Published on 10 June 2024
SECOND SECTION
Application no. 12549/23
Niko MAVRAKIS against Türkiye
and 2 other applications
(see list appended)
communicated on 21 May 2024
SUBJECT MATTER OF THE CASE
The applications concern Greek Orthodox clergymen’s complaints relating to the refusal of the domestic authorities to allow them to become members of the board of directors of Greek Orthodox foundations and the judicial review of this refusal.
The applicants are two Greek Orthodox priests, Mr Corç Kasapoğlu and Mr Niko Mavrakis, who were elected as members of the board of directors of Greek Orthodox foundations (two church foundations and a high school foundation, hereinafter “the Foundations”), considered as private legal entities under Turkish law, belonging to the Greek Orthodox minority in Istanbul. Following the applicants’ election as members of the board of directors, the Directorate General of Foundations (hereinafter “the Directorate”) issued a Certificate of Authorisation (“mazbata”) in which the names of the applicants were removed from the list of the members of the board of directors on the ground that they were clergymen. The applicants initiated administrative proceedings before the Istanbul Administrative Court claiming that the decisions of the Directorate did not have a basis in domestic law and requested their annulment. The Istanbul Administrative Court accepted the applicants’ claims and annulled the Directorate’s impugned decisions. The Supreme Administrative Court, ruling on appeal, quashed the Istanbul Administrative Court’s decisions on the grounds that the administrative courts did not have jurisdiction as the Foundations were considered as private legal entities, and that the civil courts had jurisdiction to decide on the cases. Following the Supreme Administrative Court’s ruling, the cases were referred back to the Istanbul Administrative Court and that court rejected the cases due to lack of jurisdiction. The Istanbul Administrative Court’s decisions were upheld by the Supreme Administrative Court. The proceedings before the administrative courts, two concerning church foundations and one concerning a high school foundation, in their entirety, lasted seven and eight years respectively.
The applicants then lodged three individual applications with the Turkish Constitutional Court (hereinafter “TCC”). Relying on their rights to freedom of assembly and association and freedom of thought, conscience and religion, the applicants complained of the Directorate’s decision to remove their names from the list of the members of the board of directors, arguing that there were no legal provisions under the relevant Law or Regulation restricting the selection of clergymen as board members of a foundation. Furthermore, referring to a previous case examined by the administrative courts on a similar issue, the applicants claimed that the administrative courts’ decisions declining jurisdiction were inconsistent with their previous decisions and had been rendered in an arbitrary fashion. Finally, the applicants submitted complaints under the principle of non-discrimination claiming that there had been a difference in treatment between them and the Muslim foundations, which were allowed to have clergymen in their board of directors.
Joining two individual applications lodged by the applicants in the context of applications nos. 71/24 and 2023/24, the TCC considered that the applicants had been prevented from exercising their freedom of assembly and association for seven years, pending the legal proceedings before the administrative courts with no determination on the substantive issues of their cases, and awarded them compensation. As regards the applicants’ complaints on the decisions declining jurisdiction of the administrative courts, the TCC considered that the applicants had not raised any claims about the ineffectiveness of the remedies before the civil courts, which they were yet to exhaust. In this regard, the TCC assessed that it was not in a position to decide on the substantive issues of the case due to its subsidiary role.
However, in a third individual application lodged in the context of application no. 12549/23 which concerned Mr Mavrakis’s membership of the board of directors of a Greek Orthodox high school foundation, the TCC made a different assessment. Without examining the applicant’s complaints concerning freedom of assembly and association and freedom of thought, conscience and religion, the TCC only ruled on the applicant’s complaints regarding the right of access to court and the right to free elections and declared them inadmissible for being manifestly ill-founded and for non-exhaustion of the available remedies respectively.
Relying on Articles 6 and 13 of the Convention, the applicants complain of the lack of an effective remedy at their disposal to challenge the decision of the Directorate General of Foundations. In particular, they point out that the administrative courts had refused to decide on the merits of their cases following proceedings that lasted for seven and eight years, allegedly contrary to their previous case-law, while the civil courts would only be able to order the annulment or renewal of the elections, and this would not afford sufficient redress for the protection of their rights. They also complained that the Directorate’s decisions to remove their names from the lists of the members of the board of directors on the ground that they were clergymen constituted a violation of their rights under Articles 9 and 11 of the Convention. Finally, relying on Article 14 of the Convention, taken in conjunction with Articles 9 and 11 of the Convention, the applicants claim that there was a difference in treatment between Muslim foundations and Greek Orthodox foundations as regards the presence of clergymen on the Board of Directors.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies at their disposal, as required by Article 35 § 1 of the Convention (see, for example, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-90, 25 March 2014)?
2. Did the applicants have an effective remedy at their disposal to challenge the decision of the Directorate General of Foundations? In particular, do the civil courts offer an effective judicial remedy within the meaning of Article 13 of the Convention in respect of complaints under Articles 9 and 11 of the Convention concerning the removal of the names of the applicants from the list of members of the board of directors of Greek Orthodox foundations by the Directorate General of Foundations (see, for example, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, §§ 96-104, 26 October 2000, and Lashmankin and others v. Russia, nos. 57818/09 and 14 others, §§ 342-361, 7 February 2017)?
The Government is invited to submit sample decisions of the civil courts in comparable cases.
3. Did the removal of the applicants’ names from the list of members of the Board of Directors of the Foundations on the ground that they were clergymen constitute a violation of the applicants’ rights under Articles 9 and 11 of the Convention (see, for example, İzzettin Doğan and others v. Turkey [GC], no. 62649/10, 26 April 2016; Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, §§ 37-53, 27 February 2007, and The Religious Denomination of Jehova’s Witnesses in Bulgaria v. Bulgaria, no. 5301/11, 10 November 2020)?
4. Have the applicants suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention, read in conjunction with Articles 9 and 11 of the Convention (see, for example, Bączkowski and others v. Poland, no. 1543/06, §§ 85-101, 3 May 2007, and Ancient Baltic Religious Association “Romuva” v. Lithuania, no. 48329/19, §§ 124-149, 8 June 2021)?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
12549/23
Mavrakıs v. Türkiye
01/03/2023
Niko MAVRAKIS
1941
Istanbul
Turkish
Paris ASANAKIS
2.
71/24
Kasapoğlu v. Türkiye
13/12/2023
Corc KASAPOĞLU
1984
Istanbul
Turkish
Paris ASANAKIS
3.
2023/24
Mavrakıs v. Türkiye
13/12/2023
Niko MAVRAKIS
1941
Istanbul
Turkish
Paris ASANAKIS