Beyond legal victory or reform: the legal mobilisation of religious groups in the European Court of Human Rights

ABSTRACT

This contribution considers the emergence of litigation in the European Court of Human Rights (ECtHR) as a common strategy for various grassroots groups. It explores the legal status problems of recognised non-Muslim minorities and belief groups in Turkey in three different yet interlinked fields: the confiscated property of minority foundations, the establishment of community associations and the status of worship places. The analysis in this contribution revolves around legal mobilisation in the ECtHR as a common strategy for various religious groups, focusing on the grassroots actors’ perceptions of their legal status problems and litigation in the ECtHR and, in so doing, illuminating the grassroots level impact of ECtHR case law on religious minority groups. By placing the emphasis on an actor-centred approach to legal mobilisation, this contribution builds on social mobilisation scholarship that encourages a scrutiny of developments at the grassroots level in view of offering an understanding of the indirect effects of the Court’s decisions. Rather than solely analyse government-initiated, central legal reform as a yardstick for the success or failure of a court’s effects over a given country’s policies, this contribution focuses on the indirect effects of the Court’s decisions and draws attention to the much broader range of potential influence of court decisions over the issues which those decisions address.

KEYWORDS:

• Religious minorities
• ECtHR
• human rights
• freedom of religion
• grassroots mobilisation

Introduction: religious minority groups and their legal status problems

This contribution explores the legal status problems of religious minority groups in Turkey¹ and the impact of the European Court of Human Rights (ECtHR or the Court) on the legal mobilisation of these groups. Specifically, the groups examined here include Greek Orthodox, Armenian, Alevi, Turkish Protestant and Jehovah’s Witnesses (JWs) – all groups which have litigated in the ECtHR regarding several issues related to their legal status. A central problem in Turkish law regarding the legal status of religious communities is that religious/belief communities as such cannot register and obtain legal personality. There is no clear law prohibiting these communities from having a legal personality, nor one making such a registration possible. Moreover, the Turkish Constitution does not mention any minorities in the country, and there are no laws addressing minority issues specifically (Bayιr 2013). As a result, the legal status of minorities is a grey area in Turkish law, and several different governmental decrees regulate minority institutions’ affairs instead of proper legal provisions (Kurban and Hatemi 2009; Oran 2015; Yildirim 2017). Various aspects of the communal life of these groups are hindered by their lack of legal personality. This contribution limits its focus to the domain of three main legal status issues that these groups have litigated on in the ECtHR: establishing community associations, opening and maintaining worship places, and managing community properties.

The analysis in this contribution revolves around legal mobilisation in the ECtHR as a common strategy for various religious groups. It focuses on grassroots actors’ perceptions of their legal status problems and litigation in the ECtHR and, in so doing, illuminates the grassroots level impact of ECtHR case law on religious minority groups. By placing the emphasis on an actor-centred approach to legal mobilisation, this contribution builds on social mobilisation scholarship that encourages a scrutiny of developments at the grassroots level for an understanding of the indirect effects of the Court’s decisions (also see, Kurban et. al. 2008). Rather than solely analyse government-initiated central legal reform as a yardstick for the success or failure of a court’s effects over a given country’s policies, this contribution focuses on the indirect effects of Court decisions and draws attention to the much broader range of potential influence of court decisions over the issues which those decisions address.

Given this aforementioned limited protection by domestic legal frameworks, the European Union (EU)-led reform period was welcomed by scholars engaging with matters of religious freedom as an important step in the democratisation of the country. The Copenhagen Criteria for EU membership, adopted at the Copenhagen EU Summit in June 1993, included in their requirements for prospective EU-member states ‘the stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities’ (Göksel and Güneş 2005; Kubicek 2005; Öner 2014; Zihnioğlu 2013). At the Helsinki Summit of December 1999, Turkey was awarded the status of a candidate for EU membership. Meanwhile, specifically in relation to the ECtHR, already in 1987 Turkey recognised the right to individual applications to the ECtHR, and in 1990 it accepted the binding jurisdiction of the Court. Article 90 of the Turkish Constitution on the force of international agreements was amended in 2004 so as to give the ECHR and the case law of ECtHR direct effect and supremacy over national law. These EU accession process-related reforms mainly include three series of Constitutional amendments and nine law packages that amount to approximately 500 laws (Özbudun and Türkmen 2013).

That said, these legal reforms were not a panacea for the challenges faced by religious minorities: problems remained in the implementation of legal reform, in the reluctance of the government to extend freedoms to the Alevis and non-Muslim minorities (Patton 2007; Yılmaz 2016) and in the national courts’ unwillingness to accommodate the ECtHR’s rulings (Grigoriadis 2007; Özbudun 2007; Ulusoy 2011).

However, the process of democratisation and reform, and the negotiations for EU membership have recently hit a major impasse. The political developments since these efforts to reform the law in the first half of 2000s, in addition to other failures of Adalet ve Kalkinma Partisi (the Justice and Development Party, AKP) in this now stalled democratisation process, have contributed to the continuing legal conundrum regarding the legal status of minorities and belief groups. As illuminated in the pages that follow, attention to developments at the grassroots level reveals an altogether different dimension of progress made towards the establishment of legal status-related rights of religious minority groups in Turkey, in spite of the stalled legal reform and democratisation process observable from the top-down. Thus, an exclusive focus on the Turkish state and the ECtHR as central actors in the story and on legal reform and policy change as the most important outcomes of this process would be, from the perspective set out in this contribution, an overly narrow approach.

