On 22 May 2019, the Plenary of the Constitutional Court found
a violation of the freedom of religion safeguarded by Article 24 of the
Constitution in the individual application lodged by Levon Berc Kuzukoğlu
and Ohannes Garbis Balmumciyan (no. 2014/17354).
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THE FACTS
[10-50] Two separate requests for election of a new patriarch were
filed with the relevant Governor’s Office as the Turkey’s Armenian Patriarch
was severely ill that he could no longer perform his duties.
The first request was filed by the Spiritual group whereas the
second request was filed by the Civilian group including the applicants.
The Governor’s Office tacitly rejected the Civilian group’s
request by leaving it unanswered and also refused the Spiritual group’s
proposal as the patriarchate’s office was not vacant. It however notified that
an election for a " patriarchal vicar-general" could be held. Thereafter, the Turkey’s Armenian Spiritual
Committee held an election of patriarchal vicar-general.
The applicants brought an action, for annulment of the decision
whereby the Governor’s Office dismissed the Civilians’ requests, before the
incumbent administrative court. They accordingly maintained that the conclusion
finding it appropriate to hold an election for a patriarchal
vicar-general had been reached as a result of the contacts made merely by the Spiritual
Committee; and that the election should have not been held merely by the Spiritual
Committee but by the Assembly of the Delegates mainly consisting of the
Civilians.
The administrative court however dismissed the action, and
following the appellate process, the Council of State ultimately rejected the
applicants’ request for appeal.
The applicants lodged two individual applications with the Constitutional
Court on 30 October 2014 and 29 February 2016 respectively. These two
applications were joined.
V. EXAMINATION AND GROUNDS
51. The Constitutional Court (“the Court”),
at its session of 22 May 2019, examined the application and decided as follows:
A. The Applicants’ Allegations and the Ministry’s
Observations
52. The applicants asserted:
i. The incumbent Patriarch should be
considered to have vacated his seat due to his illness and that a new patriarch
should be elected as per Article 2 of the 1863 Regulation which stipulates that
a new patriarch shall be elected when the Patriarch’s seat became vacant for
“various reasons” (esbabı saire).
ii. The Election Steering Committee (Müteşebbis
Heyet), comprised of delegates from community foundations of the Armenian
community, was entrusted with the authority to conduct any and every
operational and legal procedures concerning the patriarchal election and, when
necessary, to pursue judicial avenues against unlawful acts. In forming their
opinion on the election of Patriarch of the Armenians of Turkey, the Istanbul
Governor’s Office had not obtained any information from the Election Steering
Committee, which in itself was an independent, objective and impartial
committee that only acted free from any influence with the purpose of
implementing the patriarchal election procedure, under no circumstances, could act
under the instructions of any institution or organisation of the community,
including the Spiritual Council.
iii. It was at the Election Steering
Committee where any objection or request likely to be raised by individuals,
councils or institutions inside or outside the community during the election
process would be resolved. The applicants contended that there was an
interference with the community’s internal affairs as a result of the
administration’s intervention in a matter which the community needed to handle
with its own dynamics and its attempt to solve the question of the Patriarch by
instituting a new post which did not exist in the community’s traditions. The
patriarchal election was obstructed anti-democratically, the representative
system was abolished, and the community’s will was disregarded. In other words,
the applicants argued that the administration’s interference constituted a
restriction imposed on the right and the freedom of the Armenian community in
Turkey to democratically elect their patriarch.
iv. The Spiritual Assembly was not a council
which decided to hold an election and formed the Election Steering Committee to
implement it. Neither the customs and traditions of the Armenian community nor
the long-established legal texts had ever envisaged to entrust the Spiritual
Committee with such powers.
v. When the Council of Ministers permitted
Archbishop Aram Ateşyan, who was appointed outside the will of the people, to
wear religious garments outside places of worship, it terminated the
patriarchal capacity of the elected incumbent Mesrop Mutafyan. Thus, having
created the post of the patriarchal vicar-general by disregarding the
community’s will, the administration equipped the prospective occupant of that
post with the powers of the Patriarch.
vi. The applicants complained of alleged
violations of Article 24 on the freedom of religion and conscience; Articles 36
and 141 due to an unfairness of the trial and the lack of a reasoned judgment;
Article 10 on the principle of equality before law due to discrimination
against the Armenian community; and Article 5 of the Constitution due to the
State’s failure to fulfil its obligations to the Armenian community.
53. In its observations, the Ministry
indicated:
i. The administrative authorities had a
duty to uphold the application of existing rules with regard to the election of
the Armenian patriarch. The election process had been fully conducted by
community officials in compliance with the 1863 Regulation (Nizamname),
the Directive (Talimatname) and customary practices, without any
interference at all by the State organs.
ii. The two solutions sought about the issue
arising as a result of the inability of Armenian Patriarch of İstanbul to
fulfil his duties for a long time due to health problems, namely the spiritual
clergy’s proposal to elect a co-patriarch and the Civilians’ proposal to elect
a new patriarch, had been evaluated together. The Ministry indicated that the
idea of election of a patriarchal vicar-general by the competent bodies of the
Patriarchate came up as a conciliatory solution between the two different
proposals. This new proposal brought up by the administrative authorities, in
consideration of the demands of those concerned, served the purpose of helping
the community to find their own solution to the issue. The impugned act was
carried out within the framework of the State’s positive obligation to regulate
the religious sphere.
iii. The Ministry concluded that the
patriarchal vicar post actually existed within the Armenian traditions and that
the incumbent Patriarch, Mesrob Mutafyan, appointed the Chairperson of the
Spiritual Council, Bishop Aram Ateşyan, as the patriarchal vicar-general on 27
August 2004 on the ground that the former would be away from his post for some
time.
54. In their counter-statements against the
Ministry’s observations, the applicants argued:
i. The Ministry failed to discuss certain
points of importance in its observations. In this sense, it failed to
acknowledge that the 1863 Regulation did not provide for the post of a
patriarchal vicar-general; and that the administration had created such a post in
contravention of legislation. The Ministry also disregarded that the Spiritual
General Assembly’s duties were listed in Article 28 of the Regulation, which
did not include the duty of electing a patriarchal vicar-general.
ii. Despite the administration’s attempt to
propose the post of patriarchal vicar-general as a conciliatory formula between
the parties, the Armenian community was divided in two due to the
administration’s practices which were not based either on legislation or on
tradition; and that the introduction of the post of patriarchal vicar-general
constituted a manifest interference by the State with the religious tradition.
iii. Lastly, the applicants recalled that the
Spiritual General Assembly had decided on 26 October 2016 that the Patriarch
should be considered to have retired.
B. The Court’s Assessment
55. The Court is not bound by the legal
qualification of the facts by the applicant and it makes such assessment itself
(see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The essence of
the applicants’ complaints under Articles 5, 10, 36 and 141 of the Constitution
concerns an alleged violation of the freedom of religion and conscience through
the acts of the public power and rulings of the inferior courts. Thus, the
Court has found it appropriate to examine the application from the standpoint
of the freedom of religion.
56. Article 24 §§ 1, 2, 3 and 5 of the
Constitution on the “Freedom of religion and conscience”, which will be
taken as basis of the assessment on the allegation, reads as follows:
“Everyone
has the freedom of conscience, religious belief and conviction.
Acts of
worship, religious rites and ceremonies shall be conducted freely, as long as
they do not violate the provisions of Article 14.
No one
shall be compelled to worship, or to participate in religious rites and
ceremonies, or to reveal religious beliefs and convictions, or be blamed or
accused because of his religious beliefs and convictions.
...
No one
shall be allowed to exploit or abuse religion or religious feelings, or things
held sacred by religion, in any manner whatsoever, for the purpose of personal
or political interest or influence, or for even partially basing the
fundamental, social, economic, political, and legal order of the State on
religious tenets.”
1. Admissibility
57. The Ministry contended that the
applicants did not have the victim status. However, the applicants are both
members of the Armenian community and the chairperson and the secretary,
respectively, of the Election Steering Committee formed by the Civilians. It
cannot be denied that the applicants are directly affected by the decisions of
the administration and inferior courts with regard to the Election of the
Patriarch of the Armenians of Turkey.
