JOINT PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGES VILLIGER, KELLER AND KJØLBRO

1. Unlike the majority of the Court, we voted against finding a violation of Article 9 of the Convention. At the same time, like the majority, we voted in favour of finding a violation of Article 14 taken in conjunction with Article 9, albeit on narrower grounds compared with the reasoning of the majority of the Court. Therefore, we will briefly explain our position as regards both issues.

Article 9 of the Convention

2. It follows from the requirement of exhaustion of domestic remedies (Article 35 of the Convention) that a complaint lodged with the Court must have been submitted, at least in substance, to the competent domestic authorities, thereby giving them a possibility to redress the alleged violation first (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-72, 25 March 2014). From this it follows that – in general – the complaints made before the domestic authorities and those made before the Court must be the same.

3. The applicants ’ claims as submitted to the domestic administrative and judicial authorities were clear. They wanted ( a ) to be provided with a public religious service by the RAD that was meaningful and useful to them as Alevis, ( b ) the recognition of their cemevis as “places of worship” with the accompanying advantages, ( c ) the employment of their religious leaders as civil servants by the RAD and ( d ) the allocation of funds from the general budget to finance their religious activities (see paragraphs 10 and 14 of the present judgment).

4. These claims should have constituted the basis for the Court ’ s assessment of the application. Consequently, the applicants ’ complaint does not concern the lack of a procedure for recognition of the Alevi faith as a religious group or denomination. Such a procedure was not the object or purpose of the domestic proceedings and would not, even in the event of recognition, have given the applicants any of the specific benefits sought. Nor does the application concern any other problems or consequences addressed by the Court but not included in the specific requests submitted by the applicants to the domestic authorities (see, for example, paragraphs 128 - 30 of the present judgment).

5. By changing the focus of the Court ’ s assessment from the applicant ’ s specific requests (see paragraph 89) to the lack of a procedure for the recognition of religious denominations (see paragraphs 115 - 16), the Court is, in our view, departing from the very essence of the complaint as submitted to the Court. This does not, in our view, fit well with the principle of exhaustion of domestic remedies as a condition for lodging a complaint with the Court.

6. The majority repeatedly states that the religious nature of the Alevi faith has not been recognised by the Turkish authorities (see paragraphs 92, 95 and 115). We respectfully disagree. It emerges clearly from the domestic decisions that the religious nature of the Alevi faith has been recognised. In its judgment , the Administrative Court, referring to the Court ’ s case-law ( Hasan and Eylem Zengin v. Turkey , no. 1448/04, 9 October 2007), stated that “Alevism is a serious and coherent set of beliefs [and] is an interpretation of Islam” and that “it [ is generally accepted ] that the Alevi faith [ enjoys the protection afforded ] by Article 9” (see paragraph 14 of the present judgment).

7. In reaching the conclusion that the application concerns an instance of interference (rather than a positive obligation), the Court relies heavily on a line of case-law concerning the lack of, or delayed, recognition by the domestic authorities of religious groups, in cases where this had significant negative consequences for the religious group in question (see paragraph 94). However, in our view, the present application is clearly distinguishable from the cases relied on by the majority, which do not sufficiently support the conclusion that there has been interference with the applicants ’ rights under Article 9 of the Convention.

8. Thus, the case of Metropolitan Church of Bessarabia and Others v . Moldova (no. 45701/99, § 105, ECHR 2001 ‑ XII) concerned a situation where the applicant, without official recognition as a religion under domestic law, could not operate as a Church , in particular because its priests were not entitled to conduct divine service and its members could not meet to practise their religion and because, since it lacked legal personality, it was not entitled to judicial protection of its assets. Likewise, in Moscow Branch of the Salvation Army v. Russia (no. 72881/01, § 74, ECHR 2006 ‑ XI), the applicant religious organisation, after being obliged to amend its articles of association, was faced with a situation where registration of the amendments was refused by the State authorities, with the result that it lost its legal-entity status. Furthermore, under domestic law, the lack of legal ‑ entity status of a religious association restricted its ability to exercise the full range of religious activities. Similarly, the case of Religionsgemeinschaft der Zeugen Jehovas and Others v . Austria (no. 40825/98, §§ 79-80, 31 July 2008) concerned the prolonged failure to grant legal personality to the applicant religious society under domestic law.

9. In our view, the above-mentioned cases (as well as the other cases cited by the majority in paragraph 94 of the present judgment) are clearly distinguishable from the present application.

10. That being said, the core question to be answered is whether the application should have been assessed as an issue of interference that has to be justified or as an issue of positive obligations. As already mentioned, the domestic proceedings did not concern the lack of a procedure for obtaining recognition as a religious group, but concerned specific requests. Furthermore, a procedure for obtaining recognition would not in itself have satisfied any of the applicants ’ specific requests. In this context we cannot but observe that the applicants have been able – and continue to be able – to exercise their religious activities. Thus, it emerges clearly from the facts of the case as presented to the Court that the Alevi faith has been in existence for many years and has a large number of adherents, who are able to meet freely and perform their religious activities and rites in their cemevis , of which there are thousands (see, for example, paragraphs 35 - 37 of the present judgment).

