Individual Application 65/19

Press Release concerning the Judgment Finding a Violation of the Freedom of Religion due to dismissal of the Request for Holding an Election of Turkey’s Armenian Patriarch

On 22 May 2019, the Plenary of the Constitutional Court found a violation of the freedom of religion safeguarded by Article 24 of the Constitution in the individual application lodged by Levon Berc Kuzukoğlu and Ohannes Garbis Balmumciyan (no. 2014/17354).

The Facts

Two separate requests for election of a new patriarch were filed with the relevant Governor’s Office as the Turkey’s Armenian Patriarch was severely ill that he could no longer perform his duties.

The first request was filed by the Clericals whereas the second request was filed by the Civilians including the applicants.

The Governor’s Office tacitly rejected the Civilians’ request by leaving it unanswered and also refused the Clericals’ proposal as the patriarchate’s office was not vacant. It however notified that an election for a "general acting patriarch" could be held. Thereafter, the Turkey’s Armenian Clerical Committee held an election of general acting patriarch.

The applicants brought an action, for annulment of the decision whereby the Governor’s Office dismissed the Civilians’ requests, before the incumbent administrative court. They accordingly maintained that the conclusion finding it appropriate to hold an election for a general acting patriarch had been reached as a result of the contacts made merely by the Clerical Committee; and that the election should have not been held merely by the Clerical Committee but by the Assembly of the Delegates mainly consisting of the Civilians.

The administrative court however dismissed the action, and following the appellate process, the Council of State ultimately rejected the applicants’ request for appeal. 

The Applicants’ Allegations

The applicants alleged that their freedom of religion had been violated, maintaining that the administration had interfered with an issue which should have been settled by the community itself and had tried to solve the patriarchal problem by way of creating an institution that did not actually exist in the community’s customs and practices, which amounted to an interference with the internal affairs of the community; and that the patriarchal election had been anti-democratically precluded.  

The Court’s Assessment

The election procedure of the patriarchs to hold the Patriarchate’s office located within the country started to be governed by statute law by virtue of the Code of Regulations (“Nizamname”) dated 1863. The provisions included therein and related to the election of the Armenian patriarch constitute the basis for practices that have been carried out so far. 

In the Code of Regulations, all circumstances when the patriarchate’s office shall be deemed vacant are not listed exhaustively; but instead the phrase “for various reasons” (esbab-ı saire) is stated therein, which means that also in similar circumstances when the patriarchate’s office becomes vacant, a new patriarch is to be elected.

In dismissing the request for election by restricting the circumstances when a new patriarch may be elected to cases of death and resignation, the administration did not interpret the phrase of “for various reasons” stated in the Code of Regulations. In the same vein, the administrative court dismissed the applicants’ action and failed to consider the meaning of this phrase, in spite of relying on the Code of Regulations in rendering its decision.

Although the patriarchate’s office generally becomes vacant upon the death of patriarchs, it appears that an elected patriarch previously abandoned his seat without even resigning, and a new patriarchal election was held to replace him. Given the fact that the said provision -where the circumstances when patriarchate’s office shall be deemed vacant are not listed on an individual basis but instead the phrase “for various reasons” is stated- leaves a wider margin of interpretation to the public authorities in practice, the decisions rendered by both the administration and the inferior courts could not be considered as relevant and sufficient.

It has been observed that will of the Armenian community has not played a role, for a period of over ten years, in the election of patriarch who assumes powers and duties of great importance for the community.

Besides, it appears that the civilians had a say in the patriarchal elections held during the Republican era. Therefore, election by the Clerical Committee of a general acting patriarch who would enjoy the religious and executive powers entrusted to the patriarch for a very long period has led to the prioritisation of the Clericals’ will and thus to the ignorance of the Civilians’ will.

In the present case, the Ministry explicitly decided under which circumstances the Armenian Patriarch would be elected. However, the State can in no way decide on the circumstances under which a new religious leader would be elected or on the election procedure, save for the case of meeting a pressing social need. As a matter of fact, as previously stressed by the Court, requirements of a religion or faith may be designated merely by the members of this religion or faith.

The administration failed to consider the probability of solving the matter through dialogue; nor did it develop policies in order to conclude the matter in compliance with the Armenian customs and traditions as well as its religious practices. In hindering the patriarchal election, the administration also failed to demonstrate the pressing social need outweighing the spirit of Armenian customs set forth in the Code of Regulations and the Armenian community’s will. It has been accordingly concluded that the interference with the applicants’ freedom of religion due to dismissal of the request for election of Turkey’s Armenian Patriarch cannot be considered to comply with the requirements of a democratic society.

Consequently, the Court has found a violation of the freedom of religion safeguarded by Article 24 of the Constitution.   

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.