İzzettin Doğan and Others v. Turkey [GC]

Information Note on the Court’s case-law 195

April 2016

İzzettin Doğan and Others v. Turkey [GC] - 62649/10

Judgment 26.4.2016 [GC]

Article 9

Article 9-1

Freedom of religion

Manifest religion or belief

Refusal to provide public religious services to members of Alevi faith: violation

Article 14

Discrimination

Difference in treatment between members of Alevi faith and citizens adhering to majority branch of Islam: violation

Facts – In June 2005 the applicants, who are followers of the Alevi faith, individually submitted a petition to the Prime Minister requesting that the services connected with the practice of the Alevi faith constitute a public service, that Alevi places of worship (cemevis) be granted the status of places of worship, that Alevi religious leaders be recruited as civil servants and that special provision be made in the budget for the practice of the Alevi faith. The Prime Minister’s public-relations department replied that it was impossible to grant their requests. Almost 2,000 people, including the applicants, subsequently lodged an application for judicial review of that refusal with the Administrative Court. In July 2007 the Administrative Court dismissed the application, ruling that the administrative authorities’ refusal had been in conformity with the legislation in force. The applicants lodged an appeal on points of law which was dismissed by the Supreme Administrative Court.

In their application to the European Court the applicants alleged a violation of Article 9 of the Convention on account of the refusal of their requests for a religious public service to be provided to followers of the Alevi faith. They further complained of a violation of Article 14 of the Convention taken in conjunction with Article 9, alleging that the members of the Alevi community received less favourable treatment than citizens adhering to the Sunni branch of Islam.

On 25 November 2014 a Chamber of the Court decided to relinquish jurisdiction in favour of the Grand Chamber.

Law

Article 9: The refusal complained of, which amounted to denying the religious nature of the Alevi faith, constituted interference with the applicants’ right to freedom of religion. The Court accepted that the interference in question had been “prescribed by law” and had pursued a legitimate aim, namely the protection of public order.

The Government advanced several arguments as justification for that interference. They submitted (a) that they complied with their duty of neutrality with regard to religions; (b) that, despite the restrictions imposed by the law, Alevis were able to exercise their freedom of religion without any hindrance; (c) that the national authorities enjoyed considerable discretion in the matter; and (d) that there were numerous differences with regard to the definition, resources, rituals, ceremonies and rules of Alevism in Turkey.

The Court examined each of these reasons in order to ascertain whether they were “relevant and sufficient” and whether the refusal in question had been “proportionate to the legitimate aims pursued”.

(a) The State’s duty of neutrality and impartiality towards the Alevi faith – Although the Turkish Constitution guaranteed the principle of secularism, which prohibited the State from manifesting a preference for a particular religion or belief, the attitude of the Turkish State towards the Alevi faith infringed the Alevi community’s right to an autonomous existence, which was at the very heart of the guarantees in Article 9 of the Convention. This attitude on the part of the State authorities made no allowances for the specific characteristics of the Alevi community and resulted in the latter coming within the category of religious groups covered by Law no. 677*, which entailed significant prohibitions. It was incompatible with the State’s duty of neutrality and impartiality and with the right of religious communities to an autonomous existence.

(b) The free practice by Alevis of their faith: Law no. 677 laid down a number of significant prohibitions with regard to these religious groups, relating for instance to the use of the title “dede” (denoting an Alevi spiritual leader) and to the designation of premises for Sufi practices. These practices were banned and were punishable by a term of imprisonment and a fine. The Court expressed serious doubts as to the ability of a religious group that was thus characterised to freely practise its faith and provide guidance to its followers without contravening the aforementioned legislation.

Moreover, in addition to the refusal to recognise the cemevis as places of worship, Alevis faced numerous other problems which affected not just the organisation of the religious life of their community but also the rights of Alevi parents whose children attended primary and secondary schools. The Court had previously held that the education system in Turkey was not appropriately equipped to ensure respect for the beliefs of Alevi parents**.

Furthermore, the absence of a clear legal framework governing unrecognised religious minorities such as the Alevi faith caused numerous additional legal, organisational and financial problems with regard to the ability to build places of worship, receive donations or subsidies and have access to the courts. Religious communities trying to operate as a foundation or an association faced numerous legal obstacles.

The Court was therefore not convinced that the freedom to practise its faith which the authorities left to the Alevi community enabled that community to fully exercise its rights under Article 9.

(c) Margin of appreciation – The State’s duty of neutrality and impartiality excluded any power on its part to determine whether religious beliefs or the means used to express such beliefs were legitimate. The right enshrined in Article 9 would be highly theoretical and illusory if the degree of discretion granted to States allowed them to interpret the notion of religious denomination so restrictively as to deprive a non-traditional and minority form of religion, such as the Alevi faith, of legal protection.

