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Article Turkey: Constitutional Court Rules Refusal to Allow Election of a New Patriarch a Violation of the Right to Freedom of Religion

(Aug. 8, 2019) On May 5, 2019, the Constitutional Court of Turkey issued its decision in Levon Berç Kuzukoglu ve Ohannes Garbis Balmumciyan, holding that the government’s failure to enable the election of a new Armenian patriarch in a manner conforming with Turkish-Armenian tradition and religious requirements constituted a violation of religious freedom. (Levon Berç Kuzukoglu ve Ohannes Garbis Balmumciyan (B. No: 2014/17354) (published in Official Gazette, July 10, 2019).)

Case Background (Decision §§ 11–33)

Mesrob II was elected as the 84th Armenian Patriarch of Constantinople of the Armenian Apostolic Church in 1998. When health problems made him unable to perform his duties as patriarch beginning around 2007, two petitions were made to the Governorate of Istanbul to hold new patriarchal elections. The first petition, made by senior members of the clergy, requested new elections to be held to elect a copatriarch. The second petition was made by a group of nonclergy members of the Armenian community of Turkey. This petition also requested new elections, but to replace Mesrob II rather than elect a copatriarch. This request was based on the relevant provisions of the Ottoman-era Ordinance on the Armenian Millet (Nizamname-i Millet-i Ermeniyan) (1863), which prescribed that new elections were to be held should the office of the patriarch be vacated by reason of death, resignation, or “[some] other reason.”

The Governorate rejected the clergy’s request, finding no legal basis for the creation of the office of the copatriarch or the ending of the term of a sitting patriarch due to health problems. Instead, the administration allowed the election of a “deputy-general of the patriarch.” The Governorate did not respond to the nonclergy group’s petition, which under Turkish administrative law constitutes an implicit rejection. Subsequently the Assembly of the Clergy elected Aram Atesyan as deputy-general of the patriarch, and the Council of Ministers acknowledged him in August 2010.

The nonclergy group brought an action before the Administrative Court of Istanbul to annul the rejection of their request. The Court upheld the Governorate’s decision, and the Council of State affirmed the judgment in 2015. Members of the nonclergy group then applied to the Constitutional Court in February 2016, claiming violation of the rights to freedom of religion, due process of law, and equality before the law.

While that application was pending before the Constitutional Court, Mesrob II was placed under guardianship by a civil court in March 2016. Subsequently, the Patriarchate General Assembly of the Clergy named Mesrob II as “patriarch emeritus,” ended the office of the deputy-general, declared the office of the patriarchy vacant, initiated a process to hold new elections, and petitioned the Ministry of Internal Affairs to approve the election plans. The Ministry, however, rejected the request and declared the Assembly’s decisions void. The Ministry based its decision on the administrative court ruling and existing “practice,” citing the provisions of a 1961 Regulation on the Election of the Patriarch (Patrik Seçim Talimatnamesi), which was an ad hoc regulation issued only for the patriarchal elections of 1961 but had been largely followed in the subsequent elections of 1990 and 1998. This decision was also taken to the Administrative Court, and the annulment action was pending when the Constitutional Court issued its judgment.

Mesrob II died on March 8, 2019, and the process to form a new electoral committee was begun on July 17 2019, signaling upcoming patriarchal elections.

Analysis of the Constitutional Court

Article 24 of the Constitution of Turkey states as follows:

Everyone has freedom of conscience, religious belief and conviction.

Acts of worship, religious rites and ceremonies shall be conducted freely, as long as they do not violate the provisions of Article 14 [which prohibits “endanger[ing] the existence of the democratic and secular order of the Republic based on human rights].

Citing article 38 of the Lausanne Peace Treaty, whereby Turkey undertakes to guarantee “free exercise … of any creed, religion, or belief” to all its inhabitants; the relevant jurisprudence of the European Court of Human Rights; article 18 of the UN Covenant on Civil and Political Rights (CCPR); and CCPR General Comment No. 22 of the Office of the United Nations High Commissioner for Human Rights (OHCHR), the Court found that the terms “acts of worship, religious rites and ceremonies” included in article 24 of the Constitution must be interpreted broadly to include the freedom to choose religious leaders (§§ 61–65).

Thus finding that the administration’s actions constituted an interference with the right to freedom of religion, the Court asked whether the interference was prescribed by law, and discussed whether the 1863 Ordinance and the 1961 Regulation could be considered “law” to fulfill the legality requirement. The Court noted that these instruments could be considered as having authority in the regulation of the relationship between the Armenian community and the administration, as they appeared to accurately reflect the customs and traditions of the Armenian community of Turkey. However, the Court found these documents were not “law” in the sense of article 13 of the Constitution, which provides that fundamental rights enumerated in the Constitution can be limited only by acts of Parliament. In previous judgments, the Court had explained that its legality test was stricter than the “prescribed by law” standard used by the European Court of Human Rights due to the explicit requirement of article 13 of the Constitution (see, e.g., the Tugba Arslan case, B. No. 2014/256 (June 25, 2014), §§ 83–84).

The Court did not end its review with the finding of nonlegality, deciding it appropriate to question whether the administration’s actions were necessary in a democratic society (§ 81). To decide this question, the Court assessed whether the interference was a proportionate response to a pressing social need.

The Court found the administration’s conduct in not involving the nonclergy group in the decision-making process and in bringing a counteroffer to the assembly of the clergy without first attempting to establish an intracommunity dialogue meant that the Ministry effectively decided when and how a religious leader would be elected, despite the fact that courts and administrative organs are ill equipped to resolve religious controversies that arise within religious groups (§§ 124–126). Emphasizing that in a democratic society, the state can interfere with the internal affairs of a religious community only in cases of a pressing social need, the Court found that a pressing need that would take precedence over “the spirit of the traditions of the Armenian community that is understood to be concretized in the Ordinance, and the will of the Armenian community” was absent in the present case, and thus the interference constituted a violation of the right to freedom of religion (§§ 130–131).

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