THE RELIGIOUS DENOMINATION OF JEHOVAH'S WITNESSES IN BULGARIA v. BULGARIA

 
Communicated on 29 May 2019
 
FIFTH SECTION
Application no. 5301/11
THE RELIGIOUS DENOMINATION OF JAHOVA’S WITNESSES IN BULGARIA
against Bulgaria
lodged on 11 January 2011
STATEMENT OF FACTS
The applicant, the Religious Denomination of Jehovah’s Witnesses in Bulgaria (“the applicant organisation”), is a legal entity registered in Bulgaria in 2003. It is represented before the Court by Mr D. Kalaitzis and Mr A. Carbonneau, lawyers.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant organisation, may be summarised as follows.
1.  Mayor’s order approving a change in the urban planning regulations regarding a plot of land and initial challenges to that order
Three individuals bought a plot of land on 12 January 2001 which was situated in a residential area with blocks of flats in Varna. Shortly thereafter they posted an announcement in the neighbourhood that a change in the planning regulations was pending as regards the plot in question, which was going to be used “for public services”, and that interested parties could consult the plans and object to them within a seven-day period.
A group of twenty-one individuals living in the immediate vicinity (“the neighbours”) complained to the mayor thereafter, expressing their concern about the intended usage of the plot for “public services”. In particular, they pointed out that it was situated immediately in front of another property lot, which hosted access to the common sewage system and the central heating servicing the block of flats they lived in, and any new usage of the kind intended risked impeding their access to the sewage and heating service areas. The complaint specifically stated that if the “public services” planned to take place at the plot included production processes or educational courses, an added concern related to possible ensuing noise or air pollution.
On 16 August 2001 the mayor issued an order approving the change in the planning regulation of the plot of land in question. The order stated that the property was to be converted into two separate lots for the construction respectively of a one-story building and a three-story building, the latter specifically as a residential property.
On 4 September 2001 and 11 September 2001, respectively, two groups of neighbours challenged in court the mayor’s order of 16 August 2001. In essence they reiterated their concerns as expressed in the letter to the mayor, sent to him before he approved the change on 16 August 2001. On 20 October 2002 the court terminated the proceedings in this case as it found that the complainants had not corrected a number of irregularities as directed earlier by the court.
On 29 November 2001 the mayor issued a new order correcting an obvious factual error in his order of 16 August 2001, namely that the three-storey building was not “for residential purposes” as it had erroneously been recorded in the first order, but “for public services” instead.
On 12 July 2006 a group of neighbours challenged in court the mayor’s order of 16 August 2001, claiming that it was null and void. They also asked the construction to be suspended. On 27 September 2006 the Varna Regional Court terminated the proceedings in respect of all but one of the neighbours, finding that the plaintiffs had not corrected a number of irregularities in their complaint contrary to the instructions of the court. On 4 December 2006 the same court also terminated the proceedings in respect of the remaining plaintiff for the same reason. His appeal before the Supreme Administrative Court was found inadmissible on 6 February 2007.
2.  Building permits in respect of the plot of land
On 7 July 2005 the Varna municipality issued a building permit to the three individuals who had bought the plot of land on 12 January 2001, for the purposes of constructing a one-story building for public services, and in particular lecture halls.
On 30 March 2006 the chief architect of the municipality approved a modification of the building plans, following a request to that effect by the legal entity Religious Denomination of Jehova’s witnesses in Bulgaria, which had become the new owner of the plot in question on 18 January 2006.
On 7 May 2007 the municipality authorised the continuation of the construction.
3.  Suspension of the construction on the property
Less than two months later, on 29 June 2007, the municipality building-control authorities carried out an inspection of the construction site and established a breach of some of the relevant regulatory requirements, in particular under section 160(2) of the Territorial Organisation Act in conjunction with section 224(1)(5) and section 224(1)(5) of the same Act. On 2 July 2007 these authorities carried out another inspection and issued another act (констативен акт) establishing a number of breaches of the construction regulations. On 4 July 2007 the mayor imposed a fine of EUR 1,500 on the applicant organisation in connection with the breaches established by the relevant authorities in the process of the construction. On the same day the applicant organisation wrote to the mayor objecting to the conclusions of the building-control authorities of 29 June 2007 and 2 July 2007, and asking the mayor to annul them. On an unidentified date the organisation challenged before the regional governor the mayor’s order imposing the fine. It is unclear whether the mayor or the governor reacted to these challenges.
On 9 July 2007 the mayor ordered that the construction be suspended on the basis of the findings of the building-control authorities related to the construction breaches observed. On 11 July 2007 the applicant organisation challenged in court that suspension order and asked that its enforcement be suspended in turn. On 28 November 2007 the Varna Administrative Court rejected the applicant’s complaint on the merits, finding in particular that the building-control authorities had correctly established the breaches which had occurred in the process of the construction. Following a cassation appeal, the Supreme Administrative Court upheld the lower court’s finding on 16 July 2008.
