European Court of Human Rights

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THE FACTS

The first applicant [Johannische Kirche] is a Christian religious community (Free Church) with public-law corporation status (Körperschaft des öffentlichen Rechts) whose governing board (Vorstand) is based in Berlin. The second applicant [Horst Peters] is a German national, born in 1926 and living in Waischenfeld (Germany). They were represented before the Court by Mr Arsène Verny, a lawyer practising in Prague (Czech Republic).

The facts of the case, as submitted by the applicants, may be summarised as follows.

In July 1991 the first applicant requested a permit to build a chapel and cemetery on land belonging to it.

Its request was rejected by the administrative authorities, whereupon the first applicant lodged an application with the Bayreuth Administrative Court. At the public hearing before that court it requested an adjournment of the proceedings concerning the cemetery.

On 20 December 1993, after visiting the site of the planned building, the Administrative Court rejected the application concerning the chapel on the grounds that the site where it was to be built was in an undeveloped protected zone (Außenbereich) and that it was not certain that public services (Erschließung) could be installed.

On 10 August 1994, after hearing submissions from, among others, the public-health department, the water resources office (Wasserwirtschaftsamt), the town of Waischenfeld (on whose territory the first applicant’s land was) and other departments which had not given their consent or had done so only on certain conditions, the Bayreuth administrative authorities rejected the request concerning the cemetery, in respect of which the proceedings had been resumed after the Administrative Court had given judgment, on the ground that the proposed site was in an undeveloped protected zone and it was not certain that services could be installed on the land because the town of Waischenfeld refused to grant the first applicant a right of access over the adjoining municipal land to the site of the planned cemetery.

On 15 December 1994 the Bayreuth Administrative Court dismissed the application mainly on the same grounds as those set out in the judgment of 20 December 1993, to which it referred at length moreover.

On 4 July 1996, after visiting the site of the planned cemetery, the Bavaria Administrative Court of Appeal upheld the judgment of the Bayreuth Administrative Court of 15 December 1994. It noted, among other things, that construction of the planned cemetery was incompatible with the nature of the environment surrounding the site in question, particularly as, since the entry into force on 14 July 1995 of the legislative decree on the creation of Franconian Switzerland Wildlife Park (Naturpark Fränkische Schweiz), any act such as to disfigure the character of the wildlife park – even locally – was prohibited. The fact that the first applicant was a religious community did not alter that finding because it could build the cemetery on other land less affected by environmental restrictions. The Court of Appeal also noted that the lack of services on the land in question was an additional factor militating against the first applicant’s project.

The Court of Appeal also decided not to grant leave to appeal on points of law. The first applicant appealed against that decision.

On 7 March 1997 the Federal Administrative Court dismissed the appeal on the ground that it did not raise an issue of fundamental importance. It noted that freedom of religion was limited by the values laid down in the Constitution itself. Among those constitutional values was the protection of life’s natural sources (natürliche Lebensgrundlagen), as declared in section 20(a) of the Basic Law, which included the creation of protected zones. Additionally, the provisions relating to planning matters applied to everyone without distinction and did not impose more restrictions on religious communities than on other persons or groups of persons. As far as the provisions relating to cemeteries were concerned, it was indisputable that the creation of a cemetery was subject to laws relating to public health and the management of water resources. The freedom of a religious community subject to public law to practise its religion did not compel the authorities to grant that community an exemption from the statutory restrictions relating to the protection of the environment and the countryside. Besides that, the question as to whether such an exemption should have been granted, under the legislative decree of 14 July 1995 relating to the creation of Franconian Switzerland Wildlife Park, concerned provisions adopted by the Bavarian legislature, that is to say by a Land, and could not therefore be relied on before the Federal Administrative Court.

On 14 October 1997 the Federal Constitutional Court, ruling as a panel of three judges, decided not to uphold the first applicant’s constitutional appeal. It noted, inter alia, that freedom of religion and freedom to manifest it was not unlimited and could be balanced against other constitutional values, of which section 20(a) of the Basic Law was one. It also noted that the first applicant could build the cemetery on other land which was less affected by regulatory restrictions.