By placing the emphasis on an actor-centred approach to legal mobilisation, this contribution aims to further scholarship on legal reform in Turkey. To understand the dynamics of central legal reform, it emphasises the importance of grassroots-level legal mobilisation strategies and goes beyond a policy-centred approach to legal reform in order to appreciate the broader (and less conspicuous) impact of the ECtHR case law on religious minorities in Turkey in terms of its indirect effects. To this end, this contribution draws on scholarship which has long argued for a contextualisation of litigation within broader social struggles (McCann 1994; NeJaime 2011; Vanhala 2015). NeJaime (2011, 953), for example, maintains that even litigation loss might produce positive indirect effects since actors do not necessarily aim to win in the courts, but use litigation loss to articulate rights-based demands, provide a public narrative and forge a group-based identity. Olson (1981), moreover, argues that scholarship should focus on the indirect effects of the litigation process, beyond a focus on winning and losing in the courts. Such indirect effects include ways in which case law may influence social actors’ perceptions of their rights, their discourse about their rights and their pursuit of those rights, whether through political or legal means. As a recent contribution to this line of analysis, Vanhala (2015) argues for taking domestic activists and the meanings they attribute to rights seriously.

Drawing on this trend in social mobilisation theory, this present contribution seeks to bring new light to grassroots strategies for legal mobilisation in the Turkish context and in so doing demonstrates the ‘radiating effects’ (Galanter 1983) of the ECtHR decisions on grassroots actors in the country. Focusing on what messages these decisions serve beyond the limited circle of litigants, it argues that legal decisions do not necessarily just affect grassroots actors by directing their rights claims towards formal court settings, but also by influencing the nature and scope of their demands. This contribution aims to nuance the ‘radiating effects’ theory by analysing how legal mobilisation at the ECtHR level and subsequent government policies might both enable and limit further mobilisation by different grassroots actors. It also asks a critical question thus far neglected in the relevant scholarship: what happens to grassroots strategies of legal mobilisation when the implementation of the court decisions is limited and the political future for grassroots legal mobilisation is dim?

The main data for this study was collected through semi-formal interviews² with representatives of a broad range of religious minority groups, with lawyers handling their religious freedoms cases and with scholars working on the legal status problems of minorities and advising these groups in their cases to the ECtHR. The research underpinning this contribution also includes the analysis of relevant literature including scholarly texts, government and civil society-generated reports, and newspaper articles on the legal status of religious minorities in Turkey. Primary sources, such as legal instruments, judgements and administrative body decisions, have also been used to help understand the historical, political and legal background.

The contribution begins with a discussion of the legal framework pertaining to religious communities in Turkey and briefly explains the categories of recognised and non-recognised minorities in the context of the Lausanne Treaty. The following section traces the period of successful litigation in the ECtHR by the Greek Orthodox and Armenian minorities in the late 1990s and early 2000s regarding the issue of acquiring and maintaining community properties. The subsequent section explores a later period that spans from 2002, when other minorities started to litigate in the Court, to 2016, the date of the last ECtHR judgement at the time of writing. In the conclusion, the contribution reflects on the strength of the indirect effects of ECtHR case law, particularly when considered against the backdrop of the poor implementation records of the Turkish state.

The legal framework pertaining to the right to freedom of religion or belief in Turkey and EU-led legal reform

The Lausanne Peace Treaty of 1923³ is the key legal text that establishes the minority protection regime for Turkey’s non-Muslim communities. It continues to be a significant legal instrument for the protection of the right to freedom of religion or belief. The Treaty identifies solely non-Muslim minorities as minority right holders (Meray 2003), yet fails to specify the ‘non-Muslim minorities’ to which the Treaty applies. In practice, the Turkish government extended the protection only to the Armenian (Apostolic, Protestant and Catholic denominations), Greek Orthodox and Jewish communities.⁴ Turkey did not include other non-Muslim groups, such as the Syriac Orthodox and Syriac Chaldean, and Latin Catholics, in the Lausanne minority protection system. These groups remain without formal legal recognition as religious faith groups. Also, the Turkish state does not recognise other non-Muslim groups that became part of the country’s demographics later, such as JWs or Turkish Protestants. Scholars have noted the problems associated with this limited interpretation of the Lausanne Treaty, especially the lack of any domestic framework for minority protection and the legal status of non-Muslim and non-Sunni (i.e. Alevi) religious groups in the country (see, for example, Grigoriadis 2007; Oran 2015; Yildirim 2017).

However, a less noted problem is that, by a narrow adaptation of the Treaty’s terms, the Turkish state reserves the right to limit the rights of collective representation of even those minorities covered by the Lausanne Treaty. Meanwhile, there is no legal framework that establishes the legal status of the religious and civil representatives of these communities (Bebiroğlu 2008). Thus, for example, the Armenian Apostolic and Greek Orthodox patriarchates have no legal standing in Turkey because the patriarchs of these two religious groups do not have recognised rights specifically as representatives of these groups. This fact creates two problems. First, there is no central religious authority with legal status to manage all community institutions of these two groups. As expressed in the US State Department 2011 Report on International Religious Freedom, ‘since this recognition does not extend to religious leadership organs, the administrations of these religious communities do not have legal personality’ (US Department of State 2011, 3). Without legal personality, the religious heads of these communities do not have the authority to own, transfer or manage their respective communities’ assets.