58. The Ministry further argued that the
applicants did not pursue the remedy of requesting rectification of the
decision, thereby failing to exhaust available legal remedies. The Court has
held on many occasions that exhausting the remedy of rectification of the
decision is not a mandatory condition to be able to lodge an individual
application (see Sema Öktem, no. 2013/852, 6 March 2014, § 22).
59. In the circumstances of the present
case, the Court does not find it necessary to make any further assessment on
the applicants’ victim status or the admissibility of the application. The
alleged violation of the freedom of religion must be declared admissible for
not being manifestly ill-founded and there being no other grounds for its
inadmissibility.
2. Merits
a. Existence of an Interference
60. The applicants argued that the
patriarchal seat became vacant as the incumbent Patriarch was unable to fulfil
his duties; and that the prevention of the Armenian community from electing its
religious leader constituted an interference with the freedom of religion. The
Ministry indicated that the State acted impartially; there was no interference
with the applicants’ freedom of religion; since the Patriarch’s illness had
been discovered, the administration aimed to help resolve the disagreement
between the Civilian and Spiritual groups and to remedy the grievances emerging
between the groups.
61. At the outset, the Court will take note
of the provisions of the Treaty of Lausanne in analysing the issue because the
matter at hand concerns non-Muslim minorities. Article 38 of the Treaty of
Lausanne sets forth the freedom of the act of practising a belief in
public or private. The rule
in question provides that all inhabitants of Turkey shall be entitled to free
exercise, whether in public or private, of any creed, religion or belief, the
observance of which shall not be incompatible with public order and good
morals.
62. Also, the case-law of the European Court
of Human Rights (“the ECHR”) will be borne in mind in ascertaining whether
there has been an interference with the freedom of religion. According to the
ECHR, the State’s action favouring one leader of a divided religious community
or undertaken with the purpose of forcing the community to come together under
a single leadership against its own wishes would constitute an interference
with freedom of religion (see Serif v. Greece, no. 38178/97, 14 December
1999, §§ 49, 52 and 53; Hasan and Chaush v. Bulgaria, § 78; and Supreme
Holy Council of the Muslim Community v. Bulgaria, §§ 76, 85).
63. In the assessment of disputes concerning
the leadership of a religious community, further note should be taken of the
references made in international conventions, as well as Article 24 of the
Constitution, in regard to the acts of manifesting [a religion or belief].
Indeed, pursuant to Article 18 of the International Covenant on Civil and
Political Rights (“the ICCPR”) and Article 9 of the European Convention on
Human Rights (“the Convention”), the acts of manifesting are acknowledged, in
general, as the “practice, worship, teaching and observance” of a “religion
or belief”.
64. In the case of Tuğba Arslan ([Plenary],
no. 2014/256, 25 June 2014, § 66), the Court focused in a detailed manner on
the determination of whether a certain behaviour constituted “practice”
of a belief. As preventing an individual from acting in accordance with his religion
or belief would result in weakening of the faith itself and a violation of the
freedom of religion and faith, it becomes important to determine whether or not
an act can be considered as “practice” of belief. Since the “practice
of belief” is more comprehensive when compared to other forms of
manifestation, it needs to be addressed in even more detail.
65. As a consequence of this need, for
example, the UN Human Rights Committee’s General Comment No. 22 on Article 18
of the ICCPR lists various acts which give a broader range to the content of
the terms “teaching, practice, worship and observance” and it considers
the freedom to choose their religious leaders as a part of the practice of
belief. According to the Committee,
“... the
practice and teaching of religion or belief includes acts integral to the
conduct by religious groups of their basic affairs, such as the freedom to
choose their religious leaders, priests and teachers, ...”
66. The term “practice of belief”
does not appear in the text of Article 24 of the Constitution. Nevertheless,
Article 24 indicates that everyone has the freedom of religious belief and
conviction and is free to conduct acts of worship, religious rites and
ceremonies. The Court is of the opinion that the aforementioned concepts
not only refer to rituals and ceremonial acts of worship in a narrow sense but
can also be interpreted as encompassing, in a wider sense, various practices
and acts of manifestation acknowledged as requirements of the religious life.
Adopting only the narrowest meaning of the concepts “worship”, “religious
rite” and “religious ceremony” with an approach to the contrary
would leave outside the protective radius of Article 24 of the Constitution any
act of manifestation other than the acts of worship that are considered in
international texts as part of the “practice of belief” and thus placed
under the protection of the freedom of religion.
67. The Armenian patriarch is the spiritual
leader of the Armenian community in Turkey, which is a religious community, and
there is clearly a close relationship between the role played by the patriarch
within the community and the body of meaning represented by the concept “worship”.
Therefore, it must be accepted that especially the election of a religious
leader and a community life under a certain elected religious leader fall
unequivocally within the protection of the right to manifest one’s religion
under Article 24 of the Constitution.
68. The development by the State of certain
policies, including mediation, for resolution of a disagreement emerging within
a particular group of faith will not constitute an interference with the
believers’ rights enshrined in Article 24 of the Constitution. In the case
giving rise to the present application, the administration did not favour one
or another part of the divided Armenian community; however, upon the emergence
of a difference of opinion between the Civilian group and the Spiritual group
regarding the question of whether the patriarchal seat became vacant after the
incapacitation of the incumbent Patriarch to fulfil his duties due to an illness,
the administration forced, in a sense, the application of its own proposed
solution by refusing the requests of both parties. The main question to discuss
in this dispute is whether these events are the result of the State’s pressure which
was unconstitutional or a leadership change that has been freely determined by
the community.
69. Lastly, there is no question as to the
religious significance of the patriarchate for the Armenian community. Thus,
regard being had to the legislation, in particular the Regulation, and the
Armenian community’s traditions, there is no reason to deny that the
applicants’ desire to elect a new patriarch stems from their religious belief.
Therefore, the Court had concluded that the obstruction of the applicants’
request to elect a new patriarch in the absence of a decision as to whether it
was necessary to elect a new patriarch in the present case constituted a State
interference with the Armenian community’s internal organisation and, by
extension, the applicants’ freedom of religion and conscience guaranteed by
Article 24 of the Constitution.
b. Whether
the Interference Constituted a Violation
70. The above-mentioned interference shall
constitute a violation of Article 24 of the Constitution unless it satisfies
the requirements laid down in Article 13 of the Constitution. Article 13 of the
Constitution provides as follows:
“Fundamental
rights and freedoms may be restricted only by law and in conformity with the
reasons mentioned in the relevant articles of the Constitution without infringing
upon their essence. These restrictions shall not be contrary to the letter and
spirit of the Constitution and the requirements of the democratic order of the
society and the secular republic and the principle of proportionality.”
i. Whether
the Interference was Prescribed by Law
71. In case of an interference with a right
or freedom, the matter to be primarily determined is whether there is a
provision of law that authorises the interference. In order to accept that an
interference made within the scope of Article 24 of the Constitution meets the
requirement of being prescribed by law (i.e. legality), it is compulsory that
the intervention has a “legal” basis (see, for an extensive explanation
on the requirement of legality in the context of the freedom of religion, Tuğba
Arslan, §§ 81-99; see also, for further deliberations on the requirement of
legality in other contexts, Sevim Akat Eşki, no. 2013/2187, 19 December
2013, § 36; Hayriye Özdemir, no. 2013/3434, 25 June 2015, §§ 56-61; and Eğitim
ve Bilim Emekçileri Sendikası and Others [Plenary], no. 2014/920, 25 May
2017, §§ 53-69).
72. As regards the restrictions on
fundamental rights and freedoms, the legality requirement primarily
necessitates the formal existence of a law. Law, as a legislative act, is a
product of the will of the Grand National Assembly of Turkey and is enacted by
the Grand National Assembly of Turkey in compliance with the law-making procedures
enshrined in the Constitution. Such an understanding affords a significant
safeguard for fundamental rights and freedoms. Nevertheless, the legality
requirement also encompasses a material content and, thereby, the quality of
the wording of the law becomes more of an issue. In this sense, this
requirement guarantees “accessibility” and “foreseeability” of the provision
regarding restrictions as well as its “clarity” which refers to its certainty (see
Eğitim ve Bilim Emekçileri Sendikası and Others, §§ 54, 55).
