SCHILDER v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
1. The applicant, Mr H.C.W. Schilder, is a Dutch national, who was born in 1973 and lives in Tilburg. 3. The applicant is the parish priest and chairman of the board of the catholic Heilige Margarita Maria Alacoque parish (“the parish”) in Tilburg. The parish has one church, with one church bell. Since 1924 the church bell has been used in order to call parishioners to the services of worship. 4. In order to call the parishioners to attend the 7.30 a.m. service, the applicant used to ring the church bell at 7.15 a.m. for three minutes. On an unspecified date and following complaints of neighbouring residents that the ringing of the church bell disturbed their night’s rest, the applicant reduced the ringing of the church bell at 7.15 a.m. to one minute. 5. As neighbouring residents had also lodged repeated complaints with the Tilburg municipal authorities, requesting the latter to intervene in respect of the excessive ringing of the parish church bell at 7.15 a.m., the municipality carried out measurements of the sound levels involved. By letters of 16 February and 21 March 2007 the Tilburg Mayor and Aldermen (College van Burgemeester en Wethouders) issued warnings to the parish board, stating that the volume of the church bell ringing at 7.15 a.m. amounted to intolerable noise nuisance. The volume therefore had to be reduced and if the parish board failed to do so, an order for incremental penalty payments (last onder dwangsom) would be imposed, namely 5,000 euros (EUR) for each violation to a maximum amount of EUR 50,000. The matter had further been discussed in a meeting between the applicant and representatives of the municipality on 12 April 2007. 6. Since the parish board failed to reduce the volume of the ringing of the bell in the mornings – also after a further warning by the Mayor and Aldermen on 2 May 2007 – the Tilburg Mayor and Aldermen notified the parish board on 19 June 2007 of their intention to impose an order for incremental penalty payments if the volume of the ringing of the bell before 7.30 a.m. was not reduced. According to the Mayor and Aldermen, this order was based on section 110 § 1 of the 2005 general municipal bye-law (Algemene Plaatselijke Verordening; “APV”) in conjunction with section 10 of the Act on Public Manifestations (Wet Openbare Manifestaties; “WOM”). As set out in the letter accompanying the notice, the right to freedom of religion had been weighed against the interests of others in the community. It had been decided that the ringing of the church bell in the early morning at the volumes measured constituted intolerable noise nuisance. Failure by the parish board to reduce the sound level in the early morning would contravene section 110 § 1 of the APV. A formal decision to this effect, having noted and taken into account the applicant’s written comments on the notice of intention (zienswijze), was taken on 23 July 2007. 7. The objection (bezwaar) filed by the parish against this decision was rejected by the Mayor and Aldermen on 7 September 2007. The parish filed an appeal with the Breda Regional Court (rechtbank). 8. By judgment of 26 November 2007 the Breda Regional Court accepted this appeal. It stated at the outset that it assumed that the appeal had been filed solely by the parish and that all legal acts undertaken by the applicant in the proceedings on the objection and appeal were done in his capacity as representative of the parish board. It found that calls to worship by ringing church bells fell within the scope of the right to freedom of religion within the meaning of Article 6 § 1 of the Netherlands Constitution (Grondwet) and that restrictions imposed on the ringing of church bells constituted an interference with that right. The municipality was nevertheless – on the basis of section 10 WOM and for the purposes of avoiding noise nuisance – authorised to lay down rules and regulations as regards the duration and volume of the ringing of church bells provided that these did not render illusory the use of church bells or restricted it unnecessarily. The Regional Court nonetheless quashed the impugned decision to impose penalty payments on the parish board since the legal provision on which it was based (section 110 § 1 APV) could not be applied to the ringing of (a) church bell(s). The Regional Court’s judgment became final since no further appeal was lodged against it. 9. In 2008 the Tilburg municipality decided to amend the APV in order to fix rules for ringing (a) church bell(s) and other means of calls to worship. On 1 May 2009, section 109a of the APV entered into force. This provision reads as follows: “Between 11 p.m. and 7.30 a.m. it is prohibited to issue a call to worship within the meaning of section 10 of the Act on Public Manifestations by ringing (a) church bell(s) or by other means if the volume exceeds the standards laid down in the Environmental Management (General Rules for Establishments) Decree (Besluit algemene regels voor inrichtingen milieubeheer; “Environmental Management Decree”) by more than 10 dB(A) and exceeds the reference volume of the surroundings by more than 10 dB(A).” 