Case of European Court of Human Rights, April 26, 2016 (case İZZETTİN DOĞAN AND OTHERS v. TURKEY)

Defense:TURKEY
Resolution Date:April 26, 2016
SUMMARY

Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 14+9-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9-1 - Freedom of religion;Article 9 - Freedom of thought conscience and religion);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

 
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GRAND CHAMBER

CASE OF İZZETTİN DOĞAN AND OTHERS v. TURKEY

(Application no. 62649/10)

JUDGMENT

STRASBOURG

26 April 2016

This judgment is final but it may be subject to editorial revision.

Table of contents

PROCEDURE

THE FACTS

  1. THE CIRCUMSTANCES OF THE CASE

    1. The background to the case

    2. Legal and historical background to the creation of a religious public service

    1. The Religious Affairs Department

    2. Status of the other religions

    3. Alevis, cemevis and the Alevi initiative

    4. The Government’s stance regarding the Alevi faith, and the academic opinion submitted by them

  2. RELEVANT DOMESTIC LAW AND PRACTICE

    1. The Constitution

    2. The functions of the Religious Affairs Department

    3. Status of places of worship in Turkish law

      1. Regulation no. 2/1958 of the Council of Ministers

      2. Decision no. 2002/4100 of the Council of Ministers

    4. Closure of the Dervish monasteries and abolition and prohibition of certain titles

    5. Final report issued following the Alevi workshops

  3. RELEVANT INTERNATIONAL MATERIALS

    1. Council of Europe

      1. Texts adopted by the European Commission for Democracy through Law (the Venice Commission)

      2. European Commission against Racism and Intolerance

    2. United Nations

      1. International Covenant on Civil and Political Rights

      2. United Nations Human Rights Committee

      3. Report of the United Nations Special Rapporteur of 22 December 2011 on freedom of religion or belief

  4. COMPARATIVE LAW

    THE LAW

  5. ADMISSIBILITY

  6. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

    1. Preliminary remarks

    2. The parties’ submissions

      1. The applicants

      2. The Government

    3. The Court’s assessment

      1. Whether the case should be examined from the standpoint of the State’s negative or positive obligations

      2. Whether the interference was justified

  7. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 9

    1. The parties’ submissions

      1. The applicants

      2. The Government

    2. The Court’s assessment

      1. General principles

      2. Approach taken by the Court in cases concerning relations between the State and religious communities

      3. Application of these principles to the present case

  8. APPLICATION OF ARTICLE 41 OF THE CONVENTION

    1. Damage

    2. Costs and expenses

    3. Default interest

    FOR THESE REASONS, THE COURT,

    JOINT PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGES VILLIGER, KELLER AND KJØLBRO

    DISSENTING OPINION OF JUDGE SILVIS

    DISSENTING OPINION OF JUDGE VEHABOVIĆ

    STATEMENT OF JUDGE SPANO

    LIST OF APPLICANTS

    In the case of İzzettin Doğan and Others v. Turkey,

    The European Court of Human Rights, sitting as a Grand Chamber composed of:

    Guido Raimondi, President,Dean Spielmann,András Sajó,Işıl Karakaş,Josep Casadevall,Mark Villiger,Ledi Bianku,Julia Laffranque,Helen Keller,André Potocki,Paul Lemmens,Johannes Silvis,Faris Vehabović,Robert Spano,Iulia Antoanella Motoc,Jon Fridrik Kjølbro,Yonko Grozev, judges,and Johan Callewaert, Deputy Grand Chamber Registrar,

    Having deliberated in private on 3 June 2015 and on 22 February 2016,

    Delivers the following judgment, which was adopted on the last‑mentioned date:

    PROCEDURE

    1. The case originated in an application (no. 62649/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 203 Turkish nationals, whose names are annexed to the judgment (“the applicants”), on 31 August 2010.

    2. The applicants were represented by Mr N. Sofuoğlu (a lawyer practising in Istanbul), Ms İştar Savaşır (expert), Ms Serap Topçu, Ms Fadime Kara, Ms Jülide Sucuoǧlu Gönen and Mr İlyas Şahbaz (lawyers practising in Istanbul), and Mr Mehmet Aydın (expert). The Turkish Government (“the Government”) were represented by Mr Hacı Ali Açıkgül, Head of Department in the Ministry of Justice, Mr Harun Mert, Director‑General in the Ministry of Justice, Mr Ahmet Metin Gökler, Ms Ayça Onural, Mr Sami Arslan Aşkın, Mr Bekir Karaca and Mr Mustafa Çiçek (Ministry of Justice), and Mr Hikmet Yaman (expert).

