DISSENTING OPINION OF JUDGE CABRAL BARRETO

(Translation)

To my great regret, I am unable to agree with the majority finding of a violation of Article 9 of the Convention for reasons of both form and substance.

1. The Court, in its judgment, examined the application from three angles:

– the applicant ’ s request to have “Islam” replaced by “ Alevi ” to indicate his religion;

– or, in the alternative, the request to have the indication of religion, in this case “Islam”, deleted from his identity card;

– removal of the religion box from the identity card.

2. It would appear to me that as regards the first two points, the applicant no longer has victim status.

In fact, as a result of the reform of 29 September 2006, it is now possible to delete information concerning religion. The religion box on identity cards may be left blank or the information may be deleted.

Moreover, such action will be taken on a simple written request.

I am therefore of the view that the complaints concerning the first two points have been remedied domestically and that, consequently, this part of the application should be struck out of the list.

3. The third aspect – removal of the religion box from the identity card – raises issues of both form and substance.

3.1. An issue of form – failure to exhaust domestic remedies.

This issue was not raised before the national authorities by the applicant or by any other person.

Before the national courts and even before the Court, the applicant restricted himself to the first two points.

The Court is unaware of any domestic practice that would allow it to ignore this admissibility criterion.

It is true that the Government did not address this point, and according to existing case-law, if the Government do not raise this ground of inadmissibility, the Court cannot then apply it of its own motion once notice of the application has been given.

However, in the present case, the Government were not faced with such a problem and cannot therefore be criticised for an omission for which they were not responsible.

Had the Court wanted to examine the application from that perspective, either because it had considered from the outset that the application raised that issue or because in its view the complaint was bound up with the other specific complaints lodged by the applicant, it should have invited the Government to respond on that point.

However, the Court could not examine that complaint at the judgment stage, given that it had not been raised by the applicant before the national courts or communicated to the Government.

3.2 . If, as the majority have done, one were to consider that there was no formal obstacle to examination of the merits of the complaint, I have to say that I cannot subscribe to the approach that “the fact of asking for no information to be shown on identity cards is closely linked to the individual ’ s most deeply held beliefs” and that “the issue of disclosure of one of an individual ’ s most intimate aspects still arises”, a situation which “is undoubtedly at odds with the principle of freedom not to manifest one ’ s religion or belief” (see paragraphs 51 and 52 of the judgment).

I must point out firstly that I fully agree with the Court ’ s case-law as reflected in Folgerø and Others v. Norway ([GC], no. 15472//02, ECHR 2007-III) , and Hasan and Eylem Zengin v. Turkey (no. 1448/04, 9 October 2007) , both cited at paragraph 49 of the judgment.

At paragraph 98 of Folgerø and Others , the Court refers to “an obligation on parents to disclose detailed information to the school authorities about their religions and philosophical convictions” and to the fact that “inherent in the condition to give reasonable grounds w as a risk that the parents might feel compelled to disclose to the school authorities intimate aspects of their own religious and philosophical convictions” [ my emphasis ] .

In Hasan and Eylem Zengin , cited above, the Court considered that “the fact that parents must make a prior declaration to schools stating that they belong to the Christian or Jewish religion in order for their children to be exempted from the classes in question may also raise a problem under Article 9 of the Convention”.

In short, religious beliefs fall within the forum internum of each individual and an issue may be raised under Article 9 of the Convention if a person is compelled to disclose them to the authorities.

However, requests to have the indication of religion deleted from identity cards are not subject to any limitation but merely to a written declaration.

In that declaration, the individual is not obliged to disclose his or her religion or to give any information at all about his or her beliefs, but merely to ask that no indication be given in the relevant box.

It would appear to me that the majority are going too far when they say that “the mere fact of having to apply for religion to be deleted from civil registers could constitute disclosure of information concerning an aspect of the individual ’ s attitude to religion”.

The majority go beyond the case-law on which they rely, which requires that in order for a violation of Article 9 of the Convention to be found, a person should at least be compelled to disclose his or her religion.

In the instant case, persons requesting deletion of the indication, whether Alevi, Christian, Jewish or atheist, are entitled to hold an identity card that contains no information about their religion or beliefs without the authorities knowing what they believe.

In my view, the majority ’ s interpretation goes beyond the bounds of our case-law and constitutes an excessive approach, scarcely in keeping with the margin of appreciation that should be afforded to the States in this area.

4. That having been said, I must admit, and I would even go so far as to say that I find it regrettable, that I cannot understand why the identity card should indicate a person ’ s religion (even on a voluntary basis) because I cannot see the significance or use of any such information.

[1] . The majority of Turkey’s population follows the Hanafite theological school’s moderate interpretation of Islam.

[1] . Ali was the fourth c aliph of Islam. He is considered by Alevis to be the first Imam and plays a central role in that faith.