The Collective Dimension of Freedom of Religion

A Case Study on Turkey

Mine Yıldırım

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781315535753
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

The right to freedom of religion or belief, as enshrined in international human rights documents, is unique in its formulation in that it provides protection for the enjoyment of the rights "in community with others". This book explores the notion of the collective dimension of freedom of religion or belief with a view to advance the protection of this right.

The book considers Turkey which provides a useful test case where both the domestic legislation can be assessed against international standards, while at the same time lessons can be drawn for the improvement of the standard of international review of the protection of the collective dimension of freedom of religion or belief. The book asks two main questions: what is the scope and nature of protection afforded to the collective dimension of freedom of religion or belief in international law, and, secondly, how does the protection of the collective dimension of freedom of religion or belief in Turkey compare and contrast to international standards? In doing so it seeks to identify how the standard of international review of the collective dimension of freedom of religion can be improved.

1 Introduction

1.1 The Significance of the Collective Dimension of Freedom of Religion or Belief

Pertinent domestic and international developments involving issues related to tensions affecting religious or belief communities have been increasingly occupying the international law agenda. As a matter of fact, these issues have always been pertinent for suppressed belief communities all over the world; however, together with the challenges of accommodating diverse religious traditions in the West, intensified by a particular security context in which they are perceived, there appears to be greater focus on these issues. Amidst legislation and practices that do not seem to provide adequate solutions to new, and indeed long-standing, demands related to the protection of freedom of religion or belief, international law and adjudicators are ever more given the task of providing answers to how we can live with our differences—in particular those of a religious nature—in peace, while respecting human rights, in particular freedom of religion or belief. Indeed, human rights law, in particular provisions pertaining to the right to freedom of religion or belief, may provide some of the answers. Or, perhaps more accurately, those who generate and, thus, shape international law jurisprudence are in the process of seeking some of the answers. Freedom of religion or belief is in need of re-conceptualization, yet again, both as a matter of national and international law.¹ This need for re-conceptualization continues as demands pertaining to the right to freedom of religion or belief challenge the boundaries of religious freedom set in national as well as international law. This book aims to contribute to the process of “re-conceptualization” by exploring the notion of the collective dimension of freedom of religion or belief with a view to advance the protection of the right to freedom of religion or belief. The case of Turkey provides a useful test case where both the domestic legislation can be assessed against international standards, while at the same time lessons can be drawn for the improvement of the standard of international review of the protection of the collective dimension of freedom of religion or belief.

The right to freedom of religion or belief is a fundamental part of the indivisible and interdependent human rights protection scheme. It is “far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others”.² It is a multi-faceted right that has bearings on many areas of the lives of individuals and groups of believers. For many individuals, it is the right to be as they choose to be—rooted deeply in the autonomy of the individual. For many religious or belief communities, it provides vital guarantees for their survival. The right to freedom of religion or belief, as enshrined in international human rights documents, is unique in its formulation in that it provides protection for the enjoyment of the right “in community with others”.³ It is a human right that cannot be realized in isolation, indeed, it crosses categories of human rights with aspects that are individual, aspects that can be effectively realized only in an organized community of individuals and aspects that belong to the field of economic, social and cultural rights such as those related to religious or moral education.⁴ While freedom of religion or belief can be exercised individually it is generally the case that persons sharing the same belief organize themselves in various ways and thus engage in acts they do “together”.

Two important assumptions have served as starting points for this book. The first assumption is the recognition of a need to advance the effective international and national protection of the collective dimension of the right to freedom of religion or belief that is firmly grounded on the international provisions protecting the right to freedom of religion or belief.⁵ This assumption does not, however, imply that the individual dimension is sufficiently protected, inferior or less important, nor does it assert that there is a greater need to focus on the collective dimension compared to the individual dimension. On the contrary, there is a need to improve the protection of the right to freedom of religion or belief both in its individual and collective dimensions in very many diverse states as it is demonstrated in the annual and thematic reports of the UN Special Rapporteur on Freedom of Religion or Belief.⁶ This book, however, chooses to focus and examine the collective dimension. The second assumption pertains to the case of Turkey; a better understanding and implementation of the collective dimension of freedom of religion or belief would greatly advance the protection of freedom of religion or belief in Turkey. It has been assumed that many unresolved issues outstanding in Turkey which are at the core of the right to freedom of religion or belief as well as state–religion relationship could be resolved were applicable international human rights standards implemented.

