CAIRN-INT.INFO : International Edition

1In Turkey, the legal arena has now become one of the main battlefields where the relationship between religion and the state is challenged. This relationship is first and foremost governed by the concept of secularism (laiklik), which became a constitutional principle in 1937. However, it is important to note that Turkey’s form of laiklik is different from the principle as enshrined in France. While religion must not influence the affairs of state, the reverse is not true: the state monitors and controls religious matters, over which it seeks to exercise a monopoly. Consequently, imams have the rank of civil servants, and the Directorate of Religious Affairs (Diyanet Işleri Başkanliğı, hereafter the Diyanet), an institution reporting directly to the Prime Minister, oversees all the mosques and monitors the topics preached every Friday. The Diyanet, however, professes a unitary and homogenous Islam, thus enshrining a specific interpretation of the religion – this apparent consensus remaining blind to the variety of Islamic traditions practised in Turkey. Secularism is thus not synonymous with pluralism here, or with state neutrality.

2This is precisely the aspect of Turkish secularism that has been the subject of many legal battles in the past few years, in particular with regard to the Alevi population, Turkey’s largest religious minority [1] (estimated to represent 12 to 15 million people, or around 15% to 20% of the entire population). The term Alevi encompasses a number of different groups that are united by their heterodox and syncretic practices of worship, some of which share traits with Shi’ite Islam and Muslim mysticism, but many of which are hard to link to Islamic practices. Turkish authorities refuse to give any legal status to Alevis, whom they consider to be like any other Muslims with, at best, some cultural particularities. At the end of the 1980s, Alevism emerged as an identity-based movement seeking to obtain legal recognition and put an end to discriminatory practices (such as mandatory school classes in “religious culture and morality” which is allegedly based in Sunni beliefs, and the fact that the Diyanet, purporting to represent all of Turkish Islam, in fact only deals with Sunni affairs). [2] This movement has managed to put the Alevi issue on the country’s agenda, but has achieved poor results in the established political arena, thus prompting it to turn increasingly to the legal arena, which has produced uneven but tangible results. This process thus attests to the growing role of the judiciary in state regulation of religious affairs. The only existing study on this topic illustrates how, via a number of legal cases, the principle of secularism has shaped how the Alevi issue is publicly defended and debated. [3] The focus of this article is more sociological in perspective: drawing on studies of the use of cause lawyering in collective action suits, it seeks to analyse the conditions that have encouraged Alevis’ growing recourse to the judicial system. [4] It also aims to investigate the modalities and effects of this use of the legal arena.

3Studying the Alevi issue in order to understand how the management of religious diversity has increasingly succumbed to judicialisation is particularly interesting because the Alevi mobilisation has unfolded in several different spaces: in Turkey, but also in Germany – where massive numbers of Alevis have settled and obtained legal recognition with relative ease and little to no controversy – and at the European Court of Human Rights (ECHR), where Alevis have secured a number of victories. In so doing, Alevists have tried to exploit the resources offered by new arenas for their cause, especially via the emergence of a new international regime of human rights. This situation thus allows us to study the interdependencies between national and international justice systems and to examine the effects of increasingly internationalised judicialisation on the state’s religious regulation. This article thus studies contemporary judicial policy in the domain of the management of religious diversity, drawing on a multi-localised example of judicialisation, and analyses to what extent this “global” dimension presents new resources as well as constraints.

4More specifically, the Alevi case enables us to test the hypothesis of “legal globalisation”, which appears to take the shape of increased coordination between the judiciaries of different countries, of “cross-fertilisation between legal cultures”, but also of the general spread of certain universally recognised causes, in particular human rights. [5] At first glance, the judicialisation of the Alevi cause seems to confirm this hypothesis, since this phenomenon produced successful results both in Turkey and at the ECHR. However, while judicialisation is sometimes considered to be a loophole to escape political constraints, or part of a global trend of crossing and erasing boundaries, a sociological study of the various trajectories taken by the judicialisation of the Alevi cause in different spaces tends to nuance this perspective, despite these different trajectories all occurring in a realm strongly influenced by human rights law. To illustrate this, this article adopts a realist approach that views judicialisation as a process that is first and foremost political. It links an examination of the existing political and legal opportunities with a sociological analysis of the plaintiffs involved. The article refers at times to my earlier dissertation on the Alevist mobilisation based on numerous semi-structured interviews, [6] complemented here by research that focused more specifically on judicialisation and drew on different sources: the collection of Turkish, German and European court rulings, the media’s reactions to the rulings, and ten interviews conducted between 2011 and 2013 in Turkey with Alevist leaders from different organisations, as well as legal experts and lawyers involved in Alevi issues.

5The article is structured as follows. Firstly, it analyses under what conditions and in which terms the Turkish Alevists came to defend their cause in the courts as well as in other arenas. Secondly, it examines the role of the courts, their connection to the political sphere and their position(s) with regard to religious affairs in the two other spaces where Alevist mobilisation has occurred, Germany and the ECHR. This section then examines how political and administrative leaders have translated case law into reality, as well as the debates engendered by such changes. The third section investigates the effects of this multi-site form of judicialisation, in particular via the exchanges between different spheres (the circulation of plaintiffs, the various alliances struck, the transfer of strategies and legal arguments, the lessons learned), as well as their limits: the different terms in which legal recourse operates in different domains, thus making transfers more difficult; the difficulty of translating supranational rulings into domestic policies; the effects of the absence of communication across different spheres; and even backlash.

Increasing use of the law within the Alevist action repertoire

6This section outlines the dynamics behind the judicialisation of the Alevi issue in Turkey. What conditions led the Alevists to try to assert their right(s) via legal channels? This section analyses the political and legal opportunities, the nature of the plaintiffs, and their motivations for getting involved. It then examines the normative framework and organisational, financial and activist resources that these actors called upon.

Moving from defence to offence: the judicialisation of the Alevi issue

7The Alevist movement emerged at the end of the 1980s in Turkey and initially mobilised forms of political action, including publications, public declarations, protests and petitions. It was only after a number of years that the movement turned to the law. However, the law was first used against the Alevis, who, at the beginning of the 1990s, were confronted with the administrative closure of organisations and lawsuits challenging the legality of their activities. It was thus in defence that the Alevist movement first got involved with the courts, which in turn revealed the existence of various legal opportunities. The Alevists consequently initiated a number of different legal cases, ultimately adding lawsuits to the movement’s action repertoire. This situation illustrates the “dual” use of the courts: while courts may bolster authoritarian states, they also create opportunities for activists to challenge state policies. [7] Although the authorities have wielded the law to preserve the status quo, Alevists have also tried to incorporate it as a tool to protest the current regime.

8The Alevist movement thus first found itself on the defensive with regard to the law. In fact, simply establishing an Alevi organisation was likely to provoke legal action: the 1983 law on associations prohibits founding an organisation whose activities are based on, or conducted in the name of, any region, race, social class, religion or faith, or which asserts the existence in Turkey of minorities based on racial, religious, denominational, cultural or linguistic differences. [8] Moreover, the Civil Code bars any organisation from registration if its purpose is “to support a particular political movement, race or denomination”. [9] Consequently, the majority of Alevi organisations avoid any explicit reference to Aleviness in their names and bylaws, instead choosing to express their affiliation indirectly or by allusion. Those organisations that dared to be more explicit ran the risk of being barred or facing lawsuits. The creation of the cultural foundation Semah, whose bylaws stipulate that it seeks to promote and disseminate Alevi culture, gave rise to a decade-long legal battle. [10] In the 1990s, the leaders of the most assertive Alevi organisations were prosecuted, receiving fines and sometimes even prison sentences for their public statements, the unauthorised meetings they held, the creation of organisations incompatible with the goals of the state, and even at times for “separatism”. [11] Here we see a legal arsenal and a court system working together to preserve state ideology. Consequently, the organisations or activities that challenged the regime’s ideological foundations, in particular the principles of unity and secularism, were frequently targeted by lawsuits [12] – as can be seen in the number of dissolution proceedings brought against anti-establishment political parties, in particular Kurdish nationalist, Islamist, and radical left-wing parties. [13] The law is thus largely wielded to control and sanction initiatives that challenge the national political project.