73. Certainty means that content of a
provision must not give way to arbitrariness. Legal arrangements concerning the
restriction of fundamental rights must be precise in terms of its content, aim
and scope and also clear to the extent that the parties concerned could know
their legal status. A provision of law must certainly indicate which acts or
facts will entail which legal consequences and, by extension, what sort of a
power to interfere will be afforded to the public authorities. Only then individuals
may be able to foresee their rights and obligations and act accordingly. The
legal certainty can thus be ensured, and bodies exercising the public power can
be prevented from performing arbitrary acts (see Hayriye Özdemir, §§ 56,
57; and Eğitim ve Bilim Emekçileri Sendikası and Others, § 56).
74. It should be stressed that it is not
easy to immediately ascertain the legal foundations of the interference with
the applicants’ freedom of religion and conscience. Article 2 titled “Explanation
as to the Election of the Armenian Patriarch of İstanbul” of the Regulation
provides that when the Patriarch’s seat becomes vacant, the Spiritual and
Material Assemblies shall convene and elect a locum tenens and request
an approval from the Sublime Porte. Although there is not a material assembly
at the moment, the practice of electing a locum tenens seems to be
applied.
75. Furthermore, the Court has noted that
the Directive which was in force in 1961, 1990 and 1998 came into force by a
decision of the Council of Ministers and that Article 2 of the Directive gave
the İstanbul Governor’s Office and, by extension, the Ministry of Interior a
regulatory role over the election affairs. Apart from the above, Article 29 of
the Directive provides that the patriarchate’s locum tenens shall submit
the result of the election and request permission for the newly-elected
patriarch to be able to wear religious garments outside the place of worship
under the Law no. 2596 on Prohibition of the Wearing of Certain Garments, dated
3 December 1934.
76. The validity of the Regulation and the
Directive should also be addressed. Neither the applicant nor the Ministry have
contested the validity, in part or as a whole, of the rules contained in the
above-mentioned documents. Further, the Regulation is clearly an important
document for reference which demonstrates the customs and traditions of the
Armenian community. In fact, this document stipulates the rules concerning the duties
and obligations and the functioning of the patriarchate’s Spiritual Assembly
and other community bodies. In addition, the Ministry relied on the Regulation
and the Directive to provide reasons for its observations and opinions.
Moreover, the first-instance court, i.e. the 3rd Chamber of the İstanbul
Administrative Court, dismissed the case by interpreting the first article of
the Regulation.
77. Nevertheless, in its letter of reply
dated 5 February 2018 to the Patriarchate of the Armenians of Turkey, the
Ministry of Interior relied not on the provisions of the Regulation but rather
on the “practice” as well as the 1961 Directive on Patriarchal Election.
In the said letter, having indicated that “according to the practice
employed in the elections and Patriarchal elections held after the 1961
Directive on Patriarchal Election, it would be possible to elect a new
patriarch if the seat becomes vacant due to the patriarch’s death or
resignation or other reasons”, the Ministry of Interior added that “there
are judicial precedents in which health issues cannot be considered as one of
the other reasons which would enable the Patriarch’s seat to become vacant”.
78. The Court held detailed deliberations in
the case of Tuğba Arslan as regards the question of whether court
decisions and administrative practices could be regarded as “law” (kanun)
within the meaning of Article 13 of the Constitution:
“Although
the law created by the judge is accepted as a source of the law in some fields
of Turkish law, it can never acquire a status of rule with the quality of ‘law’
in a field that is organised based on a completely formal principle of
legality, such as restriction of human rights and freedoms. On the other hand,
the fact that an interference with a fundamental right and freedom gains
continuity and becomes accessible and foreseeable does not transform an act of
public power, which is the basis of the interference, into a ‘law’. Adopting an
approach to the contrary would also mean accepting the fact that the rights
violations arising out of an accessible and foreseeable act or action of the
public power have ‘legal’ bases.” (see Tuğba Arslan, § 96; see also
ibid. § 98).
79. When the procedures that have been
employed in the elections since the 1863 Regulation are assessed together, it
may be accepted that in the current situation the administration enjoys at
least an authority in regulating the affairs related to patriarchal election.
80. That said, according to Article 13 of
the Constitution, a law is absolutely necessary to be able to impose
limitations on fundamental rights. The Court arrives at the conclusion that
there exists no accessible, foreseeable and clearly precise provision of law
within the meaning of Article 13 of the Constitution -capable of preventing
arbitrary acts of the bodies wielding the public power and allowing individuals
to know the law- which could constitute the legal basis of the aforementioned
authority that limits the applicants’ freedom of religion and belief.
81. Despite finding that the interference
did not have a legal basis, the Court considers it necessary to make a further
assessment on whether the interference was compatible with the requirements of
a democratic social order rather than concluding its examination on the
application with a final ruling to the effect that, in the circumstances of the
present case, the relevant norms of the Regulation and the Directive did not
satisfy the requirement of “restriction by law”.
M. Emin KUZ concurred with this opinion with a
different reasoning.
ii. Whether
the Interference Pursued a Legitimate Aim
82. The applicants complained that the
authorities’ objective was to prevent the Civilians from having a voice by
means of leaving the Armenian community’s administration in the hands of the
Spiritual clergy. The Ministry argued that the State aimed to remedy the
problems emerging as a result of the incumbent Patriarch’s de facto
absence from his function.
83. The second paragraph of Article 24 of
the Constitution which reads “Acts of worship, religious rites and
ceremonies shall be conducted freely, as long as they do not violate the
provisions of Article 14” and the last paragraph thereof which reads “No
one shall be allowed to exploit or abuse religion or religious feelings, or
things held sacred by religion, in any manner whatsoever, for the purpose of
personal or political interest or influence, or for even partially basing the
fundamental, social, economic, political, and legal order of the State on
religious tenets” constitute the foundation of the restriction regime
prescribed by the Constitution with respect to the freedom of religion (see Esra
Nur Özbey, no. 2013/7443, 20 May 015, § 69).
84. The freedom of religion guaranteed under
Article 24 of the Constitution puts the State under not only negative
obligations but also some positive obligations for the protection of the
individuals’ freedom of religion. Therefore, it is possible that certain
measures taken by the State for the protection of the freedom of religion of
others might restrict another individual’s freedom of religion.
85. Having regard to the process which
started in the Ottoman era and continued through the Republican era, the Court has
observed that the State has in general had the duty of maintaining order in the
affairs related to Armenian community’s patriarchal elections and protecting
the rights and freedoms of the members of the community. Thus, it must be
accepted that the public administration’s general concern in the present case
was to contribute to the establishment of a legitimate administration by
eliminating the vacuum of religious and administrative authority, which had
emerged due to the Patriarch’s illness.
86. Accordingly, the Court has considered that
the State pursued the aim of protecting the legal position of members of the
community originating from Article 24 of the Constitution in interfering with
the internal organisation of the Armenian community by rejecting both parties’ demands
and insisting on the application of its own proposed solution, i.e. election of
a patriarchal vicar-general, to the problems created by the status quo
due to the Patriarch’s illness. Therefore, the Court has concluded that the
interference in the form of prevention of the patriarchal elections pursued a
constitutionally legitimate aim.
iii. Whether
the Interference Complied with Requirements of the Democratic Order of the
Society
(1) General Principles
(a) The Importance of the
Freedom of Religion in a Democratic Society
87. The freedom of religion and conscience
is one of the indispensable elements of the democratic state that are
stipulated in Article 2 of the Constitution (see Tuğba Arslan, § 51; and
Esra Nur Özbey, § 43).
88. That both the religion is one of the main
sources that the individuals, who are devoted to a religion, refer to so as to
understand and give meaning to the life and it has an important function for
the shaping of the social life is present in the origin of the fact that the
freedom of religion and conscience is one of the foundations of the democratic
society. Because of this function, it has been accepted at international level
that the individuals have freedom of religion within certain limits
independently from the positions of the religions vis-à-vis the freedoms. Like
other freedoms, the freedom of religion was also enshrined with certain legal
and constitutional guarantees as a result of a long and difficult process. As a
matter of fact, the freedom of religion is a right that is protected in most of
the international declarations and conventions on human rights at universal and
regional level (see Ahmet Sil, no. 2017/24331, 9 May 2018, § 31; Tuğba
Arslan, § 52; and Esra Nur Özbey, § 44).