In relation to this first issue, all community property is owned and managed in separate community foundations, known as ‘non-Muslim minority foundations’ (minority foundations, hereafter) or vakifs. These are the only organs of Lausanne minorities with a legal standing. Every community institution has a separate foundation, which is controlled by individual boards that manage the property of their respective churches, cemeteries, community schools and hospitals, and their respective endowed immovable properties. The result is a rather fragmented management structure. Also, the legal standing of these minority foundations has been limited through later governmental decrees, court decisions and the discriminatory practices of the General Directorate of Foundations (GDF), the governmental agency which regulates all charitable foundations with a religious affiliation and assesses whether the foundations are operating within the stated objectives of their organisational statute (as detailed in the following section). All of the above has resulted in the loss of communal property for the Lausanne minorities, and it is this loss which eventually led these groups to mobilise in the ECtHR.

The case of vakif properties: recognised minorities in the ECtHR

As it was briefly explained in the previous section, only the Lausanne minorities’ community foundations have proper legal status, however with serious limitations; the latter are based mainly on discriminatory administrative and judicial practice.⁵ Despite the provisions of the Lausanne Treaty, over time, major laws and practices in violation of the Treaty were introduced to exercise state control over the management and community property of these minorities. The 1926 Civil Code, while approving the establishment of new foundations, excluded non-Muslim organisations by prohibiting foundations ‘that support members of a certain race or community’.⁶ Most important among these limiting governmental decrees was the 1935 Law on Foundations⁷ that required all foundations to submit a property declaration by 1936. By and large the foundations complied. But later, in the context of the Cyprus crisis with Greece,⁸ the property declarations made by the foundations in 1936 were reinterpreted by the GDF as the founding acts of these foundations.⁹ The legal effect of all acquisition of property since 1936 was declared ‘null and void’ by the GDF, which argued that these declarations did not mention the legal capacity to acquire ownership for the respective foundations (Kurban and Hatemi 2009, 17). This paved the way for the seizure of hundreds of properties by the GDF.

The right of the minority foundations to acquire property was further crippled by restrictive legal practice. Especially two judgements of the Yargitay (Supreme Court of Appeals) in 1971 and 1974 are important for our discussion here.¹⁰ In both of these judgements, the Yargitay Court rejected the documents provided by a minority foundation for the registration of immovables on the grounds that the community foundations lacked legal personality (Bakar 2005, 263, 273).¹¹ It based its decisions on the 1935 Law on Foundations. This precedence later led to the reasoning in both the local and higher courts that, unless a minority foundation’s founding deed permits the acquisition of property, it could not acquire new property.¹²

Specifically, the details of the 1974 case are especially important here since it set a precedent and established subsequent jurisprudence in the national courts on the properties of Lausanne minorities. In its 1974 decision, the Turkish Court of Cassation not only upheld this policy but also declared minority foundations as ‘non-Turkish legal persons’. The language of the ruling was quite revealing in itself: ‘legal entities established by non-Turkish individuals are prohibited from acquiring immovables. Legal entities are more powerful than natural persons, therefore the State may face certain dangers […] if their right to acquire immovables is not restricted’.¹³

With this decision, an explicitly discriminatory legal categorisation was created that established the status of non-Muslim minority citizens in the country as ‘foreigners’. Those who had formed non-Muslim community foundations were thus subjected to laws in the sphere of property rights that were applicable to foreigners. It was not until 2002 that the application of this discriminatory jurisprudence was made ineffective by the adoption of Law No. 4771 in 2002, specifically, within the context of Turkey’s accession process to the EU. This new law recognises explicitly the right of community foundations to acquire new property.¹⁴

Within this national legal context of property loss, the ECtHR has been the main venue for legal mobilisation by these groups to claim their rights. Their attempts to litigate before the Court started in the early 1990s, shortly after the Turkish government accepted the right of individuals to bring their human rights complaints directly to the ECtHR. The first attempts were made at the initiative of the Armenian Patriarchate and its lawyers, followed by cases from the Greek Orthodox Community.

The first win in the Court came only after the start of the EU reform process. Fener Greek High School Foundation of the Greek Orthodox Community filed the first case that was won by Turkish non-Muslim foundations in Strasbourg.¹⁵ The Court decided that Turkey had violated Article 1 of Protocol No. 1 of the ECHR, which secures property rights. The Court ordered Turkey to return the seized property to the foundation or to pay an indemnity to the foundation’s management. The government executed the decision by paying the specified indemnity, and the ruling created a precedent for similar complaints pending before the ECtHR.