(d) The absence of consensus within the Alevi community – The fact that there was a debate within the Alevi community regarding the basic precepts of the Alevi faith and the demands of the Alevi community in Turkey did nothing to alter the fact that it was a religious community with rights protected by Article 9 of the Convention. The existence of such an internal debate did not constitute grounds for the refusal complained of, particularly since the respondent State had had the opportunity to identify and bring together the demands common to Alevi citizens, and a clear consensus had emerged on issues pertaining to the autonomy of the Alevi community and the fundamental elements of the faith.

In sum, in the absence of relevant and sufficient reasons to justify refusing the recognition that would allow the members of the Alevi community to effectively enjoy their right to freedom of religion, the respondent State had overstepped its margin of appreciation. The interference complained of could not therefore be considered necessary in a democratic society.

Conclusion: violation (twelve votes to five).

Article 14 taken in conjunction with Article 9: The facts complained of came within the scope of Article 9 of the Convention, and “religion” was specifically mentioned in Article 14 as a prohibited ground of discrimination. Article 14 was therefore applicable to the facts of the case.

In Turkish law, the religious public service benefited only the followers of the majority (Sunni) understanding of Islam, while Alevi citizens were deprived of that service and of the corresponding status. Irrespective of the place occupied by the Alevi faith in Muslim theology, there was no doubt that it was a religious conviction which had deep roots in Turkish society and history. Alevis formed a religious community which had distinctive characteristics in numerous spheres including theological doctrine, principal religious practices, places of worship and education. The needs of its followers with regard to recognition and the provision of a religious public service in respect of their community appeared comparable to the needs of those for whom religious services were regarded as a public service. The applicants, as Alevis, were therefore in a comparable situation to the beneficiaries of the religious public service provided by the Religious Affairs Department (RAD).

The right to freedom of religion protected by Article 9 encompassed the freedom, in community with others and in public or in private, to manifest one’s religion in worship, teaching, practice and observance. Accordingly, the applicants received less favourable treatment than the beneficiaries of the religious public service despite being in a comparable situation.

The main argument relied on by the Government as justification for this difference in treatment was based on a theological debate concerning the place of the Alevi faith within the Muslim religion. Such an approach was inconsistent with the State’s duty of neutrality and impartiality towards religions and clearly overstepped the State’s margin of appreciation in choosing the forms of cooperation with the various faiths. In particular, there was a glaring imbalance between the applicants’ situation and that of persons who benefitted from the religious public service, especially with regard to the applicable legal regimes and entitlement to State subsidies. The Court failed to see why the preservation of the secular nature of the State should necessitate denying the religious nature of the Alevi faith and excluding it almost entirely from the benefits of the religious public service.

In the light of the considerations outlined in relation to Article 9, the Court also doubted whether the Turkish system clearly defined the legal status of religious denominations, and especially that of the Alevi faith. The Alevi community was deprived of the legal protection that would allow it to effectively enjoy its right to freedom of religion. Moreover, the legal regime governing religious denominations appeared to lack neutral criteria and to be virtually inaccessible to the Alevi faith, as it offered no safeguards apt to ensure that it did not become a source of de jure and de facto discrimination towards the adherents of other religions or beliefs. In a democratic society based on the principles of pluralism and respect for cultural diversity, any difference on grounds of religion or beliefs required compelling reasons by way of justification.

Whatever form of cooperation with the different religious communities was chosen, the State had a duty to put in place objective and non-discriminatory criteria so that religious communities which so wished were given a fair opportunity to apply for a status which conferred specific advantages on religious denominations.

In sum, in view of the existence of an Alevi community with deep roots in Turkish society and history, the importance for that community of being legally recognised, the Government’s inability to justify the glaring imbalance between the status conferred on the majority understanding of Islam in the form of a religious public service, and the almost blanket exclusion of the Alevi community from that service, and also the absence of compensatory measures, the choice made by the respondent State appeared to the Court to be manifestly disproportionate to the aim pursued. The difference in treatment to which the applicants, as Alevis, were subjected thus had no objective and reasonable justification.

Conclusion: violation (sixteen votes to one).

Article 41: The findings of a violation constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.

* Law no. 677 of 30 November 1925 on the Closure of Dervish Monasteries and Tombs, the Abolition of the Office of Keeper of Tombs and the Abolition and Prohibition of Certain Titles.

** See Mansur Yalçın and Others v. Turkey, 21163/11, 16 September 2014, Information Note 177.

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This summary by the Registry does not bind the Court.

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