11. Furthermore, as the Administrative Court also emphasised in its judgment (see paragraph 14 of the present judgment), the applicants do not mention or rely on specific examples suggesting that they have in any way been hindered in the exercise of their religious activities and rites in their cemevis . It is undisputed that the Alevi community, to which the applicants belong, can function unhindered as a religious community and practise its religion. It can create legal entities in the form of foundations and associations, and as such it can – and does in practice – own the buildings necessary for its religious activities. As a religious community, the Alevis can – and do in practice – have religious leaders. They can – and do in practice – teach the principles of their religious creed as well as meeting and practising their religion. Furthermore, the religious nature of the Alevi faith – and the accompanying protections under Article 9 of the Convention – have, as already mentioned, clearly been recognised by the domestic authorities.

12. The majority relies on Law no. 677 (see paragraphs 123 and 126 of the present judgment). We admit that this law, in view of its content, is problematic and raises serious issues with regard to the provisions of the Convention. However, the law and its prohibitions have not been applied to the applicants, nor do they allege otherwise; furthermore, as pointed out by the Government, the law is no longer applied (see paragraph 84).

13. Having regard to the facts of the case and the practical situation of the applicants, we find it problematic to say that there has been interference with their rights under Article 9 of the Convention. Consequently, the application should, in our view, have been assessed in terms of the State ’ s positive obligations inherent in Article 9 of the Convention. In submitting their specific claims to the domestic authorities, the applicants were requesting a number of privileges and advantages from the State. In general, a religious group cannot claim a particular treatment from the domestic authorities. If a religious group claims the right to be treated in the same manner as other religious groups, the complaint is to be assessed under Article 14 of the Convention taken in conjunction with Article 9 (see paragraphs 17 et seq. below).

14. In our view, Article 9 of the Convention cannot be interpreted as imposing a positive obligation on a State to provide a religious group with religious services, to recognise their places of worship, to employ and pay the salaries of the group ’ s religious leaders and to allocate funds from the general budget to finance, wholly or in part, the group ’ s activities. Such an interpretation of Article 9 of the Convention would go too far. Therefore, and having regard to what the application does not concern , we voted against finding a violation of Article 9 of the Convention.

Article 14 of the Convention taken in conjunction with Article 9

15. We voted in favour of finding a violation of Article 14 taken in conjunction with Article 9; however, we did so on the basis of a narrower and more limited approach than that adopted by the majority.

16. We fully agree that the facts of the case fall within the ambit of Article 9, thereby rendering Article 14 applicable. It is well established in the Court ’ s case-law that when States decide to grant rights or privileges that are not required by the Convention, they have to do so in compliance with the prohibition against discrimination (see, for example, the case-law cited in paragraph 158 of the present judgment). Furthermore, granting certain rights and privileges to religious groups may in some situations be so closely linked to, and have such significant repercussions for, the right to manifest religious beliefs and function as a religious community that the facts of the case fall within the ambit of Article 9, thus rendering Article 14 applicable (see Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v. Turkey , no. 32093/10, § 41, 2 December 2014).

17. The failure of the Turkish authorities to recognise the Alevi faith as a religion, and consequently the failure to recognise the Alevi cemevis as “places of worship” within the meaning of the domestic legislation, will, depending on the specific circumstances of the case, amount to discrimination in violation of the Convention.

18. The Court reached that conclusion in Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı , cited above, in which it assessed a situation where “places of worship” within the meaning of the domestic legislation could be exempted from paying for electricity used within the premises. According to domestic legislation, mosques, churches and synagogues benefitted from this exemption. However, owing to the failure of the domestic authorities to recognise the Alevi faith as a religion and thus to recognise the Alevi cemevis as “places of worship” within the meaning of the domestic legislation, the cemevis , unlike mosques, churches and synagogues, were excluded from the advantages provided for in domestic law. In the Court ’ s view, this amounted to discrimination in violation of Article 14 of the Convention taken in conjunction with Article 9.

19. We see no reason to depart from or call into question the Court ’ s assessment in Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı . Neither in that case nor in the present case did the Government provide an objective and reasonable justification for the difference in treatment between the Alevi faith and other religions or religious groups as regards the rights and privileges provided for in domestic legislation.

20. Therefore, we had no hesitation in voting in favour of finding a violation of Article 14 taken in conjunction with Article 9 in the present case. In our view, the Court should have limited its assessment to the difference in treatment between the Alevi faith and other religions or religious groups with regard to the rights and privileges provided for in domestic legislation. However, in the present case the Court adopted a much broader approach, on the basis of which it found a violation of Article 14 taken in conjunction with Article 9. In so doing it followed the overly broad approach which it had already applied in the context of Article 9 in this case.