(b) The
Compliance of the Interference with Requirements of the Democratic Society
89. For an interference with fundamental
rights and freedoms to be considered to be in compliance with the requirements
of the democratic order of the society, it needs to meet a pressing social need
and be proportionate. It is clear that an assessment under this head cannot be
carried out independently from the principle of proportionality which is based
on the relation between the aim of the restriction and the means employed to
achieve that aim. Because Article 13 of the Constitution contains two distinct
requirements, namely “compliance with the requirements of the democratic
order of the society” and “compliance with the principle of
proportionality”, which are two pieces of a whole and have a strict
connection in between (see, in the context of the freedom of expression, Bekir
Coşkun, no. 2014/12151, 4 June 2015, §§ 53-55; Mehmet Ali Aydın, no.
2013/9343, 4 June 2015, §§ 70-72; see also the judgments no. E.2018/69,
K.2018/47, 31 May 2018, § 15; and E.2017/130, K.2017/165, 29 November 2017, §
18).
90. The restriction of the freedom of
religion must pursue the aim of meeting a pressing social need in a democratic
society and it must be exceptional. In order to acknowledge that the measure
constituting the interference met a pressing social need, it must be capable of
achieving the relevant aim, be the last resort and the lightest measure
available. An interference which does not help achieving the aim or is
obviously more restrictive and heavier vis-à-vis the aim pursued cannot be said
to meet a pressing social need (see Esra Nur Özbey, § 79; see, in the
context of the freedom of expression, mutatis mutandis, Bekir Coşkun,
§ 51; Mehmet Ali Aydın, § 68; and Tansel Çölaşan, no.
2014/6128, 7 July 2015, § 51).
91. Another duty of the Court is to check
whether a fair balance has been struck between the individuals’ freedom of
religion and the legitimate aims prescribed by the relevant provisions of the
Constitution for justifying the restriction of this freedom. It must be noted
that the existence of legitimate aims in a particular case does not remove the
right. What is important is to balance that legitimate aim against the right
under the circumstances of the case (see, in the context of the freedom of
expression, Bekir Coşkun, §§ 44, 47, 48; and Hakan Yiğit, no.
2015/3378, 5 July 2017, §§ 58, 61, 66).
92. Proportionality refers to the absence of
an excessive imbalance between the aim pursued by the restriction and the
restrictive measure employed. In other words, proportionality refers to
establishing a fair balance between the rights of the individual and interests
of the public or between the rights and interests of other individuals if the
purpose of the interference is to protect the rights of others. A problem in
terms of the principle of proportionality may be at issue in the event that a
clearly disproportionate burden is imposed on the owner of the right, which was
the subject of interference, when compared to public interest or the interests
of others. The bodies wielding the public power must show on the basis of
concrete facts the presence of an interest, which outweighs the interest
arising from the exercise of the freedom of religion and which needs to be
protected, as well as of the mechanisms that balance the burden placed on the
individual (see, in the context of the freedom of expression, mutatis
mutandis, Bekir Coşkun, § 57; Tansel Çölaşan, §§ 46, 49, 50; and
Hakan Yiğit, §§ 59, 68).
93. Accordingly, if an interference with the
freedom of religion fails to meet a pressing social need or is not
proportionate despite meeting a pressing social need, it cannot be considered as
an interference that complies with the requirements of the democratic order of
the society.
94. The main axis of the assessments to be
held in respect of the present case will be the question of whether the
inferior courts were able to convincingly demonstrate that the reasons they
relied on in their decisions leading to the interference are in compliance
with the requirements of the democratic order of the society. Interferences
with the freedom of religion without any grounds or on such grounds that do not
satisfy the criteria laid down by the Court shall be in breach of Article 24 of
the Constitution.
(c) The
Freedom of Association of Religious Communities
95. The present application concerns the
leadership election and, by extension, the association of a religious community
of a minority. The freedom of religion encompasses the religious communities’
ability to organise its association away from arbitrary interferences of the
State. Accordingly, the State must refrain from interfering with the internal
affairs of religious communities unless it is absolutely necessary in a
democratic society.
(d) The
Relationship Between the State and Religious Communities in a Democratic
Society
96. In the judgment in the case of Tuğba
Arslan, the Court has recalled that the right protected by Article 24 of
the Constitution is indispensable because the freedom of religion and conscience
is of vital importance for laying the foundations of, and maintaining, an
effective and meaningful democracy based on the rule of law. In the said
judgment, the Court has indicated that the freedom of religion can only be
protected in a democracy based on the understanding of recognition, pluralism
and impartiality (see, for a detailed explanation on the concepts of
recognition, pluralism and impartiality, Tuğba Arslan, §§ 53, 54; and see
also Esra Nur Özbey, §§ 45, 46).
97. The Court has explained that in a
pluralistic society, the State is under an obligation to take the measures
necessary to ensure that individuals live as required by their own world views
and beliefs. According to the Court, the State does not have the authority to
accept one of the views or life styles present in the society as “wrong”.
In this context, unless the reasons for limitation stipulated in the
Constitution are present, enabling differences to coexist is a requirement of
the pluralism even though the majority or the minority does not like it (see Tuğba
Arslan, § 54).
98. In a democratic society, the State is obliged
to take measures and initiatives in order to reconcile the interests of
different religions and beliefs that coexist or the interests of different
groups within the same religion or belief. There is always an opportunity in
democratic societies to ensure the peaceful coexistence of people whose
beliefs, views and lifestyles are in conflict with one another and to create a
pluralistic environment within the society where all types of faiths can
express themselves (see, for a similar approach, Esra Nur Özbey, § 57).
99. In this connection, it should be
recalled that Article 24 of the Constitution places on the State not only
negative obligations such as not violating the freedom of religion but at the
same time positive obligations such as creating an environment where such
freedom can be easily enjoyed (see Esra Nur Özbey, §§ 82-84).
100. In addition, the State must fulfil its
obligations under Article 24 of the Constitution in an impartial manner. In
order to achieve this impartiality and develop equitable policies with regard
to different groups of religion and belief existing within the constitutional
order, the dialogue among the belief groups themselves as well as between those
groups and the State should be always maintained. The Court shares the ECtHR’s
view to the effect that, even in the presence of strong indications suggesting
that the parties will not be changing their positions, the State has to keep
the lines of dialogue open especially in a dispute related to the field of
belief. Indeed, this is proof of a properly functioning democracy.
(e) The
State’s Course of Action in Disputes concerning the Election of Leaders of
Religious Communities
101. The State enjoys a wide margin of
appreciation in its relations with religious communities, which is a
particularly sensitive area. However, in a democratic society, the State
cannot, in principle, interfere with how religious communities elect their
spiritual leaders or how they administer themselves in relation to their
religious affairs. That said, in the disputes emerging with regard to a
religious community’s election of their leaders, which is recognised as an act
of religious practice, the first challenge faced by the bodies wielding the
public power concerns the determination of whether the said act of practice
actually exists and what its status is. The second challenge is to prove that
the act of practice has taken place within the framework of the
principles of the religion or belief in question; in other words, to determine
what the rules of the religion or the traditional rules of that community are.
102. There is no doubt that the election of
religious leaders and a community life under a certain elected religious leader
fall within the scope of the “practice” of a belief. On the other hand, the crucial point for the resolution of the
application at hand is concentrated on the circumstances in which a new
religious leader can be elected and what the election procedure will be.
103. Except for cases of a pressing social
need that must be met, it is for the members of the religion or belief in
question to decide how a religion or belief may be manifested in the best way
and whether a certain behaviour is a requirement of the religion or belief that
the applicant puts forth (see Tuğba Arslan, § 67; and Esra Nur Özbey,
§ 59). Nevertheless, it needs to be kept in mind that the teachings of most
of the religions or beliefs which have a certain hierarchical structure may be
interpreted in various forms in most of these religions or beliefs. The
differences within the same belief are frequently observed among the members of
a certain faith and furthermore, the judicial bodies are not sufficiently
equipped to resolve on their own this type of differences in terms of the
provisions on the freedom of religion. Besides, in this sensitive area,
investigating which members of a certain religion or belief understand the
orders of their common faith more accurately cannot be considered within the
judicial activity and the trial authority (see Tuğba Arslan, § 70).
104. Similarly, questioning the comments of
individuals of a certain religion or faith as regards their own religions and
what “the common religious practices” are, is outside the relevance of
the judicial bodies. A contrary approach would mean that the courts or the
bodies which exercise the public power will determine, by replacing the
conscientious evaluation of the individuals with their own value judgments,
what the applicants believe in about the practices of the religion or belief is
“appropriate” (see Tuğba Arslan, § 72; and Esra Nur Özbey, §
60).
