06 December 2018 Thursday
(E.2017/180, K.2018/109, 6 December 2018)
Grounds for the Request for Annulment
In the petition, it is maintained that vesting the authority exercised by marriage registry office in offices of mufti that are performing religious services required by Islam is contrary to the principle of secularism, which entails that the State is to be impartial towards all religious groups; that depriving the other religious groups within the society of such an opportunity leads to discrimination in terms of freedom of religion and conscience; and that the offices of mufti are thereby entrusted a task which is not specified in its particular law. It is therefore claimed that the provision is in breach of the Constitution.
In the impugned provision, it is set forth that the Ministry of Internal Affairs is entitled to vest the provincial and district offices of mufti with the authority of marriage registry office.
The Court’s Assessment
Both those who have different religious beliefs and those who have no religious belief are under the protection of the secular State which is impartial towards religions but not indifferent to meeting the religious needs of the society. The State is to take the necessary measures for ensuring the environment where freedom of religion and conscience may be exercised. As a matter of fact, no official religion is specified in the Constitution; however, the Presidency of Religious Affairs is therein prescribed to be established as a public institution under the general administration.
In Article 136 of the Constitution, it is set forth that the Presidency of Religious Affairs shall exercise its duties prescribed in its particular law, in accordance with the principle of secularism, removed from all political views and ideas, and aiming at national solidarity and integrity. The provincial and district offices of mufti, which are entrusted by the impugned provision with the authority of marriage registry office, are the provincial organizations of the Presidency. In the general legislative intention of the provision, it is stated that the provincial and district offices of mufti are also granted the authority of marriage registry office with a view to facilitating the marriage procedures and enabling citizens to be provided with more rapid service.
Substantive and formal conditions of marriage as well as principles and procedures required to be followed during the marriage procedure are set out in the Turkish Civil Code. Therefore, the official marriage processes bearing a legal consequence for individuals are carried out in accordance with the provisions of the Turkish Civil Code.
The authority of marriage registry office, which is granted to the offices of mufti by the impugned provision, is related to the performance of official marriage procedures. Muftis are obliged to perform official marriage procedures in accordance with the principles and procedures set out in the Turkish Civil Code. Entrusting the provincial and district offices of mufti −the provincial organization of the Presidency of the Religious Affairs which is a constitutional organization− with the authority of marriage registry office has in no way attributed a religious character to official marriage procedures bearing legal consequences for individuals. In this respect, there is no aspect in the provision which is contrary to Article 24 of the Constitution.
In addition, Article 143 § 2 of the Turkish Civil Code safeguards that individuals may hold religious marriage ceremony on condition of completing the official marriage procedure. By this paragraph where particularly the phrase of religious marriage ceremony is cited, not only those from a certain religious group but also individuals from different religions are provided with the opportunity to hold a ceremony in accordance with their own religious beliefs only after the official procedure is completed.
It appears that granting of such authority, by the impugned provision, to the offices of mufti that are the provincial organization of the Presidency of Religious Affairs carrying out acts and actions concerning the worship and moral principles of the Islam religion enables Muslims to hold a religious ceremony at the same place where their official marriage ceremony is held. Thereby, muftis entrusted with this authority may also attend the religious marriage ceremony, if requested by the bridal couple, at the same place after the official religious process is completed pursuant to the Turkish Civil Code. Accordingly, it has been revealed that the impugned provision is a legal arrangement aiming to facilitate the practice of religious ceremony by Muslims within the scope of their freedom of religion and conscience.
In addition, the Act no. 5490 provides a choice for individuals to designate a registrar of marriage who would carry out the marriage process, and besides, there is no necessity requiring marriage procedures to be carried out only by the offices of mufti. Accordingly, the impugned provision does not have a compelling effect in respect of non-Muslims or those who are Muslims but do not wish to perform their marriage procedures at the offices of mufti.
Pursuant to the provisions of the Turkish Civil Code, as the official marriage procedure does not contain any religious element or ritual, there is also no situation requiring individuals to manifest their religious beliefs and convictions at any stage of the marriage procedure. Registrars of marriage are not entitled to question religious beliefs of the couples filing an application for marriage. It cannot be accordingly said that the impugned provision puts a pressure on individuals to manifest their religious beliefs and convictions.
Besides, measures and practices that facilitate the meeting of common and joint needs of individuals constituting the society in the field of the freedom of religion and conscience cannot be considered to be in breach of the principle of equality.
The impugned provision does not introduce a legal arrangement to the detriment of non-Muslims. Pursuant to the Act, individuals have the choice to designate the registrar of marriage who would perform their marriage ceremony, and there is no necessity for any section of the society also including non-Muslim minorities to have their marriage procedures conducted by the offices of mufti.
The authority exercised by marriage registry office, which is granted to the offices of mufti by the impugned provision, is related to official marriage procedures that are carried out in accordance with the Turkish Civil Code. The provision has introduced no change in respect of civil marriage principles. In order for the marriage to bear legal consequences, official marriage procedures are to be carried out in accordance with the provisions of the Turkish Civil Code, and no privilege has been granted to any religious group in this respect.
For the reasons explained above, the Court found the impugned provision constitutional and accordingly dismissed the request for annulment.