9The Alevists appealed, which led to the majority of the convictions against them being overturned. In their appeals, Alevi leaders played on their community’s uncertain status: since Aleviness was not recognised as a religion, the plaintiffs highlighted the cultural (and not religious), and thus legal, nature of the activities they conducted. Repeated appeals brought about changes in practice, especially in supreme courts. In 1999, after a lengthy trial, the Alevi-Bektashi Education Foundation (Alevi-Bektaşi Eğitim Vakfı) was authorised by the Court of Cassation (Yargıtay) to use the term “Alevi” in its name. The case brought against the Pir Sultan Abdal 2-July Foundation for Culture and Education in 1997 ultimately led to a conviction in 2000. But the Court of Cassation then ruled in the Foundation’s favour, stating that seeking to “serve Alevi philosophy” was not against the law. Likewise, at the end of 2001, the Afyon local court ruled for the dissolution of an association on account of its goal of founding a cemevi, a place where Alevi ceremonies take place. Referring to its 2000 decision, the Court of Cassation overturned this ruling because “an important part of our country’s population is Alevi, and the term cem refers to traditional Alevi meetings” – thus once again ignoring the religious dimension of Aleviness. The court thus concluded that organisations with the words cem or cemevi in their name should not be subject to legal proceedings. [14] However, this decision was not systematically implemented, since as early as the end of 2011 the Ankara prefecture ruled for the dissolution of an organisation, citing that it aimed to create a cemevi (see below). Numerous inconsistencies in jurisprudence can similarly be observed, especially with regard to tensions between the different levels of jurisdiction – a phenomenon that is not unique to the Alevi issue. [15]

10Such differences are not limited to legal decisions, but also occur within the institutional and political spheres. When establishing the position of various courts within the legal production line, we must take into account the aftermath of judicial decisions by examining their political impact, thus also considering the reaction of governments. Upon the creation in 2000 of the ABKB (Alevi-Bektaşi Kuruluşları Birliği Kültür Derneği – Cultural Association of the Union of Alevi-Bektashi Organisations), the Ministry of the Interior, consulted by the Ankara prefecture, ruled that the objective of “establishing cemevi” and “facilitating cooperation between Alevi-Bektashi organisations” violated the law on associations. Following the organisation’s refusal to eliminate these objectives from its mission statement, it was dissolved by the civil court of first instance in 2002 for threatening the indivisible unity of the nation and the state. The Diyanet likewise ruled that associations looking to co-ordinate “Alevi-Bektashi organisations” or encouraging research on Alevi culture should not be authorised, as they would lead to separatism. Conversely, the Constitutional Court, the Council of State, and the Ministry of Culture all expressed their disapproval, the latter arguing that such organisations reflected the country’s cultural richness. The organisation appealed, still maintaining that Aleviness was not a religion. At the end of 2002, the Court of Cassation overturned the conviction by a narrow majority, arguing that an association could not be banned as long as it did not effectively promote activities specific to a religion or religious group. Following this ruling, the court of first instance modified its decision, also by a narrow majority.

11The existence of inconsistencies in case law reveals that legal recourse can be successful and that the possibility of “challenging the law” is real. [16] In this context, plaintiffs are not discouraged by a negative verdict, but instead diversify their legal options, addressing their appeals to multiple levels of authority both within and outside of the judicial system. This in turn reveals that the system is represented as a many-layered institution with diverse and possibly conflicting agendas, but also anchored in a broader political context. [17] Noting that such uncertainties could be viewed as opportunities, Alevist leaders slowly began to turn to the judicial system to achieve their ends. This process was reactive – to use the distinction established by Charles Tilly [18] – chosen to redress the grievances suffered from acts of discrimination or defamation, whose illegality could be established within the context of the principles of national unity and the equality of citizens. In February 1997, Alevist leaders took legal action against the Minister of Justice who belonged to the Islamist Prosperity Party for “overt incitement to hatred and enmity”, [19] because he had alluded to alleged Alevi ritual orgies. They likewise sought redress in October 1998 against the leader of the Islamist Virtue Party, who had described Syrian Alawites – who display a number of similarities with Alevis – as “deviants”. [20]

12While Alevist groups first used legal action to defend themselves, they gradually drew on the judicial system for more offensive ends, to obtain equal treatment, new rights, and possible legal recognition (especially for the exemption of Alevi students from religious culture and morality classes), in particular towards the end of the 1990s. First employed by the most pro-active groups, lawsuits were progressively adopted by other, more moderate organisations. In 2005, the CEM Foundation, [21] otherwise a rather legitimist organisation, launched a series of judicial appeals. On the one hand, it sent a petition to the Office of the Prime Minister signed by 2,000 people, asking for cemevi to be classified as places of worship, for part of the state’s budget to be attributed to Alevis, and for positions to be created in the Diyanet for Alevi religious leaders, in the name of the constitutional principle of religious freedom. Faced with rejection, on the grounds that Alevis were Muslims and thus already represented, the CEM Foundation summoned the Office of the Prime Minister to Ankara’s administrative court. [22] In 2008, this court unanimously rejected the plaintiffs’ case, finding that they had not proven the discrimination supposedly faced by Alevis, nor any violation of state neutrality with regard to religious matters. [23] Similarly, at the end of 2005, the CEM Foundation launched proceedings before the administrative court against the Ministry of Education, asking for the mandatory “religious culture and morality” classes to accommodate Alevi beliefs and include Alevi religious leaders in their preparation. The court unanimously rejected this petition, a decision confirmed in turn by the Council of State’s denial of the appeal.

13Not satisfied with simply bringing lawsuits, Alevist organisations also started to offer individual legal assistance, at times even encouraging individual legal action, as was the case with the CEM Foundation in 2005. Consequently, the Alevi-Bektashi Federation, the largest Alevist group in Turkey, encouraged parents to engage in litigation so that their children could be exempted from the mandatory “religious culture and morality” classes. Several individual lawsuits have been mounted in this regard since the 2000s, which have given rise to differing rulings in courts of first instance: while some agreed to exempt Alevi children (in Antalya, Ankara and Istanbul), others refused to do so (Istanbul). Some lawsuits begun by individuals were in turn monitored and supported, even brought about by organisations. Legal recourse was thus integrated into the Alevi action repertoire, [24] and became increasingly significant over the years. Ultimately, the treatment of a political problem was increasingly displaced to the legal/judicial sphere. [25]

14The timing of this process of judicialisation is noteworthy: it corresponds to a decline in Alevist mobilisation and an impasse in the thinking about how to deal politically with the Alevi issue – or at the very least, the belief that such thinking was possible. After a first enthusiastic phase, the movement experienced some fatigue, reinforced by the differences between organisations that erupted publicly. The Sivas event in 1993 [26] marked an important turning point: despite the ruling coalition’s rather favourable stance towards Alevis, not only were the deaths of 37 persons not avoided, but the treatment of the Alevi issue had not produced satisfactory results for the complainants. Even after the subsequent mass mobilisation, Alevi demands were barely taken up by politicians, if at all, due to political constraints. [27] The second half of the 1990s thus saw a decline in Alevi mobilisation and belief in the ability to find a political solution to the issue. From this perspective, judicialisation can also be seen as an Alevi tactic, since it did not require mass mobilisation at a point when the latter had proven to be ineffective and, in addition, was dwindling. [28] Moreover, it was during this same period of time, and perhaps for similar reasons, that Alevists began to engage in lobbying more regularly.

15The judicialisation of the Alevi issue also perhaps stemmed from the non-political, but exclusively legal, treatment the authorities reserved for the Sivas and Gazi attacks [29] even though the offence was in both cases political. As a result, both the Sivas and Gazi court cases triggered significant mobilisations, ultimately becoming “dayanışma davası”, or “solidarity cases” where numerous lawyers (600 for the Sivas case) participated pro bono, out of conviction and to defend a principle. By virtue of their large numbers, they thus sought to exercise pressure on the court and its ruling. [30] Beyond the judgment itself, the legal arena was used as a forum to define a public problem. [31] The increased visibility in turn engaged public opinion, sometimes finding allies in journalists or intellectuals. During this solidarity case, Alevist organisations contacted a number of lawyers, thus establishing exploitable connections and allowing for transfers of legal skills.

