Grand Chamber Judgment in Izzettin Doğan and Others v. Turkey: More Than a Typical Religious Discrimination Case

On 26 April 2016, the Grand Chamber held, by 12 votes to 5, that there had been a violation of Article 9 ECHR, and, by 16 votes to 1, that there had been a violation of Article 14 taken in conjunction with Article 9 ECHR in the case of Izzettin Doğan and Others v. Turkey.

Relying on Article 9, taken alone and in conjunction with Article 14, the applicants complained that their right to manifest their religion had not been adequately protected in domestic law. It is important to note that their complaints are based both on their claims for public religious services and recognition of their cemevis (Alevi places of worship) as places of worship. They complained of the refusal of their requests seeking, among others, to obtain for the Alevi faith followers the same religious public service provided exclusively to the majority of citizens, who adhere to the Sunni branch of Islam. The applicants maintained that this refusal implied an assessment of their faith on the part of the national authorities, in breach of the State’s duty of neutrality and impartiality with regard to religious beliefs. They also contended that their request for the recognition of cemevis was refused. They further alleged that they had been the victims of discrimination on grounds of their religion, as they had received less favorable treatment than followers of the Sunni branch of Islam in a comparable situation, without any objective and reasonable justification.

The Judgment of the Grand Chamber

The most detailed assessment of the Court pertains to whether the restrictions in question are necessary in a democratic society. The Court considers that the state authorities’ attitude towards the Alevi community, its religious practices, and its places of worship is incompatible with the State’s duty of neutrality and impartiality and with the right of religious communities to an autonomous existence. While noting that the practice of faith for the Alevis was not impossible, in light of the prohibitions on tarikats and the use of certain religious titles, including the title of dede (of Alevi leaders), the Court was not convinced that the freedom to practice its faith which the authorities leave to the Alevi community enables that community to fully exercise its rights under Article 9. Finally, as regards the margin of appreciation, the Court found that Turkey had overstepped this margin in choosing the forms of cooperation with the various faiths.

The justification for finding a violation of Article 14 taken in conjunction with Article 9 is more clear-cut on the face of “the glaring imbalance between the applicants’ situation and that of persons who benefit from the religious public service” (para. 180). The Court held that 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 status that conferred specific advantages to religious denominations. Since the difference in treatment, to which the applicants as Alevis have been subjected, had no objective and reasonable justification there had been a violation of Article 14 taken in conjunction with Article 9.

Comment

The case provides rich material for the analysis of the ECtHR’s understanding of issues found within the ambit of Article 9. Due to space limitations, I can briefly address only a few.

The application supplies a wide range of issues that raise questions on negative and positive obligations under Article 9 as well as the prohibition of discrimination under Article 14. At the outset the complaint appears to be based on a combination of claims involving the denial of request for public religious services for the Alevi community and the denial of place of worship status for cemevis. A singular focus on the former would have led to merely an Article 14 finding, as proposed by the separate opinion of Judges Villeger, Keller and Kjolbro. The judgment, however, carefully identifies and isolates the essential issue, namely the denial of recognition of autonomous existence of the Alevi community. Admittedly, the Court engages in judicial activism; not in making law but in framing the legal issue. This is similar to its tactic in Sinan Işık v. Turkey. Here, the applicant had complained of the inability to register his Alevi faith on the national identity cards. The Court, however, framed the legal question differently and held that there should not be any obligation for the registration of religion or belief on identity cards.

Notwithstanding the admirable creativity with which the Court frames the legal question for a finding under Article 9 in Izzettin Doğan, the justification for this could have been substantiated with additional elements. Were the implications of the non-recognition of the cemevi considered when establishing the interference under Article 9, the judgment would have been stronger. In so doing, the Court would have demonstrated how the non-recognition led to, among others, the non-recognition of the cemevi as places of worship and the prohibition of the use of the dede title. This would have also weakened the basis for the separate opinion arguing that there was no violation of Article 9 since the applicants had solely been claiming public religious services.

