MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-36

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-36 Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı (Application No. 32093/10), İzzettin Doğan and Others (Application No. 62649/10) and Hasan and Eylem Zengin group (Application No. 1448/04) v. Turkey Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1007, DH-DD(2020)493, CM/Del/Dec(2019)1362/H46-32

 

Application	Case	Judgment of	Final on	Indicator for the classification
32093/10	CUMHURİYETÇİ EĞİTİM VE KÜLTÜR MERKEZİ VAKFI	02/12/2014 20/06/2017 19/02/2019	20/04/2015 20/09/2017 19/05/2019	Complex problem
62649/10	İZZETTİN DOĞAN AND OTHERS	26/04/2016	Grand Chamber
1448/04	HASAN AND EYLEM ZENGİN	09/10/2007	09/01/2008
21163/11	MANSUR YALÇIN AND OTHERS	16/09/2014	16/02/2015

Case description

This group concerns the failure within the Turkish legal framework to grant legal recognition to the Alevi faith[1], thus depriving its followers of the right fully to practice their faith (violations of Article 9). It further concerns a discriminatory difference in treatment between followers of the Alevi faith and followers of the majority understanding of Islam, who benefit from legal recognition and religious public services financed by the State through the Religious Affairs Department (“RAD”) (violation of Article 14 taken in conjunction with Article 9). This difference of treatment includes the failure to extend to Alevi premises (cemevis) the exemption from the cost of electric lighting that is granted to places of worship (Article 14 in conjunction with Article 9).

Finally, the Court found that the content of the religious culture and ethics classes in primary and secondary schools, and their compulsory nature with only limited possibilities of exemption, “offers no appropriate options for the children of parents who have a religious or philosophical conviction other than that of Sunni Islam”[2] (violation of Article 2 of Protocol No. 1). Generally, the Court found that “the attitude of the State authorities towards the Alevi community, its religious practices and its places of worship is incompatible with the State’s duty of neutrality and impartiality and with the right of religious communities to an autonomous existence”.[3]

Status of execution

The authorities submitted an additional information note on 4 June 2020 (DH-DD (2020)493) and an action plan on 5 October 2021 (DH-DD(2021)1007), in which they reiterated their previous submissions and provided the information summarised below.

Individual measures

In the decision adopted at last examination of these cases, in December 2019, the Committee invited the authorities to provide information on whether Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi is exempted from the payment of lighting costs and noted that the individual measures for the remaining cases are linked to the general measures.

The authorities submitted three sample decisions delivered by the Court of Cassation between 2015 and 2018 in which the Court of Cassation referred to the findings of the Court in the case of Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi and held that the premises allocated for worship in cemevis should be exempted from the lighting costs. It seems from the sample judgments submitted that these domestic proceedings are related to the electricity costs of the applicant’s cemevi before 2017.

The applicants’ children in the cases of Hasan and Eylem Zengin and Mansur Yalçın and Others have passed the age of compulsory religious culture and ethics lessons.

General measures

In its last decision adopted in December 2019, the Committee; 1) noted the emerging practice of the domestic courts to order the partial reimbursement of lighting costs to cemevis which bring proceedings, but underlined that this was insufficient to resolve the discrimination identified by the Court arising from the blanket exclusion of the Alevi community from State religious subsidies and other benefits, including tax exemptions; 2) noted further that the 2018 curriculum for the compulsory “religious culture and ethics” classes in primary and secondary schools includes information on the Alevi faith and that parents may initiate legal proceedings requesting exemption of their children, but emphasised that these measures did not appear to remedy all the concerns raised by the Court, in particular in the absence of an exemption procedure which does not subject parents to a heavy burden and to the necessity of disclosing their religious or philosophical convictions; 3) noted, finally, that a national discussion on how to resolve the issues highlighted by these judgments was embarked on in the “Alevi initiative” workshops; welcomed the inclusive nature of the workshops and the fact that recommendations were reached by consensus in a final report in 2010; therefore strongly encouraged the authorities to build upon these recommendations in drawing up a comprehensive action plan with a concrete calendar indicating specific legislative and administrative measures.

In the information submitted in reply to this decision, the authorities indicated that, due to the COVID–19 pandemic it has been impossible to hold workshops as of March 2020 and therefore no progress has been achieved for the implementation of final report in 2010 prepared in consensus as a result of the “Alevi initiative” workshops. They expressed their intention to accelerate the process depending on the progress achieved in controlling the pandemic.

