According to Ms N.Ö., Mr M.Y. had repeatedly made inappropriate advances upon her, obtained her home address, and forced entry into her home in July 2010, where he allegedly assaulted her. She delayed reporting the incident for two years due to fear of retaliation and societal stigma. She eventually sought psychological support and filed a complaint, supported by an expert report diagnosing her with post-traumatic stress disorder and severe depression.

The accused contested the allegations, arguing that Ms N.Ö.’s delay in reporting suggested consent, particularly given her “university education and status as a dentist” (para 11). Furthermore, he pointed to her continued employment at the same hospital and her social interactions with his family during hospital-organised events as evidence undermining her claims (para 11). The accused contended that a victim of such traumatic events would not have been able to continue with his/her daily life as usual after such a traumatic experience. Therefore, he claimed, the applicant’s silence and “normal behaviours” rendered her allegations unfounded.

No “In Dubio Pro Reo” for the Accused!

In its examination of the case, the ECtHR debunked such myths and found a violation of Article 8 of the ECHR (para 56). A significant aspect of the judgment was the ECtHR’s critique of Türkiye’s Court of Cassation’s application of the “in dubio pro reo” principle (when in doubt, rule for the accused). The case involved conflicting testimonies: Ms N.Ö. presented a piece of clothing with traces of the accused’s semen to the domestic courts. However, the testimonies differed on whether this clothing was the top or bottom part of a tracksuit. Additionally, when Ms N.Ö. requested an examination of her telephone records to clarify key inconsistencies in the accused’s testimony, the domestic courts failed to act on this request without providing justification.

The ECtHR held that “the failure of the authorities to respond adequately to the allegations of sexual assault demonstrates that they did not subject the case to the careful scrutiny required for them to properly discharge their positive obligations under the Convention.” (para 55)

According to the ECtHR, this lack of motivation to continue the investigation and to uncover all the facts of the case constituted a failure on the part of the judicial authorities in fulfilling their positive obligations under Article 8 of the ECHR.

Leaving Some Stones Unturned

The applicant also claimed that she was a victim of discrimination and alleged a violation of Article 14 (right to non-discrimination) in conjunction with Article 8 of the ECHR. However, after finding a violation of Article 8, the Court held that it was “not necessary” to examine the admissibility and merits of the complaints related to Article 14 (para 58).

This omission is a missed opportunity. The applicant’s delay in reporting and the authorities’ investigative failures are closely linked to the gender-based inequalities and stereotypes in the country. The Court overlooked this broader context, as it has in past cases on rape (such as D.J. v. Croatia). However, in Opuz v Türkiye, the ECtHR acknowledged and underlying systemic gender-based violence. A similar approach could have contextualised N.Ö. v Türkiye case within the broader context of structural gender inequalities.

A Pattern of Omission?

N.Ö. v Türkiye is not the only case where the ECtHR has declined to examine allegations under Article 14 having found a breach of Article 8. This pattern of hasty judgments fails to provide a comprehensive framework that fully analyses situations where multiple rights violations are at stake. Future judgments should aim to bridge these gaps by integrating a more robust analysis of discrimination and the societal context influencing judicial outcomes into their deliberations and decision-making processes.

In 2019, Türkiye imposed movement restrictions on Syrian refugees, requiring them to obtain travel permits from local authorities to move between provinces. This policy aimed to enforce provincial registration and prevent unregistered refugees from residing in major cities like Istanbul without proper documentation. As a result of these regulations, many Syrian refugees lost access to healthcare, education, and employment, because they had already established their lives in provinces other than their registered ones.

These restrictions appear to violate Article 26 of the Refugee Convention and Article 12 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to freedom of movement within the host territory. By limiting movement between provinces and restricting access to essential services, Türkiye exacerbated Syrian refugees’ vulnerability. The World Health Organization (WHO) collaborated with UNHCR to develop a joint work plan stating that any restrictions on movement should be implemented in a non-discriminatory manner, considering the vulnerabilities of migrant populations. The restriction of movement also leads to the criminalization of Syrian refugees for living or working in unregistered provinces, engendering
detentions and even deportations, which violate the non-refoulment principle.

