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3.07.2019 | Global Legal Matters | 1307


The religion section in the Republic of Turkey ID card is the principle of secularism in Turkey and is one application that creates debate in terms of religious freedom. In a secular state that does not have an official religion, the inclusion of information about religious in the identity cards creates a major contradiction. As a return to being a secular state, it is impossible to reconcile the principle of secularism with the registration of individuals' beliefs for later use, which equates to all religious and philosophical beliefs and which does not grant any privilege to any of them, and which must be neutral in the face of them. But the Constitutional Court in Turkey, as well as the 1961 Constitution, the 1982 Constitution norms during the inspection carried out, said legal arrangements have been found constitutional. However, the existence of a religious household in the identity cards recently and the violation of the procedure for the regulation of this household to the freedom of belief protected by the European Convention on Human Rights (ECHR / Convention), the European Court of Human Rights (ECHR / Court) Sinan Işık v. Turkey was determined by the decisionIn addition to this determination, Sinan Işık's decision is also important for the development of the case law of the ECHR on the issue of compelling the individual's belief. With this decision, the ECHR emphasized that the right not to be compelled to explain religion or belief is within the scope of the forum internum, the untouchable core of freedom of belief.


Article 9 of the ECHR, which regulates freedom of belief, states that everyone has the right to freedom of thought, conscience and religion, thus securing an area in which an individual can achieve intellectual and spiritual development without interference. This area is also called ‘forum internum’. The ECHR envisions a restriction regime for the manifestation of faith, but does not include any limitation criteria that can legitimize interventions to the forum internum. Therefore, all interventions to any right under the forum internum will result in a violation. This untouchable area enters the freedom of olma having or not having religious beliefs. Another element of the Forum internum is the 'right not to disclose religion or belief'. In practice, issues related to the compulsion of individuals to express their beliefs arise especially in individuals' relationships with administrative authoritiesIt is not common for Council of Europe member states that administrative authorities force individuals to disclose their religion or belief directly, store such information, and the risk of using it for discriminatory practices. This situation in Greece, which have in the past and is an important exception to protect the assets on religion in the identity cards in Turkey.

The ECHR has played a key role in determining the scope of this right, as the right to not express faith is not explicitly included in the ECHR. Saniewski v. 1, the first decision to address the right not to reveal his faith. In Poland, the Court took a timid attitude and carried out the examination of Article 9 of the Convention, leaving the question as to whether the individual had guaranteed his right to remain silent about his religious beliefs. The ECHR changed its stance in the following years, which refrained from discussing whether the right to not express faith was within the forum internum. The starting point of this change is the case of Sofianopoulos v. Greece creates the decision. In this decision, the Applicant did not request the abolition of the religious household in the identity cards, but argued that the Greek government's abolition of the religious household violated the freedom to manifest its belief. As a result of the decision ECH; identity cards are an official document prepared for the purpose of identifying and distinguishing the individual against the legal order as a citizen, and in this respect, individual belief cannot be considered as a distinguishing feature in terms of state-individual relationship, emphasized that it cannot be a means of providing religious practice or the right to manifest. In addition, the court stated that the identification of religious beliefs in such official documents poses a risk of discriminatory practices in relations with administrative authorities, given that the birth certificate is frequently used in cases such as school enrollment, identity control, and military service. The first decision by ECHR to determine that forcing the individual to declare his belief-alone oluştur could violate the Convention was Folgero v. Norway, 2007.


The right not to disclose faith is not an explicitly recognized right in the ECHR, and therefore the case-law of the ECHR has been decisive in recognizing the existence of this right and then determining its scope. legal situation in Turkey differs from the first ECHR system at this point.Both in Article 24 of the 1982 Constitution and in Article 19 of the 1961 Constitution, it is clearly foreseen as a constitutional obligation that no one shall force his or her faith to be declared. In addition, in Article 15 of the 1982 Constitution, which regulates extraordinary administrative procedures, not being forced to declare faith is among the untouchable core rights. Furthermore, Article 115 of the Turkish Penal Code has been regulated as a crime to force the disclosure of its faith. In spite of this legal agreement, the decisions of the Constitutional Court in Turkey (AYM) found the religious house in the population wallet in accordance with the Constitution are interesting from the legal point of view. The problem of the unconstitutionality of the religious house in the population wallet was firstly the issue of the AYM during the 1961 constitution period ,and the AYM dealt with the issue in this decision in terms of the concept of coercion and Prohibition of discrimination. According to AYM; “this rule does not prevent anyone from expressing their religious beliefs and convictions. What is not permitted by the Constitution is compulsion. Therefore, it is necessary to look at the subject from the point of (coercion). This article does not contain any coercive provisions. When registering with the population, it creates a situation that can only lead to one's explanation of what his religion is, not his religious beliefs and convictions in the sense of the Constitution, which has no coercive nature and coercion.” In this decision, AYM was based on the concept of public interest. According to the AYM, “the public interest in the proper and regular writing of the personal status of the citizen and his religion, which is an element of the citizen, and in correcting the inaccuracies by the decision of the judge."During the 1982 constitution, the subject came back to AYM. The 1995 decision has a far more comprehensive justification than the first, and is therefore guiding in understanding the AYM's perspective. According to AYM, “the religion of the individual is transferred to the population registers as “personal State “because of the public interest of the demographic structure of the nation. The objective elements of the state are the people who form the country and the nation. The state must know the characteristics of its citizens. The desire to know the individuals and their characteristics of the state is based on the public order and public interest and on economic, political and social necessities and needs of the Constitution... the rule of” cannot be forced to explain religious beliefs and opinions " does not mean that a person can not be recorded as an information which is dependent on religion. What the Constitution does not allow is coercion. Coercion is related to the explanation of religious beliefs and opinions. It is not possible to limit the concept of” religious belief and conviction “to” religious knowledge " which will only be written in the family register as demographic information or as personality information. The concept of “religious belief and conviction” is not a narrow concept that covers the fact that a person is from one or another religion or belief, but rather a broad concept that embraces many aspects of religion and belief. 24 of the Constitution. prohibited in the article, the person's religion is not learned, religious beliefs and beliefs are forced to explain”[1] The Court's justifications in this decision clearly contradict both the principles laid down by the ECHR in the Sinan Işık decision and the features that are considered among the characteristics of the republic in the 1982 Constitution.

AYM's refrain from accepting the violation of the law of the House of religion in the population wallet, Iham revealed in the Sinan Işık decision in reference to the negative dimension of freedom of belief. However, the decision of Iham has not been put to an end to the practice of religion in Turkey, and the only issue that changed in the new identity cards that were put into practice was that the information on the beliefs of individuals was not included in the written form on these cards. This does not eliminate the violation of freedom of belief. As repeatedly emphasized in the ECHR's established case-law and as required by the explicit provisions of the 1982 Constitution, practices that force individuals to express their beliefs in no way can be accepted.


[1] AYM, E: 1995/17, K: 1995/16, 21.6.1995Hello Summernote

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