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(1)Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg. Minorities in Turkey: The Protection of the Non-Muslim Minority within the Country. Lousnak Thomas International & European Law Master Track Public International Law Supervisor: Dr. S. Hollenberg 11 July 2016. 1.

(2) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg ABSTRACT The issue of the rights of the non-Muslim minority has played a vital role in Turkey. The cornerstone of the Turkish minority regime has been the Treaty of Lausanne, which only officially acknowledges certain non-Muslim minorities such as the Jews, Greeks and the Armenians. Additional non-Muslim minority groups such as the Yezidis, the Catholics and Protestants and the Syriacs were declined to be granted any type of minority status. The goal of the thesis is to research whether Turkey is in compliance with the international norms on the protection of the rights to freedom of religion or belief of the non-Muslim minority and if so how the protection of the right aligns to practice. The following methods have been used to receive an answer: a review of the non-Muslim minority in Turkey, an analysis of the Turkish legal framework consisting of its constitution, and the relevant international standards. Subsequently, the right to freedom of religion and belief of non-Muslims has been has been evaluated through an examination of the right and in particular its aspects which were the freedom to establish and maintain places of worship, the freedom to religious education and the freedom to conscientiously object to serve in the military. This happened through considering international and national law and cases relevant for the guarantee of this right. By highlighting many important aspects, it has been shown that the specific policy has received significant objections from the international community and the European Union demanding for the advancement of minority rights. Also, it showed that Turkey has made serious efforts to enhance the protection of the right to freedom of religion, education and political participation of all its minorities, including the non-Muslims but that these attempts have not always been successful. The inconsistency of their protection led to the conclusion that critical changes are required in order for Turkey to completely assure the religious freedom of its population belonging to the non-Muslim minority.. 2.

(3) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg CONTENT Abstract ...................................................................................................................................................................................2 List of Abbrevations............................................................................................................................................................4 Introduction............................................................................................................................................................................5 Chapter I Methodology ...................................................................................................................................................6 Chapter II The Non-Muslim Minority in Turkey ...............................................................................................8 2.1 Historical Overview ..............................................................................................................................................8 2.2 Main Non-Muslim Minority Communities and Their Position in Turkey .....................................9 Chapter III The Legal Framework of Turkey ................................................................................................... 12 3.1 The 1982 Constitution of Turkey and the Relevant Provisions ...................................................... 12 3.2 International Instruments Applicable to Turkey and the non-Muslim Minority ...................... 14 3.2.1 Turkey and the European Union ............................................................................................................... 16 3.2.2 The Treaty of Lausanne ............................................................................................................................... 17 Chapter IV The Right to Freedom of Thought, Conscience and Religion ............................................. 19 4.1 The Right to Freedom of Religion in International Law .................................................................... 19 4.1.2 The Freedom to Manifest One’s Religion or Belief in International Law ......................... 21 4.1.3 The Freedom to Establish and Maintain Places of Worship, Religious Education and Conscientious Objection to Military Service ............................................................................................. 23 4.2 The Right to Freedom of Religion in Turkey ......................................................................................... 25 4.3 Right to Religious Freedom in Turkey in Practice ............................................................................... 27 4.3.1 Freedom to Establish and Maintain Places of Worship ............................................................. 28 4.3.2 Freedom to Religious Education ......................................................................................................... 30 4.3.3 Freedom to Conscientiously Object to Military Service ........................................................... 31 4.3.4 Improvement in Protecting the Right to Religious Freedom of the non-Muslim Minority ..................................................................................................................................................................... 32 Chapter V Conclusion .................................................................................................................................................. 34 Bibliography ..................................................................................................................................................................... 37. 3.

(4) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg LIST OF ABBREVATIONS. (UDHR). Universal Declaration on Human Rights. (ICCPR). International Covenant on the Civil and Political Rights. (UN). United Nations. (EU). European Union. (HRC). Human Rights Committee. (FCNM). Framework Convention on National Minorities. (ECHR). European Convention on Human Rights. (ECtHR). European Court of Human Rights. 4.

(5) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg INTRODUCTION Legal scholars have been increasingly interested in the continuing controversies regarding the position of minorities in the Middle East. Turkey, a country that has been governed by successive powers, includes a large variety of minority groups. As a Middle Eastern country with Islam as the predominant religion pursued by approximately 99% of the Turkish population, the non-Muslim minorities cope with severe difficulties. Turkey continuously has maintained that its regime towards minorities is completely dependent of the Treaty of Lausanne in conjunction with its constitution.1 Even though the Turkish legal framework does provide protection to the rights of the non-Muslim minority, mainly through individual rights, Turkey has not comprehensively ensured their protection, nor helped minorities to invoke the right to freedom of religion granted to them.2 The principal legal question is whether Turkey is in compliance with the international norms on the protection of the right to freedom of religion or belief of the non-Muslim minority and how the protection of this right aligns to the practice. Chapter one consists of the methodology. The second chapter of this thesis presents an overview of the non-Muslim minority in Turkey in which the history of Turkey’s regime with regard to non-Muslims is considered followed by their position in Turkey. Subsequently, the legal framework of Turkey is taken into account in chapter three. This chapter fixates upon the current Constitution of Turkey and international norms that are relevant for the nonMuslims and their right to religious freedom. Within this section the European Union accession process and the Treaty of Lausanne are considered as well. Chapter four specifically focuses on the right to freedom of thought, conscience and religion. In the first section the scope and limits of the right to freedom of religion are taken into account in international law with an emphasis on the freedom to establish and maintain places of worship, freedom to religious education and the right to conscientious objection to military service. Section two examines the right to freedom of religion and the above mentioned elements in Turkey and its practice. This is also illustrated through the discussion of some important rulings. The final chapter provides a conclusion and attempts to provide further recommendations for the protection of the rights of the non-Muslim minority in Turkey.. 1. International Helsinki Federations for Human Rights, Turkey: A Minority Policy of Systemic Negation, October 2006, pp. 1-2 at:<http://www.refworld.org/pdfid/46963b010.pdf> accessed 25 May 2016(hereafter: IHF) 2 Joshua B. Gessling,’ From Ankara to Strasbourg: Developing A Comprehensive Supranational Litigation Strategy for Patriarchal Preservation in Turkey’, (2009) 15, Human Rights Law Review, p. 110.. 5.

(6) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg CHAPTER I METHODOLOGY The freedom of religion or belief in Turkey has been a matter of insufficient academic research in relation to the rights of minorities. Moreover, a handful examinations fixate on the right to freedom of religion of the non-Muslim minority group in Turkey. The main objective of this thesis has been to provide for an insight of the scope and guarantees in relation to the freedom of religion or belief of in particular the non-Muslim minority in Turkey. Therefore, the prime legal question of the thesis is: Is Turkey in compliance with the international norms on the protection of the right to freedom of religion or belief of the non-Muslim minority and how does the protection of this right align to the practice? Chapters two and three demonstrate the situation in Turkey with the notion to determine its history in respect of the non-Muslim minority groups and to determine the legal basis for the analysis of the right to freedom of thought, conscience and religion in the subsequent chapter. Chapter three further concentrates on the legal framework of Turkey where the constitutional provisions of the 1982 Constitution of Turkey and its international human rights obligations which involves the guarantee of minority rights protection resulting from the Treaty of Lausanne and European human rights standards will be displayed. This is considered to be crucial for the perception of the legal standards and their interpretation regarding the right to freedom of religion. The safeguarding of the right to freedom of thought, conscience and religion of the nonMuslims is appraised with the intention to scrutinize Turkey’s compliance with international human rights norms, specifically the International Covenant on Civil and Political Rights and the European Convention on Human Rights. In light of the aforementioned, chapter four reviews the guarantee of the right to freedom of religion in international and national law. Section 4.1 encompasses the right to freedom of religion and the limits to the right involving a discussion of manifesting religious beliefs and the prohibition of coercion to religion. The analysis is deduced from relevant international human rights standards and decisions that are deemed significant for the right of the non-Muslims. These normative sources, the international and regional human rights instruments, have been intentionally selected in the interest of giving a correlative consideration as will be illustrated. Additionally, reports of the United Nations and European Union mechanisms, literature, articles and reports of nongovernmental organizations such as the Working group on Minorities have been utilized.. 6.