Furthermore, these restrictions hinder the ability to seek employment for refugees, who are registered in smaller provinces. Since refugees have more employment opportunities in bigger cities, the restrictions prevent Syrians from sustaining economic stability and aggravate their overall conditions.

The gender-specific impacts of these movement restrictions are particularly concerning. The movement restrictions disproportionately affect Syrian women, who are often left behind in registered provinces while men move illegally to larger cities for work. This gender-specific impact raises concerns, as restricting women’s freedom of movement and access to employment perpetuates gender-based inequality, making it difficult for women to escape abusive situations or find work in safer environments.

During the humanitarian crisis caused by the February 6, 2023 earthquake, the Turkish government alleviated its restrictive policies to a certain degree. The circular issued on February 7 instructed local authorities to permit all refugees registered with the Turkish migration authorities in the ten affected provinces to travel without a permit to other provinces, excluding Istanbul, and to remain outside their registered provinces for up to 90 days. Although this decision brought relief, it undermined Syrian refugees’ long-term well-being. The UN Human Rights Office (OHCHR) emphasizes the vitality of concentrating on the rights of people in times of crisis without discrimination and 90 days appears to be a short period when the level of catastrophe is considered.

The legal framework that governs Syrian refugees in Türkiye highlights a broader tension between the domestic legal framework regarding refugees and international principles of refugee protection. By imposing restrictions on freedom of movement, Türkiye’s policies diverge from international refugee protection standards. To protect the rights of Syrian refugees, the UN’s initiative in 2018, the Global Compact on Refugees, urges states to adopt policies that enhance refugees’ access to rights, conforming to the International Refugee Convention. While Türkiye can reconsider its refugee categorization system, international organizations can also devise new mechanisms to assist in managing the refugee burden, which exceeds Türkiye’s infrastructural capacity. Without these reforms, the current system will continue to leave Syrian refugees in a state of legal liminality, perpetuating their vulnerable conditions.

The significance of this case is not in its recognition of a right to conscientious objection to military service even as a reservist. Despite decades of the European Commission of Human Rights (a Convention body which has ceased its functions) refusing to recognise a right to conscientiously object to military service, the ECtHR recognised such a right in Bayatyan v Armenia in 2011. It is also clear that atheists such as Mr Kanatli enjoy the protection of Article 9 given that the Court states in every Article 9 judgment that the right ‘is a precious asset for atheists, agnostics, sceptics and the unconcerned’. Perhaps, the significance of the case lies in the fact that it is the first time that the Court has recognised the right in the context of a request to perform military service only on a single day.

Nevertheless, I would caution against viewing this case as particularly significant other than for the Applicant. In fact, it may reinforce an erroneous impression that a right to conscientious objection is only relegated to the context of military service. When, for example, the European Bureau for Conscientious Objection calls for the recognition of this right, it makes clear that it calls for it only in the context of opposition to military service. However, as I have argued in detail, the law of various liberal States and of the ECHR has long recognised a right to object to any legal obligation whatsoever. Accordingly, anti-vaxxers, 5G conspiracy theorists, those opposed to abortion, those opposed to same-sex marriage, and many others could invoke the right to try to escape complying with their legal obligations. Of course, those with more progressive causes, such as pacifists, vegans, those that support assisted suicide, those that support a right to abortion, and many others, could also invoke the right.

A right to conscientious objection is a very expansive right which, depending on those who invoke it, may be used for good or ill. So why should the Convention or liberal States recognise such a right given the possibility for abuse? Arguably, because liberalism calls for respect for people’s conscience, given its importance for personal autonomy. Respecting conscience also entails regard for people’s wellbeing and personal identity, given the harm of being compelled to act in a way that violates your deepest convictions which are constitutive of your personal identity. Accordingly, recognising the right may be a requirement of every institution, such as the ECtHR, which claims liberal credentials. Furthermore, the right is not absolute and so courts can deny granting exemptions if there are good reasons (e.g. public health or the rights of others) for doing so. Given that they are ways to manage risks associated with the freedom of conscience, all liberals should be in support of a right to conscientious objection which extends beyond the military context.

