A few months ago, we reported (https://www.rivistadirittoereligioni.com/en/newsitalia-sullordinanza-del-comune-di-monfalcone-che-vieta-le-attivita-di-culto-per-assenza-di-destinazione-duso-dellimmobile-marco-croce/) on the controversy raised by Executive Order No. 03/EP dated 11/15/2023 of the Municipality of Monfalcone, which required the cessation of worship activities carried out in a room available to the Islamic Center “Darus Salaam”, due to the absence of the appropriate building permit.

Last week, just two days apart, the dispute between the Islamic cultural associations and the Municipality of Monfalcone resulted in two rulings by the administrative Courts: T.A.R. Friuli Venezia Giulia, Sec. I, No. 110/2024, and Council of State, Sec. II, No. 1024/2024.

The decision of the Council of State deals precisely with the dispute between the Municipality and the Islamic Center “Darus Salaam”: the precautionary application concerning the appeal against the above-mentioned executive ordinance had been rejected by the Friuli Venezia Giulia Regional Administrative Court. The Supreme Council partially reverse the first judgment with a very interesting opinion. While upholding the decision of the T.A.R. regarding the impossibility of using the association's headquarters as a place of worship in the absence of an authorization to change the intended use of the premises, it imposes a consultation table within a week, reminding the municipality of its duties regarding the population's religious needs.

The Council of State ordered the TAR to decide the appeal on the merits in a short time. In the meanwhile the high administrative that fair balance between at this precautionary stage an appropriate balance between the opposing interests, the public one intended (to safeguarding public safety, in connection with the undisputed overcrowding recorded in the premises); the private one intended to protect (the exercise of worship also in a collective form) should be preserved; this requires the adoption of alternative interim measures "that allow believers to be able to observe religious prescriptions in any case". Specifically, "the Administration is obliged to identify, in joint consultation with the interested parties and in a spirit of mutual and loyal cooperation ... accessible and dignified alternative sites to allow believers the exercise of prayer, taking into careful consideration the critical remarks made by the Association with respect to the places identified in the meantime by the Police Headquarters".

In contrast, the decision of the Friuli Regional Administrative Court deals with another dispute with another association, the “Baitus Salat” Islamic Cultural Center: in this case, the contested measure was Executive Order No. 5 of 7/12/2023, which inhibited the use of the property owned by the appellant because it was affected by unfinished construction work, was lacking static testing and certificate of fitness for use, with an outdoor appurtenant area used as a construction site.

The association’s appeal does not challenge the prohibition to use the interior part of the property, but only the inhibition regarding the exterior area.

The Regional Administrative Court upheld the appeal by directly defining the merits with a simplified judgment "considering that the conditions for inhibiting the use of the building in its entirety do not exist, also in light of its destination ... to the exercise of rights of primary rank such as freedom of assembly, association and worship". In particular, it is pointed out how the alleged lack of fitness to use requirements refers only to the enclosed spaces since the outdoor areas cannot express similar needs for structural control and environmental safety. The judgement also statued that the ordinance does not in any way justify the existence of any and punctual security needs of the outdoor areas. Also unlawful has been considered the part of the ordinance that qualified the property as a construction site on the basis of building license (“S.C.I.A.” in italian law) cancelled by the municipality itself and on the basis of the presence of materials that by themselves certainly cannot justify such a qualification.                                                                                                            

Marco Croce