Communicated on 22 November 2017
FOURTH SECTION
Application no. 21477/10
RELIGIOUS COMMUNITY OF JEHOVAHS WITNESSES OF KRYVYI RIH
against Ukraine
lodged on 13 April 2010
STATEMENT OF FACTS
The applicant is the Religious Community of Jehovah’s Witnesses of Kryvyi Rih, Ternivsky District, Dnipropetrovsk Region. It is registered as a religious organisation in Ukraine. It is represented before the Court by Mr V. Karpov, a lawyer practising in Kropyvnytskyi, Ukraine, and Mr A. Carbonneau, a lawyer admitted to practice in Quebec, Canada, and in Armenia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s attempts to rent land for a place of worship
In 2004 the applicant community purchased from private individuals a single-family house with annexes in Kryvyi Rih (“the city”) with the purpose of subsequently erecting a place of worship, a “Kingdom Hall”, in its place. The house and annexes were located on a plot of land measuring about 0.07 ha and surrounded on three sides by single-family homes (“the land plot”). The sellers had no formal title to the land, which belongs to the city.
On 7 September 2004 the applicant community lodged an application with the mayor seeking to be given a five-year lease on the plot of land for the construction of a Kingdom Hall.
On 24 February 2005 the city Architecture and Planning Council approved the placement of a Kingdom Hall on the land and its planned design. On 27 July 2005 a commission composed of representatives of the land management authority and the planning, public health and fire safety authorities also approved the placement.
On 28 September 2005 the city council decided to give preliminary consent to the applicant for the placement of a Kingdom Hall on the land and instructed the applicant to prepare, within a year, project documentation for the allocation of the land to it and for the construction of the place of worship. The city land management authority was instructed to submit to the council the draft decision for the allocation of the land plot to the applicant community.
In 2006 the applicant community ordered and obtained from a specialist organisation the project documentation for the allocation of the land. It was approved by the city’s planning authority, and by the land management, land cadastre, environmental protection, and public health authorities and the authority for the protection of cultural heritage.
On 6 September 2006 the city planning authority submitted to the city council a draft decision to approve the land allocation project and to grant the applicant the lease. On the same day the authority informed the applicant community that new owners of two of the houses adjoining the plot were objecting to the placement of the place of worship there.
On 15 September 2006 the applicant community sought copies of the neighbours’ letters from the city authorities.
It appears that on 26 September 2006 a meeting of the neighbourhood residents concerning the project was held. In a letter to the mayor of the same date the applicant community objected.
On 27 September 2006 the draft decision was to be examined at a council meeting. However, it was not adopted either because it was withdrawn from the agenda or because the council took a vote on the draft decision but failed to garner a sufficient number of votes to for it to be adopted.
On 10 October 2006 the applicant community asked the mayor to provide it with the minutes of the council meeting of 27 September 2006.
On 17 October 2006 the city planning authority informed the applicant that the neighbourhood meeting had been lawful and that copies of neighbours’ complaints could not be provided.
On 10 November 2006 the city land management authority informed the applicant community that the minutes of the city council could not be provided.
2. First set of proceedings and subsequent events
On 14 February 2007 the applicant community lodged a claim against the city council seeking to have its inaction declared unlawful.
On 7 June 2007 the Dnipropetrovsk Regional Commercial Court (“the Regional Court”) allowed the applicant’s claim and declared the council’s failure to approve the land allocation project and to grant the applicant a lease unlawful. The court held, in particular, that the applicant had complied with all the legal requirements needed to obtain a lease. As to the neighbours’ objections, the court held that under the relevant legislation the opinions of individual citizens who disagreed with the plaintiff’s religious activities could not provide valid grounds for the council’s inaction. No appeal was lodged and the judgment became final.
On 11 June 2007 the city land management authority informed the applicant community that on 14 May 2007 it had re-submitted a draft positive decision to the council but that on 30 May 2007 it had been withdrawn from the council’s agenda due to the conflict which had arisen between the community and the local residents and their opposition to the development project on the basis of the concentration of people and cars that would be generated when meetings and services were held.
On 29 August 2007 the city council examined the draft positive decision but it failed to garner the necessary number of votes to be adopted: of the 70 members comprising the council, 43 did not vote at all, there were 2 votes “in favour”, 23 “against” and 2 abstentions.
3. Second set of proceedings
On 14 January 2008 the applicant community lodged a second claim against the city council seeking (i) to have it declared that it had the right to lease the land plot in question, and (ii) that the council be ordered to enter into a lease agreement with the applicant community in respect of the land.
On 11 December 2008 the Regional Court rejected the claim under both heads, holding in particular that: (i) the applicant community had not obtained the title to the land from its predecessor in title to the buildings located on it because the latter had had no formal title to the land either; (ii) land allocation decisions fell within the exclusive competence of the council; (iii) the right to use land could only be based on a municipal council’s decision allocating such land and there had been no such decision in the present case; (iv) the fact that the applicant community had complied with all the legal requirements and that the council was breaking the law in not issuing the relevant decision did not mean that the court could break the law in its turn by arrogating the council’s authority, substituting itself for the council and making the respective decision in its place.
On 26 March 2009 the Dnipropetrovsk Administrative Court of Appeal upheld the Regional Court’s judgment, reaffirming in particular that even though the unlawfulness of the council’s inaction had been established by the Regional Court’s judgment of 7 June 2007, the courts could still not replace the municipal council and take the decision in its place.
On 1 October 2009 the Supreme Court refused to institute proceedings for review of the lower courts’ decisions on points of law.
B. Relevant domestic law
Article 123 § 9 of the Land Code provided, at the material time, that refusal by a municipal or executive authority to allocate land or failure to examine the relevant questions were subject to judicial review. Any decision by such authorities refusing to allocate land had to contain reasons and to refer to the relevant provisions of legislation or planning documentation.
COMPLAINTS
The applicant community complains that the municipal council’s failure to allow it to build a place of worship breached its rights under Article 9 of the Convention and Article 1 of Protocol No. 1. Under Article 6 of the Convention the applicant community complains, in substance, that the domestic courts’ decisions in the second set of proceedings breached its right of access to court. Under Article 13 of the Convention it complains that the domestic courts’ decisions in the second set of proceedings meant that it had no effective domestic remedy in respect of its complaints under Article 9 of the Convention and Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Was the applicant community’s right of access to a court, as guaranteed by Article 6 § 1, respected in the proceedings which ended in the Supreme Court’s decision of 1 October 2009?
2. Has there been a violation of the applicant community’s freedom of religion, contrary to Article 9 of the Convention?
3. Has there been an interference with the applicant community’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was that interference in compliance with the requirements of Article 1 of Protocol No. 1?
4. Did the applicant community have at its disposal an effective domestic remedy in respect of its complaints under Article 9 of the Convention and Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
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