This blog analyses the case of the so called “Turkish Republic of Northern Cyprus” (“TRNC”) from the Public International Law perspective. It examines the classic criteria of Statehood as embodied in international treaties as well as State practice in the field of the creation of States, and then applies these instruments to the “TRNC”. Then it goes on to tackle the important issue of self-determination, itself the most important prerequisite of statehood and human right, stressing that the Turkish Cypriots cannot qualify as a people and therefore should not be accorded a legal or political right of creating a State of their own and of bringing about partition of the Republic of Cyprus.

Firstly, taking into account that the “Turkish Republic of Northern Cyprus” has been created as a result of an illegal military intervention in 1974, it inevitably follows that it is a legally invalid entity (see James Crawford, The Creation of States in International Law, Oxford: Oxford University Press, 1979, 108).

This is even more so, given the uprooting of more than 200,000 Greek-Cypriot refugees from their homeland and subsequent reduction to the tragic status of refugees. Further, the transfer of foreign settlers from mainland Turkey reveals the real intentions of the State of Turkey which does not seem to aim at facilitating settlement of the Cyprus issue.

Secondly, according to the classic criteria for statehood in international law (which correspond to the declaratory theory of recognition) the “TRNC” cannot qualify as an independent State. It should be noted that even if other States purport to grant recognition to the “TRNC” in the future, such an act has to be treated as unlawful and without any effect. Considering the predominant position of the declaratory theory of recognition among international law jurists, such an attempt would have to be unsuccessful (Oppenheim, International Law, 7^th ed. London, 1948, 17). However, the Republic of Cyprus should not acquiesce for a moment to the de facto situation created as a result of the illegal armed intervention of Turkey in 1974.

Thirdly, international organisations and the international community as a whole have strongly condemned the unilateral declaration of independence of the “TRNC”, have regarded it as legally invalid, and recognise the Government of the Republic of Cyprus as the only legitimate representative of Cyprus.

Fourthly, the Turkish Cypriots are not entitled to the exercise of the right of self-determination as they do not constitute ‘a people’ in the International Law sense (see Ian Brownlie, ‘The Rights of Peoples in Modern International Law’ in James Crawford [ed.], The Rights of Peoples, Oxford, 1992). However, it is submitted that any constitutional settlement of the future should guarantee effective participation of them in the governmental system of the State.

Fifthly, there is no right to unilateral secession in international law. Further, it is a domestic matter for the State concerned whether or not to grant recognition to a people or peoples within its territory (on the peculiar case of Bangladesh, see further Franck and Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, American Journal of International Law 67 [1973] 275). Therefore, even if the Turkish Cypriots constitute a ‘people’, it does not necessarily follow that they can qualify as a self-determination unit, and secede from the Republic of Cyprus. It should be stressed that recognition of unilateral secession of the ‘TRNC’ would form a bad precedent in international law and practice. Such a development would open the way for other groups or peoples claiming to have the right of self-determination to secede. Clearly, this would not be in the interests of the international society, especially of States facing imminent danger of this sort such as Spain (the Basques), the United Kingdom (Scotland), France (the Bretons and Alsatians) or Italy (Padania). Recognition of the right to unilateral secession would lead to fragmentation of world legal order.

Sixthly and finally, recognition of the “TRNC” on the part of any State, contrary to international law prescriptions, would create an additional political problem of immense dimensions. It would put the Cyprus problem entirely into the sphere of international relations or power politics.

The unlimited inequality, injustice, and serious violations of socio-economic rights in Turkey has triggered public dissatisfaction with the government, demand for political alteration and application of international socio-economic rights in Turkey.

Though there have been serious critiques and anger towards the Turkish government over the past few years, the Turks have shown no tendencies toward regime change. It is worth noting, however, that calling for change arises out of national and international policies of the government which have directly or indirectly affected the citizens due to the widespread violations of the core international human rights instruments including 1966 International Covenant on Civil and Political Rights and 1966 International Covenant on Economic, Social and Cultural Rights which Turkey is a party to.