(7) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg Sections 4.2 and 4.3 used a case-study approach in order to examine the preservation of the right to freedom of religion or belief in Turkey and this used method is especially satisfactory for the thesis, since it enables an examination of the existing reality and since it enables a comprehensive evaluation of intricate circumstances. The extent of the analysis is restricted to the enjoyment of the right to freedom of religion or belief by the non-Muslim communities and is limited to what has been researched in the section relating to right to freedom of religion or belief. The examination does not aim to be all-embracing, but it undertakes to clarify the degree of protection of religious freedom of the non-Muslim minority in Turkey. The normative sources regarding Turkey concerned the domestic laws and judgments. Pursuant to the analysis of Turkey’s conformity with rules of international law, the right to build and maintain places of worship, the right to religious education and the right to conscientious objection to military service granted to the non-Muslim minorities will be observed. This has occurred through the usage of literature, academic and newspaper articles and reports and significant judgments of the national courts. There were certain drawbacks with regard to the specific focus on non-Muslim minority groups. One of these issues was the difficulty of obtaining relevant information, since little has been written or analyzed in respect to the specific group. Also, it appeared problematic to gain access to Turkish secondary sources and jurisprudence. The reason for the inability to find relevant decisions lies within the fact that national courts have not dealt with many claims that involve the explored matters. In addition, it became apparent that members of the non-Muslim minority group or any other minority group have been reluctant or simply unable to bring such claims. Finally, this thesis attempts to provide for certain recommendations which can allow for a stronger and more effective guarantee of the right to freedom of religion and for minority rights in general. The recommendations are based on the findings of the thesis. It further supports the argument that Minorities, especially non-Muslims, are in need of such a safeguard in order to fully enjoy religious freedom and other essential rights and freedoms.. 7.

(8) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg CHAPTER II THE NON-MUSLIM MINORITY IN TURKEY. The purpose of this chapter is to provide a general overview of Turkey’s minority rights regime through by briefly discussing its history regarding the development of its minority rights regime in section 2.1 and through considering the main non-Muslim minorities currently present in Turkey and their situation in section 2.2. This is relevant for the research since internal hostilities have existed between the non-Muslim minority and the Muslim majority for centuries. Consequently, the non-Muslims continued to inhabit the country with severe restrictions on their rights. 2.1 Historical Overview Turkey’s history has contributed to the modern secular state and its attitude towards the various minorities in the country.. 3. After the defeat of the Ottoman Empire the republic of. Turkey was formed and during its initial years an ethno-racial concept was associated with its national identity, which affected the treatment of the non-Muslims.4 In 1923 the Treaty of Lausanne was endorsed by Turkey which defined Turkey’s stand towards the existing minority groups and an advanced ideology was formed, consisting of a secular state identity that sought to remodel Turkey on European ideals. 5 Thereafter in the 1950s, Turkey made progress in democratizing the country that partially curtailed the oppression of non-Muslims. The Constitution of 1961 enhanced this development, yet governmental insurgency between 1970 and 1980 led to negative behavior towards non-Muslims.. 6. The subsequent decades. were characterized by various bureaucratic actions that diminished their status even further.7 The proclamation of the Copenhagen criteria for European Union (EU) membership in 1993 identified that, in order to become an EU member, absolute respect for minority rights was a significant condition.8 As a consequence of Turkey’s urge to comply with the Copenhagen criteria, an unprecedented reform program was triggered that considerably improved minority rights. The program encompassed the improvement and expansion of civil. 3. Ilhan Yildiz,’ Minority Rights in Turkey’, [2007], Brigham Young University Law Review, pp. 792-793; Tolga Köker,’ Establishment of Kemalist Secularism’, (2010), 2, Middle East Law and Governance, p. 26. 4 Füsun Türkmen & Emre Öktern,’ Foreign Policy as a Determinant in the Fate of Turkey’s Non-Muslim Minorities: A Dialectical Analysis’, (2013), 14, Turkish Studies, p. 466. 5 Yildiz, p. 794 6 Ioannis N. Grigoriadis,’ On the Europeanization of Minority Rights Protection: Comparing the Cases of Greece and Turkey’, (2008), 13, Mediterranean Politics, p. 31 7 Ibid. p. 32 8 Ibid. pp. 34 – 35. 8.

(9) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg and political rights.9 Hence, it could be stated that Turkey’s policy towards non-Muslims is the outcome of an influential process with, on the one hand, an indispensable legal basis and, on the other hand, a fixation on controlling minorities.10 2.2 Main Non-Muslim Minority Communities and Their Position in Turkey The republic of Turkey consists of diverse non-Muslim minorities and it has been the habitat of the Jews, Yezidis, reformist Christians and the Rum, Syrian, Greek and Armenian Orthodox Christians for centuries. 11 The first group to consider is the Yezidis, a religious group traditionally located in the eastern and southern parts of Turkey. This group underscores their unique religious identity by speaking the Yezidi language, which stems from Kurdish. Until the 1980s nearly 60,000 Yezidis were living in Turkey. However, as a result of severe ill-treatment, many of them were forced to leave the country.12 The Catholics, Protestants and the Rum Orthodox Christians make up a small religious group in Turkey who are not recognized as minorities by Turkey and therefore do not enjoy protection. Currently, roughly 4,000 to 6,000 Catholics and Protestants and 2,000 to 3,000 Rum Orthodox Christians are present in Turkey.13 The Syrian Orthodox Christians, also called Syriacs, derive from early Christianity and are regarded as the largest Christian group primarily residing in Southeastern Turkey.14 The Syriacs do not enjoy legal protection of their rights and freedoms because Turkey is unwilling to recognize the Syriac community as a religious minority within its territory.15 Instead, the Syriacs are confronted with major rights violations and face restrictions in their rights and freedom, such as opening their own institutions.16. 9. Since that period three sets of legislative revisions and nine reform packs consisting of approximately 500 laws have been approved by the Turkish government; Türkmen & Öktern p. 471. 10 Grigoriadis, p. 36; Sule Toktas and Bulent Aras, ‘The EU and Minority rights in turkey’, [2009] Political Science Quarterly, p. 705. 11 Dilek Kurban, ‘A Quest for Equality: Minorities in Turkey’ (2007) Minority Rights Group International, p. 13. 12 Ibid. 13 Ibid. 14 Ibid. p. 12 15 Nigar Karimova & Edward Deverell, ’Minorities in Turkey’, Occasional papers no 19, (2001) The Swedish Institute of International Law, pp. 11-14. 16 Ibid, pp. 12-13.. 9.

