violation of the applicable rules on the use of land, and justified the transfer of ownership to the Municipality, without the payment of any compensation. On 11 June 2017 the Municipality, considering that the applicant association had breached the warning, notified it of the act transferring the ownership of the building. The measure was eventually upheld by the Council of State on 19 July 2021.
Both before and after the conclusion of the proceedings, the applicant was denied several times by the competent domestic authorities the authorisation to celebrate the Ramadan or other religious activities in the building or other public spaces. On some occasions, such denial has been quashed by the competent administrative courts.
The applicant association complains under Article 9 of the Convention that the domestic authorities continually prevented it, unlawfully and without good reasons, from establishing a place of worship. Relying on Article 14 of the Convention, the applicant association further argues that there has been a general, publicly demonstrated and overt opposition of the local public administration to its intention to build its place of worship, because of its religious activities. Lastly, the applicant association complains that there has been an unlawful and disproportionate interference with the right to the peaceful enjoyment of its possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention, as the ownership of the building it intended to use for religious purposes has been transferred to the Municipality of Cantù.
QUESTIONS TO THE PARTIES
1. Can the applicant association be considered a “community of believers” and, accordingly, does it have standing, under Article 34 of the Convention, to lodge the complaint under Article 9 of the Convention on behalf of its members (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000-VII, and Association for Solidarity with Jehovah’s Witnesses and Others v. Turkey, nos. 36915/10 and 8606/13, § 87, 24 May 2016)?
1.1. If so, has there been an interference with the applicant association’s freedom of religion, within the meaning of Article 9 § 1 of the Convention (see The Religious Denomination of Jehovah’s Witnesses in Bulgaria v. Bulgaria, no. 5301/11, § 97, 10 November 2020, with further references)?
1.2. If so, was that interference in accordance with the requirements of Article 9 § 2 (see Association for Solidarity with Jehovah’s Witnesses and Others, cited above, §§ 92-108, Religious Community of Jehovah’s Witnesses of Kryvyi Rih’s Ternivsky District v. Ukraine, no. 21477/10, §§ 51-59, 3 September 2019, The Religious Denomination of Jehovah’s Witnesses in Bulgaria v. Bulgaria, cited above, §§ 98-115)?
2. Has the applicant association suffered discrimination in the enjoyment of its Convention rights under Article 9 of the Convention and/or Article 1 of Protocol No. 1, in breach of Article 14 of the Convention (see, mutatis mutandis, İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 160 and 165, 26 April 2016, and Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi v. Turkey, no. 32093/10, §§ 48-49, 2 December 2014)?
3. Has there been a breach of the applicant association’s right to the peaceful enjoyment of its possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention?
4. The parties are invited to clarify whether, following the TAR’s judgment of 18 January 2021, the applicant association requested again the Municipality to issue the authorisation provided for by section 52 (3-bis) of Law no. 12 of 11 March 2005 of the Lombardia Region, or whether it was prevented from lodging such request, given that the ownership of the building had been transferred to the Municipality.