16The movement’s growing judicialisation to an extent continued its previous approach: in incorporating the law, Alevists continued to make demands legitimately, without breaking the rules of the game. In fact, this mobilisation was characterised by a fundamentally legitimist stance, for a number of reasons. On the one hand, in a unitary context where particularism is illegitimate and criminalised, the movement sought to obtain legitimacy by distancing itself from more overtly controversial actors, in particular Kurdish nationalists, to whom its identity-based claims might otherwise connect it. [32] The Alevi cause was thus mainly framed in terms of defending non-particularist, but universal values (equality, secularism, religious freedom, non-discrimination), which allowed the movement to obtain legitimacy as a champion of shared values, which were also the official values of the Republic. [33] Consequently, legal recourse was made possible by the existence of real contradictions between certain institutional practices and certain official principles such as religious freedom and egalitarianism. Such legal recourse thus consisted in advancing the cause “in the shadow of favourable legal norms and threats of judicial intervention”. [34] By turning to the law, the Alevist movement illustrated its wish not to overturn the legal system, but on the contrary to hold it to its promises. Finally, this stance is likewise the manifestation of the sociology of the actors involved.

The activist rationale behind legal recourse

17Increasing recourse to the law and court system also had a certain activist rationale behind it, largely linked to the influence of lawyers within Alevist organisations, which was in turn due to the activist selection and conversion processes. The notion of careers is particularly important here, allowing us to establish a dialectic relationship between context and individual stories, and to connect changes in the realm of activist involvement with changes in professional and personal careers. [35] In the 1990s, the majority of Alevist leaders were men from modest backgrounds, the second generation of the rural exodus; they had largely been associated with the left in the 1970s and thus suffered repression with the 1980 coup d’état. The fact that they had completed higher education and experienced significant upward social mobility “marked” them for Alevi leadership. [36] In fact, when getting involved with the cause became possible again at the end of the 1980s, these individuals had acquired important social capital and exercised occupations that were socially valued, as lawyers, [37] civil servants and engineers. Far from directly opposing the regime, these individuals got involved with largely professional, non-radical organisations (chambers of lawyers and engineers in particular). They thus re-engaged with the social arena under a priori non-political guises, exploiting their recently acquired resources.

18These individuals were in turn the first to become involved with the Alevist cause, before the general rush of mobilisation, with some of them founding organisations. Being simultaneously well-respected and endowed with social capital and activist knowledge, they were also “solicited” by new organisations looking to establish themselves legally, which was far from easy. The legal skills of lawyers were immediately exploited to create and defend organisations: “We have founded an [Alevi] organisation. Among its goals, the desire to ‘revitalise Alevi culture’ was stated, but the word ‘Alevi’ was banned. I was in charge of this case for three years.” [38] Endowed with vital expertise for such organisations, these lawyers quickly found themselves in leadership positions, where they have often remained to this day. Thus, among the high-ranking members of the Pir Sultan Abdal organisation, many are lawyers. The founder and director of the CEM Foundation is a law professor. [39] These activist organisations are therefore structured around groups of professionals that they field on the frontlines. [40] These individuals consequently respond to such solicitations because they bolster their self-worth, and their professional skills lend themselves well to cause lawyering. As a result of their modest backgrounds, they are newcomers to the law, which has become increasingly competitive as lawyers have become more numerous; as a result of their trajectories, they have more ties with the political world than the business world.

19The nested relationship between activism and professional careers allows activist engagement and the professional practice of the law to co-exist. Here we begin to see the outline of the social spaces where the cost of transitioning from a professional career to an activist engagement is relatively low, and where skills and resources can be successfully imported and adapted. [41] As lawyers constituted the initial core of Alevist leaders, the movement’s judicialisation increasingly refocused organisations around them. Lawsuits, often initiated by organisation leaders, revealed the shift towards the professionalisation of organisations.

Judicialisation as a strategy inscribed in power relations

20The Alevist movement seems to be a rather classic case of judicialisation as described by McCann: the law is mobilised by a disadvantaged group to challenge the established order of things and contest discriminatory practices. [42] Mobilising the law thus constitutes a form of participation through which the limits of the legitimate political sphere are renegotiated. [43] Should we, however, believe that judicialisation almost automatically benefits minority rights, by challenging the historical privilege of majority religions? Contrary to this approach which favours institutional and legal reasoning (the culture of precedents, the influence of doctrine and jurisprudence, etc.), realist and strategic theories emphasise the political power relations involved in all processes of judicialisation. Such theories consider that the role of the courts is contingent and fluctuates according to politico-religious constellations, and thus highlight extra-legal reasoning (the ideological positions and values of judges, social and political contexts, etc.). [44]

21I have adopted this realist approach, which is likewise largely dominant in works on the sociology of the law in Turkey. [45] In the same vein as Dahl, [46] such studies agree on the politicised nature of the judicial system and emphasise the embeddedness of the courts within the political system. They likewise tend to consider legal rulings as the products of power relations. The courts, in particular in cases with high political stakes, take into account the balance of power between the relevant political actors. [47] The inconsistencies in the courts’ decisions reveal a judicial system that is linked to political influence and manipulation and sensitive to local configurations. [48] In Turkey, the judicial system is widely seen as highly politicised. According to one recent study, the individuals surveyed did not believe in the independence and impartiality of the judicial system, which they saw as dominated by a “statist” vision, favouritism, and power relations. [49]

22However, this politicisation does not mean that the law systematically follows the government’s position. On the contrary, Ceren Belge has shown that the 1961 Constitution, adopted following the coup d’état in 1960 supported by Kemalist officers, had established a certain number of institutions above the political realm, designed to protect the highest interests of the state, including with regard to democratically elected power. In other words, a political coalition sought to put certain principles outside of the reach of politics, where it was dominated or likely to become so. From this perspective, the autonomy of the judiciary was thus paradoxically a kind of power grab by a political camp that was dominated or likely to be dominated in the future. Consequently, justice, and especially the supreme courts, remained a Kemalist bastion for a long time. Belge shows that the Constitutional Court created at that time, while institutionally autonomous, held selective political positions which were restrictive towards movements that threatened its vision of state order (primarily Kurdish nationalists and Islamists), and more favourable towards political freedoms at certain times, depending on the existing coalitions. This perspective allows us to clarify the rulings handed down by supreme courts regarding Alevi matters. The vast majority of such rulings have occurred since the AKP (Adalet ve Kalkınma Partisi - the Justice and Development Party) came to power in 2002, at a time when the justice system, already divided on the matter, became a political battleground. The Kemalist coalition grew closer to the Alevis, which it touted as a bulwark against the rise of political Islam. On the flipside, for electoral reasons, Kemalist parties have never truly taken up the Alevist claims. To the extent that the justice system has partially resisted the AKP’s power, we may interpret the positions of some supreme courts as a counter-offensive to Islamists via the Alevi cause. [50] Conversely, courts of first instance are more engaged with social changes and do not necessarily follow the verdicts pronounced by the supreme courts. It is in this politicised and divided judicial context that the judicialisation of the Alevi issue is currently playing out in Turkey.

23From a realist perspective, the success of legal mobilisation largely depends on the resources the plaintiffs can exploit. Consequently, increasing recourse to the ECHR which has accompanied – with a few years’ lag – this process of judicialisation, as well as the recognition of Aleviness as a religious community in Germany (even if this was obtained without legal action), have altered the existing power relations.

The European arena as international leverage?

24Before examining the European treatment of this issue, it is pertinent to make a contrasting detour through Germany, the main country of immigration for Turkish citizens. Alevi migrants in fact largely led the fight for recognition in parallel to, but relatively autonomously from, their Turkish counterparts, with whom they have relations that are neither organisational nor hierarchical. In Germany, Alevi migrants obtained legal recognition relatively easily, thanks to an inversed power relation due to German support for a “less threatening” version of Islam; Alevis thus did not turn to the judicial system nearly as much as their Turkish counterparts. An analysis of this very different trajectory will allow us to investigate the theory of global judicialisation.