The Decline of Economic and Social Rights Standards

Article 14(2) of the Turkish Constitution provides that “no provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution.” Nevertheless, violations of several crucial rights have caused the rise of public dissatisfaction with government over the long run. This includes discriminations against women in violation of the right to equality and non-discrimination under Article 3 of the 1966 International Covenant on Civil and Political Rights; unemployment and failure to provide the basic conditions for employment in violation of the right to work under Article 6(1); failure to ensure a minimum wage sufficient for a decent living in violation of the rights at work under Article 7(a/ii); violation of the obligation to protect the right to freedom of expression under Article 19(2); and, restriction of the right to freedom of peaceful assembly and association in violation of Article 22(1).The government’s failed ultra-loose monetary policy exacerbated poverty and widened the existing gap in income and wealth equality, in violation of the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources under Article 25 of 1966 International Covenant on Economic, Social and Cultural Rights. It is no surprise that the confidence of 76 per cent of the Turks in the government’s economic policy has decreased.

The government’s actions (and inaction) also violate constitutional rights. The right to equality and non-discrimination (Article 20), the right to freedom of association (Article 27), the right to work (Article 28), the right of all peoples to enjoy and utilise fully and freely their natural wealth and resources (Article 43(6)) are the constitutional principles which are not applied impeccably by the government. The Turkish government, however, justifies its economic failure and its defiance of binding international human rights law principles by relying on an Islamic doctrine which allowed Turkey’s President to “continue to do whatever the religious decrees require”. Nevertheless, it does not seem that restrictions upon the fundamental rights beyond the limits set by international law are legitimate and proportionate, and it is not clear how the Turkish government bridges the gap between the social and political inequalities and the religious decrees.

Regression from the Rule of Law

Turkey has adopted the Universal Declaration of Human Rights and its democratic character is unalterable in line with the Turkish Constitution (Article 177). It is expected that the government guarantees and recognises universal socio-economic rights, since the protection of human rights is a prerequisite of a democratic governance. Conversely, restrictions on political contestation and widespread violations of socio-economic and civil and political rights form ‘illiberal democratic conditions,’ overtly creating the grounds for public dissatisfaction with government. Political influence over the judiciary and detaining and convicting dissenters—including journalists, opposition politicians and human rights defenders—without compelling evidence of criminal activity are perhaps blatant forms of abuse of power caution erosion of the rule of law and democracy framework.

As long as irresponsibility and abuse of power resulting in the violations of the socio-economic and civil rights are widespread practices, economic and social chaos and demand for resignation of the government officials or regime change will be inevitable.

As a precaution to prevent the chaos of uprisings which call for political alteration, improvement in attainment of international human rights law standards, and commitment to international human rights institutions is necessary. This would improve democratic responsibility in the Turkish society.

Much has been written about the method of the withdrawal and the (potential) consequences of it. Yet, an issue which still remains unclear is the impact of the withdrawal for the European Court of Human Rights (ECtHR). Will Turkey’s decision relieve it of the responsibilities emanating from the Istanbul Convention before the ECtHR? In future domestic violence cases before the Court, will Turkey be freed from the obligations under the Convention?

The short answer is no.

The ECtHR has increasingly integrated the European Convention on Human Rights (ECHR) within the broader international human rights law context in its rulings. By adopting the principle of systemic integration, the Court (re-)interprets the ECHR in light of human rights developments on regional and international levels. Thus, regardless of the respondent state’s signature, a human rights instrument could be considered “relevant law” by the Court and might have a strong influence in the decision.

In the Demir and Baykara case in 2008 , Turkey objected to the Court’s use of the International Labour Organisation (ILO) Conventions as relevant law since it had not ratified these instruments. As a response to this objection, the ECtHR famously concluded that it was ‘not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies.’ (para. 86) On this basis, considering that the vast majority of Council of Europe Member States have ratified the Istanbul Convention, it will remain “relevant law” for Turkey despite the withdrawal.

When domestic violence cases are examined, the Court considerably integrates other relevant human rights instruments into its interpretation of the ECHR – the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979, the General Recommendations of the CEDAW Committee and, recently, the Istanbul Convention. As such, the ECtHR similarly does not rely on the respondent states’ signature in the process of interpretation. In Valiuliene v Lithuania in 2013, for instance, the ECtHR considered the Istanbul Convention as relevant international law even though Lithuania had not signed the Convention at the time.

Although the Court’s approach has resulted in severe criticism since it holds member states responsible for treaties which they have not signed, one should not neglect the importance of the living instrument doctrine which makes the ECtHR effective, dynamic, evolutive, and relevant in international human rights law. The Court, since its establishment, has never ceased to be a significant actor which contributes to the development of international law, in part, due to the living instrument doctrine. The Court’s interpretation of the ECHR “in light of the present-day conditions” (Tyrer v UK) makes it a living treaty and locates it within human rights developments on regional and international levels.