(10) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg The residence of the Jews can be traced back to 1492 and today, approximately 26,000 Jews are living in Turkey.17 The Jewish people have asserted that they maintain full freedom of their rights, in particular the freedom of religion, and even though the Rabbinate does not have a legal status, it is acknowledged de facto. Moreover, they are not confronted with discrimination from Turkey or the Turkish population.18 Another non-Muslim minority group that needs to be mentioned is the Armenian Orthodox community, which is an ethno-religious minority. The relation between Armenians and Turks is extremely tense as a result of ethnic cleansing in 1915 and1916.19 Currently, an estimated 60,000 Armenians have their residence in Turkey and are the second populous group in Turkey.20 Armenians, recognized as a religious minority, deeply connect to their identification as Armenians and their Christian faith and do not identify themselves as Turks.21 Finally, the Orthodox Greeks, another ethno-religious group, have been present in Turkey for centuries and have been victims of persecution and coercive conversion to Islam. The legal status of the Greeks has been vague since 1924. On the one hand, they have been acknowledged by the government exclusively as a religious minority, while, on the other hand, the Turkish population considers them as having a lower status. Nevertheless, the Greeks have declared that they have sufficient legal protection of their rights. 22 Of these non-Muslim minorities, only the Jews, the Armenians and the Greeks have been granted minority status by the Turkish government with the enactment of the Treaty of Lausanne and have a degree of autonomy. 23 The Syriacs, Catholics, Protestants and Yezidis have not been granted minority status.24. 17. IHF, p. 10 Karimova & Deverell, pp. 10-11 19 An estimated 1, 5 million Armenians were massacred and relocated since the Turks believed that the Armenians had betrayed them by assisting the Allied Powers. Karimova & Deverell, p. 10. 20 IHF, p. 11 21 Kurban,, p. 12 22 Karimova & Deverell, p. 11, IHF p. 11 23 IHF, p. 11 24 Kerem Karaosmanoglu,’ Reimagining Minorities in Turkey: Before and After the AKP’, (2010) 12, Insight Turkey, pp. 197-198. 18. 10.

(11) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg Formerly, Turkey’s policy of hostility against the members of non-Muslim groups had endured severe criticism from the international community.25 Furthermore, non-Muslim minorities have experienced discrimination because Turkish law legalized violent and unequal acts. The escalation of aggression towards individual members of non-Muslim minorities and their religious or other establishments has been recognized in Turkish official documents as well. 26 However, progress has been made by Turkey to enhance the rights of the non-Muslim minority, which has been accepted with enthusiasm. Notwithstanding, the protection of the rights of non-Muslim minorities continues to be inadequate, regardless of the paramount improvements.27. 25. Ibid p. 199; Nukhet A. Sandal, ’Public Theologies of Human Rights and Citizenship: The Case of Turkey’s Christians’, (2013) 35, Human Rights Quarterly, p. 638. 26 Ibid; Karaosmanoglu, pp. 196-199. 27 Sandal, p. 632; Grigoriadis, p. 36.. 11.

(12) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg CHAPTER III THE LEGAL FRAMEWORK OF TURKEY. This chapter assesses the Turkish legal framework and its significance for the non-Muslim minorities. The chapter is divided into two main sections. Section 3.1 describes the current Constitution of Turkey and its relevant provisions. Section 3.2 discusses international standards pertaining to minorities and is divided into two subsections. Subsection 3.2.1 discusses Turkey’s European Union accession process and the applicable instruments. The last subsection provides an outline of the Treaty of Lausanne, which is considered the basis for granting rights to the non-Muslim minority. 3.1 The 1982 Constitution of Turkey and the Relevant Provisions The first constitution accepted by Turkey was the Constitution of 1921, which was then succeeded by the Constitution of 1924 and 1961, of which the last particularly protected fundamental rights and freedoms.28 The current Turkish Constitution was enacted in 1982 and was stricter than the predecessors, especially on the subject of fundamental rights and liberties. Although this constitution has been amended many times, it is still in force. 29 The Constitution of 1982 grants fundamental rights and freedoms to its citizens subject to the integrity of the state and its secular nature.. 30. The Constitution consists of seven parts. starting with the general principles followed by the second part that details fundamental rights and duties divided into general provisions, individual, social and economic and civil and political rights and duties. Part three consists of the main organs, the legislative, executive and judicial organs. Part four includes the financial and economic provisions and parts five through seven incorporate provisional articles.31 Similar to the provision of the Constitution of 1961 it reiterated that every person had essential rights and freedoms, and it continued by stating that the granted rights and freedoms also implicate obligations to the nation and other humans.32 After 1982, Turkey modified its legal rights regime several times, mainly pursuant to the European standards.33 The amendments started with technical revisions which eventually expanded into covering 28. Ozgur Metin & Onur Gelbal,’ The Path to Modern Turkish Law’, (2008) 2, Ankara Bar Review, p. 125. Ibid; Metin & Gelbal, p. 125. 30 Yildiz, p.794 31 Constitution of the Republic of Turkey, 18 October 1982 at: <https://global.tbmm.gov.tr/docs/constitution_en.pdf> accessed 25 May 2016. (hereafter Constitution of Turkey) 32 Ibid. 33 Hassan Sayim Vural, ‘Two Generations of Debate on Freedom of Religion in Turkey’, (2013) 8, Religion and Human Rights, p. 245 29. 12.

(13) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg fundamental rights. Thereafter, articles 13 and 14 concerning human rights guarantees were reconsidered and went from entailing limitative stipulations to protective stipulations.34 The 1982 Constitution does not refer to minorities, but article 10 of the constitution asserts the equality of all human beings before the law prohibits discrimination on any ground and obliges Turkey to ensure this. This article thus includes non-Muslim minorities.35 Furthermore, part two of the 1982 Constitution discusses the fundamental rights and duties and starts with article 12 that grants “inviolable and inalienable” human rights to every person.36 However, the second paragraph mentions that the citizens have certain “duties and responsibilities,” implying a system where the enjoyment of such rights is subordinate to the performance of certain duties.37 Regarding the right to freedom of religion of the nonMuslims, article 24 guarantees the right to freedom of conscience, religious belief and conviction to every person.38 Perhaps the most significant and beneficial change in the constitution that led to substantial protection of human rights is article 90 (5), which deals with the status of international human rights agreements in domestic Turkish legislation.39 In the past, international agreements were of the same juridical significance as national law, thus enabling subsequent laws the ability to revise or annul an antecedent international document. Its effect has been a stronger application of international norms by national courts.40 Another relevant alteration provided claimants the opportunity of a new proceeding in national courts, within a year of a decision of the European Court of Human Rights (ECtHR), if Turkey was found to have breached human rights and when there would be no possibility of compensation. This reform shifted the responsibility of the implementation and the enforcement of human rights safeguards to domestic courts.41. 34. Esbrook, pp. 6-8 Constitution of Turkey, Article 10 36 Constitution of Turkey, article 12 37 Özbudun p. 44; Ahmet T. Kuru, Secularism and State Policies toward Religion: The United States, France, and Turkey (Cambridge: Cambridge University Press, 2009), p. 11 38 Murat Somer,’ Turkey’s New Constitution & Secular Democracy: A Case For Liberty’, [2012] via: http://www.e-ir.info/2012/06/05/turkeys-new-constitution-secular-democracy-a-case-for-religious-and-nonreligious-liberties/ accessed 25 May 2016 39 Constitution of Turkey Article 90 (5) 40 Esbrook, pp. 6-8; Özbudun, p. 54 41 Ibid. p. 8 35. 13.