21. In the present judgment the Court compares the situation of the applicants, as followers of the Alevi faith, with that of the “beneficiaries of the religious public service provided by the RAD” (see paragraphs 166 - 70 of the present judgment). In doing so, it pays insufficient attention to the fact that the religious public service provided by the RAD is of little or no avail to any persons who do not share the religious views and practices reflected in that public service, which is based on a Sunni interpretation of Islam. In other words, any religious groups that do not belong to the Sunni faith as favoured by the RAD, be they Shia Muslims, Jews, Catholics, Orthodox Christians, Protestants, Hindus or any other religious groups, will not benefit from the services provided by the RAD. If the applicants as a religious group can claim to be in a situation that is comparable to that of the beneficiaries of the religious public service provided by the RAD, so can any other religious group.

22. By comparing the applicants, as followers of the Alevi faith, with Sunni Muslims, who “[benefit] from the religious public services of the RAD”, the Court is in practice requiring that the RAD ’ s service – or some kind of similar privileges – be provided not only to the applicants, as followers of the Alevi faith, but also to persons of other religious beliefs, since they, like the applicants, do not benefit from the religious public service provided by the RAD and are, according to the Court ’ s assessment, in a comparable situation to that of the beneficiaries of that service (see paragraphs 183 - 84). In doing this, the Court is, in our view, going too far.

23. In practice, the Sunni interpretation of Islam – which is supported by the RAD – acts as a de facto “State religion” in Turkey, even though it is not recognised by the Government (see paragraphs 17 - 28). It emerges clearly from the facts presented to the Court that the Sunni interpretation of Islam as supported by the RAD is wholly subsidised by the State, to the tune of considerable sums, and enjoys a privileged position in Turkey (see paragraph 25). A very large number of persons, including religious leaders and teachers, are employed as civil servants by, and receive their salary from, the RAD (see paragraph 24). The RAD administers and supports very many mosques and masdjids ( ibid. ). Furthermore, religious teaching and training are made available by the RAD ( ibid. ). Therefore, as we see it, the core legal problem raised by this case, but not sufficiently addressed by the Court in the judgment, is whether it can be regarded as compatible with the Convention for one religion, in this case the Sunni interpretation of Islam, to occupy a privileged position within Turkey for historical and cultural reasons.

24. By not recognising the privileged position of the Sunni interpretation of Islam as supported by the RAD and its de facto status as a “State religion” in Turkey, the Government fail to put forward arguments which, in our view, suffice to provide an objective and reasonable justification for a difference in treatment between Muslims benefiting from the service provided by the RAD and other Muslims (or other religious groups for that matter – see paragraphs 78 - 88 and 145 - 54). Thus, for example, when the Government argue that the services of the RAD are for all Muslims, including Alevis, and that they are “supradenominational” (see for example paragraphs 11, 13 and 148), they do not adequately recognise and address the fact that the services are of little or no use to persons who do not adhere to the Sunni interpretation of Islam as supported by the RAD.

25. In our view, the crux of the matter is indisputably the fact that the Sunni interpretation of Islam, as practised by the majority of the population in Turkey, is granted preferential treatment, while other religions are not granted similar treatment, with some exceptions such as the possibility of being exempted from payment of electricity bills.

26. Therefore, the question is whether Turkey is entitled to grant a special and privileged position to one religion, in this case the Sunni interpretation of Islam as supported by the RAD. This question touches upon the relationship between State and religion. So far the Court has accepted in its case-law that a religion may have a privileged position within a State for historical and cultural reasons (see, for example, Darby v . Sweden , opinion of the Commission, 23 October 1990, § 45, Series A no. 187; Ásatrúarfélagið v . Iceland (dec.) , no. 22897/08, 18 September 2012; and Members of the Gldani Congregation of Jehovah ’ s Witnesses and Others v . Georgia , no . 71156/01, § 132, 3 May 2007). At the same time the Court has emphasised that when States grant rights and privileges to religious groups, they should do so without discriminating (see the cases cited in paragraph 164 of the present judgment). Last but not least, this is an area where there is no European consensus (see the comparative law materials provided in paragraphs 60 - 64) and where the States enjoy a wide margin of appreciation (see, for example, Cha ’ are Shalom Ve Tsedek v . France [GC], no. 27417/95, § 84, ECHR 2000 ‑ VII, and S.A.S. v . France [GC], no. 43835/11, § 129, ECHR 2014).

27. Therefore, and having regard to what the applicants sought to obtain at domestic level, that is, the specific claims they raised before the domestic courts (requests for a religious service regarded as meaningful and useful to them, for recognition of the cemevis as place s of worship with the accompanying advantages, for the employment of religious leaders as civil servants and for the allocation of funds from the general budget), which should also be the basis for the Court ’ s assessment of the case (see paragraph 5 above), we find it problematic to compare the applicants ’ situation with that of the beneficiaries of the religious public service provided by the RAD, as those services are of interest only to persons adhering to the Sunni interpretation of Islam as supported by the RAD.

28. To conclude, the applicants ’ situation should have been compared, in our view, with that of other religious groups in relation to which they may certainly claim to be in an analogous or comparable situation as regards the rights and privileges granted under the domestic legislation to religions or religious groups, as in the Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı case concerning exemption from the payment of electricity bills for “places of worship”. On that basis, we voted in favour of finding a violation of Article 14 of the Convention taken in conjunction with Article 9.