UKRAINIAN ORTHODOX PARISH OF THE HOLY TRINITY CHURCH IN NOGINSK A OSTATNÍ proti Rusku

THIRD SECTION

DECISION

Application no. 78909/17
UKRAINIAN ORTHODOX PARISH OF THE HOLY TRINITY CHURCH IN NOGINSK v. RUSSIA and Others
against Russia

The European Court of Human Rights (Third Section), sitting on 13 September 2022 as a Committee composed of:

Darian Pavli, President,

Peeter Roosma,

Mikhail Lobov, judges,

and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 78909/17) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 November 2017 by the applicants listed in the appended table (“the applicants”) who were represented by Mr S.A. Zayets and Ms D.O. Spyrydonova, lawyers practising in Irpin, Kyiv Region, Ukraine;

the decision to give notice of the complaints concerning the right to property, freedom of religion and discrimination to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applicants are two religious organisations and a priest, Mr Starina.

2. Mr Starina owned a land plot with a house. Under the relevant domestic law, the land plot could be used only for construction of residential buildings.

3. In 2015, using his own money and donations of his religious community, the applicant erected a building for worship (“the church”).

4. The town administration sought a court order for its demolition, allegedly after a Russian Orthodox priest and local residents complained about the “non-traditional” character of the church. The town administration referred to violation of the rules on urbanism as the church had been built on the land plot designated for construction of residential buildings.

5. By decision of 23 June 2016, as upheld in the final instance by the Supreme Court on 5 May 2017, the Noginsk Town Court of the Moscow Region allowed the town administration’s claim on the ground of several expert opinions. One of the experts determined that the building could be used both as residential building and as a place of worship, while others emphasised that de facto the building had been serving religious purposes and violated the effective laws on urbanism. The domestic courts established that the town administration had dismissed the applicant’s request to use the land plot for other purposes and that he had not challenged this decision. They further held that, despite being the lawful owner of the land, the applicant could only build on his land plot residential buildings or auxiliary constructions and ordered him to demolish the church.

6. It seems that the courts’ decision on demolition has not been executed. According to some local publications and the documents in the case file, the church was still operational at the time of exchange of observations. The parties have not informed the Court of any further developments, in particular, the enforcement proceedings.

THE COURT’S ASSESSMENT

1. Alleged violation of Article 1 of Protocol No. 1

7. Mr Starina complained that the courts’ order to demolish the church had breached his right to the peaceful enjoyment of possessions under Article 1 of Protocol No.1. Other applicants did not raise any complaints in this respect.

8. The general principles concerning the right to peaceful enjoyment of possessions are summarized in Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I; Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015; and Kristiana Ltd. v. Lithuania, no. 36184/13, § 99, 6 February 2018.

9. The intended demolition of the building amounts to an interference with the applicant’s possessions. Being meant to ensure compliance with the general rules concerning the prohibitions on construction, this interference amounts to a “control [of] the use of property”. It therefore falls to be examined under the second paragraph of Article 1 of Protocol No. 1 (see Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 69, 21 April 2016).

10. The interference was in accordance with law and was in the general interest, pursuing compliance with the planning regulations (ibid., § 71).

11. Regional planning and environmental conservation policies, where the community’s general interest is pre-eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake (see Depalle v. France [GC], no. 34044/02, § 84, ECHR 2010, with further references). Nevertheless, in exercising its power of review, the Court must determine whether the requisite balance was maintained in a manner consonant with the applicant’s right to property (see Matczyński v. Poland, no. 32794/07, § 48, 15 December 2015).

12. Consideration must be given in particular to the question of whether the applicant, on acquiring the property, knew – or should have reasonably known – about the restrictions on the property, or possible future restrictions, the existence of legitimate expectations with respect to the use of the property or acceptance of the risk on purchase, the extent to which the restriction prevented use of the property and the possibility of challenging the necessity of the restriction (see Potomska and Potomski v. Poland, no. 33949/05, § 67, 29 March 2011; Matczyński, cited above, § 106; and Kristiana Ltd., cited above, § 108).

