Background

Alevis are the largest minority religious group in Turkey, with an estimated size of between 10 and 20 million adherents. They draw on Shi’a and Sufi Islam and Anatolian folk traditions and have distinct rituals of their own. From the point of view of the Sunni Muslim majority, it is an open question as to whether Alevism is a distinct religion or merely a (heretical) branch of Islam. The religious status of the Alevis is well beyond the scope of this blog; however, the issue of official discrimination against them has been before the ECtHR on several occasions, most recently in Mansur Yalçın & Ors v Turkey [2014] ECHR 938 (about the content of the mandatory course on religious culture and ethics in schools) and Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi v Turkey [2014] ECHR 1346 (about discrimination against Alevi places of worship in the supply of free electricity). The position of Alevis has now come before the Grand Chamber of the ECtHR.

The facts

In İzzetin Doğan & Ors v Turkey [2016] ECHR 387 the applicants were 203 Turkish Alevis. In 2005, they petitioned the Prime Minister, complaining that the Religious Affairs Department (RAD) favoured a single school of Islamic thought while disregarding all other faiths, including Alevism. The RAD had been established by statute in 1965 and, simultaneously, a cadre of civil servants was established to deal with religious matters, including all civil servants who had received religious training and carried out a religious function: muezzins, preachers and Islamic judges [21 & 22]. The Constitutional Court had held in 1972 that the creation of a category of civil servants dealing with religious matters was compatible with the constitutional principle of secularism [23]. Despite the “secular” nature of the Turkish State, the “Islamic religious service” is regarded as a “public service”; and the RAD – which is in charge of that service – is part of the general administration and is therefore endowed with public powers, despite not having the status of a public‑law entity. According to the RAD’s own statistics, it has 121,845 civil servants, has 85,412 mosques in its care and manages 13,021 Qur’anic schools [25]. It has a budget of some €2bn [25].

The arguments

The applicants argued that their rights had been infringed, that the authorities did not recognise their places of worship (cemevis) and were obstructive about new ones being built, that there was no provision in the Government’s budget for running cemevis and that Alevis’ rights and freedoms were dependent on the goodwill of public officials. They requested that the services connected with the practice of the Alevi faith be recognised as a public service, that cemevis be granted the status of places of worship, that Alevi religious leaders be recruited as civil servants and that the Government’s budget make special provision for the Alevi community.

The Government countered that the Alevi faith [Alevilik] was “an interpretation and practice of Islam” [13]. The Religious Affairs Department’s services were general and supra-denominational in nature and were available to everyone on an equal footing. It was impossible to confer the status of places of worship on the cemevis, civil servants were recruited on the basis of nationality, no privileges could be granted to a group of persons on the basis of their faith or beliefs and it was impossible to make provision in the budget for services not provided for in the Constitution or by law. An application for judicial review of that decision was subsequently dismissed.

The Court noted that the Alevi community came within the legal framework of the “Sufi orders” [tarikat] which, in principle, were subject to a number of criminal prohibitions. In practice, failure to abide by those prohibitions was tolerated; but that seemed to depend primarily on the good will of the administrative officials concerned, who apparently enjoyed a degree of discretion in applying them. The tolerance shown by the Government towards the Alevi community was not a substitute for legal recognition, which alone was capable of conferring rights on those concerned [125 & 126].

Further, the Alevis faced numerous problems with regard to the organisation of their religious life, the rights of parents with children attending state schools, and the fact that their leaders had no legal status and that there were no institutions able to train them. The absence of a clear legal framework governing unrecognised religious minorities caused numerous additional legal, organisational and financial problems in such matters as building new cemevis, the capacity to receive state subsidies or donations from members and, absent any legal personality, access to the courts [127–130].

The judgment

In short, the Grand Chamber had serious doubts that the Alevis had an unfettered right to manifest [131]. It therefore held, by twelve votes to five, that there had been a violation of Article 9 and by sixteen votes to one that there had been a violation of Article 14 taken in conjunction with Article 9. It proceeded from the following principles:

• For an issue to arise under Article 14 there had to be a difference in treatment of “persons in relevantly similar situations” that was without objective and reasonable justification, though states parties enjoyed a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justified differences in treatment [156].