COMPLAINT

Relying on Article 9 of the Convention, the applicants complained that the German authorities had breached their right to freedom of religion when they dismissed the first applicant’s request. Their religion was characterised by the belief that after death there was no further difference in social class and that human beings would all be equal before God. That belief found its expression in the very natural layout of the planned cemetery in that all the tombstones had to be laid on their side and be uniform in size, even if the burial of a member of the first applicant in a traditional cemetery was not prohibited.

THE LAW

The applicants submitted that the German authorities’ refusal to grant the first applicant planning permission to build a cemetery was contrary to Article 9 of the Convention, the relevant parts of which provide:

“1.  Everyone has the right to freedom ... of religion; this right includes freedom ... either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

According to the applicants, the construction and upkeep of a cemetery were not only the expression of freedom to practise one’s religion but were part of the very freedom of religion.

The Court points out at the outset that the second applicant, who was not a party to the proceedings before the German authorities and courts, described himself as an “intervener” (Streithelfer) in the present application. The Court does not consider it necessary to rule on the issue whether this means that the second applicant does not qualify as an applicant for the purposes of Article 34 of the Convention because the application must in any event be declared inadmissible for the following reasons.

The Court reiterates that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 of the Convention lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see Hassan and Tchaouch v. Bulgaria [GC], no. 30985/96, § 60, ECHR 2000-XI; Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR 2000-VII; and the Kalaç v. Turkey judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1209, § 27).

The Court notes that the impugned decisions of the German authorities can be construed as a restriction of the right to manifest one’s religion within the meaning of Article 9 § 2 of the Convention in so far as the manner of burying the dead and cemetery layout represents an essential aspect of the religious practice of the first applicant and its members (see, mutatis mutandis, the Cha’are Shalom Ve Tsedek v. France judgment cited above, §§ 73-74).

The Court also notes that the interference in question was prescribed by law, which the first applicant did not dispute moreover.

The Court next reiterates that the Contracting States enjoy a certain margin of appreciation in assessing the existence and extent of the necessity of an interference, but this margin is subject to European supervision, embracing both the legislation and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see the Kokkinakis v. Greece judgment of 25 May 2993, Series A no. 260-A, p. 21, § 47, and the Manoussakis and Others v. Greece judgment of 26 September 1996, Reports 1996-VI, p. 1364, § 44).

The Court notes in the instant case that the authorities justified their refusal to authorise construction of the cemetery on the basis of provisions relating to planning, environmental protection and services, and particularly by the fact that there was no other building in the zone in question.

It is true that the administrative authority and the Bayreuth Administrative Court did not make any allusion to the fact that the first applicant was a religious community, and it was only before the Bavaria Administrative Court of Appeal that a possible interference with the first applicant’s right to religious freedom was examined.

However, the Administrative Court of Appeal noted that the status of the first applicant did not give it the right to build a cemetery on a site specially protected by the legislative decree on the creation of Franconian Switzerland Wildlife Park. With regard to the federal courts, the Court notes that they duly explained how and to what extent a right to freedom of religion, guaranteed by the Basic Law without express restrictions, was limited by the rights of others and constitutional values such as the protection of life’s natural sources, as declared in section 20(a) of the Basic Law. These decisions show that the German authorities did not aim their decision to dismiss the application at the first applicant as a religious community; the prohibition on building applied to any person applying for a building permit in the zone in question.

In the light of the foregoing, and having regard to the wide margin of appreciation of the Contracting States in planning matters (see, mutatis mutandis, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, § 6, and application no. 20490/92, Iskcon and Others v. the United Kingdom, Commission decision of 8 March 1994, DR 76, p. 91), the Court considers that the measure complained of amounts to a restriction of the first applicant’s right to freedom to manifest its religion which is justified in principle and proportionate to the aim pursued (protection of the rights and freedoms of others) and, accordingly, to an interference which is in conformity with Article 9 § 2 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Antonio Pastor Ridruejo
Registrar President