JUDICIALIZATION AND IMPLEMENTATION OF RELIGIOUS MINORITY RIGHTS IN TURKEY: CASE STUDIES FROM THE EUROPEAN COURT OF HUMAN RIGHTS

Abstract

The role of courts in shaping public policy has undoubtedly increased over at least the last two decades. Several factors have contributed to this trend, including the rise of democracy around the globe as previously authoritarian regimes open up and shift toward rule of law and democratic processes. Individuals and groups that have found themselves in a position to be discriminated against by the government and/or society, often due to their religious, ethnic, or cultural identity, have more frequently begun to take their grievances to domestic and international courts, as opposed to trying to grapple with solutions in the political realm. This process is known as judicialization. While this trend of applying to international courts is on the rise by individuals and groups, the question arises about the efficiency and effectiveness of judicial processes in achieving hoped-for rights recognition. This is a reflection of state responses (specifically, implementation, execution, or compliance) to obligations as high contracting parties to such international human rights tribunals. This study examines 19 adverse judgments against Turkey in the European Court of Human Rights (1996-2016) that were brought forward by applicants that do not adhere to the majority religious identity in Turkey (Hanefi Sunni) to better understand what institutional factors have caused these cases to emerge and the elements that have helped or hindered full implementation in the post-judgment stage. This examination demonstrates that identity construction, both self-produced and externally imposed, is inextricably linked to the formation of domestic policies towards non-majoritarian religious groups in Turkey. Furthermore, it argues that institutional configuration and path dependence have interfered with comprehensive changes towards a pluralistic and just domestic human rights regime, as envisioned and mandated by the Council of Europe.