    3. Relying on Article 9, taken alone and in conjunction with Article 14, the applicants contended that their right to manifest their religion had not been adequately protected in domestic law. They complained in that connection of the refusal of their requests seeking, among other matters, to obtain for the followers of the Alevi faith, to which they belong, the same religious public service hitherto provided exclusively to the majority of citizens, who adhere to the Sunni branch of Islam. They maintained that this refusal implied an assessment of their faith on the part of the national authorities, in breach of the State’s duty of neutrality and impartiality with regard to religious beliefs. They further alleged that they had been the victims of discrimination on grounds of their religion as they had received less favourable treatment than followers of the Sunni branch of Islam in a comparable situation, without any objective and reasonable justification.

    4. The application was assigned to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 7 May 2013 the Government were given notice of the application. On 25 November 2014 a Chamber of the Second Section composed of Guido Raimondi, President, Işıl Karakaş, András Sajó, Helen Keller, Paul Lemmens, Robert Spano, Jon Fridrik Kjølbro, judges, and Stanley Naismith, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment within the time allowed (Article 30 of the Convention and Rule 72).

    5. The composition of the Grand Chamber was determined in accordance with Articles 26 §§ 4 and 5 of the Convention and Rule 24.

    6. The applicants and the Government each filed written observations on the admissibility and merits of the case.

    7. A hearing was held in public in the Human Rights Building, Strasbourg, on 3 June 2015 (Rule 59 § 3).

      There appeared before the Court:

      (a) for the GovernmentMrH.A. AÇIKGÜL, Agent,MrH. MERT, Counsel,MsA. ONURAL,MrS.A. AŞKIN,MrM. ÇİÇEK,MrB. KARACA, MrH. YAMAN, Advisers;

      (b) for the applicantsMrN. SOFUOĞLU, Msİ. SAVAŞIR, Counsels,MsS. TOPÇU, MsF. KAMA,MsJ. SUCUOĞLU GÖNEN,Mr İ. ŞAHBAZ,MrM. AYDIN, Advisers.

      Mr İzzettin Doǧan, one of the applicants, also attended.

      The Court heard addresses by Mr Açıkgül, Mr Sofuoǧlu and Ms Savaşır, and their replies to the questions put by Judges Villiger, Laffranque, Motoc, Sajó, Karakaş, Spano and Lemmens. It also heard replies from Mr Yaman and Mr Doǧan.

    8. Each of the parties also submitted written observations on the questions put to them by the judges at the hearing.

      THE FACTS

  9. THE CIRCUMSTANCES OF THE CASE

    1. The applicants, whose names are listed in the Annex to the present judgment, are followers of the Alevi faith.

      1. The background to the case

    2. On 22 June 2005 the applicants individually submitted a petition to the Prime Minister, the relevant parts of which read as follows:

      “1. ... I am a citizen of the Republic of Turkey and adherent of the Alevi‑Islamic (Alevi, Bektashi, Mevlevi-Nusayri) faith. The Alevi faith is a Sufi and rational interpretation and practice of Islam based on the unity of Allah, the Prophecy of Muhammad and the Koran as Allah’s Word ...

    3. Freedom of conscience and religion is recognised by Articles 2, 5, 10, 12, 17 and 24 of the Constitution, and by Articles 9 and 14 of the European Convention on Human Rights and Article 2 of the additional Protocol, which take precedence over domestic law by virtue of Article 90 of the Constitution ... The State is required to take the necessary measures to guarantee the effective exercise of the right to freedom of conscience and religion. It must comply with that obligation by ensuring that everyone can effectively exercise those freedoms on an equal footing. In the constitutional order this obligation is regarded as a public service and this concept is enshrined in the Constitution.

    4. Under the terms of Article 136 of the Constitution, ‘[t]he Religious Affairs Department [“the RAD”], which is part of the general administration, shall carry out the functions assigned to it under the special law by which it is governed’, in conformity with the principle of secularism, while remaining detached from all political views or ideas and with the aim of promoting national solidarity and union. The RAD was set up with a view to achieving those objectives.

      Section 1 of the RAD (Creation and Functions) Act ... provides that ‘the RAD, operating under the Prime Minister, is responsible for dealing with matters of Islamic beliefs, worship and moral tenets and administering places of worship’.

      Under the terms of that Act, the RAD is invested with powers to manage all matters relating to Islam as a religion and is also responsible for administering places of worship.

      In practice, the RAD confines itself to cases concerning only one theological school of thought [mezhep] pertaining to Islam and disregards all the other faiths, including ours, which is the Alevi faith. Although the State has an obligation under the Constitution and supranational provisions to take all the necessary measures to ensure that the right to freedom of conscience and religion can be freely exercised, the rights of Alevis are disregarded, their places of worship, namely the cemevis, are not recognised as such, numerous obstacles prevent them from being built, no provision is made in the budget for running them, and the exercise of their rights and freedoms is subject to the good will of public officials.

      To date, all the demands made by the Alevi community with regard to practising their religion have been rejected as a result of the RAD’s biased approach, which is divorced from scientific and historical fact and based on one theological school of thought alone. As has been emphasised by the European Court of Human Rights, ‘the State’s duty of neutrality and impartiality, as defined in its case-law, is incompatible with any power on the State’s part to assess the...

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