The second conviction of Turkey in Strasbourg came for a case filed by the Istanbul Greek Patriarchate for the return of the Greek Orthodox children orphanage building in 2008. The case concerned the Büyükada, which the Patriarchate could not register under its name due to the denial of legal personality to the Greek Orthodox Patriarchate; subsequently GDF took over the building.¹⁶

The third successful case in the ECtHR was a case by an Armenian foundation, the Yedikule Hospital Foundation in 1999, concerning the confiscation by the Treasury of two separate properties belonging to the foundation. What is especially important to note in this case is that the government made an unexpected move by offering instead to return the properties. Thus, this landmark outcome represented the first time that the government returned to a non-Muslim foundation its confiscated properties, resulting in a settlement on 26 June 2007.¹⁷ Later in the same year, another case by the same foundation also resulted in a friendly settlement, whereby the government agreed to return the disputed property.¹⁸ In 2008, the ECtHR further convicted Turkey in two different cases filed on the same day by the Armenian foundations.¹⁹

These successful cases in the ECtHR went hand in hand with legal reform adopted by the AKP government in accordance with the EU accession process, especially the decree in 2011 regarding minority foundations of the Lausanne minorities. The 2011 decree on religious minority foundations stated that communities whose properties had been expropriated by the state could apply for them to be returned and receive compensation for properties that had been sold to a third party by the GDF (2011 Report, 4).

Yet, legal reform was limited by the government’s cautious approach to property rights and, especially, by its non-provision of legal and administrative regulations to solve legal status problems for all religious minorities and belief groups in the country and thus, in effect, a limited implementation of the 2011 decree on religious minority foundations. Reflecting this limited approach, the state minister responsible for foundations during the time of these ECtHR cases reacted to criticisms by the EU authorities regarding the lack of a legal framework for religious freedoms in Turkey: ‘equating freedom of religion only with the restitution of properties makes me uncomfortable. […] EU and the ECtHR are focusing on property’ (Radikal, 25 June 2005).

This quote relates to one reason why these minorities were reluctant to go to the ECtHR in the first place. Notwithstanding the success of these early cases in the ECtHR, rather than acting as a trigger for further mobilisation to exhaust national remedies and reach Strasbourg, these first cases were marked by a clear fear by the minority representatives that litigation in Strasbourg might further jeopardise these communities’ already precarious position in the wider Turkish society and especially vis- à-vis the Turkish state.

Awareness of the government’s approach to property cases of recognised minorities also led to the dropping of another early attempt by an Armenian minority foundation to litigate in the Court; the board members changed their minds when the case was ready to be taken to the ECtHR. A representative of a Greek Orthodox minority foundation relayed that it was a particularly insistent lawyer for the case (a non-member of the religious group) who made sure the case of the Fener Greek High School Foundation regarding the confiscated properties would be seen to fruition at the ECtHR. This later turned out to be the first successful case by a minority foundation from Turkey.

As noted at the outset, beyond attention to legal and political developments, also critical to our understanding of the effects of ECtHR case law is insight into how this case law is perceived and used (or not) by grassroots actors with a vested interest in the issues at hand. Although these ECtHR cases were widely publicised as successes in the Turkish media, not all parties involved in these cases focus on their victory in the Court. Rather, the representatives of the Greek Orthodox and Armenian communities consulted for this study all expressed criticism regarding the government’s non-implementation of the ECtHR decisions and, in fact, its failure to come up with a legal reform on the status of religious minorities.

Legal mobilisation slowed down and eventually ceased in the aftermath of reform. This decline was regarded by one line of scholarship as a positive effect of ECtHR rulings and the government’s willingness to initiate legal reform on the conditions of religious minorities in the country (Özbudun and Türkmen 2013). However, my interlocutors presented different perspectives on their successes in the Court and raised different issues regarding the effects of the Court decisions on their further mobilisation. For example, from the viewpoint of one lawyer representing the Greek Orthodox Patriarchate, there was a calculation by the state authorities when deciding to return the confiscated properties and to pay compensation for the communities’ loss regarding the cases in the ECtHR, based on the diminishing population size of these communities. He argued that the government limited the reform on the properties of these minorities and did not show incentive in dealing with the legal status of the patriarchates or civil representative organs in order to ensure that ‘these communities are still not able to sustain themselves’ and eventually be forced to sell the properties acquired via the ECtHR.

His words bring a nuanced perspective on the success of Lausanne minorities in the Court and point to the worries of the actors engaged in legal mobilisation about the effects of ECtHR case law on the problems they are experiencing due to the remaining vagueness of their legal status. Although they were able to reclaim their property in the ECtHR, the limitedness of the reform process that followed and the continuation of these minorities’ problems led the actors to question the effects of their victory in the Court.

Also, the view that the recognised minorities’ legal mobilisation ended after these victories and the subsequent reform period does not give the full picture on the ground. In fact, these communities continued legal mobilisation in domestic courts after the 2011 decree failed to provide a solution to their property cases, and currently there are several property cases against the Court of Cassation regarding failure to return property based on the decree. Several legal representatives of the minority foundations I interviewed stressed the significance of legal mobilisation with a view to reaching the ECtHR when domestic legal remedies, including legal reform by the government, fail to solve their problems. In the estimations of one lawyer who follows property cases both in domestic courts and in the ECtHR, based on the numbers of cases currently in the process of exhausting domestic remedies, there will be tens of cases in the ECtHR in the near future, as a second wave of legal mobilisation. Although they questioned the ultimate effectiveness of the previous wave of mobilisation, these actors stated a clear interest in mobilising before the ECtHR once again.

Legal mobilisation of non-recognised belief groups: Protestants and JWs

While the lack of legal status appeared as a problem of confiscation of minority properties for recognised minorities, in the case of non-recognised belief groups explored in this section, the lack of legal status manifests itself mainly as a problem in establishing community associations and opening and maintaining worship places.

