JUDGEMENT ON MARRYING BY RELIGIOUS CEREMONY OR CONDUCTING SUCH A RELIGIOUS CEREMONY
The Plenary of the Constitutional Court in its meeting on 27/5/2015 decided by majority to annul paragraph (5) and (6) of Article 230 of Turkish Penal Code, which regulates the crimes of marrying by arranging religious ceremony without executing official marriage transactions and conducting such a religious ceremony.
The contested provision of law prescribes that those who marry by arranging religious ceremony without executing official marriage transactions and those who conduct a religious marriage ceremony without seeing the certificate of marriage are sentenced to imprisonment from two months to six months, and that both the public action and the punishment imposed thereof is abated with all its consequences when the civil marriage ceremony is accomplished.
Grounds of Application
The application states that the contested provisions of law criminalizes the acts of marrying by arranging religious ceremony without executing official marriage transactions and conducting such a religious ceremony, that marrying by arranging religious ceremony and conducting such a ceremony are issues of private life and freedom of religion and conscience, and it thereby alleges that criminalization of marriage by arranging religious ceremony and conducting such a ceremony in a legal system under which living together without an official marriage contract does not constitute a crime is contradictory to the right to respect to private life and family life, freedom of religion and conscience , principle of equality before law and the right to protect and improve one’s corporeal and spiritual existence.
The Court’s assessments
The Constitutional Court emphasizes that “the right to demand respect for private and family life” aims to protect the secrecy of private and family life and to prevent it from being exposed publicly. In other words, it protects the individual’s right to demand all issues and events in his private life to be known to only himself or those he wishes to reveal and disclose. Furthermore, it aims to prevent public authorities from interfering in individual’s private life; i.e. it guarantees the individual’s right to control and live his personal and family life according to his own sense and understanding. In this context, the Constitutional Court noted that regulation under Article 20 of the Constitution protects the private life and family life against the State, society and other people, subject to the exceptions stated under Constitution.
The Constitutional Court assessed the freedom of religion and conscience guaranteed under Article 24 of the Constitution and noted that this freedom is “one of the foundations of a democratic society” and a fundamental right “that go to make up the identity of people and their conception of life”. The Court also noted that, similar to the right to demand respect for private and family life, the freedom of religion and conscience constitutes a space that cannot be interfered by the State and others in principle.
On the other hand, the Constitutional Court noted that the right guaranteed under Article 20 and 24 of the Constitution is not absolute, by stating that certain limitations may be introduced to this right. However, the Court emphasized that such limitations shall not impair the essence of the right, and they shall not be contradictory to the requirements of the democratic order of the society and the principal of proportionality.
The Constitutional Court noted that, under the principle of proportionality, there must be a requirement of the democratic order of the society in order to interfere in the right to demand respect for private and family life and the freedom of religion and conscience, and there must not be any other means available to protect the rights of spouses arising from the establishment of conjugal community other than the said limitation.
The Court noted that legal order allows for legal arrangements for the protection of people’s rights arising from the establishment of conjugal community, that the relevant provisions of Turkish Civil Code require the spouses to have their official marriage transactions completed in order to claim their rights arising from the matrimony, that they would be deprived of certain rights if they do not have official marriage transactions, that this deprivation of rights constitutes a civil sanction for those who do not execute official marriage transactions and this sanction is adequate to ensure that people execute these transactions, and, therefore, there is no need to impose penal sanctions on the acts of marrying by arranging religious ceremony or conducting a religious marriage ceremony in accordance with people’s religious beliefs.
Consequently, the Constitutional Court concluded that there are no requirement of the democratic order of the society, i.e. the contested provisions of law are not necessary for the protection of family order which is the purpose of the limitation introduced with those provisions. The Court also concluded that, under these circumstances, as marrying by arranging religious ceremony or conducting a religious marriage ceremony falls into the scope of the right to demand respect for private and family life and the freedom of religion and conscience, criminalizing such acts and introducing penal sanction on these acts constitute a disproportionate interference to the said rights and thereby contradict the principle of proportionality. Constitutional Court ruled for the annulment of the contested provisions of law.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.