When judicialisation is not necessary: the institutional recognition of Alevis in Germany

25In Germany, religion and the state have a co-operative relationship, especially with regard to education, since the recognised religions are taught in the public school system. The recognised religious groups thus enjoy a legal status, in particular that of a “religious community” (Religionsgemeinschaft), which opens the doors to providing religious instruction in public schools; obtaining this recognition is thus at the heart of their mobilisations. Nevertheless, for a long time Alevist organisations did not even consider this possibility. In fact, no migrant group had obtained religious status until 1998, when Berlin’s administrative court first granted the status of religious community to a Muslim organisation, [51] Berlin’s Islamic Federation (IFB). Created in 1980 with the goal of representing Berlin’s Muslim population and eventually taking responsibility for the teaching of Islam in schools, this organisation had repeatedly applied for religious community status to no avail, before turning to legal remedies. In 1998, Berlin’s administrative court refuted one by one the arguments that the authorities had thitherto employed against the IFB and granted it religious community status. [52] How can we explain why an organisation linked with Milli Görüş – the Turkish Islamist movement – and considered as dangerous by the federal government was granted the right to teach Islam in public schools, even though such teachings are primarily, according to German authorities, supposed to promote integration and bar the way to fundamentalism? Some observers have noted that the treatment of Islam in Germany is marked by its political non-problematisation (linked to skittish public opinion, unpredictable political profitability, and the lack of electoral stakes) and its unique judicial treatment. [53] The largest immigrant religious community was thus recognised in the judicial arena, despite its presence being accepted with difficulty by political authorities. Here we can observe the role of the law in challenging the historical privileges of majority religions.

26As a knock-on effect, Alevist organisations did not have recourse to the courts. A few weeks after the IFB’s new status was confirmed during a 2000 appeal, the main Alevist organisation in Berlin, the Cultural Centre for Anatolian Alevis (AAKM, Anadolu Alevileri Kültür Merkezi) submitted a claim to benefit from the same status. Filed in 2000, this claim was accepted in principle in less than two months. And yet the criteria that had long plagued the IFB’s petition could very well have been applied to the AAKM as well, as the organisation had similar shortcomings. [54] It can be argued that it was to counteract the rights obtained by the IFB that Berlin’s Senate ruled in favour of the AAKM’s claim. In fact, several studies have illustrated a pro-Alevi bias among German authorities and the German population as a whole, who view Alevis as “liberal Muslims”, tolerant and close to German values. [55] In August 2000, the AABF (Almanya Alevi Birlikleri Federasyonu), the principal German Alevi federation, used Berlin’s ruling as a “precedent” and launched a campaign to obtain religious community status in the main Länder where Alevis were present, a campaign which it also co-ordinated. In 2004, and after consulting two academics (a professor of canon law and a professor of Islamic studies) on the nature of Aleviness, the Ministry granted the AABF religious community status in four Länder, and thus the right to teach Aleviness in public schools.

27Two explanations can be provided for the low level of judicialisation of the Alevi issue in Germany: on the one hand, the sociology of the activists was one factor. Lawyers did not have the same status among Alevist leaders that they enjoyed in Turkey. The founders and leaders of Alevist organisations in Germany had followed different trajectories, often working for foreigners’ rights and the recognition of differences; they were, and mostly continue to be, relatively lacking in legal skills. [56] But this explanation seems secondary if we analyse how recognition was obtained. Unlike the Sunnis, the Alevis did not turn to the legal system but limited themselves to politico-administrative procedures, taking advantage of their cause’s greater legitimacy. Indirectly, the judicialisation of Islam in Germany spared them the need for legal remedies: they were thus the indirect beneficiaries of third-party judicialisation. The obtainment of recognition in Germany without legal recourse supports the realist hypothesis according to which this process is first and foremost political.

Appealing to the supranational sphere: The European Court of Human Rights (ECHR)

28The judicialisation of the Alevi issue in Turkey has, since the beginning of the 2000s, been accompanied by legal actions brought before the ECHR against Turkey for discriminatory practices. Recourse to this supranational court allows actors to circumvent the national framework to appeal their case. So far, the ECHR has ruled in favour of the plaintiffs in all Alevi matters brought before it, thus providing much more evident success than the legal claims made in Turkey; as a result, it has come to play a central role in the judicialisation process. In this section, I shall not only describe how recourse to the ECHR has unfolded, but also contextualise it with regard to Turkish affairs and the jurisdiction of the Court in a general sense – although few studies exist on the identity, strategies, objectives and coalitions of plaintiffs against Turkey, as well as on the recourse of minority groups to the ECHR. [57]

Historicity and Alevist recourse to the ECHR

29Reconstructing the trajectories of these initiatives and their timing will help to identify the underlying dynamics, as well as the groups mobilised. Alevist recourse to the ECHR began in 2004. Alevist organisations were late to the game, both with regard to the judicialisation of the Alevi issue in Turkey and the claims brought to the ECHR against Turkey by other groups, which had multiplied since 1987. While Turkey had signed the European Convention on Human Rights in 1950 and had ratified the treaty in 1954, the country only began to permit the right of individual recourse to the ECHR in 1987. As this was also the year that Turkey formally applied to become part of the EEC, the two events were undoubtedly linked. In 1990, Turkey recognised the jurisdiction of the ECHR as compulsory. During the 1990s, the number of complaints filed against Turkey skyrocketed. [58] Today, Turkey is one of the states against which the most complaints have been filed with the ECHR, overwhelmingly by individual citizens.

30The timing of these legal actions can be partially explained by the fact that all domestic legal remedies had been exhausted. The pioneering litigators who brought cases against Turkey at the beginning of the 1990s were advocates for the Kurdish cause; they had initially been trained by British and Turkish professors, and then gone on to accumulate substantial knowledge and experience. [59] In fact, with regard to the Kurdish issue, the ECHR made a very important exception to the principle of the exhaustion of domestic remedies, arguing that these were insufficient (Akdivar and Others v. Turkey, 1996). This exception goes some way to explaining why so many resorted to Strasbourg – and so early on – in relation to the Kurdish question. [60] Concerning the Alevis, however, it was in 2004, after having received an unfavourable verdict and exhausted all domestic options, that Hasan Zengin filed a petition before the ECHR regarding exemption from the mandatory “religious culture and morality” classes. [61] Likewise, in 2004 an Alevi citizen named Sinan Işık brought before the ECHR an (originally individual) complaint, asking for his identity card, whose mandatory information included religion, to state “Alevi” rather than “Islam”; this was after Turkey’s supreme court, and then the Court of Cassation, had unanimously dismissed his case. [62]

31These legal actions were part of a broader trend towards greater diversification in plaintiffs from Turkey, which was in turn linked to the country’s EU accession process. Turkey became an official candidate country in 1999, and accession negotiations were begun in 2005, but important reforms to this end had been agreed upon since the beginning of the 2000s. The debate provoked by these reforms, as well as the strengthening of internal human rights mechanisms, promoted a discussion on rights and indirectly encouraged new, hitherto barely visible groups – in particular Alevists and non-Muslims – to take Turkey to court. At the same time, the nature of the complaints filed also diversified, increasingly addressing the protection of religious freedom, the right to education, and protection against discrimination.

32Finally, the fact that these legal actions came so late was because Alevist groups were long hesitant to appeal to the ECHR, despite knowing that the Court offered the possibility of challenging discriminatory practices they could claim to have experienced. Due to the pioneering nature and overwhelming number of legal actions taken regarding the Kurdish conflict, the ECHR rapidly came to be associated by Turkish institutions and public opinion with the Kurdish cause, [63] which increased the symbolic and political cost of recourse for a movement that was first and foremost seeking legitimacy. In fact, in Turkey Alevis were largely seen as disruptive and potentially disloyal elements, likely to expose the country to foreign threats. [64] It was not an accident that the most pro-active Alevist groups – those who were also the most closely linked with the Kurdish cause – were the first to take legal action both in Turkey and at the ECHR, and in a more general fashion to seek the support of European institutions. [65] The more conservative and legitimist groups, like the CEM Foundation, were more reticent because of the negative image and perhaps negative effects that turning to European institutions might engender. [66] However, they too ultimately had recourse to the ECHR. In August 2010, the CEM Foundation declared that it had exhausted all domestic legal remedies and would file a claim with the ECHR to grant cemevi the status of places of worship.