4.  Complaints by the applicant organisation to the Directorate for Religious Denominations
On 14 March 2007 a representative of the applicant organisation wrote to the General Director of the Directorate for Religious Denominations (“the Directorate”) about the difficulties the denomination was experiencing in connection with its intention to build a worship house and asked for assistance.
On 6 July 2007 a representative of the applicant organisation again wrote to the Directorate about growing intolerance and opposition to its religion by the general population, by a certain political party and by representatives of the municipality, and asked for assistance with overcoming this prejudice. In particular, he pointed out to a declaration issued by the public council to the municipality on 3 July 2007, in which the members of that council had declared their explicit opposition to the construction of the church of prayer of the Jehova’s witnesses and had expressed their concern about the official invasion of the town by foreign and unusual for Bulgaria religious community.
On 24 July 2007 the applicant organisation complained to the Directorate about having been victims of a targeted campaign of intolerance aimed at obstructing its actions towards building a prayer site and also obstructing its related ability to manifest its religion. It asked the Director to take measures so that the arbitrary obstruction of its activities by various local authorities in Varna was brought to an end.
No information is available on the follow-up, if any, given by the Directorate to those complaints and requests.
5.  New challenge to the mayor’s order approving a change in the urban planning regulations regarding the plot
In the meantime, on 19 June 2007 four neighbours complained to the mayor about his order of 29 November 2001. In particular they complained that they had not been properly informed of the purpose for which the change in the urban planning regulations had been authorised. As the mayor did not reply, on 6 November 2006 they challenged that order in court. The Varna Administrative Court invited the complainants to specify further their complaint. On 23 November 2007 a lawyer acting on their behalf clarified that the complaint was against the mayor’s order of 16 August 2001 and stated that it was null and void.
On 4 December 2009 the Varna Administrative, having constituted the applicant organisation as an interested party in the proceedings, accepted that the complaint against the 16 August 2001 mayor’s order was admissible as it had not been demonstrated that the procedural requirement of notifying all interested parties had been complied with. The court acknowledged that earlier proceedings challenging the same order had been brought by an interested group of neighbours and those proceedings had been terminated on 20 October 2002 and 27 September 2006 respectively. However, as there was nothing to suggest that the current claimants had taken part in those earlier proceedings against the mayor’s order, the court decisions adopted in them had no res judicata in respect of the current claimants. Finally, as the claimants alleged the nullity of the order in question, there was no time-limit for bringing such a complaint.
Thereafter, ruling on the merits, the court quashed the order, finding it unlawful as it had contained no reasons justifying the change in the planning regulations, contrary to the legal requirements at the time. The order had affected the life of a high number of individuals, namely those living in the immediate vicinity of the property in question, and specific reasons had to be put forward for the change in the regulations to be lawful.
The Supreme Administrative Court dismissed the related appeal by the applicant organisation in a final decision of 12 July 2010.
6.  Proceedings for continuing the construction on the plot
Respectively on 12 May 2009 and 7 October 2009, the applicant organisation asked the mayor to allow the continuation of the construction which he had suspended on 9 July 2007. The organisation emphasised that it had complied with all earlier orders issued by the mayor, had effectively paid the EUR 1,500 fine, and enclosed evidence to that effect.
On 20 November 2009 the mayor suspended these proceedings until the completion of the court proceedings brought by the neighbours on 6 November 2006 against the mayor’s order of 16 August 2001. On 5 January 2010 the applicant organisation asked the mayor in writing to lift this order. The mayor did not reply.
In the meantime, on 27 October 2009 the applicant organisation challenged in court, under Article 58 of the Administrative Procedure Code in conjunction with section 224(5) of the Territorial Organisation Act, the municipality’s tacit refusal to allow the resumption of the construction. On 7 December 2010, in a final judgment, the Varna Administrative Court found that the mayor’s tacit refusal to issue an order allowing the resumption of the construction had been unlawful and repealed it. The court considered that all other administrative and/or judicial proceedings related to the same plot, which were pending or had been completed, were irrelevant for the question before it. The court then established that, as shown in an expert report commissioned in the course of the judicial proceedings and as confirmed by the legal representative of the respondent, the applicant had eliminated all deficiencies which had led to the construction’s suspension in the first place. The court ruled that, consequently, under section 224(5) of the Territorial Organisation Act the mayor had been required to issue an order allowing the requested continuation of the construction. The mayor’s failure to do so had represented an abuse of power. In the same judgment, the court returned the case to the mayor, instructing him to issue a decision on the applicant’s request in line with the court’s reasoning.
