Tanyar and Küçükergin v. Turkey (dec.)

Information Note on the Court’s case-law No. 76

June 2005

Tanyar and Küçükergin v. Turkey (dec.) - 74242/01

Decision 7.6.2005 [Section II]

Article 9

Article 9-1

Manifest religion or belief

Use of an apartment for religious gatherings subject to agreement of neighbours, and imposition of fine for having organised such a gathering in an apartment: inadmissible

The applicants, who belong to an independent Turkish Protestant church, organised religious gatherings with up to about forty participants in a private apartment that they had purchased in a condominium, without the prior agreement of the other co-owners. As freedom of worship is protected by the Constitution, subject to respect for the rights of others, the authorities requested the applicants to take the requisite steps by seeking the agreement of the neighbours. After the neighbours lodged complaints because of the disturbance caused by the meetings, the authorities ordered the removal of the plaque bearing the name of the religious community that the applicants had put up at the entrance to the building. The courts which upheld that order, referring in particular to Article 9 of the Convention, emphasized that freedom of religion should be exercised in conformity with the statutory rules and should respect the rights and freedoms of others. The other co-owners did not give their agreement and the authorities therefore ordered the applicants to stop using their premises as a place of worship. The authorities added that they always granted facilities to religious communities as part of the measures they took to provide for the actual exercise of freedom of religion, without any distinction. A legislative reform then authorised the municipality to build places of worship in accordance with urban planning rules. The applicants accordingly asked the authorities to make a place of worship available to them. The authorities responded that they could not grant the request, as there were no premises available. Before that, the applicants had been fined under the criminal-law provisions prohibiting the organisation of religious meetings in premises not intended for such purpose. No hearings were held either by the lower criminal court which ordered the fine or by the higher criminal court which heard the appeal against the order.

Inadmissible under Article 9 – the requisite formalities under Turkish law did not concern the recognition or exercise of any particular form of worship and could not therefore be assimilated to prior authorisation or to intervention from a religious authority. The impugned domestic formalities were intended, on the contrary, to protect the rights and freedoms of others and public order, and the criminal law prohibited religious meetings on premises which were not designated for such use. In the instant case, the domestic authorities had sought to balance compliance with those formalities against the freedom of worship requirements in Article 9 of the Convention. The fining of the applicants was justified in principle and proportionate to the intended objective of protecting the rights and freedoms of others and order: manifestly ill-founded.

It was not established that the private premises of the applicants could not be used as a place of worship if the agreement of the co-owners of the building had been obtained, and once that had been refused the authorities had pointed out that there were a number of churches and synagogues in the town, and that facilities for worship were always made available to religious communities. Although, following the legislative reform, the application by the applicants to obtain a place of worship had been dismissed, they could have challenged that decision in domestic courts, relying in particular on the freedom of religion guaranteed by Article 24 of the Constitution and on the needs of their community to obtain the construction of a church or the attribution of other premises. However, they had not done so: non-exhaustion of domestic remedies.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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