The ECHR determined that preventing clergymen Corc Kasapoğlu and Niko Mavrakis, affiliated with the Greek Patriarchate of Istanbul, from serving in foundations of the Greek Orthodox community, is a violation of their freedom of association and religion.
Background of the dispute
Clergymen Corc Kasapoğlu and Niko Mavrakis, both clergies affiliated with the Greek Patriarchate, were elected by popular vote to the board of directors of the Samatya Hagia Analipsis Greek Orthodox Church Foundation in 2011. They submitted the election report to the General Directorate of Foundations (VGM) on December 16, 2011. However, on March 5, 2012, the VGM ruled that the official election certificate would only be issued if these two individuals were removed from the board, citing their status as clergymen.
The applicants filed a lawsuit to annul the VGM’s decision, pointing out that the 2008 Foundations Regulation does not mention "being a clergyman" among the restrictions for board membership. The defendant, VGM, demanded the dismissal of the case, arguing that under the Treaty of Lausanne, clergy are barred from holding political and administrative office.
When the judicial process yielded no results at lower courts, the applicants Kasapoğlu and Mavrakis, represented by their attorney Hülya Benlisoy, filed an individual application with the Constitutional Court (AYM) on October 24, 2019.
The Constitutional Court issued its ruling on September 18, 2024. The AYM stated:
"The applicants were unable to exercise their freedom of association due to this endless, contentious dispute, as the courts failed to make any determination regarding whether or not they could serve on the Board of Directors due to being clergymen."
Referencing Article 33 of the Constitution, the AYM ruled that the "freedom of association had been violated." The court ordered that each applicant must be paid 30,000 TL for nonpecuniary damages. It was unanimously decided to send copies of the ruling to the General Directorate of Foundations and the Ministry of Justice.
The ECHR decision
In its ruling delivered on Tuesday, May 26, the ECHR pointed out that the authorities failed to provide a valid legal basis for excluding the clergymen from executive boards of foundations, noting that there was "no clear, accessible, and predictable legal basis that could justify the interference."
The European Court of Human Rights ruled that Turkey violated the clergymen's right to freedom of association and breached provisions protecting religious freedom by preventing them from performing their duties within the institutions that manage the churches, schools, and other entities belonging to the Istanbul Greek Orthodox community.
The Court stated:
"Pluralism is built on the genuine recognition of and respect for cultural, ethnic, and religious diversity, and the harmonious interaction between individuals and groups with different identities is essential for social cohesion."
Furthermore, the Court emphasized:
"...associations established specifically for the protection of cultural or spiritual heritage, the pursuit of social or economic goals, the teaching of a religion, or the defense of an ethnic or minority identity play a fundamental role in the functioning of a democratic society."
The ECHR ordered that each applicant be paid €2,000 (approximately $2,325) in compensation and ruled that Turkey must cover the legal costs.
