Constitutional Court announced the reasoning of its ruling on "violation of the freedom of religion"
Concerning the prevention of the election of a patriarch by the Armenian community by the State during the period when Patriarch Mutafian was unable to serve, the Constitutional Court (CC) had ruled for "violation of the freedom of religion". Now the Court has announced the reasoned decision which embodies significant elements.
The reasoning of the CC ruling, announced by Agos Weekly on 22 May 2019, has now been published: The Court said: "It has been seen that the election for a Patriarch, who assumes very important powers and duties on behalf of the Armenian community, could not be carried out for a period of longer than ten years in line with the will of the Armenian community. As expressed by the CC also earlier, the necessities of a religion or faith can only be decided upon by the congregation of the said religion or faith."
Here are the outlines of the reasoned decision:
"On 22/05/2019, the General Assembly of the Constitutional Court has decided that --in connection with the application by Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan (B. No: 2014/17354) -- the freedom of religion, guaranteed under the Constitutional Article 24, has been violated.
Developments
On grounds that the Patriarch of the Armenians of Turkey has been suffering an ailment preventing him from fulfilling his duties, two separate applications were filed with the Governorate for the election of a new patriach.
The first application was filed by the Clergy while the second by a group of civilians, including the applicants.
By not responding to the request of the civilians, the Governorate has implicitly refused it, while it has rejected the request by the Clergy on grounds that the post has not been vacated; however indicated that an election for a 'General Deputy Patriarch' could be held. Upon this development, the General Assembly of the clergy of Armenians of Turkey carried out an election for a general deputy patriarch.
In the face of the Governorate’s rejection of the request filed by the civilians, the applicants filed a cancellation lawsuit at the Administrative Court. The applicants expressed that the view finding proper the election for a general deputy patriarch was reached solely as a result of the contacts carried out by the Clergy Assembly, yet the election must be held not merely by the clergy but, on the contrary, by the Assembly of delegates, a majority of which is composed of civilians.
The case was rejected by the Administrative Court, and the Council of State, which looked into the dossier upon objections, ruled for the rejection of the appeal request.
Claims
The applicants claimed that:
- The interference of the Administration in a matter which the congregation should tackle with their own dynamics and its attempt to resolve the patriarch problem through the establishment of an institution that does not exist in the traditions of that congregation constituted an intervention into the internal matters of the [Armenian] community;
- The election for the patriarch has been prevented anti-democratically thus the freedom of religion has been violated.
Assessment by the court
The procedures governing the election of the patriarch to fill the position of Patrirach, which falls within the borders of the country, has been regulated in writing through the Regulation from 1863. The provisions of the said regulation governing the election of patriarch by the Armenian community, has been the foundations of the practices exercised till today.
Instead of enumerating all circumstance under which the position of the patriarch shall be vacated, the said regulation used the wording "esbab-ı saire" (et cetera) thus indicates that a new patriarch must be elected in similar circumstances where the post of the patriarch is vacated.
While rejecting the requests for elections, limiting the conditions for the election of a new patriarch with demise and resignation, the Administration has not interpreted this wording of “et cetera” used in the Regulation. In the same vein, in spite of the fact that they relied on the afore-mentioned Regulation in their ruling, the Administrative Court, too, rejected the case, and did not make an assessment as to what “et cetera” meant.
Although the patriarchal positions are generally vacated due to the demise of the patriarchs, throughout history it has been seen that an elected patriarch deserted his position without even resigning, and was replaced through an election. Considering that the wording “et cetera [similar situations]” has been used in the aforementioned regulatory norm instead of counting, one by one, the situations where the post of the patriarch is deemed to be vacated, an ample room for interpretation has been left to the public authorities; thus, the decisions of the administration and the courts of instance cannot be accepted either as proper or sufficient.
It has been seen that the election for a Patriarch, who assumes very important powers and duties on behalf of the Armenian community, could not have been done in line with the will of the Armenian community, for a period longer than ten years.
