City Hall's refusal to build a new mosque was illegal and discriminatory: the Court of Appeal
On 13 April the Kutaisi Court of Appeals announced the decision on the construction of a new mosque in Batumi and left the decision of the Batumi City Court unchanged.
The Court of Appeals shared the assessment of the Batumi City Court, establishing that the refusal of Batumi City Hall on the authorization of the first stage of the new mosque construction in Batumi, is illegal and discriminatory against the applicants on the grounds of religion. This is a very important decision of the national courts, which has recognized the discriminatory practice of violating the freedom of religion of the Muslim community for years and creates legal preconditions for the restoration of their rights and dignity.
Unfortunately, from 2017 until today, despite the reasoned decision of the court, Batumi City Hall has been choosing a strategy to delay their appeals and fulfill their obligations, which hinders the realization of the Muslim community's rights. We hope that the local government will share the recognition of the illegality and discrimination of the Batumi City Hall’s decision by the higher court and will start the execution of the decision in time. The real enforcement of the decision is to take into account the needs and interests of tens of thousands of Muslim citizens and to issue a permit for the construction of a new mosque in Batumi.
As it is known to the public, due to the lack of enough space for praying, a large part of Muslim prayers could not exercise their freedom of religion. After multiple, empty promises from the authorities, the "Initiative Group for the construction of a Mosque in Batumi" collected the signatures of more than 12,000 citizens in 2016 and applied to the Government of Adjara, Batumi City Hall, and the Government of Georgia for land allocation for the mosque, but neither local nor central authorities have been taken responsive measures and specific decisions. Later, in 2017, Then, the self-organized Muslim community established the NGO (Fund for the Construction of a New Mosque in Batumi), purchased a land plot, and applied to the Batumi City Hall for a permit to build a mosque. Batumi City Hall did not comply with their request, thus restricted the freedom of religion of Muslim citizens discriminatorily, while several Orthodox churches are being built and functioning in the same functional zone where the Foundation requested construction permission.
Batumi New Mosque Construction Fund appealed against the refusal of Batumi City Hall to issue a mosque construction permit in 2017. In particular, the subject matter of the dispute was the legality of the orders of the Batumi City Hall on the refusal of a special (zonal) agreement for the construction of a new mosque in Batumi and the refusal to approve the conditions for the use of the land for construction. The plaintiff also requested to establish direct discrimination by the Batumi Municipality on the grounds of religion and to eliminate the consequences of discriminatory treatment, also assignment of Batumi City Hall to issue a special (zonal) agreement and to establish conditions for the construction of the land.
On September 30, 2019, the Batumi City Court found the refusal of the Batumi City Hall to build a new mosque in Batumi to be discriminatory and illegal:
The court upheld the claim of the Batumi New Mosque Construction Fund and found discrimination on the grounds of religion. Seven Orthodox churches are located in the area where the applicant was requesting permission to build a mosque, three of which are on a plot of land registered as owned by the Batumi Municipality.
Annulled the refusal of Batumi City Hall to satisfy the first stage of the construction permit.
The court did not uphold the part of the request related to the assignment of Batumi City Hall to authorize the first stage of the construction permit.
Batumi Municipality City Hall appealed against the court decision. The Batumi New Mosque Construction Fund appealed against the decision in the part by which the issue of authorizing the first stage of the construction permit was returned to the Batumi City Hall for reconsideration. The appeal request of the Fund is that the court directly instructs the City Hall to comply with the first stage of the construction permit, without which it is impossible to eliminate the continuing discriminatory treatment.
During the hearing of the case in the Court of Appeals, the parties presented additional evidence. In particular, on the instruction of the court, the Batumi City Hall submitted documents, according to which, since 2012, the Batumi City Hall had not received any application for the construction of religious buildings in residential zone 6, and therefore had not considered, except for the application of the new mosque construction fund in Batumi. In turn, the Batumi New Mosque Construction Fund presented evidence of how Orthodox churches were built and are being built in Batumi's residential area 6 after 2012, so that no public administrative action by the Batumi City Hall, neither permitting nor sanctioning, is carried out on these constructions.
Batumi City Hall also presented the materials of the Batumi Municipal Inspection for Construction Violations, according to which the construction of any religious building has never been sanctioned by the Batumi City Hall, except for the religious buildings of „Administration of All Muslims of Georgia“ „New Mosque Construction Fund in Batumi“.
Kutaisi Court of Appeals announced the decision on April 13, 2021.
Besides, we believe that, in a situation where the fact of discriminatory treatment has already been confirmed by a court of the second instance and different treatment of the Muslim community cannot be justified for any legitimate purpose, it makes no sense to assign the City Hall to investigate the circumstances and issue a new act. In this situation, the only way to eliminate the consequences of discrimination should have been to uphold the third claim and instruct the City Hall to issue the relevant authorizing act (for the first stage of the construction permit), which unfortunately was not satisfied even in the appellate instance. This would have prevented the need to re-appeal the City Hall decision if it still did not meet the fund's request.
Tolerance and Diversity Institute (TDI) and Social Justice Center (formerly EMC) defend the interests of the Batumi New Mosque Construction Fund in the court.
Tolerance and Diversity Institute (TDI) carries out strategic litigation within the framework of East-West Management Institute’s (EWMI) "Promoting Rule of Law in Georgia" (PROLoG) project, funded by the United States Agency for International Development (USAID).