The ECtHR’s approach to cases dealing with state religion arrangements has been rather nuanced. Where associative freedoms of religious or belief communities have been concerned the Court has often applied rigorous scrutiny whereas in cases dealing with financial state support for religious communities and state entanglement with religion, the Court has been inclined to adopt an accommodative approach to state practice – often conveniently relying on the doctrine of margin of appreciation. Since the apparent complaint in the Alevi case is based on inequalities intrinsic in the public religious services provided by the Turkish authorities, it is understandable that the Chamber relinquished jurisdiction in favor of the Grand Chamber.

The reason for the relinquishment may be the complexity of the Turkish situation. Indeed, it involves an asymmetrical situation. On the one hand the minority religious communities are not able to benefit from the public religious services – despite their financial contribution through taxes. At the same time, the collective dimension of their right to freedom of religion or belief remains highly restricted. It is this asymmetrical situation that differentiates the Turkish case from many European examples where benefits are enjoyed by the dominant religious community as a result of historical negotiations and, in contrast to Judge Silvis’ argument, makes the case more than “a typical religious discrimination case”. Judge Silvis maintained that there is no obligation under the Convention for the State to seek an active supporting role in matters of religion hence no violation of Article 9. Or the Chamber may have thought that the case would eventually end up with the Grand Chamber.

A substantive assessment of whether the restriction was prescribed by law is missing from the judgment. While there may be a legal basis for the refusal of certain claims made by the applicants, there is no legal basis for the non-recognition of cemevi as places of worship. Law No. 677 does not refer to cemevi as prohibited places of worship and Law No. 633 only provides a mandate for the Religious Affaires Directorate to oversee mosques and mesjid. An assessment of the domestic courts’ decisions on cemevi can be found in “A Trapped Right: The Right to Have Places of Worship”.

An interesting aspect of the judgment pertains to the disagreement regarding the distinct nature of the basis of the applicants’ complaint and the basis of the Grand Chamber’s assessment, as described in the joint opinion of Judges Villeger, Keller and Kjorbo. They claimed that the Court changed the focus from the applicant’s specific requests (para. 89) to the lack of a procedure for recognizing religious denominations (paras. 115 and 116). As a result, they argued, the Court departed from the very essence of the complaint.

In my view, by going beyond some of the issues stated by the applicants, the Court is able to address the crux of the issue, namely the non-recognition of the Alevi faith. It is because the authorities do not recognize the autonomous nature of the Alevi faith that they fail to fulfill both their negative and positive obligations. It is not common that the ECtHR is able and willing to see beyond the complaints and justifications for restrictions and address the real issues. Having said that, it is worth noting that the case for the Article 9 violation would have been more watertight and clearer if the consequences of non-recognition for the Alevi community were made part of the assessment of whether there has been interference in the exercise of freedom of religion. This would have removed the basis for arguments that see the application as claiming public religious services.

The separate opinion misreads the implications of the non-recognition for Alevis, arguing that there has not been interference in the exercise of their faith and that the applicants are merely asking for privileges. The non-recognition of the Alevi cemevi as places of worship results not only in the denial of benefits on par with other places of worship and in the reinforcement of social marginalization of the Alevi community but also in a lack of judicial protection. Often, the only way for Turkish administrative authorities and courts to be able to find cemevi compatible with legislation has been by reducing their status to cultural centers.

The judgment in Izzettin Doğan and Others v. Turkey is an important one for the ECtHR jurisprudence on state-religion arrangements because it rigorously scrutinizes a model that provides benefits to the dominant religious group in a way that creates restrictions on the right to exercise religion or belief in its collective dimension for a minority group. It has far-reaching implications for the state-religion relationship in Turkey. Essentially, normative challenges brought on by the judgment constitute yet another confrontation to Turkey’s long-standing state-religion relationship, which has led to numerous judgments by the ECtHR. Hardly any of the judgments pertaining to freedom of religion or belief has been effectively enforced by the Turkish authorities, however.