By an application submitted on 30 January 2020, an association of the Muslim faith requested from the competent Municipality the allocation of a suitable area for carrying out religious worship activities.

At the conclusion of the administrative procedure, the municipal authority rejected the request. The appeal lodged before the Regional Administrative Court (TAR) for Lombardy was dismissed on the merits; consequently, the Association challenged that judgment before the Council of State.

The latter, in upholding the appeal, found a defect in the administrative investigation. In fact, the association had correctly identified an area which, under the applicable urban planning instruments, was also designated for facilities intended for religious services. Despite this, the Municipality gave reasons for the denial by asserting the absence of areas allocated for worship, while at the same time, contradictorily, requiring the association to fulfill obligations that presupposed their existence.

This investigative deficiency amounts to an unlawful and insurmountable obstacle to the exercise of freedom of worship, since, through its peremptory and unreasoned nature, it prevents any initiative on the part of the applicant association.

The municipal refusal thus constitutes a violation of religious freedom, as affirmed by the Constitutional Court in judgment no. 254 of 5 December 2019, also cited by the Council of State. Such freedom represents an inviolable right that must be ensured by guaranteeing all religious denominations the possibility of publicly exercising their worship.

More specifically, the effective enjoyment of this right imposes a twofold duty upon public authorities: on the one hand, a positive obligation to make available adequate spaces for religious activities; and, on the other, a negative obligation not to create unjustified obstacles which, as in the present case, end up discriminating against certain denominations in their access to public spaces (see Constitutional Court judgments nos. 67 of 2017, 63 of 2016, 346 of 2002, and 195 of 1993).

 

(Comment by Bruno Pitingolo)