(14) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg 3.2 International Instruments Applicable to Turkey and the non-Muslim Minority International law still does not have an explicit definition of what constitutes a national or ethno-religious minority due to varying opinions. The foundation for the protection of minority rights is a remainder from the post-World War I period.42 Moreover, the UN charter associated the protection of minority rights to individual rights such as equality and nondiscrimination on the grounds of race, religion and language. Thus, protection of minorities, in particular non-Muslims is based more on protection against discrimination than on specific provisions granting some special extra rights to members of a minority group 43 There are two essential international human rights treaties that relate to the protection of the right freedom of religion or belief for Turkey’s non-Muslim minority, though not specifically focused on granting rights to minorities.44 The Universal Declaration of Human Rights (UDHR), developed in 1948, is the first, which eventually became a widely recognized international standard on human rights through the International Covenant on Civil and Political Rights (ICCPR). The ICCPR is regarded as the most significant document concerning the protection of the rights of minorities.45 Of particular importance is article 27 of the ICCPR, which provides explicit recognition of minority rights in a human rights treaty by addressing the negative obligation of states not to deny members of minority groups the right to enjoy their own culture, profess and practice their religion or use their own language.46 In order for the rights of minority groups to be applied effectively, it is necessary that article 27 be read in conjunction with article 26 of the ICCPR since it prohibits discrimination of all individuals.47 An accurate explanation of article 27 of the ICCPR has been presented by general comment No. 23 of the Human Rights Committee (HRC), which concerns the rights of minority groups. According to the HRC, article 27 of the ICCPR guarantees the protection of humans that are part of a minority community and is a right distinctive from every other right designated to them by the ICCPR.48 Furthermore, article 27 of the ICCPR is perceived as an independent provision in 42. Dieter, Kugelmann,’ The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity’, (2007) 11, Max Planck Yearbook of United Nations Law, p. 237. 43 Daniel Ṧmihula,’ Rights of Persons Belonging to National Minorities in International Law’, (2006-2008) 28, Polish Yearbook of International Law, p. 105. 44 Yildiz, pp. 797-798, Adura L Savage,’ Turning the Other Cheek: The Persecution of the Christian Minority’, (2014) 26, Florida Journal of International Law, pp 378-379. 45 Yildiz, pp 798-799; Savage, pp 378-379. . 46 Kristin Henrard and Robert Dunbar (eds), Synergies in Minority protection: European and International Law Perspectives, (Cambridge university press: Cambridge, 2009) pp. 23-24 47 ICCPR, articles 26-27; Smihula, p. 111. 48 United Nations Human Rights Office of the High Commissioner, Minority Rights: International Standards and Guidance for Implementation, UN New York and Geneva, 2010, P. 15-16. 14.

(15) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg the covenant. The clarification of the meaning of article 27 of the ICCPR by the HRC has resulted in the recommendation that nations acknowledge minorities within their territory.49 Additionally, nation states may be required to undertake certain beneficial actions in order to guarantee the rights of minority groups. 50 Turkey is a signatory party to the ICCPR and therefore is bound by it, which results in a duty to safeguard the rights of non-Muslims and other minorities in Turkey.51 Nonetheless, it must be noted that Turkey has expressed reservations about the ICCPR in order to retain the right to translate and employ these rights in conformity with its constitution and the Treaty of Lausanne.52 In 1981 the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief was adopted by the UN in order to advance the international norms for the right to freedom of religion or belief.53 Interestingly, in contrast to other international documents, this declaration contains a provision requesting states develop domestic regulations that enable individuals to enjoy this right. As a member state of the UN Turkey is also bound by the provisions of the declaration.54 The UN General Assembly created the Declaration on Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which is not binding, since it does not function as a treaty.55 However, this declaration is the only international tool that respectively concentrates on minority rights and it has a significant legal meaning, since it served as a basis for the enactment of subsequent binding international and national human rights schemes.56 The declaration stems from article 27 of the ICCPR emphasizing the UN’s role in safeguarding minority rights and imposes positive obligations on countries.57. 49. Ibid. Ibid. 51 Louis B. Sohn, The Rights of Minorities, in The International Bill Of Rights: The Covenant on Civil and Political Rights, (Louis Henkin ed. 1981) p. 275-287 52 Kurban 2004-2005, pp. 358-359. 53 The 1981 Declaration on the Elimination of All Intolerance and of Discrimination Based on Religion or Belief, Adopted by way of General Assembly resolution 36/55, entered into force 25 November 1981. at: <http://www.un.org/documents/ga/res/36/a36r055.htm> accessed 7 June 2016 54 Yildiz, p. 799; Hans Klein, ‘The Right to Political Participation and the Information society’, (2005) Global Democracy Conference, pp. 3-4 55 The 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by way of General Assembly resolution 47/135, 18 December 1992) UNGA Res 47/135. at: <http://www.un.org/documents/ga/res/47/a47r135.htm> accessed 7 June 2016 56 Yildiz, p. 799. 57 Ṧmihula, p. 113-115 50. 15.

(16) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg 3.2.1 Turkey and the European Union Over the years Turkey has attempted to adhere to European Union standards following its desire to become a member of the European Union.58 Coinciding with the agreement that extended Turkey the status of an EU candidate country, the necessity to satisfy the Copenhagen criteria produced a remarkable reform policy that substantially enhanced the rights of minority groups within the state. The changing policy led to the revision of various articles of the constitution with the purpose of complying with EU demands.59 Several EU documents refer to the protection of minorities, such as the European Charter of Fundamental Rights, which instructs states to assure and respect minority rights.60 The EU also issues yearly reports on the situation of minorities in Turkey that call for the improvement of the rights of non-Muslims.61 Within the EU the Framework Convention for the Protection of National Minorities (FCNM), which is the first regional binding instrument for minority rights, was developed. The treaty obliges states that are party to the convention to undertake affirmatory action that advocates minority rights and culture. Turkey did not sign the FCNM, which means this document is not applicable to its citizens.62 Turkey has been party to the European Convention for the Protection of Human Rights Fundamental Freedoms (ECHR) since 1990. The ECHR and the judgments of the ECtHR have a vital function in ensuring the democracy of the state by virtue of the advancement of human rights and freedoms. 63 The ECHR does not encompass minority rights guarantees, but article 14 of the ECHR forbids discriminating against any human being and refers to minorities in that sense. There is a consensus among the international community that the ECHR regime firmly protects the rights of established minority groups and that it is the only body that actually is able to influence Turkey’s legal framework.64. 58. Yildiz,, p. 798 Grigoriadis, p. 34-35 60 Zelal, Kizilkan-Kisacik, ‘Europeanization and Minority Rights: Discourse, Practice, and Change in Turkey’, European Diversity and Autonomy Papers (2010), p.10. 61 Toktas & Bulent, p. 705. 62 Kurban, 2007, p. 8 ; Edel Hughes,’ The European Union Accession Process: Ensuring the Protection of Turkey’s Minorities?’, (2010) 17, International Journal on Minority and Group rights, pp. 569 – 570 63 Ergun Özbudun & Fusun Turkmen,’ Impact of ECtHR ruling on Turkey’s Democratization: An Evaluation’, (2013) 35, Human Rights Quarterly, p. 986. 64 Ṧmihula, pp. 119 – 120. 59. 16.