Article 5 of the Law on Associations of 1983 unambiguously prohibited the establishment of associations ‘based on certain religions or denominations or for the purpose of acting on behalf of them’.²⁰ Based on this law, non-Muslim religious groups were not able to establish associations. A new Law on Associations was adopted in 2004²¹ as part of legal reform in the EU accession process. This new law ended the prohibition on establishing associations based on certain religion or denomination. As a result, religious groups started to establish their community associations to manage community affairs and most importantly community property.

In this post-reform period, establishing associations emerged as an interim solution to gain legal status, albeit limited. Yet, the association formula is not an adequate form of legal entity status for a belief community. Thus, religious groups still do not have legal status as such even though now under the 2004 Law on Associations they can establish community associations.

A related second problem these communities experience is impediments in establishing and maintaining places of worship that are embedded in local municipality planning regulations. Local municipalities often impose zoning regulations on churches, such as minimum space requirements, that are not imposed on mosques. Municipalities often deny approval to groups seeking to build churches on various grounds. There are also cases in which a municipality granted this permission but local government officers, such as a provincial governor, withheld approval (Yildirim 2013).

Starting with the early 2000s, the Turkish Protestant community²² and JWs²³ turned to legal mobilisation before the ECtHR as a strategy in their rights claims for legal status. From that point in time, four cases filed by these two communities reached the ECtHR, all concerning the right to freedom of association/assembly and the right to legally organise and build places of worship:²⁴ Tanyar and Küçükergin v. Turkey,²⁵ Özbek and Others v. Turkey²⁶ and two cases joined in one decision in 2016, Yehova’nin Şahitlerini Destekleme Derneği (Association for Support of Jehovah’s Witnesses) v. Turkey.²⁷

In their mobilisation, JWs place a specific emphasis on the importance of getting positive results in national courts. A representative for the JWs in Turkey stated that the domestic litigation process takes a very long time, yet they ‘wait patiently until the end’ expecting domestic courts to rule in their favour since they claim it is of utmost importance to ‘gain access to justice in the Turkish domestic courts’. However, several court cases concerning JW associations (and those of Protestants, for that matter) resulted in negative decisions in the national courts and eventually led to legal mobilisation before the ECtHR.²⁸

According to a 2016 report published by Turkish Protestants (Association of Protestant Churches 2016), after legal reform and these successful ECtHR cases, JWs have established 5 foundations in major cities and 3 branches of these foundations in different locales, 34 church associations and over 30 branches representing these associations. However, the remaining congregations that were not able to establish foundations still do not possess any legal personality. Due to this lack of legal status for worship places, group members who assemble in these premises still run the risk of prosecution by police.

The lack of full implementation of ECtHR decisions by the government and limitations of legal reform lead to a concern among these groups to reconsider their success in the Court. A representative of a Protestant church stated that legal mobilisation for the right to establish associations was necessary yet limited:

We are trying to solve our legal status problems via associations; yet associations are not accepted as churches or religious organisations. An association is an NGO. It is a non-profit organisation for people to get together around specific aims. What we actually need is a law of religious institutions, or something regulating and legalising the affairs to religious communities. We need a legal structure to include us too. It should be a system that allows for flexibility, goes beyond accepted religious practices [i.e., Sunni-Islam practices]. I do not know how it will happen; I admit that the current legal arrangements regarding associations gave us a certain amount of breathing space, but it is not the ideal, desired solution to our problems.

From this representative’s perspective, then, the victory in the Court regarding the right to establish associations was not enough to solve the legal status problems of these communities fully; it was just a limited solution.

Alevi cases in the ECtHR: one step forward?

The largest non-recognised religious group in Turkey is Alevis. This group is rather exceptional for our discussion here since they are not a non-Muslim community like the other groups included in this contribution.²⁹ Alevi worship places, cem houses (cemevis), have no legal status as places of worship. Further, they receive no funding from the state, contrary to the official Sunni mosques. The budget of the Presidency of Religious Affairs (Diyanet İşleri Başkanlığı or the Diyanet) was reserved for the majority Sunni community, covering the salaries of imams and other costs (Gözaydın 2009). Alevi legal mobilisation regarding the legal status of their community organisations thus centred around two main issues: the status of worship places and the discriminatory services of the Diyanet. Alevi groups, brought together in a federation entitled Alevi Vakıfları Federasyonu (Federation of Alevi Foundations), have publicly expressed a number of grievances vis-à-vis the state. A report prepared by the Federation claimed that its member Alevi groups often face obstacles regarding cem houses (Alevi Vakıfları Federasyonu 2011). According to the report, there was also bias in the Diyanet, which did not allocate specific funds for Alevi activities or religious leadership.