105. For these reasons, attempting to
evaluate whether a behaviour is a requirement of a religion or belief, such as
in the main points of dispute concerned in the present case as to whether
electing a new patriarch was necessary, whether electing a co-patriarch or a locum
tenens was possible, or what is the procedure to be followed in patriarchal
elections, gives rise to the risk of making a decision on what the members of a
religion or belief can do without violating their own faith; in other words, on
what an individual needs to believe in and how he needs to behave (see Tuğba
Arslan, § 71). Therefore, against such a risk, the courts, the
administration and other bodies exercising the public power are expected to be
cautious in making their assessments in this area.
106. The State enjoys a certain margin of
appreciation in the assessment of the existence of the necessity and
proportionality of an interference with the acts of practice of a religion or
belief carried out by religious communities or groups of religious minority, as
is the case in the present application. Yet, as with all other freedoms, such
margin of appreciation shall be subject to the review of the Court in a way to
cover the legal circumstance and the decisions concerning the application of
rules of law so that the freedom of religion go beyond some shiny rhetoric (see
Esra Nur Özbey, § 76; Ahmet Sil, § 36).
107. In cases such as the present one which
involves conflicting interests, imposing an interference which might prejudice
the essence of the freedom of religion with a view to protecting one of the
interests is not acceptable solution in a democratic society (see Ahmet Sil,
§ 37). Furthermore, it should be borne in mind that a disproportionate
interference with a certain act of religious practice -in the name of
reconciling religious groups- would mean undermining pluralism and tolerance by
the hand of the State. For this reason, a democratic society must always adopt
approaches that are focused on the protection of rights: in case of problems
stemming from the exercise of a right, they must be resolved via measures
oriented at ensuring the peaceful enjoyment of the right instead of rendering
that right completely non-exercisable.
(2) Application
of the Principles to the Present Case
108. In the case giving rise to the present
application, the incumbent Patriarch of the Armenian community became
incapacitated to fulfil his duties due to his illness. The Civilians argued
that the Regulation ordered the election of a new patriarch to replace the
incumbent Patriarch who could no longer fulfil his duties due to a
continuing/permanent illness. The Spiritual clergy, on the other hand,
maintained that a patriarch was elected for life and a new one could not be
elected until the incumbent’s death. Thus, they agreed with the
administration’s view to elect a patriarchal vicar-general.
109. It should be stated before proceeding
with the examination of the instant application that the non-Muslim Armenians
are within the scope of the provisions under the heading “Protection of
Minorities” in Part I, Section III of the Peace Treaty of Lausanne. The
general conclusion drawn from the provisions of Articles 37 to 45 of the Treaty
of Lausanne is the institution of equality between Muslims and non-Muslim
minorities. There is no provision in the Treaty of Lausanne with respect to the
internal functioning of non-Muslim minority groups or, in this connection, the
election of their religious leaders.
110. The procedure for election of the
patriarchs to fill the seat of the Patriarch located within the territory of
the Ottoman Empire was enacted into statute law with the 1863 Regulation. Naturally,
the existence and the legal status of the Armenian community date farther back,
to the time under the rule of Sultan Mehmed II (the Conqueror). It is
understood that the provisions of the Regulation in question with regard to the
patriarchal elections of the Armenian community laid the basis of their
practices ever since.
111. As a rule, it is not for the Court to
determine whether the term “various reasons” (esbab-ı saire)
contained in the relevant provision of the Regulation that concerns the cases
in which a new patriarch will be elected, which provides “In cases where the
patriarchal seat becomes vacant due to the death or resignation of the
Patriarch or various reasons...” (Patriğin vefatı ve istifası cihetiyle
veyahut esbab-ı saireye mebni patriklik makamının halli vukuunda...),
applies to the cases where the patriarch is unable to fulfil his duties due to
continuing illness. In cases where the interpretations made by the bodies
exercising the public power and by the courts on any rule interferes with
fundamental rights and freedoms, on the other hand, it is the Court’s duty to
review whether those interpretations justify the interferences with the
fundamental rights and freedoms and whether they are arbitrary; in other words,
whether the decisions delivered by such public authorities and judicial bodies
within their margins of appreciation are compatible with Article 24 of the
Constitution.
112. In order to ascertain whether the
impugned interference met a pressing social need, whether it was proportionate
to the legitimate aim pursued, and whether the justifications given by the
public authorities were seen as relevant and sufficient, the Court will
deliberate on the interference at issue by considering the case as a whole.
113. In the instant case, the Election
Steering Committee set up by the Civilians, among whom the applicants were also
present, notified the İstanbul Governor’s Office that a new patriarch would be
elected as the incumbent Patriarch was gravely ill. Around the same time the
Spiritual clergy also notified the İstanbul Governor’s Office that an election
would be held for a co-patriarch of the Armenians of Turkey. The İstanbul
Governor’s Office rejected both requests on the grounds that the Patriarch was
still alive, that he was not able to resign, that his capacity as a patriarch
was still standing, that the legislation on the patriarchal elections did not
contain any provisions about a potential termination of the function of the
patriarch due to health issues or about a co-patriarch election. In other
words, the administration limited the conditions calling for the election of a
new patriarch to simply death and resignation, thereby refusing
to interpret the wording “various reasons” (esbab-ı saire) in
Article 2 of the Regulation.
114. Similarly, although the 3rd
Chamber of the İstanbul Administrative Court based its ruling on the 1863
Regulation, it held that Mesrop Mutafyan, who had been elected as patriarch,
was still alive but he could not resign and there was thus no vacancy in the
seat of the patriarch. Consequently, it dismissed the case on these grounds
without attempting to interpret the meaning of “various reasons”
indicated in the Regulation.
115. There is no dispute as to the fact that
the Patriarch has been absent from his duty since 2007 because of having
developed an incurable disease. Upon closer inspection of the rule in the
Regulation concerning under which circumstances a new patriarch is to be
elected, the Court has noted that it provides for the election of a new
patriarch in cases where the patriarchal seat becomes vacant and mentions the
situations of death and resignation as examples of when the seat of the
Patriarch becomes vacant. Instead of giving an exhaustive list of all the
circumstances in which the patriarchal seat would become vacant, the Regulation
stipulates the need for electing a new patriarch in other similar situations if
the seat of the Patriarch becomes vacant for “various reasons”.
116. Indeed, according to the information
presented to the Court, although in the last century the patriarchal seat has
in general became vacant upon death of the patriarchs, one of the patriarchs
who were elected into this function, Zaven Der Yeğyayan, left his post in 1922
without even resigning and went to Varna. Following the vacation of the
patriarchal seat in such manner, Bishop Kevork Aslanyan was elected as locum
tenens in December 1922 and subsequently Archbishop Mesrop Naroyan was
elected as patriarch in 1927.
117. Therefore, seeing that the
aforementioned norm does not list one by one every situation which would render
the patriarchal seat vacant but in fact affords the public authorities a wider
margin of interpretation in practice by simply stating “various reasons”,
the Court cannot regard the decisions of the administration and the inferior
courts in the present case as relevant and sufficient due to their failure to
evaluate whether or not the Patriarch’s illness fell within the scope of the
various reasons envisaged by the Regulation.
118. The preamble of the said Regulation
contains the indication that this Regulation was drafted by a commission
composed of trustworthy members of the Armenian Millet (ethno-religious
community) in consideration of the requirements of the modern civilisation and
the times. According to the Regulation, the patriarch shall be elected from the
Bishop class via a two-tier electoral system by the delegates designated by
members of the community. In addition, the Regulation also contains more
detailed acknowledgements as to the administration of the community and the
status of the patriarch. The sixth subparagraph of the preamble puts a special
emphasis on the will of the Armenian community by holding that “the main
principles of the communal administration founded on the system of
Representative of the Community are the principle of justice based on necessity
and law and the principle of legality based on making decisions with the
majority’s will”.
119. Thus, the election of the patriarch, who
assumes powers and duties that are highly important for the Armenian community,
has not been able to take place in accordance with the will of the Armenian
community for over ten years.