On the other hand, in the elections for the patriarch conducted during the Republican era, it is seen that the civilians weigh in. Therefore, the fact that the General Assembly of the Clergy has elected a general deputy patriarch by way of using the powers of the Patriarch, and that the use of the religious and administrative powers of the Patriarch by this deputy for a very long duration have caused the will of the Clergy to be prioritized and the will of the civilians to be neglected.
The situations where the Armenian Patriarch will be elected have been clearly decided by the Ministry. However, except for the situation whereby an urgent societal need must be met, the State cannot decide under which circumstances a new religious leader can be elected or the procedures thereof. In fact, as expressed by the CC also earlier, the necessities of a religion or faith can only be decided upon by the congregation of the said religion or faith.
The Administration has not inquired the possibilities to resolve the matter through dialogue, and not devised policies to settle the issue in line with the Armenian traditions and customs as well as religious requirements. When preventing the election of the new patriarch, the Administration has failed to demonstrate the compelling societal need, which is dominant over the spirit of the Armenian traditions that have --as understood-- become concrete in the [aforementioned] Regulation and over the will of the Armenian congregation. Therefore, it has been concluded that the intervention into the freedom of religion of the applicants by means of refusing to hold the patriarchal election of the Armenians of Turkey cannot be assessed as compatible with the requirements of an order of a democratic society.
Due to the reasons explained, the CC has decided that the freedom of religion, as guaranteed under Constitutional article 24, has been violated."
Background
In 2010, when the health of Patriarch II Mesrob Mutafyan of the Armenians of Turkey deteriorated, the Initiating Delegation (Müteşebbis Heyet) applied to the Ministry of Interior in order to hold an election for a new patriarch. Once this application was rejected, an application was filed at the Council of State which then ruled for lack of jurisdiction.
In this period, also with the request of İstanbul Governorate, an election of a "deputy general patriarch" was held and the Clergies Board elected Archbishop Ateşyan to the position. The Initiation Delegation appealed this decision through a court case on grounds that the seat of a “deputy general patriarch” does not have a place in the law. This case, too, was rejected. Both cases were appealed, due to absence of a ruling rendered within a reasonable period of time by the Council of State, in 2016, an application was filed with the Constitutional Court. On the other hand, following the demise of Patriarch Mutafyan on 8th of March in 2019, the election process for a new patriarch has been launched.
Here are the outlines of the reasoned decision:
"On 22/05/2019, the General Assembly of the Constitutional Court has decided that --in connection with the application by Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan (B. No: 2014/17354) -- the freedom of religion, guaranteed under the Constitutional Article 24, has been violated.
Developments
On grounds that the Patriarch of the Armenians of Turkey has been suffering an ailment preventing him from fulfilling his duties, two separate applications were filed with the Governorate for the election of a new patriach.
The first application was filed by the Clergy while the second by a group of civilians, including the applicants.
By not responding to the request of the civilians, the Governorate has implicitly refused it, while it has rejected the request by the Clergy on grounds that the post has not been vacated; however indicated that an election for a 'General Deputy Patriarch' could be held. Upon this development, the General Assembly of the clergy of Armenians of Turkey carried out an election for a general deputy patriarch.
In the face of the Governorate’s rejection of the request filed by the civilians, the applicants filed a cancellation lawsuit at the Administrative Court. The applicants expressed that the view finding proper the election for a general deputy patriarch was reached solely as a result of the contacts carried out by the Clergy Assembly, yet the election must be held not merely by the clergy but, on the contrary, by the Assembly of delegates, a majority of which is composed of civilians.
The case was rejected by the Administrative Court, and the Council of State, which looked into the dossier upon objections, ruled for the rejection of the appeal request.
Claims
The applicants claimed that:
- The interference of the Administration in a matter which the congregation should tackle with their own dynamics and its attempt to resolve the patriarch problem through the establishment of an institution that does not exist in the traditions of that congregation constituted an intervention into the internal matters of the [Armenian] community;
- The election for the patriarch has been prevented anti-democratically thus the freedom of religion has been violated.