33With this diversification in plaintiffs, new actors became involved at the ECHR level. [67] Previously, lawsuits had been primarily filed by lawyers working with human rights organisations. For the Alevi cause, however, the plaintiffs differed from those linked to the Kurdish problem and human rights issues. First, individual lawyers progressively became more involved and Alevist organisations at both the Turkish and European levels increasingly oversaw the complaints made. For example, Kazim Genç, the director of the Pir Sultan Abdal association and a lawyer, represented Hasan Zengin. However, it is likely that skills transfers occurred, since the latter was a left-leaning Kurd, associated with human rights causes and with close ties to the political world (his brother was a member of parliament at the time). The AABF likewise participated in this action. [68] In addition, the Alevi-Bektashi Federation (ABF), the largest Alevist organisation in Turkey, closely linked to the Pir Sultan Abdal association, supported the plaintiff Işık. Ultimately, it was not those already involved with the ECHR, such as human rights lawyers, who began defending the Alevist cause, but rather Alevist organisations which, acting as internal agents of judicialisation, revealed their control over recourse to the ECHR; neither was a strong and durable link established between these two spheres. Consequently, the Alevist lawyers active at the ECHR remained relatively distant from the transnational networks of legal activism. [69] Moreover, these lawyers were themselves already divided: no transfer of skills or learning occurred between these two rival organisations, as the Pir Sultan Abdal association which had been in charge of the Zengin case did not share its legal files with the CEM Foundation. [70]

Increased ECHR intervention in the national regulation of religion-state relations

34The case law of the Court grew in parallel to (or because of?) the aforementioned Alevi appeals, becoming more interventionist with regard to religion-state relations. Despite the significant number of lawsuits filed against Turkey regarding religious freedom (especially in terms of discrimination), the ECHR had either not addressed these complaints, had declared them inadmissible, or, in the few cases where it had begun proceedings, had not found a violation of the Convention. Until the Zengin case, legal actions in this domain were brought by Sunnis prevented by secular institutions from fulfilling their religious duties, or penalised for having done so. Islamist activists had recourse to the ECHR in the hope of challenging the Turkish model of secularism. However, they lost a number of important cases, including the dissolution of the Refah Islamist Party (Refah v. Turkey, 2003) and the prohibition on wearing headscarves at universities (Işık v. Turkey, 2005). In both cases, the ECHR upheld the official vision of secularism, arguing that the state was sovereign in this respect. Religious freedom was thus one of the rare domains where the ECHR had globally ruled in favour of Turkish authorities. The Court’s rulings in turn produced a loss of confidence within Islamist circles, which began to view the ECHR as more of a political than judicial body, casting doubt upon its independence and neutrality. [71] In comparison, Alevist and non-Muslim organisations gained greater confidence in the Court’s independence and impartiality. [72]

35With regard to the Alevi issue specifically, the ECHR adopted a more interventionist position. In its 2007 ruling Hasan and Eylem Zengin, the Court determined that the mandatory religion classes violated the right to education on the grounds that their content did not meet the required criteria of objectivity and pluralism for education in a democratic society, so that students could develop critical thinking skills with regard to religion. [73] The Court ruled that this curriculum gave greater weight to the Muslim faith than to other religions and philosophies; and moreover, that students were not educated in the denominational or ritual particularities of the Alevi faith. Likewise, in 2010, in the case Sinan Işık v. Turkey, the Court ruled that the obligatory indication of religious affiliation on national identity cards was a violation of the freedom of thought, conscience and religion. It added that even leaving the religion box blank on one’s identity card forced an individual to reveal, against his will, information regarding his most personal beliefs, which was in contradiction to the freedom to not display one’s religion or faith. All of the verdicts handed down by the ECHR on this subject were in favour of the Alevi plaintiffs, which bolstered the latter’s confidence in their “objective ally” and encouraged them to seek further recourse.

36While the ECHR was initially quite conservative with regard to respecting national models of religion-state relations, in the past few years it has taken a more interventionist stance in favour of state neutrality, in particular in cases brought by religious minorities such as the Alevis. Should we therefore conclude, as was the case in Germany, that the Court has a pro-Alevi (or anti-Muslim) bias, as is argued in Islamist circles? Or is the Court’s position primarily linked to its support for minorities, and thus to a normative political vision in favour of pluralism? For the moment, it is difficult to answer this question.

The effects of multi-localised judicialisation

The results of judicialisation

37How should we gauge the effects of the multi-localised judicialisation of the Alevi issue? The possibilities of change through litigation are real: in particular, organisations have gained the right to exist and to create cemevi, and the mandatory religious classes have been deemed discriminatory. Even if these legal successes are limited and have at times been challenged, they are more tangible than the – almost non-existent – ones achieved by political means. It is possible that the courts, as they are not subject to electoral constraints, are more likely to drive change. [74] Yet, research has highlighted how complex it can be to evaluate legal successes. In particular, Gerald Rosenberg has argued that such successes are often illusory, since courts are not in a position to ensure their effective implementation or disrupt the inertia of dominant social norms. [75] This conclusion applies to the Alevi issue, as a number of rulings were never applied and the Alevi population is still subject to much discrimination.

38However, Michael McCann emphasises that the effectiveness of legal activism goes beyond favourable verdicts and their immediate impact, and should be evaluated more broadly by taking into account the indirect and long-lasting repercussions of such decisions. Even small changes can encourage breakthroughs that are not limited to individual cases. It seems all the more important to point this out in the context of a movement to obtain recognition for an ostracised and taboo group, lacking any legal basis, and whose identity and legitimacy are far from self-evident. Consequently, rulings that were favourable to the Alevi cause largely strengthened the group’s feeling of being within its rights, and legitimised its struggle. In this case as in others, the abstract rhetoric of the law and its universalising effects facilitated the movement’s spread and raised collective awareness of an injustice. The language of the law and recourse to judicial bodies were thus important pillars of support in the movement’s development, enabling the transition from individual grievances to a collective cause. For the Alevis, the newly legitimate repertoire of legal action and the resulting expectations certainly encouraged collective action. Mobilisation intensified again in the 2000s, alongside the rise in judicialisation. In addition, unlike in Rosenberg’s analysis in which activists who were convinced that they had achieved success subsequently lost enthusiasm, legal victories for the Alevi cause, especially at the ECHR level, and even when they were not implemented, raised hopes for reform. When rulings were not applied, this was sometimes even cause for pride and greater mobilisation, as it “proved” the group’s victim status and justified their struggle. Finally, McCann emphasises leverage effects: as soon as a mobilisation can claim a legal victory, references to legality become a useable pressure tactic. Although such tactics have not been very effective in Turkey so far, due to the difficulty of establishing precedent, they can be quite successful in other arenas, especially internationally.

“Legal globalisation”? Limits, impasses and resistance

39The case studied here allows us to compare two different forms of legal “globalisation” or internationalisation, via the ECHR and via migration, and to investigate the potential connections between these different judicial arenas. First, let us examine the ECHR from two different angles: on the one hand, analysing the continuity between the legal actions undertaken in Turkey and then brought before the ECHR; on the other, following a relatively traditional line of enquiry in terms of how the ECHR’s rulings were adapted in Turkey. Finally, we shall investigate the existence of “horizontal” connections across national levels.

Setting specific religious boundaries

40Can the cases brought before the ECHR be viewed as an extension of those filed in Turkey? With regard to how they were interpreted, the answer appears to be no. Going before the ECHR with an Alevist claim amounts to challenging, from the perspective of religious freedom, the authoritarian imposition of an official religion, as well as drawing on the principle of religious pluralism to enforce institutional neutrality. Let us recall that the defence mounted by Turkish authorities, both domestically and at the ECHR, was based on the inclusion of Aleviness within official Islam. According to these authorities, Aleviness was part of Islam, and thus the mandatory religious classes in school, as well as the mention of Islam on national identity cards, correctly reflected the plaintiffs’ religious identities (and of Alevis in general) and thus did not constitute discriminatory practices. On the contrary, exempting Alevis or creating different practices for them would be a form of discrimination (albeit positive) that would threaten the state’s neutrality. Consequently, Hasan Zengin argued that the mandatory religious classes were not compatible with the principle of religious freedom, since they were based on a specific interpretation of Islam that did not reflect Alevi beliefs, did not include detailed information on other religions, and were thus discriminatory. The plaintiff’s lawyer also argued that Aleviness was an identity in and of itself, separate from Islam; he thus remained faithful to his organisation’s stance in Turkey, as well as relatively close to the legal strategies which maintained that Aleviness, as a cultural phenomenon, did not threaten religious unity.