The important work of Arcot Krishnaswami entitled Study of Discrimination in the Matter of Religious Rights and Practices has been an important inspiration for this study.⁷ Krishnaswami’s study presents a broad view of the manifestations of religion or belief and a realistic description of the various forms of tensions at play in relation to states’ ensuing obligations.⁸ This broad view was a result of a willingness and readiness to be informed by the diverse manifestations of religion or belief of believers following diverse religious or belief traditions from around the world. He recognized the distinct character of the right to freedom of thought, conscience, religion or belief based on the un-identical demands religions or beliefs make of their followers.⁹ In particular, however, his early recognition of the importance of the collective aspect of freedom of religion or belief, precisely because interventions and regulations on the part of states are more frequent when manifestations are performed “in community with others” than when they are performed “alone”, has concurred with my own observations in the Middle East and Turkey. This has led me to further explore the scope of the collective dimension of freedom of religion or belief and seek to advance its protection as it appeared to have a key function in advancing the protection of human rights and specifically the right to freedom of religion or belief by way of creating normative demands to correct state practice.

Turkey, at first glance, with its reference to 99% Muslim population may give the impression of a religiously homogenous society.¹⁰ However a slightly closer look reveals that Turkey is a true test case for freedom of religion or belief for individuals and communities with its diverse Islamic traditions and “other” religious or belief groups such as Jews, Christians, the Bahai, the Yezidi, atheists and the unconcerned who exist in a secular state and a predominantly Sunni-Muslim society where both are influenced by the Sunni-Muslim religious tradition. Turkey has undertaken international human rights obligations applicable to the protection of the collective dimension of freedom of religion or belief and has a general constitutional commitment to protect freedom of conscience and worship.¹¹ Nevertheless, national legislation and practice lag far behind international norms. The paradoxical arrangements ensuing the unique state–religion affair, such as the constitutional institution of the Diyanet and compulsory Religious Knowledge and Ethic lessons, the narrow scope of freedom of conscience, religion or belief and particular understanding of secularism and nationalism are presented as only some of the challenges. In this complex context the collective dimension of freedom of religion or belief is viewed with suspicion and suffers, specifically because of its collective nature. The complexity of the Turkish case presents itself as an exceptionally useful case to test national compliance with international norms and the standard of international review.

1.2 Objective, Method and Outline of the Study

This study centers on two primary questions; first, what is the scope and nature of protection afforded to the collective dimension of freedom of religion or belief in international human rights law, and, secondly, how does the protection of the collective dimension of freedom of religion or belief in Turkey compare and contrast to international standards? Thus the study consists of two main parts. The first part of the book explores and examines the notion of the collective dimension of freedom of religion or belief, and the scope of its protection in international law with particular reference to the right to acquire legal personality and autonomy of religious or belief communities. In the second part of the book, the case study on Turkey constitutes the applied part of the study; here, the protection of the collective dimension of freedom of religion or belief is assessed with a view to evaluate the compliance of Turkish legislation and practice with international norms as well as seeking to identify how the standard of international review of the collective dimension of freedom of religion or belief can be improved.

In the first part of the book, the discussion primarily draws from the applicable international human rights instruments, in particular the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR),¹² and the jurisprudence of the Human Rights Committee (HRCttee) and Strasbourg organs and to a certain extent from the work of the UN Special Rapporteur on Freedom of Religion or Belief. Documents of a soft law nature, such as guidelines are also included in the analysis. Secondary resources, such as books, journal writings as well as reports have also been relied upon. The choice of normative sources—the UN protection scheme and the regional Council of Europe (CoE) protection schemes—has been deliberate in order to benefit from and provide a comparative view that this choice will provide. Throughout the study it has become clear that there are considerable differences in the conceptions of these adjudicators of the respective systems.

The second part of the book employs the case-study method to study the protection of the collective dimension of freedom of religion or belief in Turkey. The case study method is particularly suitable for this project as it gives the opportunity to study a phenomenon in a real life context, as well as allowing for an in depth and nuanced study of a complex situation. The scope of the study is limited to the exercise of the collective dimension outside the Diyanet İşleri Başkanlığı (The Presidency of Religious Affairs, the Diyanet or DİB hereafter) framework. In order to ensure a holistic approach, instead of examining the situation for religious communities individually a thematic approach is adopted. The scope of the investigation is confined to the themes that are explored in the theoretical part of the study, namely, the right to acquire legal entity status and the right to freedom in the internal matters of religious/belief communities.