10. After new volume measurements had been taken on four different days in May 2009, the Mayor and Aldermen again issued official warnings to the parish board as regards the sound level of the ringing of the church bell in the early morning. Since the parish board was found to have failed to comply with the standards set out in section 109a of the APV, the Tilburg Mayor and Aldermen notified the parish board on 16 June 2009 of their intention to impose an order for incremental penalty payments on the parish board if it did not respect section 109a of the APV. Although invited to do so, the parish board did not file any written comments on the intention. A formal decision by the Mayor and Aldermen followed on 7 July 2009 by which an incremental penalty payment of EUR 5,000 (not exceeding a total amount of EUR 50,000) would be imposed for each time the parish disrespected section 109a of the APV after 29 July 2009. 11. Since the parish board and the applicant failed to respect the applicable volume standards when ringing the church bell, the Mayor and Aldermen imposed an order for incremental penalty payments on 23 October 2009. An objection – with the parties’ consent converted into a direct appeal to the Breda Regional Court – against this decision was lodged by the applicant. 12. By judgment of 20 October 2010 the Breda Regional Court rejected this appeal. It again found that the municipal authorities were entitled – on the basis of section 10 of the WOM – to fix rules for the duration and volume of calls to worship. Noting, inter alia, that no restrictions applied for ringing the church bell at issue between 7.30 a.m. and 11 p.m. and finding that it had not been demonstrated that it would be impossible to moderate the volume by making adjustments to the clapper, the Regional Court rejected the argument that the rules at issue rendered illusory the use of church bells for calls to worship. 13. The applicant’s subsequent appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrecht) of the Council of State (Raad van State), was rejected on 13 July 2011. In so far as relevant, this ruling reads: “2.1. In accordance with Article 6 § 1 of the Constitution, everyone has the right to manifest freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law. Under the second paragraph of this provision, rules concerning the exercise of this right outside of buildings and enclosed places may be laid down by law for the protection of health, in the interest of traffic and to combat or prevent disorders. Under section 10 of the WOM, ringing church bells in the context of religious ... ceremonies ... as well as for calls to worship ... is permitted. In this matter, the municipal council is competent to determine rules as regards duration and volume. Pursuant to section 109a of the APV it is prohibited between 11 p.m. and 7.30 a.m. to issue calls to worship within the meaning of section 10 of the Act on Public Manifestations by means of ringing (a) church bell(s) or by other means if the volume exceeds the standards laid down in the Environmental Management Decree by more than 10 dB(A) and exceeds the reference volume of the surroundings by more than 10 dB(A). Pursuant to section 2.18 § 1 (c) of the Environmental Management Decree, the sound for the purposes of calls to worship ... is not taken into consideration in the determination of sound levels, referred to in sections 2.17, 2.19 and 2.20. ... 2.3 The parish priest argues that the Regional Court has wrongfully found that section 109a of the APV is binding. According to the priest, the court has failed to appreciate that the Tilburg municipal council, in violation of section 10 of the WOM, has not given reasons for the necessity of determining a volume restriction for the period lasting from 11 p.m. to 7.30 a.m. This is even more cogent since the duration of this period renders the call to worship illusory or at least restricts this unnecessarily as the morning service starts at 7.30 a.m. and only 25% of the parishioners can be reached if the ringing of the church bell is muffled. In this connection, the priest further submits that muffling – in so far as possible in practice – requires a disproportionate effort on his part. The parish priest further argues that the fixed period is contrary to section 2.17 of the Environmental Management Decree because it is stipulated therein that the period of night lasts from 11 p.m. to 7 a.m. In his opinion, the manner in which section 109a of the APV has been drafted furthermore results in legal uncertainty, because it cannot be deduced from this to what concrete sound volume standard of the Environmental Management Decree the ringing of (a) church bell(s) is bound. The parish priest claims that the only reason why the municipal council has chosen to have the period subjected to the restriction last until 7.30 a.m. is to oppose the church bell ringing in this concrete case. He therefore claims that section 109a of the APV does not serve the municipal interest but only the special interests of complaining neighbouring residents, thus rendering the provision also for this reason non-binding. 2.3.1. The second sentence of section 10 of the WOM confirms that ... the municipal council may determine rules for the duration and volume of ringing church bells for the purpose of issuing calls to worship. As appears from the drafting history of this provision, this form of church bell ringing forms part of the liturgy and can be regarded as a manifestation of religious beliefs which is protected by Article 6 of the Constitution. ... A reasonable interpretation of [this provision] entails that this right does not imply the freedom to ring church bells without any limits as regards duration and volume. The power described in the second sentence of section 10 of the WOM is aimed at the prevention of excesses where it concerns duration and volume. Legal rules determined for this purpose at a municipal level can, depending on local circumstances and needs, be adjusted to the occasions and times when the bells are to be rung. This kind of regulation of duration and volume within reasonable limits, without leading to a situation where a meaningful use of the ringing of the bell(s) no longer remains, must be considered as not restricting the freedom of religion. ...” 