41The Court was thus forced to determine the relationship between Aleviness and Islam. It concluded that Aleviness was a branch of Islam, whose practices differed from those of the Sunni faith. This interpretation departs from the arguments put forth by both the plaintiff and the defendant, but resembles the position adopted in Germany, where Aleviness is loosely considered to be part of Islam, while being different enough to warrant the status of “religious community” separate from the Sunni faith. Where did such an interpretation come from? Two experts were consulted. The first was Turgut Öker, the director of the AABF, a leading actor in achieving recognition for Alevis in Germany, and the founder of a petition campaign throughout Europe regarding exemption. The second was Irène Melikoff (1917 –2009), a renowned professor of Turkish studies at the University of Strasbourg, specialised in Alevi history, and whose influence can be seen in the vision of Aleviness adopted by the Court, which privileges pre-Islamic and Sufi influences in its interpretation. The Court thus appears to have favoured academic information and/or existing practices in Germany, rather than the arguments put forth by either the plaintiff or the defendant in Turkey.

42The fact that Alevi cases achieved positive verdicts at the ECHR does not therefore reflect the mere continuation of Turkish events. When Turkish courts ruled in favour of Alevi organisations, they did so because the latter did not challenge the official, unitarian vision of religion – thus by denying, or at least circumventing, Aleviness’s religious dimension. Conversely, the ECHR adopted a view of Aleviness in religious terms, as a different branch of Islam, which was neither the definition defended by the Turkish courts that had ruled in favour of the Alevis, nor that hitherto put forth by plaintiffs from Turkey. The underlying conception of the relationship between the state and religion was thus very different: while the ECHR based itself on the principles of religious pluralism and the state’s neutrality, the legitimacy granted to Alevis by certain Turkish courts was conditional on their being part of the non-religious (or at best para-religious) sphere, thus not challenging the official stance on religion, nor recognising Islamic pluralism. This key difference does not facilitate the transposition of the ECHR’s rulings into Turkish reality.

Transposing the ECHR’s rulings into Turkish reality

43From this perspective, one of the unique things about Turkey is that the ECHR’s case law is indirectly linked to the country’s accession process to the European Union. As a result, Turkey’s application of the ECHR’s rulings is commented on in the European Commission’s annual reports. The Commission refers directly to the Committee of Ministers of the Council of Europe which oversees the execution of the Court’s judgments, and is extremely critical of Turkey. [76] In this way, the EU accession process gives more weight to the ECHR’s jurisprudence, while simultaneously politicising it.

44Even under these conditions, the executive branch, as well as certain national courts, try to circumvent or otherwise resist the ECHR’s jurisprudence. First of all, disagreement long persisted regarding the supremacy of national law or of the European Convention on Human Rights in the case of conflict, at least until a 2004 law resolved the issue in favour of the supremacy of international agreements. However, it is still very common for Turkish courts to resist implementing the decisions of the ECHR in their judgments. [77] Turkey is one of the countries most sanctioned by the ECHR – second in 2012, with only Russia ahead of it – but the implementation of judgments only began after the reform process launched in view of joining the European Union (in 1999), and sped up after AKP came to power in 2002. Nevertheless, even though the Court of Cassation and the Council of State refer to the Convention in some rulings, no consistent and uniform legal approach exists. [78] The main obstacle to the execution of ECHR judgments is a result both of the legal framework and the positions held by many members of the judicial system, for whom preserving state interests is more important than protecting individual rights. [79]

45The resistance with which certain Strasbourg judgments were met remains somewhat mitigated, however. In July 2012, the Court of Cassation overturned the ruling of a local court that had authorised the registration of the Association for Cemevi Construction in Ankara. Having, in vain, asked the association to amend its bylaws – which mentioned building cemevi as an objective and categorised the latter as places of worship – Ankara’s attorney general filed a case for dissolution in 2011 at the request of the Ankara prefecture, on the grounds that Aleviness was not a religion and cemevi were not places of worship. The court of first instance, which had referred to the ECHR judgment in the Işık case – despite the latter not mentioning cemevi – had ruled in the association’s favour, arguing that for centuries, Alevis had used cemevi as places of worship and that the association’s bylaws did not violate the constitutional principle of secularism. The Court of Cassation nevertheless overturned this ruling by a majority vote, on the grounds that no places other than mosques or masjid (prayer rooms without a minaret) could be recognised as places of worship. It based its verdict on the 1925 law concerning the abolition of dervish convents, mausoleums and religious titles, which ruled that only the mosques and masjid approved by the Diyanet could be categorised as places of worship. The case went back down to the court of first instance which, basing itself on the principle of freedom of religion, reiterated its first ruling, according to which cemevi were places of worship. The General Assembly of the Court of Cassation will be forced to make the ultimate decision. Here again, we can observe how difficult it is for supreme courts to influence the interpretation and application of their judgments by lower courts. Complex processes that are not necessarily either linear or vertical thus govern the diffusion of judicial innovations. [80] The inconsistency of decisions made by various courts and the judicial instability that characterises Turkey therefore translate into difficult conditions for establishing precedent.

46The jurisdiction of the ECHR, which some national courts draw upon to legitimise their judgments, is thus far from playing the role of arbiter when there is a conflict between the courts and institutions. Consequently, the ruling made in the Zengin case was followed by some authorities, but not by all. In 2005, the vice-president of the Alevi-Bektashi Federation had started an administrative procedure so that his son could be exempt from religious studies classes, on the grounds that these classes went against his parents’ wishes and contradicted their religious and philosophical beliefs. At the end of 2006, the administrative court of first instance in Istanbul ruled in the vice-president’s favour, referencing the principle of freedom of creed and a memorandum produced by the Ministry of Education in 1990 that exempted non-Muslim students from the aforementioned classes. [81] The board of directors of Istanbul’s education department appealed, arguing that this memorandum only applied to non-Muslims and that the plaintiff was unable to prove a different religion, as his identity card indicated “Islam”, adding that the classes were not based on a particular religious denomination, but on the fundamental values of Islam. [82] Ceding to the objection, the administrative court ultimately ruled that the exemption should not apply in this case. With another plaintiff, the vice-president then appealed to the Council of State in 2006. Shortly thereafter, the ECHR handed down the Zengin verdict (a different but similar case). In March 2008, the Council of State ruled on these two cases, determining that the “religious culture and morality” classes could not remain mandatory in their current form. Explicitly referring to the ECHR’s judgment, as well as the principles of religious freedom and equality, it objected to the religious classes’ curriculum on the grounds that they were based solely on Sunni Islam and criticised their lack of objectivity and pluralism. [83] The Council stipulated that the classes must become optional, independently of a child’s religious affiliation – which allowed it to limit its ruling to creating a choice, without directly defining the status of Alevis. This example demonstrates that while the Council of State followed the interpretation put forth by the ECHR, resistance was expressed at a number of other levels.

47In order to analyse the exchanges between different judicial spheres, it is necessary to look beyond the courtroom. In fact, a number of scholars have highlighted the sometimes relative impact of legal victories, as well as the backlash that such victories can provoke, including restrictive legislative reforms, general outrage, and counter-protests that ultimately mitigate their scope. Case in point: backed by the Council of State’s judgment, the Zengin verdict met with significant resistance from the executive branch. The president of the Diyanet, a former professor of theology, criticised the fact that the ECHR was “replacing theologians”, and condemned the Council of State for not having consulted him or any university’s theology department. [84] The Prime Minister and a number of government officials also criticised the ruling, still arguing that Aleviness was a cultural phenomenon and not a religious denomination. [85] In turn, the Ministry of Education rejected the demand to modify the classes, arguing that the verdict had condemned the old curriculum, which had been since reformed to include modules on Aleviness, but more fundamentally by rejecting the verdict’s binding nature and maintaining that the EU [sic] could not impose its conception of religious education on other states. [86] The course curriculum was thus not modified, [87] the classes did not become optional, and it is still impossible to have “Alevi” marked on one’s identity card. [88] As can thus be seen, the multiple interdependencies between national and international law influence national models of public regulation of religious affairs, albeit indirectly.