(17) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg 3.2.2 The Treaty of Lausanne Turkey’s core regime of minority rights is determined in the Treaty of Lausanne, which was endorsed by Turkey and the Allied powers in 1923, and is believed to be the root for the protection of its minorities in present Turkey.65 Furthermore, this treaty is considered to be essential for the regulation of minority rights within the Turkish secular state and embodies extensive provisions pertaining to the treatment of the non-Muslim minority.66 Jews, Greeks and Armenians are formally protected by the terms of the treaty, while other non-Muslims, notably Syriacs, Rum Catholics, Protestants and Yezidis are not.67 The essential articles that regulate the status of the non-Muslim minorities are articles 37 through 44. Article 37 asserts that the cumulative rights enshrined in the ensuing parts are of paramount importance and Turkey has unequivocally consented to not hampering the clauses or giving other legislation priority over the rights granted by the treaty.68This means that when national law is in conflict with the rights outlined in the Treaty, the latter applies.69 Article 38 of the treaty guarantees the prohibition of discrimination for every Turkish resident and provides for protection of the right “without distinction to birth, nationality, language, race or religion.” Also, it explicitly acknowledges the right to freedom of religion for every person living in Turkey.70 Article 39 expressly endows the non-Muslim minority the same fundamental rights as Muslim inhabitants, repeats the non-discrimination constraint, particularly regarding religion and the equality of all inhabitants.71 Articles 40 and 41 of the treaty grant the non-Muslims rights that are equivalent to the majority of the population in respect to the possibility of starting schools or religious or charitable establishments. This means that, if the Turkish authorities prevent non-Muslims from doing the things this article guarantees, it would amount to an infringement of its international responsibilities towards its citizens.72 Furthermore, article 42 specifies that, with regard to the protection of their own “family law or personal status,” Turkey ought to take action according to their rules and rituals. Moreover, this article stipulates the duty of the Turkish regime to ensure the complete 65. Toktas & Aras, pp. 699-700; Türkmen & Öktern, p. 466 Karimova & Deverell, p. 7; Dilek Kurban,’Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey’, (2004-2005) 4, Minority Issues, pp. 344-345 67 Gessling, pp. 128- 129. 68 The 1923 Treaty of Peace with Turkey and Other Instrument Signed at Lausanne Signed available at 24 July 1923. At: <http://treaties.fco.gov.uk/docs/pdf/1923/TS0016-1.pdf> accessed 7 June 2016 (hereafter Treaty of Lausanne); Ibid p. 129; Yildiz, pp. 796-797 69 Gessling, p. 129 70 Yildiz, pp. 796-797 71 Ibid. 72 Gessling, pp. 129-130 66. 17.

(18) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg protection of non-Muslim religious establishments, such as churches and synagogues.73 Article 43 comprises safeguards the established religious practices of the non-Muslim minority. Nonetheless, the supremacy of Turkey is preserved since the enjoyment of religious freedom may be restricted when the fulfilment of state obligations essential for public security are infringed.74 The last provision of great relevance is article 44, which emphasizes that the rights mentioned are part of an international obligation under the authority of the League of Nations. As a result Turkey is not permitted to take any action that will lead to reforms without consent.75. 73. Yildiz, pp. 796-797. Ibid. 75 Ibid. 74. 18.

(19) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg CHAPTER IV THE RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION This chapter examines the right to freedom of thought, conscience and religion outlined in various international human rights treaties and in Turkey. Section 4.1 discusses the scope of protection and the limits to the right to freedom of religion in international law. This is done by looking at which international norms guarantee the right. This section specifically concentrates on article 18 of the ICCPR, article 9 of the ECHR and article 38 of the Treaty of Lausanne, because these provisions are legally binding. Furthermore, the right to manifest one’s religion or belief is analyzed and particularly reviews the freedom to build places of worship, religious education and conscientious objection to serving in the military. Section 4.2 studies how the right to freedom of religion is safeguarded in Turkey’s national law. Subsequently, section 4.3 examines the right to freedom of religion of the non-Muslim minority in Turkey’s practice with reference to the right to build places of worship, religious education and conscientious objection and it analyzes how their right to freedom of religion is improved. 4.1 The Right to Freedom of Religion in International Law Since 1948, the right to freedom of thought, conscience and belief is embodied and highly respected in nearly every international human rights document.76 International instruments such as those found in article 18 of both the UDHR and the ICCPR, article 9 of the ECHR and article 38 of the treaty of Lausanne have an explicit reference to the right to religious freedom, whereas article 1 of the Declaration of all Forms of Intolerance and article 2 International Covenant on Economic, Social and Cultural Rights only generally acknowledge the right in conjunction with the prohibition of discrimination.77 Turkey, as a signatory party to all international human rights treaties, has to obey these international standards when dealing with issues of religious freedom within its territory. The minimum international standards necessary for an adequate constitutional protection of the right to freedom of religion are articulated in the UDHR and the ICCPR; these standards involve the freedom to have, to change or to adopt a religion or belief of one’s choice, the freedom to individually or collectively manifest one’s religion including worship, observance, teaching and practice and the prohibition of coercion to the right to have, to change or to. 76 77. Savage, pp. 377-379. ‘Editorial Freedom of Religion and Belief in Turkey’, (2013) 8, Religion and Human Rights, pp. 179-181.. 19.

(20) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg adopt a particular faith.78 According to the HRC in general comment No. 22, the right to freedom of religion needs to be widely inferred as incorporating every religion or belief. This implies that traditional, non-traditional, non-theistic and atheistic beliefs are protected, as well as faiths of members of religious minority groups.79 Even though there is no definition of the terms “thought” or “conscience” that concords with every religion, every feasible perspective of the individual regarding the society is covered.80 The Declaration of All Forms of Intolerance, though non-binding, is regarded as the core regime in relation to religious rights.81 It is believed to be part of customary international law for the following reasons: (1) The declaration has existed for over thirty-five years, (2) has been frequently employed by international organizations and states as a mechanism for examining religious freedom and (3) in general comment 22 of the High Commissioner for Human Rights, the declaration is regarded as a guidance method for the ICCPR, which ultimately obliges Turkey to adhere to this document.82 The declaration is complemented by the Declaration on Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, which is relevant to the non-Muslim minority in Turkey and instructs states to protect minorities’ religious practices.83 The right to religious freedom has been recognized in many regional instruments as well, particularly in article 9 of the ECHR, which is similar to article 18 of the ICCPR. Article 9 of the ECHR is not identical to article 18 of the ICCPR since the latter has a wider scope of protection.84 The ECHR along with decisions of the ECtHR implies a strong safeguard for the right to religious freedom and emphasizes that the right to freedom of religion is one of the foundations of a democratic society.85 The ECHR provision covers all forms of religion or belief; however the ECtHR has interpreted the context of article 9 of the ECHR in a narrower manner.86 For example, article 9 does not provide protection for only being aware of 78. Dalia Vitkauskaitė-Meurice.’ The Scope and Limits of the Freedom of Religion in International Human Rights Law’, (2011) 18, Jurisprudence, pp. 843-846; UN Human Rights Committee, CCPR General Comment No. 22: Article 18(Freedom of Thought, Conscience or Religion) 30 July 1993, CCPR/C/21/Rev.1/Add.4 via <http://www.refworld.org/docid/453883fb22.html> accessed 1 July 2016. (hereafter: HRC GC 22) 79 Ibid; The Council of the European Union, EU Guidelines on the promotion and protection of freedom of religion or belief, Luxembourg, 24 June 2013, pp. 2-3. Via <http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/137585.pdf> accessed 1 July 2016. (hereafter: The Council of Europe) 80 Vitkauskaitė-Meurice, p. 844 81 Savage, pp 378-379. 82 Savage, pp. 380-381 83 Ibid. 84 Vitkauskaitė-Meurice, pp. 843-847 85 Kristin Henrard,’ Minority Specific Rights: A Protection of Religious Minorities Going Beyond the Freedom of Religion?’’, (2009) 5, Yearbook of Minority Issues, pp. 22-24 86 Ibid.. 20.