120. Article 28 of the Regulation under the
heading “Explanation as to the Spiritual Assembly” enumerates the duties
of the Spiritual Assembly, some of which are, generally, to manage religious
affairs; to protect, support and strengthen the principles of faith, customs
and traditions of the Armenian Church; to maintain the order of the churches,
community schools and religious education. Therefore, to lead the Armenian
community, to represent it, to elect a Patriarch or a deputy/acting Patriarch
under any name or form are listed among the duties of the Spiritual Assembly.
121. Article 57 of the Regulation prescribes
that the General Assembly shall be comprised of 140 delegates, namely 20 from
the Spiritual clergy and 120 from the Civilians. In other words, the Spiritual
group is represented at a ratio of 1/7 in the patriarchal elections. On the
other hand, the number of delegates were reduced through directives applied to
the patriarchal elections held in the Republican era. In accordance with the
Election Directive of 1998, a total of 89 delegates casted votes, of whom 79
were Civilian and 10 were Spiritual delegates. The Court has observed that the
ratio of Spiritual and Civilian delegates has been preserved in the patriarchal
elections held in the Republican era, where the Civilians have a majority.
Therefore, the fact that the Spiritual General Assembly elected a patriarchal
vicar-general to exercise the powers of the patriarch and that this
vicar-general used the powers of the patriarch in religious and administrative
fields for quite a long period of time has resulted in the prioritisation of
the will of the Spiritual clergy and disregard for the will of the Civilians.
122. In the present case, the administration
asked the Spiritual group to elect a patriarchal vicar-general and, by using an
authority that does not exist either in the legislation or in the community’s
traditions, they indeed elected a patriarchal vicar-general to exercise the
incapacitated Patriarch’s powers. It has not been proven that the Spiritual
General Assembly had the authority to elect a vicar that would represent the
will of the Armenian community.
123. There is, however, evidence to indicate
otherwise. Also, the Spiritual clergy seem to have acknowledged their lack of
such authority. In fact, following the patriarch’s placement under guardianship
by a court order on 8 March 2016, the Spiritual General Assembly declared the
incapacitated incumbent Patriarch as “patriarch emeritus” (retired
patriarch) and the patriarch’s seat as vacant at the meeting held on 26 October
2016. At the meeting where he was also present, the Spiritual General Assembly
of the Patriarchate decided to terminate Archbishop Aram Ateşyan’s capacity as
the patriarchal vicar-general along with all the powers and duties it entailed
and notified the Ministry of Interior of this decision. Having convened upon
the call of the locum tenens, delegates from the Armenian community
institutions designated and distributed the duties of the Election Steering
Committee that would follow up with the process for the Election of the 85th
Patriarch, Lastly, the Election Steering Committee scheduled and notified the
Ministry of Interior of the election days of the Spiritual delegates and
Civilian delegates. To put differently, the Spiritual General Assembly, by
itself, acknowledged the fact that the on-going practice did not have a place
in the legislation or the traditions.
124. In the present case, it was clearly the
Ministry of Interior that decided in which circumstances the Armenian patriarch
could be elected. Nevertheless, except for the purpose of meeting a pressing
social need, the State cannot make a decision on under which conditions or
through which procedure a new religious leader may be elected. Indeed, as it
has been previously indicated by the Court, it is exclusively for the members
of a religion or belief to decide what is required by that religion or belief.
125. The judicial bodies or the bodies
wielding the public power are not sufficiently equipped, in terms of the
freedom of religion, to resolve their own this type of differences among
members of the same faith. Therefore, the State’s duty is to take measures and
initiatives to reconcile the interests of different groups.
126. In the present application, on the other
hand, the administration did not inquire the avenue of resolving the issue
through dialogue. In a more general sense, the State did not develop policies
towards resolution of the issue in accordance with the Armenian customs and
traditions as well as religious requirements by means of bringing together the
Armenian opinion leaders, clergymen, intellectuals and other community groups.
Instead, by imposing its own proposed solution, the administration determined
what would be the appropriate course of action in terms of the Armenian
community’s acts of practice of their belief.
127. As a result of the rejection of the
proposals which the Civilian group presented on the basis of the legislation
and the community traditions and the Spiritual group’s adoption of the
administration’s proposal, the Civilians were excluded and thereby deprived of
the opportunity to participate in the administration of community affairs and
the management of its assets.
128. The events taking place after the
present application was lodged has demonstrated the administration’s continuing
desire to determine the conditions under which elections for a religious leader
might take place or to be decisive with regard to the procedure of elections
for a religious leader, in the absence of a provision of law and without
relying on a convincing reason. The Court has observed that, currently, there
is no longer any dispute within the Armenian community as to whether a new
patriarch can be elected to replace the incumbent Patriarch who is unable to
fulfil his duties due to illness.
129. Besides, even though all the
previously-contentious officials of the Armenian community put into operation
all the procedures without any dispute, the Ministry of Interior considered all
processes regarding the election of a new patriarch, including the election of
Karekin Bekçiyan as the Locum Tenens, to be legally null and void with absolute
nullity (mutlak butlan).
130. As a requirement of the democratic
social order, if there is an interference with the election for the leader of a
religious community and, by extension, the internal affairs of a religious
community, it must be proven that the interference corresponded to a pressing
social need in a democratic society. Whereas, in the present case, the
administration failed to demonstrate a pressing social need that overrides the
spirit of Armenian traditions and the will of the Armenian community, which
seem to have been concretised in the Regulation, in obstructing the election of
a new patriarch.
131. Therefore, the interference with the
applicants’ right to freedom of religion by way of refusing the request to hold
elections for the seat of the Patriarch of the Armenians of Turkey cannot be
considered to be compatible with the requirements of a democratic society.
132. For these reasons, it must be held that
there has been a violation of the freedom of religion safeguarded by Article 24
of the Constitution.
Mr. Serdar ÖZGÜLDÜR, Mr. Rıdvan GÜLEÇ, Mr. Recai
AKYEL and Mr. Yıldız SEFERİNOĞLU expressed dissenting opinions in this respect.
3. Application of Article 50 of Code no. 6216
133. Article 50 §§ 1 and 2 of the Law on the
Establishment and Rules of Procedures of the Constitutional Court (Law no.
6216, dated 30 March 2011), in so far as relevant, reads as follows:
“(1) At
the end of the examination of the merits it is decided either the right of the
applicant has been violated or not. In cases where a
decision of violation has been made what is required for the resolution of the
violation and the consequences thereof shall be ruled...
2) If the
determined violation arises out of a court decision, the file shall be sent to
the relevant court for holding the retrial in order for the violation and the
consequences thereof to be removed. In cases where there is no legal interest
in holding the retrial, the compensation may be adjudged in favour of the
applicant or the remedy of filing a case before the general courts may be
shown. The court which is responsible for holding the retrial shall deliver a
decision over the file, if possible, in a way that will remove the violation
and the consequences thereof that the Constitutional Court has explained in its
decision of violation.”
134. The applicants only requested the Court
to find a violation.
135. The Court has arrived at the conclusion
that there has been a violation of the applicants’ freedom of religion under
Article 24 of the Constitution due to the rejection of their request to elect
the Patriarch of the Armenians of Turkey.
136. The total court of expense of TRY
2,920.60 including the court fee of TRY 445.60 and counsel fee of 2,475.00,
which is calculated over the documents in the case file, must be reimbursed
jointly to the applicants.
VI. JUDGMENT
For these reasons, the Constitutional Court UNANIMOUSLY
held on 22 May 2019:
A. That
the alleged violation of the freedom of religion be DECLARED ADMISSIBLE;
B. By
MAJORITY and by dissenting opinion of Mr. Serdar ÖZGÜLDÜR, Mr. Rıdvan GÜLEÇ, Mr.
Recai AKYEL and Mr. Yıldız SEFERİNOĞLU, that the freedom of religion
safeguarded by Article 24 of the Constitution was VIOLATED;
C. That
the total court expense of TRY 2,920.60 including the court fee of TRY 445.60
and counsel fee of TRY 2,475.00 be REIMBURSED JOINTLY TO THE APPLICANTS;
D. That
the payment be made within four months as from the date when the applicants
apply to the Ministry of Treasury and Finance following the notification of the
judgment; in case of any default in payment, statutory INTEREST ACCRUE for the
period elapsing from the expiry of four-month time-limit to the payment date;
E. That
a copy of the judgment be SENT to the Ministry of Interior; and
F. That
a copy of the judgment be SENT to the Ministry of Justice.
