3 C.L.R. 19S9April 14 [DEMETRIADESJ.1 INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION KT1MATIKI ETEKIA NEASTAXEOS LTD., Applicants, v. THE CHAIRMAN AND MEMBERS OFTHE MUNICIPAL COMMITTEE OF LIMASSOL, Respondents. (CaseNo.176/88) ConstitutionalLaw—Freedomofreligion — Constitution.Art. 18.1, 18.2, 1S.3and 18.6 — European Convention for the Protection of Human Rights(Law39/62), Art. 9— Limitations— Canonly beprescribedby Law—Theycannotbeprescribedby anadministrative organ. 5 Streetsandbuildings — Buildingpermit — TheStreetsand Buildings Reg. Law,Cap. 96—Refusal ofabuildingpermit forreasons ofpublic safety orpublicorder— Lawdoesnotgive authorityforsucha refusal. 10 15 20 Themembersoftheapplicant company belongedtothereligioussect known as "Jehovah witnesses". The applicants applied for a building permit to erect at the quarter of Zakaki a twb story building. The respondents refused the permit, without disclosing the real reasons for doingso.The applicants impugned the decision whereby the permit was refused. During the proceedings in this recourse it was made apparent that the real reason waspublic order or safety because of the opposition of the church and the inhabitants of the Zakaki area to have a building belonging tothesaid religious sect erected in their area. Held,annulling thesubjudice decision:
(1)From a mere reading of theprovisions of Art. 18of the Constitution 461 Ktim.Ncas Taxeos Ltd v. Mun.Comm. Ussol
(1989)and of Art. 9of the European Convention, it isclear that reasons for denying the right of a person or group of persons on the ground of public safety or publicorder tomanifest hisor their religion orbelief can only belimitedby Law. Anadministrative organ cannot byitself refuse on such grounds an application submitted toit. 5
(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 publicsafety or public order. 10 Subjudice decisionannulledwithcosts againstrespondents. Recourse. 15 Recourse against the refusal of the respondents to grant applicants abuildingpermit for theconstruction ofatwo-storey building at Zakaki quarter. 5.Sofroniou,for the Applicants. 20 Y.Potamitis,for the Respondents. Cur. adv.vult. 25 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, belongtothereligious Sect Known asthe"Jehovah Witnesses", 30 applied to the Municipal Corporation of Umassol,which isthe appropriate authority for granting building permits for the quarter of Zakaki,for the construction of atwo-storeybuilding on aplotoflandbelongingtothem. Attachedtotheapplication werethenecessarydocumentsrequiredbytheapplication form. 35 On the 29th April, 1987, the respondents wrote to the applicantsandinformed them thatunlesswithin onemonth they submitted corrected plans, their application was to be considered asnot havingbeen submitted. 40 As a result of a number of publications' in the daily 462 3 C.L.R. Ktim.iVeasTaxeos Ltd v.Mun.Comm.L/ssol Demetriades,J. 5 10 newspapers that the residents of Zakaki area were objecting to theconstruction of thebuilding,counsel for theapplicants 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: 15 20 25 30 35 40 "Αναφέρομαι στις επιστολές σας,μεημερ. 18.6.1987και 21.7.1987καιστοιχεία Β724(β) καισαςπληροφορώότι το Δημοτικό Συμβούλιο,ως αρμόδια αρχήδυνάμειτουΠερί Ρυθμίσεως Οδών και Οικοδομών Νόμου,εξέτασε τηναίτησητωνπελατώνσας 'ΚτηματικήΕταιρεία ΝέαςΤάξεως Λτδ.' καιαφού έλαβευπόψητοπεριεχόμενοτης,τουςσκο πούς χρήσης της προτεινόμενηςοικοδομής,τον χαρακτή ρα της περιοχής,το οδικό δίκτυοκαι άλλους παράγοντες αποφάσισεότι δενμπορείναπαραχωρήσειτηνζητούμενη άδεια οικοδομήςστους πελάτεςσας." ("Ι 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 theappropriate authority by virtue of the Streets and Buildings Regulations Law, examined the application of your clients 'Ktimatiki Eteria Neas Taxeos Ltd.' and after taking intoconsideration its contents,thepurposes of the use of the proposed building, the character of the area, the road network and other considerations, decided that it cannot grant thepermit 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 theground that it violates Article 18of our Constitution andthattherespondents hadnorightto reject their application by virtue of any Law. 463 Demetriades,J. Ktim.NeasTaxeos Ltd v.Mun.Comm.L/ssoI
(1989)Counsel fortherespondents,however,bothintheopposition filed in the recourse, as well as in hiswritten address,submined that the decision of the respondents was taken in order to safeguard publicsafety andorderwhichwillbeendangered ifthe permit wasgranted and insuppon of his argument he attached 5 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 theZakaki quarter which theybaseon religiousgrounds. 10 The right to freedom of religion issafeguarded by Article 18 of our Constitution and the relevant to these proceedings paragraphs are
- 3(part) and 6and they read: 15 "18.
- Eveiy person has the right to freedom of thought, conscience and religion.
- All religions whose doctrines or rites are not.secrete are free. 20
- 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 25 discriminate against any religious institution or religion.
- 30
- 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 35 of the Republic or the constitutional order or the public safety or the public order or the public health orthepublicmoralsorfortheprotection ofthe rights and liberties guaranteed by this Constitution to any person." Therightto freedom ofreligion isalsosafeguarded byArticle 464 40 3C.L.R. Ktim.\eas Taxeos Ltd \. Mun.Comm.L/ssol Demetriades,J. 9 of the European Convention for the Protection ol Human Rights and Fundamental Freedoms which was ratihed by the House of Representatives ot the Republic and is Law 39/62 5 10 15 Article 9oftheConvention reads "
- Everyone has the right to freedom of thought, conscienceandreligion,thisright includesfreedom tochange his religion or belief and freedom, either atone or in community with others and in publicor 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 bylaw 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 ot others." 20 25 From a mere reading ot the provisions of Article 18ot the Constitution, as well as Article 9 of the Convention, it isclear that reasons for denying the right of a person or group of persons on the ground of public safety or public order to manifest hisortheirreligion orbelief can onlybelimitedbylaw andthatan administrative organ cannot,byitself refuse onsuch grounds an application submitted to it. Having carefully gone through every section of Cap
- I 30 found noauthority for refusing theissueof abuildingpermit for reasons of publicsafety or public order It istrue that in theletter of therespondents to which Ihave earlier referred other reasons are given No reasoning isgiven 35 in it why the building proposed to be constructed by the applicants offends the character and the road network of the area. However,theother reasongiven,namelythe"purposeot the proposed building", in conjunction with the documents attachedtotheaddressofrespondents'counsel,doesdisclosethe 40 real reason whythe applicants' application was refused In the result, this recourse succeeds and the sub judice 465 Demetriades,J. Ktim. NeasTaxeos Ltd v.Mun. Comm. L/ssol
(1989)decision ishereby annulled with costs. Costs to be assessed by the Registrar and approved by the Court. 5 Subjudice decision annulledwith costs. 466