Leyla v. Europe? - Turkish Secularism and Freedom of Religious Expression in the ECtHR
Abstract: A number of 'freedom of religion v. secular policies' cases in the European Court of Human Rights (and, before 1998, the European Commission of Human Rights) emanating from Turkey suggest that the Court endorses Turkish secular policies at the expense of Turkish Muslims' human rights. These cases include the high-profile case of Leyla Ş&semicahin v. Turkey that was decided in favour of the Turkish government by the Grand Chamber of the ECtHR on November 10, 2005. This thesis discusses Ş&semicahin and four other related cases against the backdrop of, on the one hand, ECHR case law on religious freedom and secularism and, on the other hand, the nature and history of Turkey's peculiar breed of secularism. The right to freedom of religion is protected by the ECHR. It includes, inter alia, a right to manifest one's religion openly in worship, teaching, practice and observance. In turn, the right to manifest a religion includes a right to public religious expression. Manifestations of religion in the public sphere are a highly contested issue in Turkey. The reason for this is an ongoing social-cultural conflict in that country, which involves secularists - mainly made up of an urbanised elite - and pious traditionalists of rural origin in a battle over 'the soul' of Turkey. Secularists, strongly represented in the educational sector, the bureaucracy, the military and the courts, seek to preserve a polity separating Islam from state affairs while retaining state control over religious matters. Over the decades, the military has on several occasions intervened in Turkish politics to this end&semic religious life and practices have been constrained&semic and Turkish courts have banned Islamist parties. In all five ECHR cases examined, the Turkish government motivated the measures complained of as protecting the principle of secularism. This argument was accepted in all instances by the Convention organs. Secularism in Turkey is according to the ECtHR a principle in harmony with the rule of law and respect for human rights and democracy. The other side of the coin is the Court's - less than generous - approach to Muslims' right to manifest and express their religion. Islamic manifestations and expressions were valued low and interpreted as potential threats to secular and democratic values. In the view of the Court, these threats went a long way to justify limitations on religious rights. When it came to assessing such threats, more often than not, the Court and Commission accepted the Turkish government's assertion of facts uncritically without conducting sufficient European supervision. There is thus a tendency on the part of the ECtHR to ascribe to, or at least implicitly accept, the secularist description of reality and, in the process, grant the Turkish government an excessively wide margin of appreciation. Based on this, the thesis argues that the Court has taken Turkish secular policies for something it is not, i.e. democratic and in line with human rights requirements. Furthermore, the Court has a tendency to mistake Islam for Islamic fundamentalism. This tendency might be due to a Judeo-Christian bias in the Court and a resultant lack of awareness as to how Islam is manifested.
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