DISSENTING
OPINION OF JUSTICES SERDAR ÖZGÜLDÜR AND RIDVAN GÜLEÇ
1. Articles 37-45 of the Peace Treaty of
Lausanne dated 24 July 1923 contain comprehensive stipulations, under Section
III regarding the “Protection of Minorities”, on the status and rights of the
non-Muslim minorities in the Republic of Turkey and the State’s obligations
thereto. In this scope, Article 42 provides “... The Turkish Government
undertakes to grant full protection to the churches, synagogues, cemeteries, and
other religious establishments of the above-mentioned minorities. All
facilities and authorisation will be granted to the pious
foundations, and to the religious and charitable institutions of the
said minorities at present existing in Turkey, and the Turkish Government will
not refuse, for the formation of new religious and charitable institutions, any
of the necessary facilities which are guaranteed to other private institutions
of that nature.” (see, for the version of the text in contemporary Turkish, Lozan
Barış Konferansı, Tutanaklar-Belgeler, Trans. Seha L. MERAY, Vol. 8,
İstanbul 2001, p. 12).
2. During the rule of the Ottoman Empire,
questions regarding the Armenian community’s religious status, needs and
election of the Armenian Patriarch were governed by the 1863 Regulation on the
Armenian Community (Nizamnâme-i Millet-i Ermeniyan). Regard being had to
the Compendium of the Republic of Turkey, the Regulation in question does not
seem to be in effect or listed as one of the regulations in force.
3. From the explicit wording in the “1961
Directive on Election of the Patriarch” (composed of 30 articles in total)
which is acknowledged to be appended to the Council of Ministers decision no.
5/1654 dated 18 September 1961, which read “... The election to be held for the
vacant seat of the Armenian Patriarch of İstanbul, until a new law and
regulation is enacted and for one time only and without any legal effect to the
future, shall be carried out through the intermediary of the Election
Committee comprised of the clergy and civilians, among candidates who are
paternally Turkish ...”, it is understood that this directive performed its
one-time duty and is no longer in force, either.
4. In the present case, two separate
requests were submitted with the administration on the ground that the
incumbent Armenian Patriarch was no longer able to effectively fulfil his
duties due to his medical condition: the first by the Locum Tenens and
the Chairman of the Spiritual Assembly (the Spiritual group); and the second by
some members of the Armenian community who described themselves as the
“Election Steering Committee for the Election of the Patriarch of the Armenians
of Turkey” (the Civilian group). While the drafters of the first petition
indicated that the incumbent Patriarch would be recognised as the Patriarch
until his last breath and thus requested to elect a “Co-patriarch”, the second
petition directly concerned a request for the election of a new Patriarch
altogether. The administration (İstanbul Governor’s Office) joined these two
requests together, disapproved the Spiritual group’s proposal to elect a Co-patriarch,
and declared that only an election for a “Patriarchal Vicar-general” could be
held. Upon this notification, the Spiritual General Assembly of the Armenians
of Turkey informed the administration of the name of the Patriarchal
Vicar-general whom they had designated via an election. With the decision dated
18 August 2010 of the Council of Ministers, the administration granted that
person leave to wear religious garments outside the place of worship and
religious rituals as long as he occupied this function. In the absence of a
response to the Civilian group’s request, the applicants filed an action for
annulment of this implicit rejection before the administrative justice. The
administrative court dismissed the case by finding no contravention of law in
the administration’s act which found “in favour of holding an election for a
Patriarchal Vicar-general” on the grounds that the diseased Patriarch had not
died or resigned, that the seat of the Patriarch had not become vacant, and
that it would not be possible to elect a new Patriarch until his death.
Consequently, this decision was found to be in line with the law and upheld by
the Supreme Administrative Court.
5. As one can see, there is no applicable
legislative provision concerning the Election of the Patriarch of the Armenians
Community, nor is there any explicit stipulation in the Treaty of Lausanne in
this respect. Nonetheless, Article 42 of the above-mentioned Treaty of Lausanne
places the Turkish Government (the administration) under an obligation to grant
all facilities to the religious institutions of the Armenian community (which
includes the Patriarchate) and to protect these religious institutions. Under
these circumstances, being the highest norm concerning the Armenian minority,
the provisions of this Treaty must be applied as a priority.
6. Even though Article 42 of the Treaty
does not contain a specific provision with regard to the Election of the
Patriarch, there have been no problems in patriarchal elections since the
foundation of the Republic thanks to the mutually good relations between the
Armenian Community and the Government of the Republic of Turkey and the
Armenian Community has complied with the procedures set out under the
Directives by the administration during various election processes held since
1961. Even when the 1863 Regulation and the 1961 Directive were not in force,
the administration performed its obligation to “protect and facilitate” under
Article 42 of the Treaty of Lausanne by means of resorting to both of those
texts at times and introducing problem-solving arrangements. As a consequence
of the ancient solidarity and cooperation between the State and the Armenian
Community, the gap which resulted from the diseased Patriarch’s inability to
fulfil his duties was filled by the formula deemed appropriate by the
administration involving the election of a “Patriarchal Vicar-general” (the
administrative act), which was also established to be lawful via decisions of
the inferior courts.
7. The formula set forth by the
administration in accordance with Article 42 of the Treaty of Lausanne was not
challenged by the “Spiritual group” composed of the Locum Tenens of the
Armenian Community and the Chairman of the Spiritual Assembly. Thanks to this
methodology based on the joint will of the parties, an election was held for a
Patriarchal Vicar-general and the person elected was granted leave to wear
religious garments outside the place of worship and religious rites. On the
other hand, there is no legal basis for the applicants -comprised of certain
individuals from the Armenian Community who call themselves the “Election
Steering Committee for the Election of the Patriarch of the Armenians of
Turkey” (the Civilian group)- to take it upon themselves to organise this
process and to make requests of the administration. In turn, the administration
is not under an obligation to take them into account in terms of the act it
decided to issue (i.e. the proposed formula). The Government of the Republic of
Turkey (the administration), pursuant to the duty and obligation placed
thereupon under Article 42 of the Treaty of Lausanne, enjoys full discretion in
the determination of whom it will recognise as its addressee with regard to the
Armenian Patriarchate and how it will achieve a constructive cooperation.
Indeed, the exercise of this discretionary power was reviewed and found to be
lawful by the inferior courts with relevant and sufficient reasons. It is not
possible to qualify the impugned administrative act as an interference with the
freedom of religion as it is, by nature, a continuation of the administration’s
approach towards the elections for the Armenian Patriarchate which has taken
place in nearly the last century since the declaration of the Republic. The
allegations raised under the individual application at hand are matters to be
examined at the level of appellate legal remedies. Since there is no manifest
error of discretion or arbitrariness, there is no contravention of law from the
aspect of the right to a reasoned decision, either.
For these reasons, seeing no reason to find a
violation of the freedom of religion, we disagree with the majority’s view on
the violation of Article 24 of the Constitution.
CONCURRING
OPINION OF JUSTICE M. EMİN KUZ
The rejection of the applicants’ request for
holding a patriarchal election has been found to be in violation of the freedom
of religion.
Though concurring with the finding of a
violation, I agree with the view to the effect that the impugned interference
was not prescribed by law for different reasons.
Under the examination of legality, the Court
has held that in order to accept that an interference made within the scope of
Article 24 of the Constitution meets the requirement of being prescribed by
law, it is compulsory that the intervention has a legal basis; that this
necessitates the formal existence of a law; that neither the applicant nor the
Ministry contested the validity of the relevant Regulation and Directive; and
that, even though the first-instance court dismissed the case by interpreting
the relevant article of the Regulation, there was no accessible, foreseeable
and clearly precise provision of law within the meaning of Article 13 of the
Constitution. Consequently, the Court has concluded that the interference did
not have a legal basis (§§ 71-81).
As indicated in the judgment, when there is an
interference with a fundamental right or freedom, it should be ascertained
whether there is a provision of law that authorises the interference. The same
principle applies to an interference within the scope of Article 24 of the
Constitution.
It is also known, on the other hand, that the
legality requirement also encompasses a material content and, thereby, the
quality of the wording of the law becomes more of an issue. In this sense, this
requirement guarantees accessibility and foreseeability of the provision
regarding restrictions as well as its clarity which refers to its certainty
(§72).
