The clash between secularism principle and freedom of religion under european convention on human rights and turkish constitution.

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The clash between secularism principle and freedom of religion under European Convention on Human Rights and Turkish Constitution.

The Oxford English Dictionary defines the term “secular” as “not connected with religious or spiritual”.
The link between notions of secularism and religion is very important.

Donald E. Smith, Professor of Political Science in Pennsylvania University gave adefinition of a secular state:
“A secular state is a state which guarantees individual and corporate freedom of religion, deals with the individual as a citizen irrespective of his religion, is not constitutionally connected to a particular religion, nor does it seek to promote or interfere with religion”

This definition is particularly interesting because it speaks about the freedom ofreligion.
The main challenge is to conciliate the two principles: secularism and religious freedom.

The secular nature of the Turkish state is provided in its constitution.
Secularism is one of the first provisions in the constitutional text.
Indeed, the article 2 of the 1982 constitution says that "The Republic of Turkey is a democratic, secular and social state (...)."
We can also note thatarticle 4 provides that "The provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed".
This means that secularism is a particularly protected value of the Turkish republic.

Freedom of religion has also aplace in the constitution, in the chapter 2 concerning “rights and duties of the individual”.
The article 24 says that “Everyone has the right to freedom of conscience, religious belief and conviction”.
Freedom of religion is a universal principle in the democratic societies.

That is why European Convention on Human Rights of November 4 of 1950 (ECHR) has also special provisions about it.In its first part, the article 9 of ECHR defines the freedom of religion as “the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”.

However the second part of article 9provides limitation of this freedom. This part is particularly important concerning the application of secularism in the society.
It says: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for theprotection of the rights and freedoms of others”.

The main issue about secularism is to find the most adequate way to manage this principle and the freedom of religion.
That is the reason why the second part of article 9 speaks about cases of limitation of freedom of religion.

There are no special provisions about secularism in the ECHR. The article 9 says that states have to guarantee freedomof religions but it let the states choose the most adequate way. Secularism can be a solution.

However, the application of secularism is not the same across countries.
For example, the French concept of secularism provides for "separation of church and state" since the 1905 law.
Turkish secularism is different. The separation of religion and state is not reciprocal.
Actually, religioncannot interfere with the affairs of state. But the State manages a part of the religious sphere.

That is the issue of the application of secularism in Turkey:
How the state can interfere in the religious affairs, protecting both the principles of secularism and freedom of religion?

According to both the Turkish constitution and the European convention, religious freedom is a fundamental...