Assessment by the court
The procedures governing the election of the patriarch to fill the position of Patrirach, which falls within the borders of the country, has been regulated in writing through the Regulation from 1863. The provisions of the said regulation governing the election of patriarch by the Armenian community, has been the foundations of the practices exercised till today.
Instead of enumerating all circumstance under which the position of the patriarch shall be vacated, the said regulation used the wording "esbab-ı saire" (et cetera) thus indicates that a new patriarch must be elected in similar circumstances where the post of the patriarch is vacated.
While rejecting the requests for elections, limiting the conditions for the election of a new patriarch with demise and resignation, the Administration has not interpreted this wording of “et cetera” used in the Regulation. In the same vein, in spite of the fact that they relied on the afore-mentioned Regulation in their ruling, the Administrative Court, too, rejected the case, and did not make an assessment as to what “et cetera” meant.
Although the patriarchal positions are generally vacated due to the demise of the patriarchs, throughout history it has been seen that an elected patriarch deserted his position without even resigning, and was replaced through an election. Considering that the wording “et cetera [similar situations]” has been used in the aforementioned regulatory norm instead of counting, one by one, the situations where the post of the patriarch is deemed to be vacated, an ample room for interpretation has been left to the public authorities; thus, the decisions of the administration and the courts of instance cannot be accepted either as proper or sufficient.
It has been seen that the election for a Patriarch, who assumes very important powers and duties on behalf of the Armenian community, could not have been done in line with the will of the Armenian community, for a period longer than ten years.
On the other hand, in the elections for the patriarch conducted during the Republican era, it is seen that the civilians weigh in. Therefore, the fact that the General Assembly of the Clergy has elected a general deputy patriarch by way of using the powers of the Patriarch, and that the use of the religious and administrative powers of the Patriarch by this deputy for a very long duration have caused the will of the Clergy to be prioritized and the will of the civilians to be neglected.
The situations where the Armenian Patriarch will be elected have been clearly decided by the Ministry. However, except for the situation whereby an urgent societal need must be met, the State cannot decide under which circumstances a new religious leader can be elected or the procedures thereof. In fact, as expressed by the CC also earlier, the necessities of a religion or faith can only be decided upon by the congregation of the said religion or faith.
The Administration has not inquired the possibilities to resolve the matter through dialogue, and not devised policies to settle the issue in line with the Armenian traditions and customs as well as religious requirements. When preventing the election of the new patriarch, the Administration has failed to demonstrate the compelling societal need, which is dominant over the spirit of the Armenian traditions that have --as understood-- become concrete in the [aforementioned] Regulation and over the will of the Armenian congregation. Therefore, it has been concluded that the intervention into the freedom of religion of the applicants by means of refusing to hold the patriarchal election of the Armenians of Turkey cannot be assessed as compatible with the requirements of an order of a democratic society.
Due to the reasons explained, the CC has decided that the freedom of religion, as guaranteed under Constitutional article 24, has been violated."
Background
In 2010, when the health of Patriarch II Mesrob Mutafyan of the Armenians of Turkey deteriorated, the Initiating Delegation (Müteşebbis Heyet) applied to the Ministry of Interior in order to hold an election for a new patriarch. Once this application was rejected, an application was filed at the Council of State which then ruled for lack of jurisdiction.
In this period, also with the request of İstanbul Governorate, an election of a "deputy general patriarch" was held and the Clergies Board elected Archbishop Ateşyan to the position. The Initiation Delegation appealed this decision through a court case on grounds that the seat of a “deputy general patriarch” does not have a place in the law. This case, too, was rejected. Both cases were appealed, due to absence of a ruling rendered within a reasonable period of time by the Council of State, in 2016, an application was filed with the Constitutional Court. On the other hand, following the demise of Patriarch Mutafyan on 8th of March in 2019, the election process for a new patriarch has been launched.