(21) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg belonging to a particular minority group. Also, the term belief is not considered to be the same as opinion. Thus, in order to fall within the ambit of religious freedom, a certain level of cogency, seriousness, cohesion and importance are demanded.87 In international and regional human rights law, derogation of the right to religious freedom is not permitted meaning that religious freedom cannot be derogated in situations of emergency.88 Moreover, the right to have, to adopt or to change one’s religion is considered to be absolute and states are not able to limit this right.89 Freedom from coercion to change a religion and the liberty of parents to assure religious or moral education also cannot be limited.90 Furthermore, the Treaty of Lausanne grants protection of the right to religious freedom in article 38, and article 37 prohibits Turkey to have legislation that is in conflict with the articles in the treaty. Nevertheless, as shown below, the unequivocal forbiddance of infringing upon religious freedom has not prevented Turkey from limiting non-Muslims’ rights through contradictory legislative acts.91 4.1.2 The Freedom to Manifest One’s Religion or Belief in International Law As reviewed earlier, the right to freedom of religion assures the protection of various religious activities for every human being and incorporates the manifestation of a religion or belief. International legal experts have noted that article 6 of the 1981 Declaration on the Elimination of All Forms of Intolerance is the most comprehensive in terms of presenting distinct forms of expression.92 An extensive variety of acts are embodied in the freedom to manifest a religion or belief in worship, observance, practice and teaching. The notion of worship has been translated into ritual and ceremonial acts and practices intrinsic to these acts such as establishing and visiting places of worship and the exposition of symbols.93 The observance and practice of religion not only involves ceremonial activities but also the 87. Ibid. Jim Murdoch, Protecting the Right to Freedom of Thought, Conscience and Religion under the European Convention on Human Rights, (2012), Council of Europe: Strasbourg, p. 16 via <http://www.coe.int/t/dgi/hr-natimplement/Source/documentation/hb09_rightfreedom_en.pdf> accessed 7 July 2016. 88 Vitkauskaitė-Meurice, pp. 846-849 89 Alice Donald and Erica Howard,’ The Right to Freedom of Religion or Belief and its Intersection with Other Rights’, (2015) Middlesex School of Law Research Paper, 1/2015, p. 2. 90 U.S. Commission on International Religious Freedom, The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitution of Majority Muslim Countries and Other OIC Members ( CreateSpace Independent Publishing Platform 2012), pp 15-17. 91 IHF, p. 7-8; Yildiz, pp. 803-805; Mine Yildirim,’ The Right to Establish and Maintain Places of Worship in Turkey’, (2013) 8, Religion and Human Rights, pp. 205-208. 92 Fatih Öztürk,’ Religious Freedom and Religious Minorities: The Right to Religious Education under the UN System’, (2013) 3, Human Rights Review, p. 84. 93 Vitkauskaitė-Meurice, p. 845. 21.

(22) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg observance of nutrient governance or the wearing of special clothes.94 Additionally, the practice and teaching of religion or belief consists of indispensable performances pertaining to the essential matters of religious groups such as appointing religious leaders, engaging in religious education and founding religious schools or publications.95 The freedom to manifest religious beliefs may be limited, since it might lead to impedance with the rights of other individuals or could be a threat to the community.96 Adopting somewhat dissimilar wording, article 18 (3) of the ICCPR and article 9 (2) of the ECHR allow for the right to be limited if “prescribed by law” and necessary for preserving public safety, order, morals, health or rights and liberties of others.97 Furthermore, the Treaty of Lausanne differs from the other international norms in that it only allows limitations on the grounds of national defense and public order.. 98. In general comments No. 22 and No. 27, the HRC. asserted that restrictions need to be proportionate and pertain to the protected interest and that the understanding of limitations have to be rigorously construed, only acknowledging the articulated limitation grounds.99 According to the ECtHR, in order for an interference to qualify as necessary in a democratic society, there must be a “pressing social need” and be “proportionate to legitimate aim pursued.”100 In addition, the court portrays the “prescribed by law” condition in a narrow manner in order to prevent breaches of the right to freedom of religion. In Kalaç v. Turkey the court declared that this condition helps protect against the intrusion of the rights by states guaranteed in article 9 (2) ECHR.101 Furthermore, every limitation should correspond to international human rights norms and the principle of nondiscrimination.102. 94. Ibid Ibid 96 Todd Parker,’ The Freedom to Manifest one’s Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR’, (2006) 17, Duke Journal of Comparative and International Law, pp. 94-96. 97 Ibid; Donald & Howard, p. 2. 98 Lausanne Treaty, article 38-40. 99 Parker, pp. 94-96; Vitkauskaitè-Meurice, p. 849. 100 Case of Handyside v UK, Application No. 5493/72 (ECHR 7 December 1976) para 49 at: <http://swarb.co.uk/handyside-v-the-united-kingdom-echr-7-dec-1976/ > accessed 2 July 2016. 101 Case of Kalaç v. Turkey, Application no. 45631/99 (ECHR, 3 October 2002) at: < http://hudoc.echr.coe.int/eng#{"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}> accessed 4 July 2016. Parker, p. 96. 102 The Council of Europe, pp. 2-3. 95. 22.

(23) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg Although the freedom to manifest religious beliefs is guaranteed by international norms, a wide margin of appreciation for states exists that could create issues with the evaluation of the aforementioned rights, and this could result in international supervision being undermined.103 According to the view of Krishnaswami, a legal scholar, the freedom manifestation of religious belief is frequently diminished by way of “unreasonable regulations” or conditions which complicate adherence to the right.. 104. Consequently, the wide margin awarded to. countries could contribute to discrimination against religious minorities, such as the nonMuslims in Turkey.105. 4.1.3 The Freedom to Establish and Maintain Places of Worship, Religious Education and Conscientious Objection to Military Service The freedom to establish and maintain places of worship and religious education are regarded as essential for members of religious minority groups and are an extension of the freedom to manifest one’s religion in the words of the HRC.106 Nevertheless, since these rights are connected with the expression of religious beliefs, states are able to restrict these liberties. The Vergos v. Greece case is an interesting decision on state discretion when dealing with the freedom to create places of worship. In this case the court opened the way for national governments to demand evidence determining that there is a need for such a place. 107 Regarding religious education, the Leirvag v. Norway decision of the HRC illustrates that not fully granting the exemption from compulsory religious subjects amounts to a violation of article 18 (4) of the ICCPR and it illustrates that states need to provide for religious and moral education in conformity with the beliefs of the parents.108 The right to conscientiously object to military service is a relatively new universal freedom. There is no specific consideration of this freedom in the relevant international human rights treaties; however it is envisaged as a valid exercise of the right to freedom of. 103. Yildirim, p. 205 Ibid; Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices. in Nazila Ghanea (ed.), Religion and Human Rights (Routledge: New York, 2010) 105 The Council of Europe, p. 2-3 106 HRC GC 22, p.4, Karimova & Deverell, p. 8; Öztürk, p. 85. 107 Case of Vergos v. Greece, Application no. 65501/01(ECHR, 24 June 2004) at: <http://hudoc.echr.coe.int/eng?i=001-66404> accessed 4 July 2016. 108 Case of Leirvag v. Norway, CCPR/C/82/D/1155/2003, UN Human Rights Committee (HRC), 5 November 2004 at: <https://www.regjeringen.no/no/aktuelt/Human-Rights-Committee-Communication-No11552003/id422478/> accessed 4 July 2016. Öztürk, p. 97 104. 23.