The mayor failed to act upon this court’s judgment.
The applicant organisation did not bring enforcement proceedings with a view to having that judgment implemented. The organisation informed the Court in its latest correspondence of May 2018 that it had not been able to obtain a permission to continue with its construction.
7.  Proceedings for damages brought by the applicant in connection with the suspension of the construction
Also on 27 October 2009, the applicant organisation brought a claim for damages against the municipality, under section 1 of the State and Municipalities Responsibility for Damage Act (“the SMRDA”). The Varna Administrative Court directed the applicant to specify its claim. The applicant specified on 7 December 2009 that it was seeking compensation stemming from the municipality’s tacit refusal to allow the resumption of the construction, and from public statements by representatives of the municipal authorities concerning the applicant’s case. The Varna Administrative Court dismissed the claim as inadmissible on 1 February 2010. The applicant appealed against that decision the same month, claiming also, without elaborating further, that the municipal authorities’ actions had breached its fundamental rights, in particular those protected under Articles 6, 9, 11, 13 and 14 of the European Convention on Human Rights (“the Convention”), as well as under Articles 1 and 2 of Protocol No. 1 to the Convention. On 18 June 2010, in a final decision, the Supreme Administrative Court quashed the lower court’s decision and returned the case to it for a new examination, indicating also that the applicant had to specify exact amounts under its claim in respect of each action or omission by the authorities.
On 18 January 2011 the Varna Administrative Court asked the applicant to specify its claim. The applicant organisation did so on 21 January 2011. In particular it stated that it claimed pecuniary damages as a result of the tacit refusal of the mayor to allow the resumption of the construction of their intended house of worship. It also claimed non-pecuniary damages “stemming from the negative statements of the mayor in the media, which included insults, defamatory claims and discriminatory threats towards the applicant organisation”. The applicant reiterated, without elaborating further, that the municipal authorities’ actions had breached its fundamental rights, in particular those protected under Articles 6, 9, 11, 13 and 14 of the Convention, as well as under Articles 1 and 2 of Protocol No. 1 to the Convention. It also stated that the claim was under section 1 of the SMRDA as directed against the unlawful act, actions or omissions by administrative bodies.
As of January 2011 these proceedings were pending before the Varna Administrative Court and no further information is available on their development.
8.  The applicant organisation’s worshipping site
In the absence of a possibility to continue the construction of its worship house, the applicant organisation’s members have been meeting at rented hotel facilities which are neither designed nor suitable for that purpose.
B.  Relevant domestic law
Article 13 § 1 of the Constitution provides that religions shall be free. Article 37 of the Constitution guarantees freedom of conscience, thought and choice of religion or of religious or atheistic views. Freedom of conscience and religion cannot be exercised to the detriment of national security, public order, public health and morals, or the rights and freedoms of others.
Under section 224(5) of the Territorial Organisation Act, as worded at the time of the relevant facts, constructions which had been previously suspended may continue after an order to that effect has been issued by the body which had suspended it.
COMPLAINTS
The applicant organisation complains under Article 9 of the Convention that the different domestic authorities have prevented it from having a house of worship, as well as under Article 11 of the Convention about not having been able to organise meetings for its members in its worship house which it never built on its property. The applicant organisation also complains under Article 1 of Protocol No. 1 to the Convention about having been prevented from using the property for its intended purpose. It also claims, under Article 13 of the Convention, that it had no remedy in connection with the above complaints.
QUESTIONS TO THE PARTIES
1.  Did the domestic authorities’ actions or omissions prevent the applicant organisation from constructing its worship house and thus impede its members from manifesting their religious beliefs, in breach the organisation’s freedom to manifest its religion protected under Article 9 of the Convention, taken alone or in conjunction with Article 11 of the Convention? In particular, did the failure of the mayor to act upon the final judgment of 7 December 2010 in the applicant organisation’s favour result in such a breach?
2.  Did the domestic authorities’ actions or omissions breach the applicant organisation’s right to peaceful enjoyment of its possessions, protected under Article 1 of Protocol No. 1 to the Convention, to the extent that it could not use its own property for the purpose it intended?
3.  Did the applicant organisation have an effective domestic remedy, as provided for in Article 13 of the Convention, in respect of its complaints above, and as regards the complaint under Article 9 of the Convention in particular in relation to the failure of the mayor to implement the final judgment of 7 December 2010 (see Dimitar Yanakiev v. Bulgaria (No.2), no. 50346/07, §§ 60-61, 31 March 2016)?
The parties are invited to provide information on the development and outcome, if any, of the proceedings for damages brought by the applicant organisation.

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