As concerns the issue of the lightning costs of cemevis, relying on the sample judgments delivered by the first instance and appeal courts between 2014 and 2019 (submitted by them to the Committee for its last examination of these cases) the authorities repeated their argument that it had become the practice of the domestic courts to quash decisions of the RAD refusing to reimburse the lighting costs of cemevis. The authorities indicated that under the Provisional Article 6 of the Electricity Market Law (Law No. 4664), only the lighting costs of the places of worship and no other electricity costs can be paid by the RAD. They further stressed that, in terms of their architectural features, the cemevis are not solely composed of worship buildings but that they have various other elements, such as libraries, museums, meeting halls, etc. Accordingly, for the authorities, since these establishments do not have separate electricity meters, it is required for the cemevis to apply to the courts which could decide on the exact amount of the contested electricity costs based on an expert report.

Regarding the content of the religious culture and ethics (“RCE”) classes, the authorities indicated that

the new syllabus introduced at the start of the 2011/12 school year did not favour a particular faith but instead adopted a supra-denominational approach. The 2011/12 syllabus was further improved following the introduction of the newcurriculum which entered into force as of 2018/2019 school year.

According to the authorities the new curriculum satisfies the criteria of neutralism, objectivism, and pluralism and is in line with the findings of the Court and that of the TOLEDO Guiding Principles. In the authorities’ view, the compulsory nature of the RCE classes is not in itself in contradiction with Convention standards. They consider that the main issue here is the content of these classes and that, since the necessary criteria of neutrality, objectivity, and pluralism are reflected in the new curriculum, an exemption procedure is not required.

The Human Rights Action Plan announced on 2 March 2021

To ensure the enjoyment of the freedom of religion and conscience at the widest extent, this action plan envisages the review of the relevant legislation and practice in line with international human rights standards. One of the aims included is that the educational materials to be prepared based on the principles of objectivity, impartiality, and pluralism and in a manner that is inclusive of all parts of the society.

Rule 9(2) submissions by the Alevi Philosophy Center (DH-DD(2021)1077, DH-DD(2021)520,
DH-DD(2020)963 and DH-DD(2020)378) and the Norwegian Helsinki Committee (DH-DD(2021)1078,
DH-DD(2021)293and DH-DD(2020)836)

In their submissions, the Alevi Philosophy Center (ADO) and the Norwegian Helsinki Committee mainly indicate that no progress has been achieved since the Committee’s last examination.

The NGOs stress that, without legislative change, the cemevis are still obliged to apply to domestic courts to obtain reimbursement of the lightning costs, which is a burdensome and lengthy process. Furthermore, they still do not benefit from any other state funds.

Relying, inter alia, on the findings of a recent review of the religious culture and ethics lesson textbooks being used throughout 4-12^th Grades, prepared by Association for Monitoring Equal Rights (ESHİD) in March 2021[4], and a Status Report prepared by ADO dated April 2020 (DH-DD(2020)378), the NGOs claim that the new religious culture and ethics curriculum does not meet the requirements of neutrality, objectivity and pluralism. They consider the teaching materials are not objective, nor in line with Convention standards nor compatible with Toledo Guiding Principles. The NGOs are of the view that the exams of these classes force the students to act against their thoughts, conscience or religion. They argue therefore that these classes should not be compulsory. They indicate furthermore that the requests for exemption from the religious culture and ethics classes are rejected by domestic courts.

The NGOs claim that there has been no progress in legal recognition of the Alevi faith and their place of worships and that the new Human Rights Action Plan does not envisage any concrete measure relating to the outstanding issues in the present cases.

In response the authorities reiterated their submissions summarised above.

Analysis by the Secretariat

Individual measures

It should be recalled that the material damage awarded by the Court in the case of Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı covered the lighting costs of the applicant foundation’s cemevi for the period between 29 June 2007, the date on which the applicant foundation initiated proceedings before the domestic court, and the date on which the European Court’s judgment became final (20 September 2017). In reply to the Committee’s last decisions, the authorities submitted three decisions of the Court of Cassation, according to which the applicant foundation had been exempted from lightning costs but these decisions concern periods before September 2017.

The authorities could therefore again be invited to provide information as to whether the applicant foundation has been exempted from the payment of lighting costs since then. The authorities can be also invited to consider some practical solutions such as installation of a separate electricity meter for the lighting of the applicant’s cemevis or setting up a simplified reimbursement procedure allowing for the regular reimbursement of lighting costs. This issue and the other individual measures needed are linked to the general measures to be taken for the execution of the present judgments (see below).