It is important to note that, unlike the other groups discussed in this text, Alevis have tended to mobilise legally whilst simultaneously pursuing other strategies, such as formal meetings with government officials. Litigation before the ECtHR specifically emerged after their demands, presented to legal and administrative authorities, proved ineffective.³⁰ More precisely, Alevis aimed to reach the ECtHR in the aftermath of ‘the Alevi workshops’. These meetings were formal gatherings with government officials on several problems faced by the Alevi community (Özkul 2015; Soner and Toktaş 2011). As these workshops fell short of providing Alevis with the same social, political and legal status as Sunni citizens, Alevis started to focus on legal mobilisation in the ECtHR. The first Alevi case on legal status in the ECtHR, Cumhuriyetçi Eğitim ve Kültür Merkezi (Cem) Vakfı v Turkey, concerned the lack of recognition for Alevi worship places (cemevis). Based on the problems of operating cemevis, the Foundation argued that, under Turkish law, Alevi places of worship should be granted an exemption from paying electricity bills. Relying in particular on Article 14 (prohibition of discrimination) taken together with Article 9 (right to freedom of thought, conscience and religion), Cem Foundation complained that, although the electricity bills for Sunni places of worship (mosques) were paid by the Directorate of Religious Affairs, Alevi worship places had been deprived of this privilege on account of the failure to be recognised as places of worship in Turkey. In its judgement,³¹ the Court confirmed that there had been a violation of Article 14 taken together with Article 9, in that the system for granting exemptions from payment of electricity bills for places of worship under Turkish law entailed discrimination on the grounds of religion.

When talking about the Alevis’ success in Cem Foundation case, a lawyer of the Foundation stated that their legal mobilisation on worship places in the ECtHR problematised for the first time the discriminatory practices of a state institution, i.e. the Diyanet. According to him, this strategy enhanced the effects of the Court’s decision and also affected other minority groups, including the Lausanne minorities:

Lausanne minorities for example went to ECtHR too, but for ‘individual’ cases, such as the properties of their foundations. Issues concerning other religious minority groups were not addressed. Only after we took cemevi cases to the ECtHR, did the government start to pay the [Lausanne minority] churches’ electricity bills.

However, the above claim of widening the effects of the ECtHR towards other minorities was not shared by other Alevi actors. The need to broaden the scope of litigation was a common topic in some of the interviews I conducted. For example, a representative of the Alevi-Bektasi Federation, an umbrella organisation for individual Alevi associations, stated that the Cem Vakfi case on the status of the Alevi worship places was just a starting point in their legal mobilisation:

If we can elevate the Alevi struggle to a higher level, then we will start getting results. Otherwise, now that the state will pay electricity fees after the successful ECtHR cases, it will start paying the Alevi clergymen’s (dede) salary eventually. This way they will solve immediate problems, they can close the issue, and Alevis might stay silent on the issue. In this new period, we have reached a certain stage in our struggle towards successful cases in the ECtHR, now we need to forward it by making sure they are enforced.

This representative’s concerns about the government’s aims to limit the issue with electricity bills and clergymen’s salaries point to the effects of successful ECtHR cases. The government’s limited approach to Alevi issues during the reform process and the continuation of Alevi issues during and after the legal reform period have led to a reconsideration of the effects of a win in the Court.

The representative’s question of what this new stage entails was showcased by a second case in the Court, Doğan and Others v Turkey, in which Cem Vakfi won a favourable decision from ECtHR’s Grand Chamber.³² This time, at the centre of the claimants’ argument was the Diyanet and the claim that it provides services exclusively to the Sunni majority, thus denying public religious services to Alevis. The applicants maintained that this refusal implied an assessment of their faith on the part of the national authorities and was in breach of the State’s duty of neutrality and impartiality with regard to religious beliefs. Going further than their demands in Cem Vakfi v. Turkey regarding the recognition of Alevi places of worship (cemevis), the applicants stated in their demands to the Court vis-à-vis the state that they request that: ‘services connected with the practice of the Alevi faith constitute a public service, Alevi religious leaders be recruited as civil servants, and special provision be made in the budget for the practice of the Alevi faith’ (Doğan and Others v. Turkey).

This second case is the first in the Court to question the discriminatory policies of a state institution, the Diyanet, against religious minority groups. It is also an indicator that Alevi legal mobilisation has multiple layers in its strategies approaching the issue of legal status. The cases they took to the Court represented several facets of the issues they are experiencing regarding the discriminatory practices against their organisations and worship places. The Doğan case broadened the scope of their demands and was aimed to address the discriminatory policies that the previous victory in the Court was not enough to remedy again in the Court. Once again, legal mobilisation with a view to reaching the ECtHR emerged as a viable strategy for the actors, when domestic legal remedies, including legal reform by the government, failed to solve their problems of religious minority communities.

In lieu of a conclusion: the impact of ECtHR case law and a way forward

This contribution discussed the effects of ECtHR case law on legal mobilisation of grassroots actors through a discussion of the major groups which litigated before the Court regarding their legal status and related problems. Against the danger of equalising all these groups under one category of religious minorities litigating in the ECtHR, this contribution engaged with their perspectives and their differences on issues regarding legal status in order to offer nuances to accounts of the impact of the ECtHR on religious minority rights. These accounts generally focus on legal reform and on state implementation, or non-implementation, of ECtHR case law as the effects of the Court’s case law. This top-down focus misses crucial evidence of other impacts of ECtHR case law, such as how litigants process their win in the court, how they perceive the government’s implementation or non-implementation of these judgements and whether they continue to mobilise in the ECtHR. Based on empirical research conducted with grassroots-level actors, this contribution tried to understand how ECtHR case law takes a life of its own at the grassroots level. A top-down perspective allows us to analyse the ECtHR’s impact in terms of legal reform or makes a case on its failure because of unimplemented decisions by a scrutiny of judicial and administrative practices. A look at the grassroots-level developments unlocks a world wherein each Court case, filed by different religious groups, has a significant impact on the litigating religious groups themselves, on their claims and on their perceptions of and discourse about their rights.