(24) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg religion.109 An example can be found in the ICCPR where conscientious objection is not mentioned as falling within the scope of article 18. Nevertheless, the HRC’s case-law regarding claims of conscientious objection as a form of religious expression or belief has experienced an increase in dealing with such applications under article 18 (1) of the ICCPR, instead of article 18 (3) of the ICCPR.110 The most significant judgment was that of Yeo-Bum and Myung-Jin Choi v. Republic of Korea, which concerned the conviction of two Jehovah’s Witnesses who refused to serve in the military due to their religious beliefs. The HRC found the act to be in violation of the freedom of thought, conscience and religion ex article 18 (1) of the ICCPR.111 The ECHR rationale of conscientious objection can be deduced from article 9. However, the ECtHR regards this rationale as being part of the actual manifestation of religious beliefs. Thus, member states may limit this right, but limiting it must be legitimate and must be necessary in a democratic society.112 The position of the ECtHR became apparent in the Bayatyan v. Armenia case where it revoked its precedents. The judgment involved an Armenian Jehovah’s Witness who rejected to serve in the military when no alternative form of nonmilitary service existed and was detained.113 The court took account of the advancement of this right in international human rights law and concluded that article 9 ECHR had to be explained in light of present-day conditions. This case was remarkable because the court approached and considered this right solely with regard to article 9.. 114. Nevertheless, it is unclear whether the right is acknowledged by the ECtHR as being part of the right to freedom of thought, conscience and belief or the freedom to manifest one’s religion or belief. If the court pursues the view of the HRC, the right to conscientious objection will develop in such a way that no state will be able to interfere with this right, thus rendering the grounds for limitations ex article 9 (2) ECHR inapplicable.115. 109. Özgur Heval Cinar, The right to Conscientious Objection to Military Service and Turkey’s Obligations under International Human Rights Law, first published 2014, (Palgrave Machmillan: New York, 2014), p. 9 110 Ibid, p. 16 111 Yeo-Bum and Myung-Jin Choi v. Republic of Korea, CCPR/C/88/D/1321-1322/200 UN Human Rights Committee (HRC), 23 January 2007, at: <http://www.refworld.org/docid/48abd57dd.html> accessed 4 July 2016. Mine Yildirim, ‘Conscientious Objection to Military Service: International Human Rights Law and the Case of Turkey’, (2010) 5, Religion and Human Rights, pp. 67-69 112 Cinar, pp. 61-62 113 Cinar, pp.38-39 114 Cinar, pp. 40-41 115 Cinar, p. 47. 24.

(25) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg 4.2 The Right to Freedom of Religion in Turkey Turkey’s policy regarding religious freedom predominantly stems from article 24 of its constitution in combination with the prohibition of discrimination, of which the former reflects the approach of modern states and this article provides for certain conformity with article 18 of the UDHR.116 The constitution drafters undertook steps to mitigate the antireligious aggression of the initial regime between 1970 and 1980 by putting all Islamic ideas under their conduct and by associating secularism with the term ‘conviction.’117 In recent years, the scope of the right to freedom of religion in the Turkish constitutional framework has expanded and embodies rights and liberties not only deduced from international human rights instruments.118 The president of Turkey’s religious affairs, Bardakoglu, reiterated this fact and added that freedom of religion also consists of minorities having the right to retain their religion and the freedom to receive religious and moral education in conformity with their religion, of which the latter, ex article 24 of the Constitution falls within the authority of the state.119 Under article 24, citizens may perform “acts of worship, religious rites and ceremonies,” while coercion to worship or to performing religious rituals is prohibited.120 Acts inevitably connected to worship, such as establishing and maintaining places of worship do not have explicit protection under this provision. However, the term “acts of worship” is understood as implying the preservation of the right to worship or to build places for such objectives, and is thus indirectly protected by the scope of article 24 and, to a certain extent, further developed through legislative acts and jurisprudence.121 For example, the Constitutional Court, when dealing with disputes on whether being a member of a Jehovah’s Witnesses community is criminal, declared that acts of worship, teaching, publication and assembly were within the scope of article 24.122 This is remarkable because article 24 does not mention publication or assembly. Turkey retains the right via the Ministry of National Education to oversee religious and ethical teaching, which, pursuant to article 24 (3), needs to be realized through the government’s rule and is obligatory in elementary and secondary schools.123 In the descriptive remarks on the draft Constitution it was explicitly affirmed that members belonging to non116. Niyanzi Öktern,’ Religion in Turkey’, [2002], Brigham Young Univerity Law Review, 386-387 Hakan Yavuz, Islamic Political Identity in Turkey, (First published 2003 Oxford University Press: Oxford, 2003) p. 72 118 Yildiz, pp. 798- 799, 803-805 119 Ibid. 120 Öktern, pp. 386-387 121 Cinar pp.82- 83; Vural, pp. 260-261. 122 Oehring pp. 9-10 123 Ibid. 117. 25.

(26) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg Muslim communities would be allowed to be excused from participating in such courses. Nevertheless, there is no mention of this aspect in the constitution. Also, regarding the term “compulsory religious education,” no particular referral to a denomination could be found, whereas it has become apparent that in Turkish schools, Islamic courses are the ones available, with no alternatives for non-Muslims.124 At first sight it seems as though the right to freedom of religion could only be limited by article 24 (5) when “religion, religious feelings or sacred matters” with authoritative aims or moderately deriving the country’s “fundamental, social, economic, political and legal order” from a certain conviction is prohibited.125 However, a separate root for constraints on all essential rights and freedoms of citizens is articulated in article 14. In-line with this provision the right to religion may be limited if religiously inspired acts are contrary to Turkey’s indivisible integrity or its democratic and secular system.126 The authentic wording was developed to entail severe restraints on rights and freedoms. The amended version was formulated to better conform to article 17 of the ECHR.127 Moreover, freedom of religion is laid down as an absolute right in article 15. It is impossible to derogate from this right and it is binding on the authorities. This article has been interpreted granting protection from persecution, with exception to religious beliefs or consciousness which is unacceptable. Thus, the constitution enables Turkey to limit the right to freedom of religion. However, they should not hinder article 14 and they should conform to the principle of proportionality ex article 13. 128. 124. Ibid. Ibid, p. 9; Öktern, pp. 386-387 126 Cinar pp. 90- 93; Özbudun, pp. 47-48 127 Özbudun, pp. 47-48 128 Cinar, pp. 90-93 125. 26.

(27) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg 4.3 Right to Religious Freedom in Turkey in Practice Turkey’s human rights duties towards its citizens is consequential for the right to freedom of religion, which includes of the freedom to establish worship places, religious education and conscientious objection of non-Muslim minority groups.129 Turkey’s government has created unequivocal guarantees for religious freedom; however, the constitutional provisions endorse constraints to the right not itemized by international human rights instruments. An example is the acceptance of limitations on grounds of secularism and national security.130 Legal scholars, such as Nowak and Joseph, maintain that national security falls within public order or that public order and national security are two interconnected limitation grounds, whereas in Turkey the claim that an activity poses a threat to national security is assumed to be the rule instead of the exemption.131 This presents continuous obstructions to the demands of nonMuslims. As previously noted, according to the HRC and the ECtHR, the grounds that justify interference have to be rigorously explained rendering national security not permitted which might violate relevant international norms.132 Moreover, Turkey’s ability to restrict the right is because they made reservations to article 27 of the ICCPR. They preserved the right to translate and implement the provision in accordance with its constitution and the Treaty of Lausanne.133 Particularly, the main goal of the restriction to article 27 of the ICCPR is to make sure only the recognized non-Muslims in the Treaty of Lausanne will have the status of a minority. It has commonly been assumed by other states parties that Turkey’s reservation approach is inconsistent with the object and purpose of the covenant.134 Additionally, the Treaty of Lausanne, which determines the religious privileges of the nonMuslim minorities, does not discern between recognized and non-recognized non-Muslims. By only recognizing the Jews, Greeks and Armenians as non-Muslim minorities, Turkey’s minority regime consists of a distinction in conflict with the treaty’s text. 135. 129. Yildirim (2013) pp. 205- 206. U.S. Commission on International Religious Freedom, pp. 15-17 131 Öztürk, pp. 89-90; Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Engel: Kehl am. Rein, 1993) pp. 482-485; Sara Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd Edition, Oxford University Press: Oxford, 2004) pp. 508-509. 132 Ibid. 133 Zeynep Elibol,’ Compatibility with the Object and Purpose Test and Turkey’s Reservations to International Human rights Instruments’, (Social Media Center, 6 November 2015) available at: <https://kuremer.ku.edu.tr/en/compatibility-object-purpose-test-and-turkeys-reservations-international-humanrights-instruments> accessed 8 June 2016 134 Ibid. 135 Oehring, p. 32 130. 27.