48The issue of transposing European law into Turkish law is far from encompassing the greater issue of legal globalisation. A more sociological approach to this question entails analysing the effects of the emergence of this new supranational regulatory level in terms of resources and constraints, for both national courts and the actors that have recourse to them. [89] From this point of view, we must conclude that the consolidation of human rights in positive law via the European Convention on Human Rights and the creation of the ECHR are new, additional resources – and battlegrounds – that actors can use, thus reconfiguring the legal sphere in Turkey. Many plaintiffs in Turkey now threaten to bring their cases before the ECHR if their demands are not met, even if they first use domestic channels out of “patriotism” (and legal obligation). It can be theorised that the very possibility of bringing a case before the ECHR makes legal action more attractive and encourages plaintiffs to file cases in Turkey. Thus, many instigators of legal mobilisation implement a planned strategy: proceedings are undertaken in national courts, with the possibility in mind of bringing the case before the ECHR at a later date. At the same time, we can observe the strengthening of human rights rhetoric in legal argumentation: at the ECHR, lawyers reformulate local cases in terms of human rights violations – or at least in terms compatible with such rhetoric – thus connecting them to larger problems. [90] Given that most of the time, the same lawyers are involved, legal action in Turkey has also increasingly adopted the lexicon of human rights in situations unfolding well before any recourse to the ECHR, despite the fact that the control mechanisms designed to guarantee such rights are more effective at the European than national level. European jurisdiction can thus be seen as a tool that allows lawyers to legitimise anti-hegemonic views by basing themselves on the “inherent contradictions between supranational human rights ideals and the local politics of hegemony”. [91]

Legal exchanges through migration?

49The potential spread of “legal globalisation” via migration is much less tangible: in other words, “vertical” exchanges (between Turkey and the ECHR) are much more common than “horizontal” exchanges between different states, for example Turkey and Germany. When rare exchanges between national judicial spheres do occur, it is always in the context of triangular configurations involving European institutions. For example, the European Commission’s 2002 report on Turkey mentions the fact that the ABKB organisation was barred from registration in Turkey, while no lawsuit regarding this matter was filed with the ECHR. [92] How so? The most important Alevi federation in Germany, the AABF, which was a founding member of the banned association, is alleged to have lobbied German authorities, forcing diplomacy to handle the matter. The association was finally registered in 2003. It is possible that this victory was due to the timing of the appeal, which corresponded to a moment when accession to the EU was a priority for the Turkish government. The fact that the prohibition on associations asserting the existence of minorities based on racial, religious, and denominational differences – which had been the grounds for the association’s dissolution – was lifted at the beginning of 2002 in the context of EU harmonisation reforms was likely also a factor in this success. [93] Another triangular, but inverse, configuration involving the Turkish and German courts as well as the ECHR was observable in the Zengin case: the director of the AABF was cited as an expert, despite having no ties to the Zengin case, nor any expertise other than his activism in Germany. Alevi migrants in Germany were therefore granted legal status, unlike their counterparts in Turkey, and were considered by the ECHR as legitimate interlocutors, even experts, and thus also as stakeholders in Turkish Alevi matters.


51The judicialisation of Alevism demonstrates that, in a fairly standard fashion, the use of the law has become one of the main ways of resolving conflicts regarding institutional arrangements between religion and the state. Consequently, if there have been changes in the public treatment of Alevis in Turkey, these have almost all come through legal channels, both in Turkey and at the European level. As elsewhere, the religious domain is affected by increasing use of the courts, the spread of human rights rhetoric, and the transnationalisation of the law.

52The judicialisation of religiously motivated conflicts therefore illustrates how patterns of government transform in societies that experience the loss of the central state’s monopoly, especially over the law. The judicial arena is thus not merely one of the main stages where the institutional checks and balances governing the relationship between religion and the state are debated: it is more significantly a testing ground for national models of the public regulation of religious affairs. States no longer possess a monopoly on the definition of religious legitimacy. Stakeholders now not only include judges, but the academics and activists whom they consult as expert witnesses.

53However, determining the effects of internationalisation seems a more complicated matter. This article’s analysis of the different judicialisation processes of the Alevi issue in different spaces has led to the adoption of a “realist” view of such processes, which are embedded within much larger phenomena of power. While the courts are indeed not subject to electoral constraints, they are nonetheless embedded within complex and complicatedly interconnected spheres of power. How can we connect this approach in terms of power to the “globalisation” of the law? Such an approach points to the standardisation of the law and court systems, in particular in Europe. Yet the ECHR remains relatively reluctant to hand down interventionist rulings regarding religious freedom and the state regulations governing it (a reluctance, however, that seems to vary from case to case); state policies towards religious affairs thus remain closely tied to traditions of national identity. On the other hand, translation of the ECHR’s rulings into national law is far from automatic and remains hindered by political considerations. As a consequence, divergent developments regarding the treatment of Aleviness mean that we cannot conclude, as Ran Hirschl does, that a growing standardisation of state religious policies exists in Europe. [94]

54Ultimately, the issue of Aleviness demonstrates the absence of legal globalisation, defined as the homogenisation or standardisation of doctrines, case law, and networks of actors at the international level. While we are indeed witnessing the emergence of the field of transnational human rights, this does not eliminate the particularities of religious governance in different states, for the application of human rights law is uneven and mitigated by power relations; in addition, in some cases, the management of the relationship between the state and religion does not involve human rights law. Conversely, the case of Aleviness illustrates a complex network of exchanges and “referrals” – in plaintiffs’ actions, lawyers’ strategies, repertoires of justification, and the references used by various courts, even when adopting divergent interpretations – between the different levels mobilised for varied reasons, under diverse conditions, by different actors, and influenced by varying political circumstances. The treatment of religious matters is thus reconfigured: the normative frameworks and jurisprudence associated with transnational human rights law, as well as the rights obtained in other national contexts, provide new opportunities for religious minorities, while at the same time conditioning how demands for recognition are connected to each other. [95]


