On 2 December the Second Section ECtHR handed down two adverse judgments against Turkey for failure to respect Article 9 ECHR: one involving the Alevis and the other a Kurdish cultural association.

The Alevis

There are reckoned to be about 20 million Alevis in Turkey. They draw on Shi’a, Sufi and Anatolian folk traditions and have distinct rituals which can put them at odds with Sunni Muslims, to the extent that there is an argument as to whether Alevism is a distinct religion or merely a (heretical) branch of Islam.

In Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi v Turkey [2014] ECHR 1346 (French Text), the applicant foundation, Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı [Foundation for Republican Instruction and Culture: “CEM”] was established as a charity in 1995 with tax exemption under Decision No 1995/127 of 27 May 1998. It manages a number of cemevis: Alevi places of worship [5]. One of them is in Yenibosna.

In 2006 the director of the Foundation explained to the local electricity utility that the Foundation’s centre at Yenibosna was an Alevi place of worship, with a cemevi and a room dedicated for funerals; and because the law exempted places of worship from paying for electricity, he asked the utility to stop sending electricity bills to the Yenibosna centre [6]. The company replied that, since the adoption of Decision No 2002/4100 by the Council of Ministers, free electricity for places of worship had been abandoned and that the electricity bills of places of worship were now supported by funding from the Directorate of Religious Affairs [7].

When CEM challenged this in court, the Directorate of Religious Affairs responded that places of worship were for the exercise of religion: there was no such religion as Alevism, historically or scientifically, [il n’existe pas de religion appelée « la religion alévie », ni sur le plan historique ni sur le plan scientifique] so the Yenibosna centre could not be regarded as a place of worship [9]. CEM took the Directorate’s ruling all the way to the Court of Cassation – without success. Before the Second Section, CEM argued that being deprived of the privilege of free electricity was discrimination contrary to Article 14 ECHR taken together with Article 9 and contrary to Article 9 on its own.

The Court noted that CEM was at a disadvantage compared to other places of worship [43]. Alevism was protected by Article 9 ECHR [Eylem and Hasan Zengin  v Turkey [2007] and Sinan Işık v Turkey [2010]. The Yenibosna centre had a room dedicated to the practice of cem, an essential part of Alevi worship and its activities had no commercial purpose. Therefore, cemevis were places for religious worship [44].. Freedom of religion did not mean that religious groups should be granted a special legal status or tax regime; but a special status had, in fact, been created for places of worship under Turkish law; and CEM was in a situation comparable to that of other places of worship. So tacitly to exclude cemevis from the scope of the electricity exemption was a difference in treatment based on religion [45].

The Turkish authorities had argued that Alevism was a Sufi interpretation of Islam rather than a separate religion and, as such, it could not have its own places of worship [46]; however, though states parties enjoyed a certain margin of appreciation in such matters, the Court had already held that where an applicant had established the existence of a difference in treatment, it was for the Government to justify it [47]. Though there was no obligation on states parties to grant special status to places of worship, given that Turkey had done so, the Government had offered no justification for the difference in treatment between places of worship and cemevis [48 & 50]. Moreover, a reduced charge for electricity was no compensation for refusal to exempt from payment [51].

The difference in treatment had no objective and reasonable justification and had therefore violated Article 14 taken together with Article 9. There was no reason to examine the separate complaint under Article 9 (a conclusion from which Sajó J dissented, arguing that the limited status of cemevis under the current legislation did not fully respect Alevis’ Article 9 rights).

Kurdish Muslims

In Güler and Uğur v Turkey [2014] ECHR 1342 (French Text) the applicants were regional leaders of the Party for a Democratic Society [Demokratik Toplum Partis: “DTP”], subsequently dissolved by the Constitutional Court. Mr Güler, former Mayor of Başkale District, was also president of the Kurdish Association for Culture, Democracy and Solidarity [Kürt Kültür ve Demokrasi Dayanışma Derneği]. In August 2006, they took part in a religious ceremony [mevlut] on DTP premises in memory of three members of the Kurdistan Workers’ Party [“PKK”] killed by the security forces. Participants read passages from the Qu’ran, said prayers and showed a video about the lives of the deceased [7 & 8]. The Prosecutor’s Office of Muş then received an anonymous tip-off, with a CD recording of the event, that the ceremony was in memory of “PKK martyrs” [9]. The applicants were charged, tried under the anti-terrorism laws and sentenced to ten months’ imprisonment. They argued at their trial that they had participated in the ceremony to fulfill their religious obligations [10-12]. The judgment was upheld by the Supreme Court.

Before the Second Section they relied on Articles 7, 9 and 11 ECHR, alleging that their conviction was based on their participation in a religious ceremony. Nor was their conviction sufficiently predictable, given the wording of the law under which they had been convicted. However, the Court chose to examine the complaint solely under Article 9 [26].

The Court noted that Article 9 did not protect every act motivated or inspired by a religion or belief nor guarantee every public manifestation: see, most recently, SAS v France [2014] GC [36]. However:

• it was not disputed by the parties that mevlut was a religious rite commonly practised by Muslims in Turkey [40];
• general comment No. 22 adopted by the UN Human Rights Committee to manifest religion or belief in worship, observance, practice and teaching encompassed a variety of acts: the notion of “ritual” included rites and ceremonies expressing the convictions of the people, including ceremonies around deaths: it was irrelevant that the dead were or were not members of an illegal organization [41];
• the fact that the ceremony was organized on the premises of a political party in which symbols of a terrorist organization were present did not deprive the participants of the protection of Article 9 [42]; and
• the applicants’ conviction had interfered with their right to manifest [43].

The Government’s objection failed at the first hurdle: whether or not the interference was “prescribed by law”. The Court decided that it could not follow either the reasoning of the domestic courts or the Government’s observations that the applicants had had a role in choosing the ceremony’s location. The criminal act for which they had been convicted was their participation in the ceremony. Given the wording of Article 7 §2 of Law No 3713 on the Fight against Terrorism and the way in which the Assize Court of Ankara and the Supreme Court had interpreted it, the Court concluded that the interference with the applicants’ freedom of religion had not been “prescribed by law”. The law was insufficiently precise and predictable because it was not possible to prove that the applicants’ mere participation in the ceremony might fall within the scope of Article 7 §2 [55]. It was therefore unnecessary to consider whether or not the interference pursued a “legitimate aim” and was “necessary in a democratic society” [56].

Comment

Turkey has a good deal of previous for violations of Article 9. The events in Güler and Uğur appear to have been motivated by the long-running dispute between the authorities in Ankara and the Kurds. That is, perhaps, understandable even if it is regrettable; but the attitude of the Turkish authorities to the Alevis is much less so.

On the day after the ECtHR handed down judgment, the Turkish Supreme Court ruled that Alevis can found associations to open or build cemevis and, at the same time, that the judiciary does not have the right to say what is, or is not, a house of worship. The Directorate of Religious Affairs had tried to close down the defendant Cankaya Cemevi Building Association on the grounds that cemevis were not “places of worship” – which is what the Directorate had argued in Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi – notwithstanding the fact that the Prime Minister, Ahmet Davutoglu, claims that he is trying to end discrimination by the state against the Alevi minority.

Perhaps the Prime Minister needs to have a sharp word with the civil servants in the Directorate of Religious Affairs. Or even commission a Turkish translation of Lord Toulson’s judgment in Hodkin…