Although the majority has indicated that
neither the applicant nor the Ministry objected to the validity of the
Regulation and that the first-instance court dismissed the case by interpreting
the relevant article of the Regulation, it has been concluded that the piece of
legislation in question was not an “accessible, foreseeable and clearly precise
provision of law within the meaning of Article 13 of the Constitution -capable
of preventing arbitrary acts ... and allowing individuals to know the law-”.
As it is well known, the laws and regulations
from the Ottoman-era legislation which are still in force are included with the
beginning of Volume I of the Compendium of Laws in Force -published by the
Prime Ministry- and it is indicated that the validity thereof was established
by the Project Management Board which had been founded by the decision no.
8/3468 dated 14 August 1981 of the Council of Ministers (Yürürlükteki
Kanunlar Külliyatı, Vol. I, p. IX and pp. 1-126/3).
This Regulation is neither listed under the
heading “The Laws and Regulations from the Ottoman Legislation which are Still
in Force” in the beginning of the Compendium of Laws in Force, nor is there any
information to indicate that this Regulation was repealed or annulled by a
tribunal.
It is beyond doubt that the aforementioned
acknowledgement by the Project Management Board is simply an administrative act
and it is possible for the courts to recognise the Regulation, or certain
provisions thereof, to be still in effect and take it as a basis for their
decisions.
It is clear that the 1863 Regulation which
contains certain provisions pertaining to patriarchal elections, the
Patriarchate bodies and their functioning had the effect of law within the
Ottoman regime at the time. It is also clear that, despite not being named in
the Compendium as one of the regulations that are still in force and has the effect
of law, certain provisions thereof referred to in the judgment (§§ 35-43) are
still in force as long as they do not contradict the legal order of the
Republic of Turkey and have not been repealed explicitly or implicitly. Indeed,
as noted in the judgment, the inferior courts dismissed the applicants’ case by
relying on the applicable article of the Regulation.
In other words, the applicants argued that a
patriarchal election had to be held when the seat of the Patriarch becomes
vacant due to the Patriarch’s death or resignation or other “various reasons”
according to Article 2 of the Regulation and they requested the launch of the
election procedure as the incumbent Patriarch’s condition fell within the scope
of those “various reasons”. In turn, when the applicants filed an action on the
same grounds, the 3rd Chamber of the İstanbul Administrative Court
dismissed the case by interpreting the same provision and finally the Supreme
Administrative Court upheld this ruling.
It is thus understood that the interference
has stemmed not from the absence of a provision of law which was accessible,
foreseeable and clearly precise from the standpoint of the applicants but, in
fact, from the interpretation of that provision by the administration and the
inferior courts.
There is no doubt that, as well as a lack of
the guarantees required for satisfaction of the “legality” criterion in the
provisions which constitute the basis of the interference, not enforcing or
rendering ineffective the legislation will also violate constitutional rights.
Despite the fact that many of the articles in
the said Regulation are incompatible with the legal order of the Republic of
Turkey and have been implicitly repealed, I am of the opinion that the second
article thereof relating to the patriarchal elections -an undisputed
requirement of the freedom of religion which is also guaranteed by the Treaty
of Lausanne- has the effect of law and is still in force. Therefore, I agree
with the eventual finding of a violation from the aspect of “legality” not
because the aforementioned provisions constituting the basis of the
interference were not accessible, foreseeable and clearly precise provisions of
law within the meaning of Article 13 of the Constitution but because the
administrative and judicial decisions causing the interference rendered the
provision ineffective.
DISSENTING OPINION OF JUSTICES RECAİ AKYEL AND
YILDIZ SEFERİNOĞLU
The application concerns an alleged violation
of the freedom of religion due to the rejection of the applicant’s request for
holding an Election of the Patriarch of the Armenians of Turkey.
After the patriarchal seat became vacant upon
the death of Patriarch of the Armenians of Turkey Karakin Kazancıyan on 10
March 1998, Archbishop Mesrop Mutafyan was elected on 4 October 1998 into the
seat within the framework of the rules set out by the “Directive on Election of
the Patriarch”, which had been put into force via a decree of the Council of
Ministers in 1961.
As from the summer of 2007 certain changes
were observed in the behaviour of Patriarch Mesrop Mutafyan and, after medical
examinations, various health care establishments expressed that Patriarch
Mesrop Mutafyan was too ill to fulfil his duties.
In late 2009 two separate petitions were
submitted with the İstanbul Governor’s Office for holding elections for a new
patriarch due to the incumbent Patriarch’s inability to fulfil his duties.
The first petition, dated 3 December 2009, was
signed by Archbishop Şahan Sıvacıyan, Locum Tenens, and Aram Ateşyan,
Chairman of the Spiritual Assembly (the Spiritual group). The Spiritual group
indicated that Patriarch Mesrop had been unable to fulfil his duties due to
health issues and that he would be recognised as the Patriarch until his last
breath as a manifestation of the respect for ancient customs and traditions.
For this reason, they proposed to hold elections for a new spiritual leader
under the name of “Co-patriarch of the Armenians of Turkey” to exercise full
power the patriarch and, in case of the Patriarch’s demise, to continue his
service in the capacity of “Patriarch of the Armenians of Turkey”.
On the other hand, another group, which
included the applicants, formed the “Election Steering Committee for the
Election of the Patriarch of the Armenians of Turkey” (the Civilian group) on 9
December 2009. On 14 January 2010 the Civilian group applied to the Ministry of
Interior through the channel of the İstanbul Governor’s Office to request
elections to be held for a new patriarch. This petition bore the signatures of
applicants Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan in their
capacities as the chair and the secretary of the committee, respectively. The
Civilians stated that Patriarch Mutafyan was too ill to fulfil his duties,
which meant that the seat of the Patriarch had become de facto vacant.
The Civilians argued that Article 2 of the 1863 Regulation (Nizamname-i
Milleti Ermeniyan), which constituted the source of the procedures and
principles followed in patriarchal elections, ordered the election of a new
Patriarch under those circumstances. The names of members of the Election
Steering Committee -formed by the Civilians- and the Directive on Patriarchal
Election adopted by the Election Steering Committee were submitted with the
İstanbul Governor’s Office.
In its letter dated 29 June 2010, the İstanbul
Governor’s Office evaluated jointly the two petitions submitted by the
Spiritual and Civilian groups. Despite the separate requests of the Civilian
and Spiritual groups, the Governor’s Office set forth a new proposal. Having
examined the petitions submitted therewith and the existing legislation in this
field, the Governor’s Office saw no legal basis to either hold elections for a
new Patriarch or form an election steering committee to elect a Co-patriarch
because the seat of the Patriarch had not yet become vacant.
In conclusion, since new elections could not
be held while the seat of the Patriarch was still occupied and the Co-patriarch
position was not prescribed by the legislation, the İstanbul Governor’s Office
decided that the competent bodies of the Patriarchate could elect a “Patriarchal
Vicar-general” to perform the religious and charitable affairs of the
Patriarchate and the community. Thereupon, Archbishop Arem Ateşyan was elected
the “patriarchal vicar-general” by the Spiritual General Assembly of the
Armenians of Turkey on 6 July 2010. On 18 August 2010 the Council of Ministers
granted Arem Ateşyan permission to wear religious garments outside the place of
worship and religious rituals as long as he occupied this function.
Until this incident, there had been no other
case of the Patriarch’s inability to fulfil his duties due to illness.
Therefore, it must be acknowledged that the present case involves a particular
problem. In view of the events as a whole, it is clear that the İstanbul
Governor’s Office pursued the aim of resolving an existing dispute within the
Armenian Community of Turkey with regard to patriarchal elections and
preventing a potential conflict. The compromise proposed by the İstanbul
Governor’s Office reflects the views of both parties.
There is no doubt as to the fact that the
position of co-patriarch does not exist in the traditions of the Armenian
community. On the other hand, it has not been established, either, whether
there is a rule or practice which envisages the incumbent patriarch to be
regarded as resigned from duty once he becomes unable to fulfil his patriarchal
duties. In our view, there is no contravention of the existing directives or
community traditions in the proposed solution of the İstanbul Governor’s
Office, which thought that it would be more appropriate for a “patriarchal
vicar-general” to be assigned as a temporary solution until a new patriarch
could be elected. It should also be kept in mind that the proposed solution at
issue is a temporary practice. For these reasons, we cannot agree with the
majority’s finding of a violation.