13. In the present case, the applicant bought the land plot with a residential house on it. The applicant knew, or should reasonably have known, that under the domestic law in force at the material time, the building he has erected could be subject to demolition. He was aware that the land plot could be used only for construction of residential buildings and that the church was a category of building subject to specific regulatory regime. The development plan for the town did not provide for the possibility to construct any religious buildings in the residential area. Therefore, the applicant has accepted the risk in case of the use of the land plot in breach of its intended designation at the time of purchase.

14. The applicant has never challenged the refusal to change the designation of his land plot, though he could do so. At the same time, he challenged the decision regarding demolition of the church building before the domestic courts and was actively involved in the procedure. Thus, the interference with the applicant’s peaceful enjoyment of his property was accompanied in the present case by sufficient procedural guarantees affording to him a reasonable opportunity of presenting his case to the relevant judicial authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (see Sourlas v. Greece (dec.), no. 46745/07, 17 February 2011).

15. Lastly, according to the latest available information, the court decision on demolition of the church has not been executed and the applicant is still able to make use of the building (for a similar approach, see for example, Religious Islamic Organisation Mosque No. 34 v. Russia (dec.) [Committee], no. 40482/06, § 55, 16 February 2021).

16. Therefore, it does not seem that the interference in question was not proportionate to the legitimate aims pursued.

2. Alleged violation of Article 9

17. The applicants complained under Article 9 that by ordering demolition of the church the domestic courts had violated their right to freedom of religion.

18. According to the Court’s case-law, Article 9 protects, in principle, the right to use the places or buildings devoted to religious worship. Issues relating to the operation of religious buildings may, in certain circumstances, have a significant impact on the exercise of the right of members of religious groups to manifest their religious beliefs (see Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi v. Turkey, no. 32093/10, § 41, 2 December 2014).

19. At the same time, the Convention cannot be interpreted as giving a right to a religious community to obtain a place of worship from the public authorities (see Griechische Kirchengemeinde München und Bayern e.V. v. Germany (dec.), no. 52336/99, 18 September 2007, and Juma Mosque Congregation and Others v. Azerbaijan (dec.), no. 15405/04, § 61, 8 January 2013).

20. In the present case, the domestic courts ordered the demolition of the building which had been constructed without any legal ground. The order did not amount to any form of punishment for conducting religious services per se, or to a ban on the church’s functioning as such, or to a restriction of its ability to lawfully establish a new place of worship elsewhere; it was the result of the application of generally applicable neutral rules, was not arbitrary and was taken for the purpose of protecting the general interest. Furthermore, the demolition order, as such, did not restrict its individual members’ “freedom to manifest [their] religion” as it did not prevent them from performing their religious activities in other places of worship available for religious activity (see Religious Denomination of Jehovah’s Witnesses in Bulgaria v. Bulgaria, no. 5301/11, § 105, 10 November 2020, and Juma Mosque Congregation and Others, cited above, § 62). Finally, the Court reiterates that, as it appeared, the order has not been executed.

21. Accordingly, the Court considers that, in the circumstances of the present case, the order to demolish the church which Mr Starina had no lawful right to build did not amount to an unjustified interference with the applicants’ right to freedom of religion.

3. Alleged violation of Article 14 taken in conjunction with Article 9 of the Convention and Article 1 of Protocol No. 1

22. The applicants complained under Article 14, in conjunction with Articles 9 of the Convention and Article 1 of Protocol No. 1, that they had been subjected to discrimination on the basis of their religious beliefs. However, there is no indication that the domestic courts ordered to demolish the church on the ground that the church practiced a non-traditional religion, their decisions being based on the flagrant disregard of construction rules.

4. Overall conclusion

23. The Court considers that, in the light of the above, the complaints are inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 October 2022.

Olga Chernishova Darian Pavli
Deputy Registrar President

Appendix

List of applicants: