RELIGION BOX ON THE NATIONAL IDENTITY CARDS AND THE RIGHT NOT TO DISCLOSE ONE BELIEF
3.07.2019 | Global Legal Matters | 1821
RELIGION BOX ON THE NATIONAL IDENTITY CARDS AND THE RIGHT NOT
TO DISCLOSE ONE BELIEF
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.
ECHR AND THE RIGHT NOT
TO DISCLOSE ONE 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.
CONSTITUTIONAL COURT
AND THE RIGHT NOT TO DISCLOSE ONE BELIEF
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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