The background

In Jehovah’s Witnesses Association and Ors v Turkey [2016] ECHR 453 the facts were as follows. For many years, the congregations of Jehovah’s Witnesses in İzmir and Mersin had been allowed to worship in private premises. The authorities in both cities then decided to close down their prayer rooms on the grounds that the Urban Planning Act (Law no. 3194) prohibited worship in premises that were not designated for that purpose and imposed certain conditions on the building of places of worship.

An apartment where the Mersin congregation of Jehovah’s Witnesses had been meeting since 1988 was searched on 17 December 2000 and was closed down. The congregation was also told that it could not hold religious ceremonies in another apartment, which was subsequently closed down by the Governor’s office on 16 August 2003. Finally, on 19 August 2003 the municipal authority’s planning department told the congregation that there was no provision in the local urban development plan for any premises that could be used as a place of worship. The İzmir congregation, which had been worshipping in a building in Karşıyaka, was told that it would have to seek planning permission to build a place of worship and request an amendment to the local urban development plan, following the entry into force of a Law that replaced the word “mosque” with the words “place of worship”; however, its applications were refused. Appeals to the domestic courts were dismissed in both cases.

The complaints of the parties

Relying on Articles 9 ECHR (thought, conscience and religion), 6 (fair hearing) and 11 (assembly and association), the applicants, Hüseyin Sami Gül and Levent Sarkut together with the Association, complained that the authorities had placed insurmountable bureaucratic obstacles in their way [74]. They had refused to confer the status of places of worship on the premises in which the JWs worshipped and had rejected their requests to provide them with any alternatives.

None of the thirty-four groups of Jehovah’s Witnesses in Turkey had its own legal place of worship. In particular, because of their de facto status, places of worship were likely to be closed by the authorities at any time and worshippers might be prosecuted. Moreover, the refusal to grant the status of place of worship had significant social and financial consequences. Finally, the hostile attitude of the authorities meant that meetings for worship had to be virtually in secret: no public invitations could be issued and no outward sign could be affixed to the building where the meetings took place [75].

They also argued that they did not have any effective remedy in domestic law, contrary to Article 13, and that under Article 14 (discrimination), taken together with Articles 9 and 11, they had been discriminated against because they were members of a minority religious community.

The Government’s response

The Government conended that the applicants were free to practise their religion as guaranteed by Article 9 [80]; however, if there were an an interference, it was prescribed by law and necessary in a democratic society. The attitude of the authorities was explained by their desire to ensure that the legal status of places of worship used by the applicants was in line with the legislation on urban planning and argued that states partied had a wide discretion in setting planning policy planning principles [81]. When establishing urban development plans, locations were assigned to the construction of places of worship and that was taken into account the in specificying needs of the city and the region [82]. But it was necessary to obtain permission from the administrative authority and comply with the provisions of the Urban Planning Law [82]. The authorities had always welcomed the applicants’ requests but their proposals had did not complied with the development plans [83]. 

The third-party intervener

The Norwegian Helsinki Committee said that in Turkey, recognition of the status of places of worship for religious minorities encountered significant legal difficulties. Turkish law provided no specific procedure for religious communities to obtain a special status in public or private law or for recognition and registration of cults. Therefore, religious communities other than those with the status of “recognised religious minority” under the Lausanne Treaty and other international treaties had to be organised through foundations or associations [84]. Recognition as a place of worship had several important legal implications, notably exemption from many taxes and support for electricity costs from the Directorate of Religious Affairs. Similarly, development plans were required to reserve  locations for places of worship; and the legal and social recognition of their faiths was very important to minority communities because it gave them some legitimacy and encouraged both public authorities and society in general to be more accepting of them [85]. Notwithstanding the requests by twenty-two Jehovah’s Witnesses groups, no legal recognition had ever been granted to their places of worship: the Protestant community had had a similar experience [86].

The judgment

The Second Section held, unanimously, that there had been a violation of Article 9. It was unecessary to examine the complaints under Articles 6, 11, 13 and 14.

The interference was prescribed by law and had pursued a legitimate aim: preventing disorder. As regards the proportionality of that interference, however, the legislation imposed certain conditions on the building of places of worship: in particular, the allocation on the urban development plan of plots of land designated for building places of worship, with due regard to the needs of the towns and regions, prior authorisation from the relevant administrative authority and compliance with urban planning legislation. Furthermore, the domestic courts had specified minimum dimensions: small places of worship had to have a minimum surface area of 2,500 sq m, with 5,000 sq m for medium-sized places of worship and 10,000 sq m for large ones [99]. Moreover, the Council of State had held that land earmarked for housing on the local urban development plan could not be used for other purposes [100]. Consequently, the congregations’ requests for a place of worship had been rejected because they had been deemed contrary to urban planning regulations.

Though states parties enjoyed a wide margin of appreciation in implementing their urban planning policies, in the present case the domestic courts had not attempted to weigh up the various competing interests or to assess the proportionality of the measures vis-à-vis the right of the two congregations to manifest their religion. A small faith community such as the Jehovah’s Witnesses found it difficult to satisfy the criteria laid down in legislation in order to have access to an appropriate place of worship [104]. The Court therefore concluded that neither the domestic courts nor the planning legislation took any account of the needs of small religious communities, even though all they required was a simple meeting room in which to worship, meet and teach their beliefs [105]. Furthermore, the administrative authorities tended to use the legislation to impose rigid and prohibitive, conditions on the exercise of worship by minority denominations, in particular by the Jehovah’s Witnesses [106].

The Court also rejected the Government’s argument that the two congregations had on many occasions obtained authorisation to meet under Law No. 2911. Authorisation depended on the authorities’ goodwill; and because the congregations had to obtain individual authorisation for each religious service, there was always a risk that the authorties would interfere [107].

The impugned rejections by the authorities had amounted to such a direct interference with the applicants’ freedom to maifest that they were neither proportionate to the legitimate aim pursued nor necessary in a democratic society [108].