DISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM (Translation)

1. I cannot share the opinion of the majority finding a violation of Article 9 of the Convention in this case.

2. The applicant is a legal entity representing a well-known religious group which is lawfully registered in Bulgaria under the name “Jehovah’s Witnesses”.

3. It complained that for years the municipal and judicial authorities had prevented it from building a place of worship, in an unlawful manner and on the basis of considerations solely founded on prejudices and negative assumptions

4. On 9 July 2007 the Mayor did in fact order the suspension of the construction of the church initiated by the applicant. However, this first stoppage had not been the result of an unfounded decision but had been based on the findings of an inspection concerning compliance with building site regulations. That was the conclusion reached by the administrative courts.

5. The applicant did lodge administrative appeals against the Mayor’s decision to suspend the work. Thus on 28 November 2007 the Varna Administrative Court concluded that the decision had been perfectly lawful in the light of the non-compliance with building site regulations. As for the Supreme Administrative Court, on 16 July 2008 it ruled that the allegations of unlawful discriminatory action had been groundless.

6. The applicant subsequently commenced several further sets of proceedings challenging the Mayor’s tacit refusal to lift the decision to suspend the construction works.

7. In fine , those proceedings failed to find against the Mayor for discrimination or for any arbitrary decision to impede the construction of the place of worship. The courts, moreover, appointed an expert to draw up a neutral, well-informed technical opinion, and even conducted a legal analysis of the exceptions which might potentially have enabled the building work to resume.

8. One of the fundamental aspects of the case is that the applicant failed to raise before the domestic court the argument that the impugned decisions had infringed the right to manifest one’s religion within the meaning of Article 9 of the Convention. We should remember that the religious organisation had been authorised and been granted full legal existence.

9. The case therefore exclusively concerns a building permit for a church on land which was not designated for building purposes on the municipal development plan. A municipality cannot be deemed bound to accede to all requests for construction of a place of worship, at the risk of being accused of discriminatory and arbitrary treatment of a specific religion.

10. The fact that the municipality, explicitly placing itself under the authority of the Mayor of Varna, made a public statement against the building of a church for the Jehovah’s Witnesses is insufficient to establish arbitrary bias in the domestic decisions in question.

11. The objective review conducted by the domestic courts enabled them to establish that the decisions prohibiting the resumption of the building work on the church had not been based on reasoning likely to be unacceptable from the angle of the Convention. The exercise of balancing the competing rights and freedoms was conducted satisfactorily and objectively, and there could be no question of the municipality’s decisions having in fact been based on covert reasons of religious intolerance.

12. Furthermore, it should be noted that the Jehovah’s Witnesses at no stage submitted that the land on which they had wished to build their place of worship had any special sacred or symbolic value for their religion. The State authorities must have a broad margin of appreciation on issues of urban development in their municipality.