2.3.2. The Regional Court has ... rightly considered that the municipal council did not act contrary to section 10, second sentence of the WOM by limiting the volume of the church bell ringing for part of the daily twenty-four hour period. It appears from the explanatory notice on section 109a of the APV that the municipal council chose to apply the prohibition contained in that provision between 11 p.m. and 7.30 a.m., because this is the time when most people enjoy their night’s rest. This night’s rest can be disturbed when calls to worship are made in a loud manner. Because a call to worship is a manifestation of everyone’s right to practise freely his or her religion, some noise nuisance must, according to the municipal council, be tolerated and the prohibition only applies to excessive forms of noise nuisance with a sound level that exceeds by more than 10 dB(A) the standard laid down in the Environmental Management Decree and by more than 10 dB(A) the sound level of the surroundings. The Administrative Jurisdiction Division finds that the municipal council has thus sufficiently reasoned why the hours at issue have been chosen and, after having weighed the interests involved, can be considered to have reasonably decided upon that time frame. The fact that church bell ringing at a lesser volume may reach a smaller number of parishioners to call them to attend the 7.30 a.m. morning mass than without such a restriction and that muffling the church bells meets with practical objections cannot lead to a finding that no use of any significance could be made of the bells. In this connection, the Regional Court has rightly considered that section 109a of the APV does not render illusory the possibility to practice religion as this provision does not make it impossible to ring the bells before 7.30 a.m. and no restrictions apply for the sound level of church bell ringing between 7.30 a.m. and 11 p.m. 2.3.3. In view of the above, the Administrative Jurisdiction Division subscribes to the finding of the Regional Court that section 109a of the APV does not go beyond the competence set out in section 10 § 2 of the WOM. 2.3.4. There is also no ground for holding that the choice of the period at issue violates the Environmental Management Decree. The Regional Court has rightly considered that it is not necessary to examine the compatibility of section 109a of the APV with the Environmental Management Decree as this provision finds its basis in the WOM and section 2.18 § 1 (c) of the Environmental Management Decree stipulates that sound for the purpose of issuing calls to worship is not taken into consideration in the determination of sound levels within the meaning of that Decree. It appears from the explanatory memorandum to that provision that this choice has been made, because the system of the Constitution in conjunction with the WOM was considered to be the appropriate framework for regulating the ringing of church bells, rather than regulation in the Environmental Management Decree. 2.3.5. Although the Environmental Management Decree is not directly applicable in respect of the permissible noise levels, the Administrative Jurisdiction Division finds that the municipal council was entitled to link it to the noise standards laid down in the Environmental Management Decree, as this indicates in an objective sense when one can speak about noise nuisance. Contrary to what has been argued by the parish priest, it appears sufficiently clearly from the text of section 109a of the APV, in which explicit reference is made to the norms set out in the Environmental Management Decree, what volume of church bell ringing is allowed during what part of the day. ... 2.3.6. The Administrative Jurisdiction Division also does not share the parish priest’s opinion that section 109a of the APV does not serve the municipal interest. That the regulation of the duration and volume of church bell ringing can be regarded as [pursuing] a municipal interest already follows from the second sentence of Article 10 of the WOM in which the competence of the municipal council on this point is confirmed. In this case, the municipal interest lies concretely in the protection of the inhabitants of the municipality against disturbance of their nights’ rest. The APV provision at issue applies to all religious and other bodies who are issuing calls – by the ringing of bells – to manifest a religion or belief. Although, as correctly pointed out by him, it was the church bell ringing by the parish priest which has led to the insertion into the APV of the provision at issue, this does not entail that no municipal interest was at stake. 2.3.7. In view of the above considerations, the Regional Court has correctly found that section 109a of the APV is not non-binding. The Regional Court has also rightly held that the municipal council – in view the noise measurements made – was correct in its finding that the parish priest had breached that provision, so that the municipal council was competent to act in a manner aimed at securing compliance with the rules.” No further appeal lay against this ruling.