(28) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg This has affected the non-recognized non-Muslims because they have not attained legal status and cannot express their religious rights.. 136. This discriminatory act has generated an. infringement of the adherence to the Lausanne Treaty together with article 10 and 24 of the constitution, which assures protection against discrimination based on religion.137 Nonetheless, the position of both recognized and non-recognized non-Muslim minority groups has advanced as is discussed in the following sections.138 4.3.1 Freedom to Establish and Maintain Places of Worship Turkey pursues a secular regime, yet a department of religious affairs exists that concentrates on managing religious affairs in order to inform citizens on religion and to govern places of worship.139 Furthermore, a minorities committee that has authority over all minorities, including non-Muslims, has been created by the Turkish government and this committee has to give permission for all religious activities.140 As reported by non-Muslim representatives, this panel poses tremendous obstacles because it makes attaining consent for particular acts challenging and because decisions cannot be appealed.141 This obstacle is illuminated by the non-recognition of the Armenian and Greek Orthodox Patriarchates and the preeminent Rabbinate of Turkey. Another illustration involves the unwillingness of the committee to approve various minority school students to attend summer camp due to posing a threat to Turkey’s national security.142 Moreover, all religious associations are contingent upon the Law of Foundations. There is a consensus among the non-Muslim minority groups that this law defies the right to religion in Turkey by using different standards for non-Muslims and Muslims.143 This differentiation is exemplified in the limits to property rights, access to courts, and the liberty to teach and develop their clergies.144 While authorities stress that there is no discrimination between the majority and the minority or even between non-Muslim minority groups, the UN Special Rapporteur’s report has illustrated that the non-recognized non-Muslims experience major contraventions concerning religious toleration. This group is hindered by government. 136. Joseph Yacoub,’ Minorities and Religion in Europe Case Study: The Assyro-Chaldeans of Turkey’, (2004) 4, Yearbook of Minority Issues, pp. 43-44. 137 Oehring, pp. 20-21 138 Yacoub, pp.43-45 139 Yildiz, p. 794 140 Ibid, pp. 803-804 141 Ibid. 142 Ibid 143 IHF, p. 16 144 Ibid.. 28.

(29) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg institutions in founding religious associations for their activities or establishing elementary schools, despite their protection by constitutional provisions relating to religious freedom.145 This can be illustrated with a recent case adjudicated by the ECtHR namely the Association for Solidarity with Jehovah Witnesses and Others v. Turkey.146 In this case the members of the Jehovah Witnesses belief filed a complaint against the closing of their place of worship in the city Mersin. The ECtHR asserted that Turkey’s intervention with the right to freedom of religion or belief was prescribed by law but not proportionate to the legitimate aim, i.e. the avoidance of disorder, and not necessary in a democratic society.147 It further emphasized that for smaller religious communities more difficulties existed regarding the fulfilment of the constitutional conditions for acquiring access to a place of worship and that the government used the law to impose restrictive acts on the enjoyment of the right to manifest religious beliefs. Thus, the right to freedom of religion ex article 9 ECHR was violated.148 Also, a case of the Turkish Court of Cassation is worth mentioning, which concerned the ecumenical character of the Greek Patriarchate.149 Turkey perceives the Patriarchate as the leading church of the Greek minority and the court reaffirmed Turkey’s position and declared that there was no constitutional ground for the allegation that it is ecumenical.150 This decision caused great international debate and, in particular, concerns were raised by the European Commission, which announced reports on various human rights conditions in Turkey. It was maintained that the non-recognition of the ecumenical status of the Orthodox patriarchate impeded the right to religious freedom of the Greek Orthodox community.151 The decision is relevant for the religious freedom of non-Muslim minority as it entails the possibility for minority groups to freely determine their religious associations, choose their own leaders and the name of their religious establishments.152 Hence, activities that intervene with the right to religious freedom would probably amount to violations of articles 40 of the. 145. Karimova and Deverell p. 12; Oehring p. 24 Case of Association for Solidarity with Jehovah Witnesses and Others v. Turkey, Application nos. 36915/10 and 8606/13(ECTHR, 24 May 2016) at: <http://www.strasbourgconsortium.org/common/document.view.php?docId=7143> accessed 28 June 2016. 147 Ibid. paras 88-91, 102-108 148 Ibid. 149 Frederik Sejersted, Comments on the Legal Status of Non-Muslim Religious Communities in Turkey, Opinion no. 535/2009, Venice Commission, 2010, p. 21 150 Ibid. 151 Ibid, p. 22; Turkmen & Öktern, p. 474. 152 Sjerested, p. 22. 146. 29.

(30) Lousnak Thomas, Master Thesis Public International Law Dr. S. Hollenberg Lausanne Treaty, articles 18 of the ICCPR, 9 of the ECHR and other international documents with similar provisions.153 4.3.2 Freedom to Religious Education The domestic system regarding religious education has led to protests by the non-Muslim minorities since the courses are de rigueur and chiefly Islamic.154 This aspect is problematic for non-recognized non-Muslims; in contrast to the recognized non-Muslims who are accepted as a minority, non-recognized non-Muslims cannot be exonerated from Islamic courses.155 Additional issues may be found in that the theological ambitions and demands of the non-Muslims will not be conciliated by secular values, this may lead the demand for independent schools. The realization of collective harmony between the non-Muslims and the Muslim majority would be even more challenging if this occurs.156 Furthermore, several cases relating to religious education have been brought against Turkey. Of particular importance is the Hasan & Eylem Zengin v. Turkey case that involved a father who petitioned national authorities to excuse his daughter from religious and ethical sessions.157 The claim was rejected by the Supreme Administrative Court on the basis that Turkish legislation was not violated. The claimants argued before the ECtHR that the Turkish government breached article 9 of the ECHR and the parent’s right to insure education in compliance with their religion ex article 2 of Protocol No. 1 of the ECHR.158 The ECtHR stated that relevant courses in Turkey did not fulfill the requirements of objectivity and pluralism which is crucial for education and that Turkey did not respect the beliefs of Hasan and Eylem Zengin. The process was found to be disproportionate and no adequate safeguards were provided to the parents who believed that the courses would raise a dispute between values. The court found a violation of the ECHR.159 This judgment affects non-Muslims with regard to their predominant religion and their right to be excused from such courses. Since Turkey is bound by ECtHR decisions, both recognized and unrecognized non-Muslim minorities are able to make similar claims, which thus strengthens the position of the non-Muslim minority. 160 153. Ibid; Turkmen & Öktern p. 474. Kabasakal, pp. 134-135 155 Niyanzi Öktern,’ Religion in Turkey’, [2002], Brigham Young University Law Review, pp. 386-387 156 Karimova and Deverell p. 8 157 Case of Hasan and Eylem Zengin v. Turkey, Application no. 1448/04(ECHR 9 October 2007) at: <http://hudoc.echr.coe.int/eng#{"appno":["1448/04"]}> accessed 8 June 2016, paras 6-7. 158 Ibid, paras. 14-16. 159 Ibid, paras. 36, 53-54, 71-76. 160 Kabasakal, pp. 133-136. 154. 30.

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