JOINT CONCURRING OPINION OF JUDGES YUDKIVSKA AND PINTO DE ALBUQUERQUE

1. We voted together with the majority on all points in the operative part of the present judgment, including for a violation of Article 9 of the European Convention on Human Rights (“the Convention”). We cannot, however, fully subscribe to their reasoning, for the majority shy away from specifying the respondent State’s positive obligation under Article 9 of the Convention.

2. The applicant – a religious community of Jehovah’s Witnesses – clearly identified that the interference with their Article 9 right had arisen from the inaction of the City Council to implement the Regional Court’s decision [4] . The majority address this point but refrain from indicating that this inaction precisely led to the violation of the domestic authorities’ positive obligations. Therefore, the judgment represents a missed opportunity to further elaborate on the content of substantive positive obligations flowing from the right to freedom of religion under Article 9 of the Convention.

3. The facts are not disputed by the parties and can be summed up as follows. The applicant community purchased residential property with the intention of using it as a place of worship. Although the community de facto uses the residential property that it owns for worship, it sought to construct a bigger place. To do so, a lease from the local authorities was required. This lease was not, however, approved by the City Council. Despite the Regional Court’s decision determining that the City Council’s failure to approve the applicant community’s lease request was unlawful, the City Council failed, a second time, to authorise the applicant community’s request for a lease due to the lack of a sufficient majority of votes. As a result, the applicant community did not receive the lease it needed and thus was unable to construct a place of worship.

4. In examining the present case, the majority conclude that “the City Council’s failure to permit the construction of a new place of worship and to enter into a lease agreement for that purpose ... brought the situation within the ambit of Article 9 of the Convention” [5] . The majority also state that the European Court of Human Rights (“the Court”) is not required “to take a definitive stance on whether the situation is to be examined in terms of ‘negative obligations’ or ‘positive obligations’” [6] .

5. In our view, leaving this important question open, however, is problematic, as this approach fails to clearly define and delimit the respondent State’s obligations under the Convention, thereby making it difficult for the authorities to identify and thereafter comply with such obligations.

6. It is the long-standing and well-established position of the Court that the boundaries between the State’s positive and negative obligations do not lend themselves to precise definition [7] . In both instances a fair balance must be struck between the competing interests at stake. However, whether a case is to be analysed in terms of the negative or positive obligations arising from the Convention will affect the margin of appreciation afforded to the State, since the Court takes the view that this margin is, in principle, narrower in the case of negative obligations [8] .

7. Considering the facts of the case, we find that they concern the respondent State’s positive obligations (i.e. to protect the applicant community’s rights under Article 9) rather than its negative obligations (i.e. not to interfere with the applicant community’s rights under Article 9). And there are four fundamental reasons for this.

8. Firstly, the restrictions on the applicant community’s ability to manifest its religion did not stem from any act of the domestic authorities that interfered with such a right, but rather they resulted from the domestic authorities’ failure to act (i.e. the failure to grant a lease to the applicant community). The present case can thus be contrasted with Association for Solidarity with Jehovah’s Witnesses and Others v. Turkey [9] , in which the domestic authorities did not only fail to grant a permit but also closed down the applicant’s religious site; with Manoussakis and Others v. Greece [10] , in which the applicants were convicted for having used the premises in question without prior authorisation; and with Juma Mosque Congregation and Others v. Azerbaijan [11] , in which the applicants were evicted from their place of worship which they had previously occupied for twelve years without any interference. Hence, the present case is fundamentally different from the cases concerning places of worship previously decided by the Court.

9. Secondly, the applicant community was not entirely prevented from practising its religion, but its religious practice was compromised due to the inadequate size of the venue that they possessed for that purpose, which was unfit to provide proper conditions for its members and, according to the applicants, placed them “in a situation of perceived inferiority” [12] to other religions. Article 9 would be deprived of its meaning if a religious community were unable to have a place suitable for it to collectively manifest its religion and engage in its religious practices [13] . In finding a violation in the present case, the Court is not deciding that the respondent State must cease to act in a given manner so as to allow the applicant community to enjoy its Article 9 rights – in fact, the applicant community already enjoys de facto use of the property in question – but rather the Court is finding that the respondent State ought to act in such a way as to enable and empower the applicant community to fully enjoy its rights under Article 9. To put it differently, the majority should have asked themselves if the absence of any action by the domestic authorities would have resulted in a violation of the Convention. Had the Council omitted to take any decision regarding the request, it would be at fault, because the Regional Court had acknowledged the applicant’s right to be awarded the lease and in consequence imposed on the City Council a legal obligation to accord it. In other words, the applicant’s right to be accorded the lease and the City Council’s positive obligation to accord it are two sides of the same coin, with no margin of appreciation remaining for the respondent State.

10. Thirdly, to consider whether this interference with the applicant community’s right to manifest its religion constitutes a violation of the respondent State’s positive obligations, consideration ought also to have been given to the question whether the domestic authorities had exercised due diligence (i.e. did they do all that they reasonably could have done in the circumstances?) to protect the applicant community’s rights under Article 9 of the Convention. Given that the Regional Court found the Council to have acted unlawfully when refusing to grant the applicant community’s lease request [14] , the City Council should have acted diligently in order to comply with the Regional Court’s decision and award the requested lease as soon as possible. Thus, neither any competing interests of the neighbours nor town planning considerations could be invoked by the City Council to refuse once again to grant the applicant community’s request for a lease [15] .

11. Fourthly and finally, the majority should also have taken into account the question whether, in the event that there had been a violation of the Convention, a complementary action by the respondent State would be required. If a finding of a violation does imply the need for additional restorative action by the domestic authorities, that indicates the existence of a positive obligation. In the case at hand, restorative action is still possible in so far as the domestic authorities will simply have to accord the lease requested.

12. In sum, the majority should not have avoided elaborating on the positive obligations under Article 9 of the Convention. As a matter of fact, we cannot but note that the language employed by the majority themselves evidently corresponds to positive obligations – i.e. “failure to permit” [16] , “failure to act” [17] . Consistency would have warranted drawing the necessary conclusions from this “failure to act” on the part of the domestic authorities. Had they done so, the majority would have concluded, as we have in this separate opinion, that the City Council’s inaction cannot be justified on the facts of the case and, therefore, the domestic authorities failed to comply with their positive obligations under Article 9 of the Convention.