Especially at a time when women’s rights have become the site of struggle in Europe, it is essential for the ECtHR to adopt a more proactive role through the principle of systemic integration and provide a robust human rights protection for all but especially for women more than ever.

Commentators have argued that the executive decision is unconstitutional because it usurps legislative power (see here, here or here). Article 90 of the Turkish Constitution, read together with the principle that ‘something is dissolved the same way it is entered into’, renders it within the province of the legislature to ratify and withdraw from treaties. Article 104(17) of the Turkish Constitution, though, does not permit the President to issue a Presidential Decree on legislative matters. Since Presidential Decree No. 9 is on a legislative matter, the argument goes, it is unconstitutional – as is any decision based on it. On 28 June 2021, this argument was brought by a plaintiff to the 10^th Chamber of Turkey’s Council of State in an attempt to invalidate the Presidential decision. In a 3-2 ruling, the argument failed based on the Council of State’s reliance on a preparatory commission report, identifying that the termination of treaties was a matter related to the executive power.

This blog post now turns to the legality of Turkey’s withdrawal under international law. The purpose of this analysis is to determine whether Turkey has complied with the principle of pacta sunt servanda, which provides that States should not undermine the binding force of treaties.

According to Article 31 of the Vienna Convention on the Law of Treaties (‘VCLT’), terms in treaties are to be interpreted in good faith, ‘in accordance with the[ir] ordinary meaning … in their context and in the light of [the Convention’s] object and purpose’. This rule suggests that the Convention should be interpreted according to what the drafters of the Convention intended: to create rules and procedures to prevent and combat violence against women.

On 22 March 2021, Turkey’s Communication Directorate justified the withdrawal on the basis that the Convention was ‘hijacked by a group of people attempting to normalize homosexuality…’. This could be because ‘gender’ has been interpreted to relate to sexual orientation and gender identity (see also here). Turkey’s justification, though, is rather perplexing. Whether a woman identifies as LGBTQI does not take away from the purpose of the Convention: to protect women from violence. Simply because the term ‘gender’ may be interpreted to cover LGBTQI rights, and that some women may identify as such, has no bearing on the purpose of the Convention. Further, according to Article 31 VCLT – the meaning of terms and phrases in treaties can only be amended or modified through State practice; not ‘groups of people’. Turkey’s withdrawal was seemingly justified in emotion rather than law.

Turkey’s withdrawal is also inconsistent with rules in the VCLT about withdrawing from treaties. According to Article 42(2) VCLT, a State’s withdrawal of a treaty may only take place as a result of the application of the provisions of: (a) the treaty, or (b) the VCLT. As for requirement (a), the Presidential decision does not comply with the official notification requirement in Article 80 of the Istanbul Convention. As for requirement (b), the Presidential decision fails to comply with the rules in the VCLT on withdrawing from treaties. Namely, that the treaty withdrawal take place ‘in conformity with the provisions of the treaty’ (Article 54(a)); and ‘by consent of all the parties after consultation with the other contracting States’ (Article 54(b)). First, the withdrawal did not take place in conformity with Article 80 of the Istanbul Convention. Second, the relevant consultation has not occurred. In conclusion, the Presidential decision to withdraw from the Istanbul Convention does not comply with international law and undermines the principle of pacta sunt servanda.

The Context of the Application

The applicant was employed by a private bank under an employment contract. A disciplinary proceeding was initiated against him with the allegation that he was engaged in commercial activities on his account. The bank’s inspection report established inter alia that he used his corporate e-mail account for his commercial affairs; consequently, his employment contract was terminated. The applicant filed a lawsuit against his dismissal; however, this case was rejected, and the verdict was finalised.  Thereafter, he lodged an individual application to the Constitutional Court and complained, in particular, that his employer’s decision to terminate his contract had been based on a breach of his right to respect for his private life and correspondence and that the domestic courts had failed to comply with their obligation to protect that right.