The choice of the normative framework, the collective dimension of the right to freedom of religion, as opposed to a minority rights framework, has proved to be strategically effective in the Turkish context. In brief, Turkey adopts a narrow approach (recognizing only Greek, Armenian and Jewish communities as minorities based on a restrictive interpretation of the Lausanne Peace Treaty, 1923) for the definition of minorities.¹³ On the other hand, so far as legal commitments are concerned the right to freedom of religion or belief is protected through Turkey’s international obligations (in particular the ICCPR and the ECHR) as well as through constitutional and other legislative provisions. Thus, while not underestimating the obligation of protection within the Lausanne framework, a fundamental set of legal obligations under Turkey’s national and international legal commitments that provide a potentially effective normative protection in its own right as well as being complementary to the Lausanne protection scheme exists. Moreover, in contrast to the Lausanne scheme, the international human right treaties that Turkey is a party to have more comprehensive compliance review mechanisms. This approach has had the added advantage of being inclusive of, not only minority communities, but all belief communities, including the majority Sunni-Muslim community in Turkey. Turkey’s legal and political commitments in the sphere of freedom of religion or belief offer critical potential for advancing freedom of religion or belief. The scope of protection provided through the collective dimension of freedom of religion or belief provisions lends itself to an effective legal framework for the protection of acts that many religious/belief communities engage in collectively.

In the case of Turkey, the primary normative sources have included the Turkish legislation and case law. In order to assess the compatibility of national legislation and practice with international law pertinent to the key aspects of the collective dimension of freedom for religion or belief, first applicable legal frameworks are described. The case study focuses largely on primary sources such as legal instruments, judgments, administrative body decisions and interview material. Secondary sources, including books, journal articles, reports and newspaper articles have also been used, in particular with reference to historical, political and sociological background. The approach of the Turkish judiciary is submitted through a critical analysis of case law and relevant executive and administrative decisions. Yet, the method employed in this study assumes that analysis based on only written national laws will be inadequate to assess domestic compliance with international standards. This assumption is based on observations made during interviews with various religious community representatives who pointed to important administrative processes and decisions that determine rules and outcomes relevant for their internal affairs. Some of these administrative processes have not become the subject of legal disputes but the administrative processes and decisions are indicative of applied rules and practice in the field of freedom of religion or belief. For this reason it has been necessary to determine the content and nature of rules that are applied and patterns established through the decisions of public administrators affecting communities or persons exercising their rights. Finally, it is assumed that the rights holders need to be included in the research on compliance control in order to acquire knowledge on practice and a genuine understanding on trends and current issues that belief communities face in Turkey.

The interviews that were conducted with representatives of religious/belief communities were not concerned with the collection of quantitative data, but rather with gaining insight into relevant issues and the context. Thus an in-depth interview method was employed, which is considered a key tool for hearing and understanding in social science.¹⁴ The interviews guided the identification of practices and patterns, applicable rules or lack of rules and the extent to which these meet the needs of the various religious/belief communities and, thirdly, problem areas. Finally, they were an effective means of including the perspective of religious/belief communities which provided essential information and guidance for the study.¹⁵ On the other hand, some methodological challenges were encountered as regards access to information. Interviews that have been conducted and interview requests that have been turned down, demonstrate that confidentiality was a concern for interviewees and potential interviewees. Those who agreed to interviews, at times, showed reluctance to provide specific references (case number, name of institutions etc.) on relevant cases or administrative processes and decisions. The interviews were conducted in Turkish and then the findings were translated as they have been incorporated into this work.

Chapter 2 introduces the notion of the collective dimension of freedom of religion or belief. Key provisions guaranteeing freedom of religion or belief protect the right of individuals, either alone or in community with others and in public and private, to manifest their religion or belief, in worship, teaching, practice and observance. It is argued that the collective dimension of freedom of religion or belief is based both on the acts that are protected which ar...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Forward
• 1. Introduction
• 2. The Notion of the Collective Dimension of Freedom of Religion or Belief
• 3. The Right to Acquire Legal Personality: A Substantive Component of the Right to Freedom of Religion or Belief
• 4. The Right of Religious or Belief Groups to Freedom in their Internal Affairs
• 5. Introduction to the Case Study on Turkey and the General Turkish Legal Framework Pertaining to the Right to Freedom of Religion or Belief
• 6. The Right of Religious or Belief Communities to Acquire Legal Personality in Turkey
• 7. The Right of Religious or Belief Communities in Turkey to Freedom in their Internal Affairs
• 8. Conclusion
• Bibliography
• Index