EMC assessment of the refusal of the City Hall of Batumi for the construction of a new mosque

EMC responds to the first stage refusal to issue construction permit for a new mosque in Batumi, and considers the mayor’s decision to be illegal, ungrounded and possibly discriminatory.

 General Context Review

 As it is known to the public, the Muslim community has been requesting the transfer of land for the construction of a new mosque in Batumi for years. The existing Orta Jame (the mosque) is small and unable to contain all, who want to pray, thus the Muslims have to pray under the open sky, under insufficient conditions. In 2016, despite numerous appeals by the Muslim community, the State refused to allocate land for the construction of a new mosque. Clearly, under the conditions, when the State without providing any grounds or reasons pertaining public interest, had transferred large property to the Patriarchy, the refusal to the Muslim community, must be assessed as discriminatory.

It should be noted that apart from refusing to transfer the property, the State, through the way of various negotiations, has been trying to halt the construction of a new mosque, including, through the proposals offered at various times, regarding expansion of Orta Jame (the mosque), which contradicted to the interest of several private owners and contained serious risks of damaging the cultural heritage, as well as, the offer of real estate transfer to the Georgian Muslim Union for  Madrasa and residence as a completely new alternative to the mosque, and attempts (including, by the way of direct funding) to exercise political influence over the Mufti administration. Under the condition of the State’s discriminatory policy, the Muslim community, in 2016, initiated self-organized process for the construction of a mosque. Namely, the local Muslims founded Narp. “New mosque construction fund” and purchased a piece of land from private owner on installements and are still in the process of repaying. The fund also prepared the architectural project of the mosque.

 Batumi Mayor’s decision of May 5, 2017 and its legal assessment

On February 8, 2017, New Mosque Construction Fund addressed the Mayor of Batumi for the permission to build a new mosque in the city. By the order issued on 5 May 2017, Batumi Municipality Mayor Giorgi Ermakov refused to issue the first stage of the construction permit (approval of the terms of use of land for the construction).

According to the mayor of Batumi municipality, the main reason for refusing to approve the terms of use of land for construction, was the fact that the land is located in residential zone 6, which is a high intensity residential zone, with mostly residential building. [1] The Mayor, in its own decision, indicates that “the already well established residential nature of this quarter should not be changed and its future development must continue with the construction of residential buildings.”

It should be noted that in accordance with the regulations concerning the territory of Batumi municipality itself, in zone 6, apart from residential buildings, the construction of various objects of public purpose is also permitted, including “religious objects” for which, acquiring special (zonal) agreement is required from Batumi Municipality City Hall. [2]

It should be noted that the special (zonal) agreements are issued in cases, when the project-related piece of land is developed according to the functional intentions, which, according to the construction regulation and zonal maps by the local municipality, requires special zonal agreement.[3] The decision on issuing special zonal agreements is based on the submission of the Commission on Regulation of the Settlement and Development of Territories and is issued by Executive body of the Batumi Municipality.[4]  According to the mayor’s order, the decision on refusal of the special (zonal) agreement was based on the Commission’s decision. It is noteworthy that the decision of the Commission Regulation of the Settlement and Development of Territories has no mandatory power and the mayor has the authority not to consider the submission made by the Commission.[5]

The issuance of a special (zonal) agreement by the Batumi City Hall is a discretional authority of a local administration, which gives the administrative body the freedom, based on protecting public and private interests, to choose the most acceptable decision from the several possible solutions relevant to the legislation. According to the resolution by the City Council of 14 September 2012 (# 50) on Regulation of the Settlement and Development of Territories of the urban areas of the self-governing city of Batumi, a special (zonal) agreement is possible, if: a) it is required by special reasons in terms of the space-planning and architecture, or the development of the territory A; B) a change is compensated by other measures; C) is not against other public interests. [6] 

Thus, Batumi City Hall, taking into consideration the mentioned criteria, and the existing public and private interests, should have chosen the most relevant decision. The City Hall should have evaluated interests behind every solution and decide which of them is the most valuable for the State.

Under the conditions, when there is only one mosque in Batumi and this, taking in consideration the number of Muslims is insufficient  to pray and perform religious rituals,  hundreds of Muslims have to pray under the open sky.  The construction of the new mosque is essentially linked to the Muslim community’s freedom of religion. The new mosque construction is requested by tens of thousands of Muslims and it is a prerequisite for exercising their religious freedom. The protected interest of freedom of religion is opposed with the urban interests outlined by the City Hall, which is not supported by specific reasoning. Thus, it is completely unclear how does the City Hall justify non-compliance of building the mosque in this space, especially under the conditions, when, according to the rules of the residential settlement of Batumi,  zone 6 is not exclusively meant for residential buildings and all kinds of public buildings are permitted in the zone, including the ‘religious objects’ (which should be interpreted here in the broad sense of religious buildings) by a special zone construction agreement, or without it. Moreover, urban interest, if substantiated, the City Hall also must specify why the urban interest in a higher public interest, rather than, the religious freedom of hundreds of Muslims.

The measures prescribed by the administrative and legal act issued under discretionary powers may not lead to an unjustified restriction of legal rights and interests of a person, [7] which in this case is obvious.

Also, it should be emphasized that, under the circumstances, when there are numerous religious buildings in Batumi, including, in close vicinity of the residential buildings, while evaluating this decision, it is important to test possible discriminatory treatment, especially if we think about general discriminatory political context surrounding the construction a new mosque in Batumi.

EMC will continue to assess the Batumi Mayor’s decision in details, including, the discrimination part and in the future, will present detailed legal assessment to the public. Also, in case there is an interest, EMC will provide legal assistance in court to the New Mosque Construction Fund.

EMC stands with the Muslim community in the process of new mosque construction in Batumi and in general, in its fight for rights and equality, and considering its mandate, will take necessary measures to support the Muslim community in adequate realization of their rights.

Batumi Mayor’s decision

 

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[1] Decree of the Government of Georgia N 59 of January 15, 2014, subparagraph of “technical regulations – regarding the Regulation of the Settlement and Development of Territories”. Article 12, paragraph 12, subparagraph “a”.

[2] Decree of Batumi Sakrebulo of September 14, 2012, Regulation of the Settlement and Development of Territories of the self-governing city of Batumi. Subparagraph” d “of Article 5 of the Article 5 of

[3] Paragraphs “w” and “y” of Article 2 on “Spatial Arrangement and Basis for Urban Construction”.

[4] Resolution of Batumi Sakrebulo of September 14, 2012, regarding the Regulation of the Settlement and Development of Territories of Self-Governing City of Batumi “. Paragraph 4 of Article 9

[5] ibid.

[6] ibid. Article 9 par. 2;

[7] Part 2 of Article 7 of the General Administrative Code.