The Court’s Assessment

• General Principles

In its assessment, the Court determined six general principles to be applied in proceedings concerning the monitoring of an employee’s electronic communications by the employer. According to the Court:

1. The employer must provide legitimate reasons to justify monitoring the communications and accessing the content.
2. The employer must notify the employees that their communications and their content might be monitored.
3. The intrusion by the employer must be related to and suitable for the aim of monitoring, and the results of this monitoring must be used to achieve the declared aim of the monitoring.
4. When it is possible, a less intrusive method must be preferred to establish a monitoring system rather than directly accessing the content of the employee’s communication.
5. The intrusion must be in line with the principle of proportionality.
6. A fair balance between the interests and rights of the parties must be struck.

• Assessment of the Present Case

In the present case, the Court observed that the employment contract between parties prohibited the personal use of the corporate e-mail by employees and authorised the employer to monitor corporate e-mail account without noticing the employee.

The Court addressed that it is foreseeable for the employer that the employees could make personal correspondence through corporate e-mail in the absence of a clear prior notification by the employer. Therefore, the Court stated that a clear prior notification is a prerequisite for employers to monitor the e-mail accounts of the employees.

The Court ruled that if the employment contract between the parties involved a monitoring clause or if the employer issued a general notification to the employees regarding the monitoring, the consent of the employee will be assumed. Therefore, in the court case, the employee would be required to prove that he made a reservation to the contract or the notification.

In the present case, the Court considered the mentioned clause in the employment contract as an explicit and clear notification. The Court noted that the employer used the personal data only to prove his claim during the disciplinary and judicial process, and the applicant did not challenge the legitimacy of the declared aim of the monitoring. For these reasons, the Court determined that the intrusion was proportionate and legitimate, and therefore, found no violation of the right to the protection of personal data and freedom of communication.

The Importance of the Judgment

Only four months ago, the Court found a violation in E.Ü. application whose legal nature is very similar to this case. Therefore, it was a matter of curiosity whether the Court considered monitoring over employees’ electronic communication per se as a violation. In Celal Oraj Altunörgü, the Court found no violation in the monitoring over employees’ electronic communication while determining prior clear notification to the employee as the main criterion. As a result, this judgment confirmed that the Court follows Bărbulescu v Romania decision of the European Court of Human Rights.

The Treaty of Lausanne, which defined the borders of modern-day Turkey, also provides the crux of the legal framework for the protection of Turkey’s minorities. Articles 38 (1-2) and 39(4) in particular provide wide guarantees of freedom to minorities of all denominations, Article 38(1) stating inter alia, that the Turkish Government must ensure the, “full and complete protection of life and liberty to all inhabitants of Turkey without distinction of birth, nationality, language, race or religion.” Notwithstanding these provisions, and in the lack of an internationally recognised definition of a minority, Turkey has given the term an idiosyncratic meaning by saying that only non-Muslim minorities come within its purview. Although the Treaty does not specify any non-Muslim minorities, Turkey’s official position has been to accept only the Greeks, Armenians and the Jews, the three largest Millet groups in the Ottoman administration system as minorities.

This has resulted in a de facto exclusion of all other non-Muslim minorities in the country, including amongst others, the Assyrians, the Baha’is, the Yezidis and followers of the Syrian Orthodox Church and the Roman Catholic Church. Contrary to the guarantees of freedom vouchsafed within the Lausanne framework, Turkey’s minority communities have faced continuous barriers in being able to realise their ethnic, religious and linguistic identities. They are often denied the freedom to use their own language in schools and the media, face obstacles in accessing their places of worship, preserving their cultural heritage and are often unable to opt out of compulsory courses on Sunni Islam in schools.

These restrictive policies by the Turkish Government have meant a continuous violation of the Treaty of Lausanne, even though Turkey has reinforced its commitment to the same in ratifying other treaty bodies, including The International Covenant on Civil and Political Rights (“the ICCPR”). Turkey became a signatory to the ICCPR in August 2000 and incorporated it into its domestic law in September 2003. Crucially however, Turkey entered a reservation with respect to Article 27 thereof, which makes generous provision for the protection of ethnic, religious and linguistic minorities. Ironically, while the wording of the reservation states that Turkey shall reserve the right to interpret and apply the provisions of Article 27 of the ICCPR in accordance with the related provisions and rules of, inter alia, the Treaty of Lausanne, it has been continuously flouting its obligations arising under the same.