In trying to make sense of the patterns of grassroots mobilisation, we can argue that it can be attributed to the positive results of the recognised minority’s property cases in front of the ECtHR. However, if we only emphasise the effects of these first cases on further mobilisation, we would be ignoring the voices represented in this contribution. Several actors expressed insights about how ECtHR case law influenced their way of thinking about their own problems, the government’s approach to these problems and the effects of success in the Court. In some cases, ECtHR case law resulted in a critical perspective on government-initiated legal reform in the EU accession process, yet in others it discouraged litigation on particular topics.

Furthermore, the radiating effects of ECtHR judgements on the recognised and non-recognised minorities’ legal mobilisation in Turkey exist alongside other important factors that led to the mobilisation of these groups in the ECtHR: the limits of the minority protection system in the country, the shortcomings in the implementation of ECtHR decisions by the government and the failures of the government to deliver in its reform process. The preference for legal mobilisation in the ECtHR resonance in a discriminatory legal practice that does not accept non-Muslim, non-Sunni or non-Turkish groups as ‘proper’ Turkish citizens (Erdemir 2005; Erman and Göker. 2000). Even after legal reform, many issues regarding the legal status of these religious communities have led actors to litigate in the ECtHR. Also, the limited implementation of the Court’s decisions by the Turkish government in the eyes of the grassroots actors has also led these actors to see the Court as limited in its power to influence Turkish policymakers. As the representative of JWs put it on the limits of their success in the Court:

Yet, we truly wish that the government recognised our places of worship. Right now, [our worship places are] de facto recognised, but legally, officially they are still not allowed. What does it mean? ‘You are in my palm. If I close it, you will get stuck.’ I do not want to live with this fear. […] I do not want to use these places in fear. Today it is open, tomorrow it might be closed down. I do not even know what will happen. I do not want it to be in such an uncertain situation.

Thus, none of these groups expressed full trust to the ECtHR’s effects on the Turkish legal system. In their accounts of the aftermaths of these cases, they all expressed concern for the limited solutions that these cases brought to their communal lives and the uncertain future of their communities’ various legal status problems. Legal reform did not completely solve the confusion over legal status nor did it end the discriminatory practices against religious communities. For some actors in the field the fact that successful mobilisation in the ECtHR could not solve these communities’ problems points to a vicious circle of success in the court. As communities continue to litigate on the immediate problems they experience, such as the status of worship places or the right to establish associations and reach positive results in the Court, they avoid mobilising around issues that are at the root of Turkey’s discriminatory regime, including the existence of the Diyanet or the practices of the GDF.

In the context of the current political situation in Turkey, many questions remain unanswered and should be the topic of further research: how can we understand the indirect effects of the Court on the legal mobilisation of grassroots actors when the underlying reasons of the problems they are experiencing are so fragmentary, the government response is limited and further mobilisation under the current political situation is difficult, if not altogether impossible? Certainly, the Doğan and Others case in the Court was an attempt by the Alevis in this direction. As Turkey is going through precarious times, the indirect and long-term effects of the ECtHR’s most recent decision remain to be seen.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by the European Research Council (ERC) under Grant [338463].

Notes on contributors

Ceren Ozgul

Ceren Ozgul is a legal and cultural anthropologist. She received her Ph.D. in Cultural Anthropology from the Graduate Center, CUNY. She is also a recipient of the Wenner-Gren’s Hunt Fellowship and a visiting scholar at the New York University’s Kevorkian Center for Near Eastern Studies, where she is preparing her book The Return: Armenian Conversions, Secularism, and Law in Turkey for publication. She was the 2013–2014 Manoogian Simone Foundation Post-Doctoral Fellow at the University of Michigan, Ann Arbor. Her research has been supported by the National Science Foundation (NSF), the Wenner-Gren Foundation, Mellon/American Council of Learned Societies (ACLS) and the Andrew Silk Dissertation Award.

Notes

1. The terminology I am using here requires clarification since there is a distinction between minorities and belief groups in the literature on minorities in Turkey. As explained in the following section, not all religious groups are recognised in Turkey. The term ‘minority’ is only used for those non-Muslim groups that are recognised by the Turkish state based on the Treaty of Lausanne, i.e. Greek Orthodox, Armenian and Jewish. In this context, ‘minority’ also refers to groups that are not only belief communities but also ethnically different from the Turkish majority. Thus, the term ‘minority’ refers to this dual marker of difference: religion and ethnicity. The only exception is the Syriacs who are also referred to as a minority (Süryani azinlik) although this community was not recognised by the Turkish state as a Lausanne Treaty minority. The latter is because Syriacs are also both ethnically and religiously different and have similar roots in the historical land now called Turkey with that of the recognised minorities. The remaining belief communities under scrutiny here, Turkish Protestants and Jehovah’s Witnesses, are mostly categorised as belief groups (inanç gruplari) since they are not recognised by the state as ‘minorities’. Alevis, on the other hand, establish a third category and they are mainly referred as a ‘belief community’ (Alevi inanc toplumu), not as a recognised minority, yet not a new community like belief groups. They also form a separate category since, unlike other religious minorities discussed in this contribution, they are not non-Muslim, but non-Sunni. For purposes of clarity, in this contribution I will be using ‘religious community’ to refer to all these groups as an umbrella term, but I urge the readers to be aware of these differences.

