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(Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan [GK], B. No: 2014/17354, 22/5/2019, § …)
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REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 

 

PLENARY

 

JUDGMENT

 

LEVON BERÇ KUZUKOĞLU AND OHANNES GARBİS BALMUMCİYAN

(Application no. 2014/17354)

 

22 May 2019

 


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).

 

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.

I. CASE DETAILS

Deciding Body Plenary Assembly
Decision/Judgment Type Merits (violation)
Tag
(Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan [GK], B. No: 2014/17354, 22/5/2019, § …)
   
Case Title LEVON BERÇ KUZUKOĞLU AND OHANNES GARBİS BALMUMCİYAN
Application No 2014/17354
Date of Application 30/10/2014
Date of Decision/Judgment 22/5/2019
Joined Applications 2016/4240
Official Gazette Date/Issue 10/4/2019 - 30827
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


 

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Freedom of religion and conscience Religion and conscience Violation Finding of a violation

10/7/2019

Individual Application 65/19

Press Release concerning the Judgment Finding a Violation of the Freedom of Religion due to dismissal of the Request for Holding an Election of Turkey’s Armenian Patriarch

 

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).

 

The Facts

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 Clericals whereas the second request was filed by the Civilians including the applicants.

The Governor’s Office tacitly rejected the Civilians’ request by leaving it unanswered and also refused the Clericals’ proposal as the patriarchate’s office was not vacant. It however notified that an election for a "general acting patriarch" could be held. Thereafter, the Turkey’s Armenian Clerical Committee held an election of general acting patriarch.

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 general acting patriarch had been reached as a result of the contacts made merely by the Clerical Committee; and that the election should have not been held merely by the Clerical 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’ Allegations

The applicants alleged that their freedom of religion had been violated, maintaining that the administration had interfered with an issue which should have been settled by the community itself and had tried to solve the patriarchal problem by way of creating an institution that did not actually exist in the community’s customs and practices, which amounted to an interference with the internal affairs of the community; and that the patriarchal election had been anti-democratically precluded.  

The Court’s Assessment

The election procedure of the patriarchs to hold the Patriarchate’s office located within the country started to be governed by statute law by virtue of the Code of Regulations (“Nizamname”) dated 1863. The provisions included therein and related to the election of the Armenian patriarch constitute the basis for practices that have been carried out so far. 

In the Code of Regulations, all circumstances when the patriarchate’s office shall be deemed vacant are not listed exhaustively; but instead the phrase “for various reasons” (esbab-ı saire) is stated therein, which means that also in similar circumstances when the patriarchate’s office becomes vacant, a new patriarch is to be elected.

In dismissing the request for election by restricting the circumstances when a new patriarch may be elected to cases of death and resignation, the administration did not interpret the phrase of “for various reasons” stated in the Code of Regulations. In the same vein, the administrative court dismissed the applicants’ action and failed to consider the meaning of this phrase, in spite of relying on the Code of Regulations in rendering its decision.

Although the patriarchate’s office generally becomes vacant upon the death of patriarchs, it appears that an elected patriarch previously abandoned his seat without even resigning, and a new patriarchal election was held to replace him. Given the fact that the said provision -where the circumstances when patriarchate’s office shall be deemed vacant are not listed on an individual basis but instead the phrase “for various reasons” is stated- leaves a wider margin of interpretation to the public authorities in practice, the decisions rendered by both the administration and the inferior courts could not be considered as relevant and sufficient.

It has been observed that will of the Armenian community has not played a role, for a period of over ten years, in the election of patriarch who assumes powers and duties of great importance for the community.

Besides, it appears that the civilians had a say in the patriarchal elections held during the Republican era. Therefore, election by the Clerical Committee of a general acting patriarch who would enjoy the religious and executive powers entrusted to the patriarch for a very long period has led to the prioritisation of the Clericals’ will and thus to the ignorance of the Civilians’ will.

In the present case, the Ministry explicitly decided under which circumstances the Armenian Patriarch would be elected. However, the State can in no way decide on the circumstances under which a new religious leader would be elected or on the election procedure, save for the case of meeting a pressing social need. As a matter of fact, as previously stressed by the Court, requirements of a religion or faith may be designated merely by the members of this religion or faith.

The administration failed to consider the probability of solving the matter through dialogue; nor did it develop policies in order to conclude the matter in compliance with the Armenian customs and traditions as well as its religious practices. In hindering the patriarchal election, the administration also failed to demonstrate the pressing social need outweighing the spirit of Armenian customs set forth in the Code of Regulations and the Armenian community’s will. It has been accordingly concluded that the interference with the applicants’ freedom of religion due to dismissal of the request for election of Turkey’s Armenian Patriarch cannot be considered to comply with the requirements of a democratic society.

Consequently, the Court has found a violation of the freedom of religion safeguarded by Article 24 of the Constitution.   

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

 

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