Turkey’s push to artificially limit the scope of the Lausanne framework by adopting a narrow construction of the term minority betrays the reality of obstacles faced by its minority populations in being able to realise their legal rights and reside freely in the country. These impediments are also evident in Turkey’s push to amalgamate its Muslim minorities such as the Laz and the Kurds into ‘one nation’ by denying them minority status altogether. This propensity to homogenise the country seemed to seal the fate of the Hagia Sophia, which in a profound departure from its legacy has become centre-stage to Turkey’s political maneuvering and an obdurate defiance of its legal obligations. The religious right wing supporter-base of its conversion underscores an ominous presence of vigilantism, which will only seek more divisions in an already fractured society.

The state had prevented the Armenian community from electing its religious leader between 2009, when the then-Patriarch Mutafyan could no longer perform his duties due to illness, and 2019, when the community could finally elected Bishop Mashalyan as the new Patriarch – only after the state authorities allowed elections to go ahead following the death in March 2019 of Mutafyan.

Constitutional court judgment

The Turkish Constitutional Court’s judgment of 22 May 2019 on the individual application made by Levon Berç Kuzukoğlu and Ohannes Garbis Balmumciyan in 2014 (Application No 2014/17354) has significant implications for the interferences in the internal affairs of religious or belief communities in Turkey.

The applicants had complained that the refusal of the request they made for the election a Patriarch for Turkey’s Armenians violated their right to freedom of religion.

Initially, the Istanbul 3rd Administrative Court rejected Kuzukoglu and Balmumciyan’s application arguing that, under the 1863 Regulation for the Armenian Millet and subsequent directives (talimatname) issued by the Ministry of Interior, the Patriarchal seat can be considered vacant only following the death or resignation of the Patriarch. Therefore elections could not be held and the State’s refusal of the request for a new election was not incompatible with the law. The applicants’ appeal was rejected by the Court of Cassation in November 2015.

The Constitutional Court’s deliberation described the issue as one that essentially related to religious freedom, that is protected under Article 24 of Turkey’s Constitution. The Court found that measures that led to the appointment of a Patriarchal Vicar-General (in 2010) occurred not as a result of a process that took place within the competing civilian and spiritual initiatives in the Armenian community, but as a result of “state pressure that was unconstitutional”. Consequently, there had been an interference in the right to freedom of religion or belief.

A crucial finding in the judgment concerned the legality of the restriction. The AYM noted that it might be considered that public authorities had the authority to organise the election of the Armenian Patriarch under the 1863 Regulation, and because of practice in subsequent elections. However, the Constitutional Court ruled that under Article 13 of the Constitution, fundamental rights might only be restricted by law and, in the present case, a legal provision that could prevent arbitrary actions by public authorities, that would enable persons to know the law, that was accessible, foreseeable and absolute, was absent. As a result the restriction could not be considered as being prescribed by law.

While the Constitutional Court found that the restrictions pursued a legitimate aim, that of protecting the right to freedom of religion of the members of the Armenian community, other criteria for permissible limitations were not fulfilled.

In conclusion, the AYM found that the state has not been able to demonstrate a pressing social need that overrode the “spirit of Armenian traditions” and the “Armenian community’s will”. Therefore the interference in the applicants’ right to freedom of religion or belief by way of refusing the request to hold Patriarchal elections could not be considered compatible with the requirements of a democratic society, and Article 24 of the Constitution had thus been violated.

Constitutional Court – effective domestic remedy in FoRB cases?

The Constitutional Court’s judgment is thorough and the finding that the restriction was not prescribed by law is particularly significant. The judgment raised the profile of the Constitutional Court as a high court delivering a judgment in line with ECtHR jurisprudence. Yet, due to its timing – two months after the death of Turkey’s 85th Armenian Patriarch Mesrop Mutafyan when the state’s arguments that an election could not go ahead no longer existed – the judgment had no impact on rectifying the injustice that the Armenian community experienced.

It also closed the door for an application to be made to the ECtHR in Strasbourg, thus blocking international supervision of the implementation of the judgment. In addition, the authorities did not have to deal with an authoritative judgment on the state’s unjustified interference in the election.

[A longer version of this piece is available here.]