2. This contribution draws on research conducted under the auspices of the European Research Council-funded Grassrootsmobilise Research Programme (www.grassrootsmobilise.eu, GA no. 338463). The Turkish case study in this project entails 47 such interviews.

3. The Lausanne Peace Treaty was ratified in domestic law by Law No. 340 and is thus part of national law.

4. In fact, these names were not explicitly mentioned in the Lausanne Treaty. Özbudun (2007) argues that this was due to the insistence of the Turkish government at that time.

5. For studies that discusses the issue of non-Muslim community foundations in greater detail, see Kurban and Hatemi (2009), Null and Void (2016) and Yildirim (2017).

6. Civil Code, art.74 (2) (1926), Resmî Gazete (Official Gazette), No. 339 (4 April 1926).

7. Law for Foundations No. 2762, Resmî Gazete (Official Gazette), No. 3027 (13 June 1935).

8. For the effects of the Cyprus crisis on the non-Muslim minority foundations in Turkey, see Kurban and Tsitselikis (2010).

9. Yildirim (2017) states that the GDF requested the community foundations to submit their founding deeds in order to prove their ownership of non-movables in their disposal and aware that they did not have any founding deeds.

10. General Board of the Court of Cassation, Decision No. E. 1971/2-820, K. 1974/505 (8 May 1974).

11. The Court of Appeals 2nd Chamber, 6 July 1971, E4449, K4399.

12. Judgement of the Yargitay, 8 May 1974, E971/2–8420 and K974/505.

13. Cited in Özbudun and Türkmen (2013, 994).

14. Çeşitli Kanunlarda Değişiklik Yapılmasına İlişkin Kanun [Law on the Amendment on Various Laws] No.4771, 03.08.2002, R.G. No. 24841, 09.08.2002.

15. Fener Greek High School Foundation v. Turkey (Application no. 34478/97, Judgement, Strasbourg, 9 January 2007).

16. ‘ECLJ welcomes the ECHR decision in the Christian orphanage case v. Turkey’, ECLJ, https://eclj.org/eclj-welcomes-the-echr-decision-in-the-christian-orphanage-case-v-turkey (last accessed 17 August 2017). ECtHR (2008) Fener Greek Patriarchate (Ecumenical Patriarchate) v. Turkey. No. 14340/05, 8 July.

17. ECtHR, Yedikule Surp Pırgiç Ermeni Hastanesi Vakfı v. Turkey, Application No. 50147/99 and 51207/99, 26 June 2007 (friendly settlement). The Court joined the two separate applications that the applicant, an Armenian hospital foundation, had filed on 16 July and 20 August 1999.

18. ECtHR, Yedikule Surp Pırgiç Ermeni Hastanesi Vakfı v Turkey, Application No: 31441–02, 4 December 2007 (friendly settlement).

19. ECtHR (2008) Yedikule Armenian Surp Pırgiç Hospital Foundation v. Turkey. No. 36165/02, 16 December; ECtHR (2008) Board of Trustees of the Samatya Surp Kevork Armenian Church, School and Cemetery v. Turkey. No. 1480/03, 16 December.

20. Law on Associations No. 2908, O.G. No. 18184 07.10.1983.

21. Law on Associations No. 5253, 04.11.2004.

22. Turkish Protestants have around 3500 members and approximately 140 church congregations of various sizes, mainly in three big cities of the country, İstanbul, Ankara and İzmir (Association of Protestant Churches 2010).

23. According to the website of Jehovah’s Witnesses in Turkey, they have 2829 members and a total of 38 congregations. https://www.jw.org/en/news/legal/by-region/turkey/ (last accessed 18 October 2017).

24. One more case by Seventh Day Adventists, an unrecognised non-Muslim religious group that this contribution does not cover, reached the ECtHR on the topic of legal status of religious associations. Altınkaynak and Others v. Turkey. 12541/06 (communicated 20 January 2011).

25. Tanyar and Küçükergin v. Turkey (application no 74242/01) (judgement 5 December 2006).

26. Özbek and Others v. Turkey (application no. 35570/02) (judgement 6 October 2009).

27. Association for Solidarity with Jehovah Witnesses and Others v. Turkey (applications nos. 36915/10 and 8606/13) (judgement 24 May 2016).

28. For a detailed discussion of these cases, see Yildirim (2017).

29. An account of the exclusion of Alevis from the Turkish citizenship regime on the basis of their non-Sunni belief is beyond the scope of this contribution. For a discussion of different Alevi perspectives on Turkish secularism and religious belief, see Dressler (2011). Alevi legal mobilisation in the ECtHR is partly about this issue of equal citizenship – such as the mention of religious affiliation on ID cards and exemption from religious education classes (Açikel and Ates 2011; Erdemir 2005; Erman and Göker. 2000).

30. ECtHR had received two more Alevi cases in the past: one brought by the parents of an Alevi child against compulsory religious education and the other concerning the removal of religious affiliation from Turkish ID cards.

31. Cumhuriyetçi Eğitim ve Kültür Merkezi (Cem) Vakfı v. Turkey (application no. 32093/10) (Judgement 2 December 2014).

32. İzzettin Doğan and Others v. Turkey (application No. 62649/10) (Judgement 26 April 2016). The Grand Chamber of the Court held that there had been a violation of Article 9 ECHR and Article 14.