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Venice Commission Opinion on Legal Status of Religious Communities In Strasbourg, 15 March 2010 CDL-AD(2010)005 Opinion no. 535 / 2009 Or. Engl. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) OPINION ON THE LEGAL STATUS OF RELIGIOUS COMMUNITIES IN TURKEY AND THE RIGHT OF THE ORTHODOX PATRIARCHATE OF ISTANBUL TO USE THE ADJECTIVE “ECUMENICAL” Adopted by the Venice Commission at its 82nd Plenary Session (Venice, 12-13 March 2010) On the basis of comments by Mr Pieter van DIJK (Member, Netherlands) Mr Christoph GRABENWARTER (Member, Austria) Mr Fredrik SEJERSTED (Substitute Member, Norway) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-AD(2010)005 - 2 - TABLE OF CONTENTS 1. Introduction..............................................................................................................................3 2. European standards for granting legal personality to religious communities........................3 A. Introduction..........................................................................................................................3 B. European Convention of Human Rights ............................................................................4 C. The Guidelines for Review of Legislation Pertaining to Religion or Belief ........................5 D. Comparative overview of the legal status of religious communities in Europe.................5 E. The assessment by European bodies of the situation of religious minorities in Turkey...7 3. Legal recognition of non-Muslim religious communities in Turkey – law and practice.......10 A. Legal situation of religious communities in Turkey ..........................................................10 B. The Foundation System....................................................................................................11 C. The Association System ...................................................................................................12 D. Other aspects of legal personality ....................................................................................13 4. Assessment of the question of legal personality for religious communities in Turkey........13 A. The lack of legal personality for the religious communities as such ...............................13 B. Compatibility with Articles 9 and 11 of the European Convention of Human Rights......14 C. Rights of access to court and enjoyment of possessions................................................18 D. Compatibility with the OSCE-ODIHR and Venice Commission “Guidelines for review of legislation pertaining to religion or belief”..................................................................................19 E. Practice in other European States....................................................................................19 F. Conclusions and recommendations.................................................................................19 5. The right of the Orthodox Patriarchate of Istanbul to use the title “ecumenical”.................21 A. The ecumenical character of the Patriarchate .................................................................21 B. Assessment of the Turkish government’s lack of recognition of the ecumenical nature of the Patriarchate..........................................................................................................................21 C. Other basic issues for the Patriarchate ............................................................................25 6. Conclusions...........................................................................................................................26 - 3 - CDL-AD(2010)005 1. Introduction 1. The Venice Commission received a request from the President of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE), Mr Serhiy Holovaty, on 7 April 2009 asking it “to assess the compatibility with European standards of the lack of legal personality for the religious communities in Turkey and examine, in this context, in particular the question of the right of the Greek Orthodox Patriarchate of Istanbul to use the adjective “Ecumenical”. 2. Messrs Van Dijk (Netherlands), Grabenwarter (Austria) and Sejersted (Norway) were appointed to act as rapporteurs on this request. Messrs Grabenwarter and Sejersted, together with Mr Markert from the Secretariat, visited Turkey on 9 to 11 November 2009 and held meetings with the authorities and religious leaders. A report on the visit appears in document CDL(2009)183. 3. The present opinion was adopted by the Venice Commission at its 82nd plenary session (Venice, 12-13 March 2010). 4. The request raises two questions, which are different in scope and character, and only partly and indirectly related. The first is a very wide and general issue, the second more limited, although of great importance to the institution concerned. 5. With respect to the first question, the present opinion only deals with the legal status of non- Muslim (minority) religious communities. Many of the considerations set forth in this opinion will be applicable mutatis mutandis also to Muslim communities in Turkey. In other respects, however, due to the existence of the Diyanet (see paragraph 34 below), their situation may differ to such an extent that they have been left out of consideration here. 6. As for the second question, on the “ecumenical” status of the Orthodox Patriarch, this is first and foremost an internal religious and ecclesiastical matter. However, if the Patriarchate is hindered from using this title, this becomes also a legal issue with possible human rights implications, and this is addressed in the present opinion. 2. European standards for granting legal personality to religious communities A. Introduction 7. The request invites the Venice Commission to assess whether the rules and practice in Turkey with regard to the legal personality of religious communities are in line with “European standards”. “European standards” can mean both “hard” and “soft” law. In the present case, "hard" law consists of the rules of the European Convention on Human Rights (ECHR), while "soft" law refers to the Guidelines for review of legislation pertaining to religion or belief, jointly prepared by OSCE- ODIHR and the Venice Commission. The concept of “European standards” may also cover comparative overviews, illustrating common models for regulating a specific issue, or even a “best practice” model. Such common models can and may be identified even if there are national exceptions in some countries, as there inevitably almost always are, given the rich legal and constitutional tapestry of Europe. 8. Legal instruments of the United Nations such as the International Covenant on Civil and Political Rights (ICCPR) do not contain European standards but obviously apply within Europe as well. Given the level of protection offered by the European Convention of Human Rights, and the substantial case law of the ECtHR, a separate review of the compatibility of the situation in Turkey with the ICCPR, in particular its Articles 18 and 22, appears not to be required in the present case. CDL-AD(2010)005 - 4 - B. European Convention of Human Rights 9. The fundamental right to freedom of thought, conscience and religion is laid down in Article 9 of the European Convention of Human Rights, which is the basic provision for assessing the case at hand. It is, however, not the only one. As has been stressed in the case law of the European Court of Human Rights (ECtHR), freedom of religion is not merely an individual right, but also has a collective dimension. As a consequence the ECtHR has held in a number of cases that Article 9 should be interpreted and applied in conjunction with Article 11 on freedom of association, in such a way that religious communities are offered the possibility to register in a way which makes it possible for them to exercise effectively and collectively their religious beliefs. This was held inter alia in the case of Hasan and Chaush v. Bulgaria1 from 2000, and then reiterated and developed in the case of The Metropolitan Church of Bessarabia v. Moldova2 from 2001, in which the Court held, inter alia, that: ”118. Moreover, since religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords (see Hasan and Chaush, cited above, § 62). In addition, one of the means of exercising the right to manifest one’s religion, especially for a religious community, in its collective dimension, is the possibility of ensuring judicial protection of the community, its members and its assets, so that Article 9 must be seen not only in the light of Article 11, but also in the light of Article 6 ...” 10. This has been followed up in later case law, including a number of cases dealing specifically with property rights of religious communities in Turkey.3 11. The relevant issue under the ECHR is the right to legal personality for religious communities under Article 9 in
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