General measures

Legal recognition of the Alevi community

Despite the Committee’s call on the authorities to move forward towards implementing the recommendations in the final report adopted by consensus in 2010 following a series of workshops on the issues concerning the Alevi community, no progress has been achieved since then. [5]

Exemption from lighting costs and allowing other benefits  

The domestic court decisions submitted by the authorities indicate that partial reimbursement of lighting costs is allowed to cemevis. According to the authorities, cemevis are composed of several buildings and that only the lighting costs relating to the premises of worships are subject to exemption. Therefore, they claim that the determination of the exact amount of the lightning costs requires a court decision based on an expert report. This solution is not in line with the Court’ findings in its just satisfaction judgment in the case of Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi, where it considered that it would be excessive to require the applicant to bring a domestic action in respect of each electricity bill to have the electricity costs reimbursed (§18). To eliminate the need for an expert examination, the authorities might consider some practical solutions such as installation of a separate electricity meter for the lightening of the places of worship or setting up a simplified reimbursement procedure.

It should be underlined in addition, that the violations identified by the Court go beyond the mere exemption from lighting costs and concern the blanket exclusion of the Alevi community from State subsidies and other benefits, including exemption from certain taxes, without compensatory measures capable of remedying this discrepancy. The Committee could therefore urge the authorities to adopt more comprehensive measures to ensure equal treatment of the Alevi faith.

Compulsory religious culture and ethics classes in primary and secondary schools

It should be recalled that the authorities made a number of changes in 2011/12 syllabus following the Court’s initial judgment on this issue in the Zengin case, which the Court subsequently examined in its Mansur Yalçın and Others judgment. The Court found in this later judgment that “…notwithstanding the significant changes made in 2011/12 to the syllabus for religious culture and ethics and to the corresponding textbooks, it appears that the education system of the respondent State still does not provide appropriate means to ensure that parents’ convictions are respected. In particular, the Court noted that the Turkish education system offers no appropriate options for the children of parents who have a religious or philosophical conviction other than that of Sunni Islam, and that the very limited procedure for exemption is likely to subject pupils’ parents to a heavy burden and to the necessity of disclosing their religious or philosophical convictions in order to have their children exempted from the lessons in religion”.

The Committee has already noted in its previous decisions that the inclusion of information on Alevi faith in the curriculum of 2018 and the possibility for parents to initiate legal procedures for exemption of their children do not appear to remedy all the concerns raised by the Court, in the absence of and exemption procedure which does not subject the parents to heavy burden and to the necessity of disclosing their religious convictions. The authorities’ submissions in reply to these decisions do not contain new information.  

The authorities should therefore be urged to ensure that the Turkish education system fulfils the State’s duty of neutrality and impartiality towards the various religions, denominations and beliefs, respecting the principles of pluralism and objectivity, and offers appropriate options for the children of parents who have a religious or philosophical conviction other than that of Sunni Islam to be exempted of compulsory religious education, without being obliged to disclose their religious or philosophical convictions.

Lastly, the adoption of the new Human Rights Action Plan on 2 March 2021 is noted. However, it does not contain any concrete measures addressing the Court’s findings in the present groups of cases. The authorities could therefore be strongly encouraged to adopt specific solution-oriented measures addressing the outstanding issues in the context of the implementation of the new Human Rights Action Plan. The readiness of the Council of Europe to provide assistance to this end could be expressed.

General conclusion:

In the light of the above, the Committee could urge the Turkish authorities to move forward towards implementing the recommendations contained in the final report of the Alevi workshops, which covers all the areas above, in drawing up a comprehensive action plan with a concrete calendar indicating specific legislative and administrative measures without further delay. The Committee could also encourage them to draw inspiration from the relevant Council of Europe recommendations, including the reports of the European Commission against Racism and Intolerance (ECRI) adopted on 10 December 2010 (TUR-CBC-IV-2011-005) and 29 June 2016 (TUR-CBC-V-2016-037).

As most of the issues examined in this group are longstanding and no significant progress has been achieved despite the Committee’s clear call in its previous meeting, the Committee could also instruct the Secretariat to prepare a draft interim resolution for examination at its December 2022 meeting, if no comprehensive information is submitted for that meeting., allowing for a positive assessment of the general measures taken by the authorities.

Financing assured: YES