JOHANNISCHE KIRCHE & PETERS v. GERMANY
Inadmissible
Antonio Pastor Ridruejo
The first applicant [Johannische Kirche] is a Christian religious community (Free Church) with public-law corporation status (Körperschaft des öffentlichen Rechts) whose governing board (Vorstand) is based in Berlin. The second applicant [Horst Peters] is a German national, born in 1926 and living in Waischenfeld (Germany). They were represented before the Court by Mr Arsène Verny, a lawyer practising in Prague (Czech Republic). In July 1991 the first applicant requested a permit to build a chapel and cemetery on land belonging to it. Its request was rejected by the administrative authorities, whereupon the first applicant lodged an application with the Bayreuth Administrative Court. At the public hearing before that court it requested an adjournment of the proceedings concerning the cemetery. On 20 December 1993, after visiting the site of the planned building, the Administrative Court rejected the application concerning the chapel on the grounds that the site where it was to be built was in an undeveloped protected zone (Außenbereich) and that it was not certain that public services (Erschließung) could be installed. On 10 August 1994, after hearing submissions from, among others, the public-health department, the water resources office (Wasserwirtschaftsamt), the town of Waischenfeld (on whose territory the first applicant’s land was) and other departments which had not given their consent or had done so only on certain conditions, the Bayreuth administrative authorities rejected the request concerning the cemetery, in respect of which the proceedings had been resumed after the Administrative Court had given judgment, on the ground that the proposed site was in an undeveloped protected zone and it was not certain that services could be installed on the land because the town of Waischenfeld refused to grant the first applicant a right of access over the adjoining municipal land to the site of the planned cemetery. On 15 December 1994 the Bayreuth Administrative Court dismissed the application mainly on the same grounds as those set out in the judgment of 20 December 1993, to which it referred at length moreover. On 4 July 1996, after visiting the site of the planned cemetery, the Bavaria Administrative Court of Appeal upheld the judgment of the Bayreuth Administrative Court of 15 December 1994. It noted, among other things, that construction of the planned cemetery was incompatible with the nature of the environment surrounding the site in question, particularly as, since the entry into force on 14 July 1995 of the legislative decree on the creation of Franconian Switzerland Wildlife Park (Naturpark Fränkische Schweiz), any act such as to disfigure the character of the wildlife park – even locally – was prohibited. The fact that the first applicant was a religious community did not alter that finding because it could build the cemetery on other land less affected by environmental restrictions. The Court of Appeal also noted that the lack of services on the land in question was an additional factor militating against the first applicant’s project. The Court of Appeal also decided not to grant leave to appeal on points of law. The first applicant appealed against that decision. On 7 March 1997 the Federal Administrative Court dismissed the appeal on the ground that it did not raise an issue of fundamental importance. It noted that freedom of religion was limited by the values laid down in the Constitution itself. Among those constitutional values was the protection of life’s natural sources (natürliche Lebensgrundlagen), as declared in section 20(a) of the Basic Law, which included the creation of protected zones. Additionally, the provisions relating to planning matters applied to everyone without distinction and did not impose more restrictions on religious communities than on other persons or groups of persons. As far as the provisions relating to cemeteries were concerned, it was indisputable that the creation of a cemetery was subject to laws relating to public health and the management of water resources. The freedom of a religious community subject to public law to practise its religion did not compel the authorities to grant that community an exemption from the statutory restrictions relating to the protection of the environment and the countryside. Besides that, the question as to whether such an exemption should have been granted, under the legislative decree of 14 July 1995 relating to the creation of Franconian Switzerland Wildlife Park, concerned provisions adopted by the Bavarian legislature, that is to say by a Land, and could not therefore be relied on before the Federal Administrative Court. On 14 October 1997 the Federal Constitutional Court, ruling as a panel of three judges, decided not to uphold the first applicant’s constitutional appeal. It noted, inter alia, that freedom of religion and freedom to manifest it was not unlimited and could be balanced against other constitutional values, of which section 20(a) of the Basic Law was one. It also noted that the first applicant could build the cemetery on other land which was less affected by regulatory restrictions.