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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 461
1989 April 14
[DEMETRIADES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
KTIMATIKI ETERIA NEAS TAXEOS LTD.,
Applicants,
v.
THE CHAIRMAN AND MEMBERS OF THE MUNICIPAL
COMMITTEE OF LIMASSOL,
Respondents.
(Case No. 176/88)
Constitutional Law - Freedom of religion - Constitution, Art. 18.1, 18.2, 18.3 and 18.6 - European Convention for the Protection of Human Rights (Law 39/62), Art. 9- Limitations - Can only be prescribed by Law - They cannot be prescribed by an administrative organ.
Streets and buildings - Building permit - The Streets and Buildings Reg. Law, Cap. 96- Refusal of a building permit for reasons of public safety or public order - Law does not give authority for such a refusal.
The members of the applicant company belonged to the religious sect known as "Jehovah witnesses". The applicants applied for a building permit to erect at the quarter of Zakaki a two story building. The respondents refused the permit, without disclosing the real reasons for doing so. The applicants impugned the decision whereby the permit was refused. During the proceedings in this recourse it was made apparent that the real reason was public order or safety because of the opposition of the church and the inhabitants of the Zakaki area to have a building belonging to the said religious sect erected in their area.
Held, annulling the sub judice decision:
(1) From a mere reading of the provisions of Art. 18 of the Constitutionand of Art. 9 of the European Convention, it is clear that reasons for denying the right of a person or group of persons on the ground of public safety or public order to manifest his or their religion or belief can only be limited by Law. An administrative organ cannot by itself refuse on such grounds an application submitted to it.
(2) Having carefully gone through every section of Cap. 96, the Court found no authority for refusing the issue of a building permit for reasons of public safety or public order.
Sub judice decision annulled with costs
against respondents.
Recourse.
Recourse against the refusal of the respondents to grant applicants a building permit for the construction of a two-storey building at Zakaki quarter.
S. Sofroniou, for the Applicants.
Y. Potamitis, for the Respondents.
Cur.adv. vult.
DEMETRIADES, J. read the following judgment. On the 26th February, 1987, the applicants, which are a company duly registered as such under the Laws of the Republic and the members of which, as it appears from the facts before me, belong to the religious Sect Known as the "Jehovah Witnesses", applied to the Municipal Corporation of Limassol, which is the appropriate authority for granting building permits for the quarter of Zakaki, for the construction of a two-storey building on a plot of land belonging to them. Attached to the application were the necessary documents required by the application form.
On the 29th April, 1987, the respondents wrote to the applicants and informed them that unless within one month they submitted corrected plans, their application was to be considered as not having been submitted.
As a result of a number of publications in the dailynewspapers that the residents of Zakaki area were objecting to the construction of the building, counsel for the applicants wrote three letters to the respondents complaining about their failure to communicate to his clients their decision regarding their application and complained that their failure to approve his clients' application was due to pressure exercised by the residents of Zakaki who objected to the religious beliefs of his clients.
On the 29th January, 1988, the Municipal Clerk of the respondents finally replied to the letters of counsel for the applicants.
This letter reads:
"Αναφέρομαι στις επιστολές σας, με ημερ. 18.6.1987 και 21.7.1987 και στοιχεία Β724(β) και σας πληροφορώ ότι το Δημοτικό Συμβούλιο, ως αρμόδια αρχή δυνάμει του Περί Ρυθμίσεως Οδών και Οικοδομών Νόμου, εξέτασε την αίτηση· των πελατών σας 'Κτηματική Εταιρεία Νέας Τάξεως Λτδ.' και αφού έλαβε υπόψη το περιεχόμενο της, τους σκοπούς χρήσης της προτεινόμενης οικοδομής, τον χαρακτήρα της περιοχής, το οδικό δίκτυο και άλλους παράγοντες αποφάσισε ότι δεν μπορεί να παραχωρήσει την ζητούμενη άδεια οικοδομής στους πελάτες σας."
("I refer to your letters dated 18.6.1987 and 21.7.1987 under Ref. B724(b) and I inform you that the Municipal Council, as the appropriate authority by virtue of the Streets and Buildings Regulations Law, examined the application of your clients 'KtimatikiEtenaNeasTaxeos Ltd.' and after taking into consideration its contents, the purposes of the use of the proposed building, the character of the area, the road network and other considerations, decided that it cannot grant the permit applied for, to your clients.")
As a result of the above decision of the respondents, the applicants filed the present recourse by which they claim, its annulment basically on the ground that it violates Article 18 of our Constitution and that the respondents had no right to reject their application by virtue of any Law.
Counsel for the respondents, however, both in the opposition filed in the recourse, as well as in his written address, submitted that the decision of the respondents was taken in order to safeguard public safety and order which will be endangered if the permit was granted and in support of his argument he attached a number of documents that are appendices to the opposition, which speak for themselves. The contents of these documents, in a nutshell, express the strong objection of the Ecclesiastical and Local Authorities of the Zakaki quarter which they base on religious grounds.
The right to freedom of religion is safeguarded by Article 18 of our Constitution and the relevant to these proceedings paragraphs are 1, 2, 3 (part) and 6 and they read:
"18.1. Every person has the right to freedom of thought, conscience and religion.
2. All religions whose doctrines or rites are not secrete are free.
3. All religions are equal before the law. Without prejudice to the competence of the Communal Chambers under this Constitution, no legislative, executive or administrative act of the Republic shall discriminate against any religious institution or religion.
4..
5..
6. Freedom to manifest one's religion or belief shall be subject only to such limitations as are prescribed by law and are necessary in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person."
The right to freedom of religion is also safeguarded by Article9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which was ratified by the House of Representatives of the Republic and is Law 39/62.
Article 9 of the Convention reads:
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and 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 belief 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."
From a mere reading of the provisions of Article 18 of the Constitution, as well as Article 9 of the Convention, it is clear that reasons for denying the right of a person or group of persons on the ground of public safety or public order to manifest his or their religion or belief can only be limited by law and that an administrative organ cannot, by itself refuse on such grounds an application submitted to it.
Having carefully gone through every section of Cap. 96, I found no authority for refusing the issue of a building permit for reasons of public safety or public order.
It is true that in the letter of the respondents to which I have earlier referred other reasons are given. No reasoning is given in it why the building proposed to be constructed by the applicants offends the character and the road network of the area. However, the other reason given, namely the "purpose of the proposed building", in conjunction with the documents attached to the address of respondents' counsel, does disclose the real reason why the applicants' application was refused.
In the result, this recourse succeeds and the sub judicedecision is hereby annulled with costs.
Costs to be assessed by the Registrar and approved by the Court.
Sub judice decision annulled with
costs.