• The prohibition of discrimination in Article 14 extended beyond the rights and freedoms enumerated in the ECHR and its Protocols, applying also to those additional rights, falling within the general scope of any Convention Article, that the state had voluntarily decided to provide: if a state created addition rights it could not operate them in a discriminatory fashion [158].

• The burden of proof was on the Government in question [159].

• “Religion” was specifically mentioned in the text of Article 14 as a prohibited ground of discrimination [160].

The relationship between the state and its majority religion might take a variety of forms depending on the context: several contracting states had state religions that predated the Convention and/or their accession, while others were founded on the principle of secularism and that, too, was consistent with the values underpinning the Convention. However, “in order to satisfy the requirements of Article 9, each system must include specific safeguards for the individual’s freedom of religion” [163: emphasis added]. In short:

“It is true that freedom of religion does not require the Contracting States to create a particular legal framework in order to grant religious communities a special status entailing specific privileges. Nevertheless, a State which has created such a status must not only comply with its duty of neutrality and impartiality but must also ensure that religious groups have a fair opportunity to apply for this status and that the criteria established are applied in a non-discriminatory manner” [164: emphasis added].

At to the present case, it was not disputed that Article 9 was engaged. On the facts, though the Government contended that Alevism was akin to one of the Sufi orders, the Court disagreed: Alevis

“… form a religious community which has distinctive characteristics in numerous spheres including theological doctrine, principal religious practices, places of worship and education. The needs of its followers as regards recognition and the provision of a religious public service in respect of their community appear comparable to the needs of those for whom religious services are regarded as a public service. The applicants, as Alevis, are therefore in a comparable situation to the beneficiaries of the religious public service provided by the RAD” [169]

The applicants had received less favourable treatment than the beneficiaries of the religious public service despite being in a comparable situation [170]. Legal recognition conferred substantial advantages on religious denominations and facilitated their exercise of the right to freedom of religion. The religious services provided to Muslims in Turkey as understood by the RAD were regarded as a public service and were generously funded by the state administration. That funding enabled the RAD

“to recruit and manage a large number of religious functionaries and to carry out a variety of religious activities relating to the Muslim religion. Accordingly, that religion is almost wholly subsidised by the state” [171].

No such funding was available to the Alevis [174].The Court recognised the importance of the principle of secularism in the Turkish Constitution and conceded that a state might have legitimate reasons for restricting eligibility for a specific system to certain religious denominations and make justified distinctions between different categories of religious communities or offer other forms of cooperation [175]; however, the principle of proportionality did not merely require that the measure chosen was suitable in principle to achieve the aim pursued, it had also to be shown that it was necessary, in order to achieve that aim, to exclude certain persons – and the Turkish Government had failed to demonstrate that its discrimination against Alevis was justifiable or proportionate [176].

The Court recognised the importance of the principle of secularism in the Turkish Constitution and conceded that a state might have legitimate reasons for restricting eligibility for a specific system to certain religious denominations and make justified distinctions between different categories of religious communities or offer other forms of cooperation [175]; however, the principle of proportionality did not merely require that the measure chosen was suitable in principle to achieve the aim pursued, it had also to be shown that it was necessary, in order to achieve that aim, to exclude certain persons – and the Turkish Government had failed to demonstrate that its discrimination against Alevis was justifiable or proportionate [176].

Therefore:

“In view of all the considerations set forth above – 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 appears to the Court to be manifestly disproportionate to the aim pursued” [184].

The difference in treatment had no objective and reasonable justification and there had been a violation of Article 14 ECHR taken in conjunction with Article 9.

Comment is almost superfluous; however, it is evident from the judgment that, even though the Court has been inclined to give a fairly generous margin of appreciation to states parties in such matters as restrictions on veiling and the display of religious symbols in state schools, there are issues on which it is still prepared to take a firm line. Discrimination against conscientious objectors to military service is one; unjustifiable discrimination against religious minorities is evidently another.