  • [1]
    The term “religious minority” is used here in a political sense (in opposition to the majority), as legal minority status is only conferred to non-Muslim groups in Turkey.
  • [2]
    In the same fashion that the distinction is made here between Islam and Islamism, a similar distinction can be made between “Alevi” (the sociological category) and “Alevism” (the identity-based movement), and thus likewise between “Alevis” (people belonging to the religious minority) and “Alevists” (activists in the movement).
  • [3]
    Markus Dressler, “Making religion through secularist legal discourse. The case of Turkish Alevism”, in Markus Dressler, Arvind-Pal S. Mandair (eds), Secularism and Religion-Making (New York: Oxford University Press, 2011), 187-208.
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    Cf. in particular Austin Sarat, Stuart Scheingold (eds), Cause Lawyering and the State in a Global Era (New York: Oxford University Press, 2001); Brigitte Gaïti, Liora Israël (eds), “La cause du droit”, Politix, 16(62), 2003, 7-190.
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    Cf. in particular Anne-Marie Slaughter, “Judicial globalization”, Virginia Journal of International Law, 40, 2000, 1103-24, and “A global community of courts”, Harvard International Law Journal, 44(1), Winter 2003, 191-219.
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    Élise Massicard, “Construction identitaire, mobilisation et territorialité politique. Le mouvement aléviste en Turquie et en Allemagne depuis la fin des années 1980”, doctoral dissertation in political science, Paris, Sciences Po Paris, 2002. A revised version of this dissertation was published in book form: The Alevis in Turkey and Europe. Identity and Managing Territorial Diversity (London: Routledge, 2012).
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    Tamir Moustafa, “Law versus the state. The judicialization of politics in Egypt”, Law and Social Inquiry, 28, 2003, 883-930.
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    Law of 6 October 1983, Article 5. This law was amended in 2004 in an attempt to harmonise with the European Union.
  • [9]
    Article 74, paragraph 2 of Amendment 903 of 13 July 1967 to the Civil Code. Since 2002, these provisions have been somewhat relaxed (Civil Code, Article 101).
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    For an overview of the legal proceedings regarding this foundation, cf. Lütfi Kaleli, Alevi Kimliği ve Alevi Örgütlenmeleri (Istanbul: Can, 2000), 220-82.
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    Regarding the leaders of the (left-wing) Pir Sultan Abdal association who were often targeted, cf. Şahhüseyinoğlu (ed.), Pir Sultan Abdal Derneği’nin Demokrasi, Laiklik ve Özgürlük Mücadelesi (Ankara: PSAKD, 1997), 265-70.
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    Ceren Belge, “Friends of the Court. The Republican Alliance and selective activism of the Constitutional Court of Turkey”, Law and Society Review, 40(3), 2006, 653-92; Zühtü Arslan speaks of a “legal complex” in this regard: Zühtü Arslan, “Reluctantly sailing towards political liberalism. The political role of the judiciary in Turkey”, in Terence C. Halliday, Lucien Karpik, Malcom M. Feeley (eds), Fighting for Political Freedom. Comparative Studies of the Legal Complex and Political Liberalism (Oxford: Hart Publishing, 2007), 219-45.
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    Dicle Koğacıoğlu, “Progress, unity and democracy. Dissolving political parties in Turkey”, Law and Society Review, 38(3), 2004, 433-61.
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    Official Journal, 10 October 2001.
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    Senem Aslan, “Incoherent state. The controversy over Kurdish naming in Turkey”, European Journal of Turkish Studies, 10, 2009, <> (accessed on 22 November 2012).
  • [16]
    Marie Le Ray, “Experiencing justice and imagining state. Engaging the law to challenge the rule of exception in Tunceli”, European Journal of Turkish Studies, 10, 2009, <>, paragraph 62 (accessed on 7 March 2013).
  • [17]
    M. Le Ray, “Experiencing justice and imagining state”, paragraphs 23 and 29.
  • [18]
    Charles Tilly, From Mobilization to Revolution (Reading: Addison-Wesley, 1978).
  • [19]
    “Kazan tartışması büyüyor”, Sabah, 19 February 1997.
  • [20]
    “Kutan’dan Alevi Gafı”, Sabah, 7 October 1998.
  • [21]
    This acronym, in addition to representing Cumhuriyetçi Eğitim ve Kültür Merkezi (Centre for Education and Republican Culture), also refers to the Alevi ceremony. This ambiguity circumvented the prohibition on referring to Aleviness in the name or bylaws of an organisation.
  • [22]
    “Cem Vakfından Başbakanlığa Dava”, Habervitrini, 24 September 2005.
  • [23]
    “Alevilerin Ibadethane Talebine Mahkemeden Ret”, Star, 12 January 2008.
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    I use the term coined by Charles Tilly, “Les origines du répertoire de l’action collective contemporaine en France et en Grande-Bretagne”, Vingtième Siècle. Revue d’histoire, 4, October-December 1984, 89-108 (99).
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    Miriam Smith, “Social movements and judicial empowerment. Courts, public policy, and lesbian and gay organizing in Canada”, Politics & Society, 33(2), 2005, 327-53.
  • [26]
    A left-leaning village association organised a cultural festival with Alevi undertones in Sivas, a conservative town in Anatolia. Nationalist and Islamist groups set fire to the hotel where the participants were staying, killing 37 of them.
  • [27]
    É. Massicard, “Construction identitaire…”, 456-501.
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    Paul Burstein, “Legal mobilization as a social movement tactic. The struggle for equal employment opportunity”, American Journal of Sociology, 96(5), 1991, 1201-25.
  • [29]
    In 1995, in an Istanbul neighbourhood, several cafés frequented by Alevis were attacked by gunmen who were never found. In the ensuing protests, the police fired on the crowd, killing fifteen people.
  • [30]
    Ayşen Uysal, “Devletin Güvenliği ve Toplumsal Muhalefet Eylemleri. ‘Kalemli Çete’ Örneği”, Birikim, 146, June 2001, 64-84 (77, 80-1).
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    Liora Israël, “Usages militants du droit dans l’arène judiciaire: la cause lawyering”, Droit et Société, 49(3), 2001, 793-824 (804).
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    É. Massicard, “Construction identitaire…”, 496.
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    Marie-Ange Schiltz, Yann Darré, Luc Boltanski, “La dénonciation”, Actes de la recherche en sciences sociales, 51, 1984, 3-40.
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    Michael McCann, “Law and social movements”, The Blackwell Companion to Law and Society (Oxford: Blackwell Publishing Ltd, 2004), 506-22 (515).
  • [35]
    See Olivier Fillieule, “Propositions pour une analyse processuelle de l’engagement individuel”, Revue française de science politique, 51(1-2), 2001, 199-215.
  • [36]
    I have also studied the trajectories of re-engagement elsewhere: Élise Massicard, “Quand le militantisme s’adapte au terrain. Continuités et discontinuités des carrières militantes dans le mouvement aléviste en Turquie et en Allemagne”, Politix, 102, 2013, 89-108.
  • [37]
    At first, it might appear that these individuals, who were well versed in left-wing activism, chose to study the law out of personal conviction. Although this may have been a factor it was likely only a marginal one, for the choice of line of study is constrained by the university admissions system.
  • [38]
    A former activist from an armed left-wing group, born in 1961. A lawyer since 1987, he participated in political trials and was active in the creation and defence of Alevi organisations.
  • [39]
    He represents more the other kind of Alevist leader: older individuals, who had already participated in the Alevist movement in the 1960s, and who are generally more religious and conservative.
  • [40]
    Brigitte Gaïti, Liora Israël, “Sur l’engagement du droit dans la construction des causes”, Politix, 16(62), 2003, 17-30.
  • [41]
    B. Gaïti, L. Israël, “Sur l’engagement du droit dans la construction des causes”.
  • [42]
    Michael McCann, Rights at Work. Pay Equity Reform and the Politics of Legal Mobilization (Chicago: The University of Chicago Press, 1994), in particular 282.
  • [43]
    M. Le Ray, “Experiencing justice…”, paragraph 31.
  • [44]
    Jacques Commaille, Laurence Dumoulin, “Heurs et malheurs de la légalité dans les sociétés contemporaines. Une sociologie politique de la ‘judiciarisation’”, L’année sociologique, 49(1), 2009, 63-107 (82).
  • [45]
    Cf., in particular, D. Koğacıoğlu, “Progress, unity and democracy…”; C. Belge, “Friends of the Court…”; Güneş Murat Tezcür, “Judicial activism in perilous times. The Turkish case”, Law and Society Review, 43(2), 2009, 305-36; S. Aslan, “Incoherent state…”.
  • [46]
    Robert A. Dahl, “Decision-making in a democracy. The Supreme Court as a national policy-maker”, Journal of Public Law, 6, 1957, 279-95.
  • [47]
    G. Murat Tezcür, “Judicial activism…”.
  • [48]
    M. Le Ray, “Experiencing justice…”, paragraph 22.
  • [49]
    Mithat Sancar, Suavi Aydın, “Biraz adil, biraz değil…”. Demokratikleşme Sürecinde Toplumun Yargı Algısı(Istanbul: TESEV, 2009).
  • [50]
    The judiciary was recently subject to significant changes, in part due to the 2010 constitutional reform and also due to a series of corruption scandals that have rocked the AKP government since December 2013, which could in turn reconfigure existing cleavages.
  • [51]
    Ruling OVG7B 4.98/VG 3A 2196.93, 1998.
  • [52]
    Existence of a religious consensus, organisational structure, compliance with the Constitution.
  • [53]
    German courts have addressed the wearing of veils, participation in physical education, the ritual slaughter of animals, the call to prayer, the construction of minarets, etc. Valérie Amiraux, Acteurs de l’islam entre Allemagne et Turquie. Parcours militants et expériences religieuses (Paris: L’Harmattan, 2001), 78, 89-93.
  • [54]
    For an in-depth analysis, cf. É. Massicard, “Construction identitaire…”, 585-602.
  • [55]
    Ruth Mandel, “The Alevi-Bektashi identity in a foreign context. The example of Berlin”, in Alexandre Popovic, Gilles Veinstein (eds), “L’ordre mystique des Bektachis et les groupes relevant de Hadji Bektach”, Revue des études islamiques, 60(1), 1992, 419-26.
  • [56]
    This topic is further developed in É. Massicard, “Quand le militantisme…”.
  • [57]
    Dilek Kurban, “Strasbourg Court jurisprudence and human rights in Turkey. An overview of litigation, implementation and domestic reform”, report from the JURISTRAS project, European Commission, 2007, 28. Cf. the work of this author.
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    Complaints numbered fewer than 100 before 1991 and rose to more than 500 in 1996; 2,280 in 2006 and 8,010 in 2012. European Commission, “Turkey 2012 progress report accompanying the document communication from the Commission to the European Parliament and the Council”, Commission staff working document, COM(2012) 600, Brussels, October 2012.
  • [59]
    Dilek Kurban, Ozan Erözden, Haldun Gülalp, “Supranational rights litigation, implementation and the domestic impact of Strasbourg Court jurisprudence. A case study of Turkey”, report from the JURISTRAS project, European Commission, 2008, 4-5.
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    For an in-depth analysis, cf. D. Kurban, “Strasbourg Court jurisprudence…”, 11-12.
  • [61]
    In 2001, Hasan Zengin sent a request to the Directorate of National Education, then to the administrative court, asking for his daughter to be exempted from the mandatory “religious culture and morality” classes, out of respect for parents’ rights to choose their children’s education, as enshrined in the Universal Declaration of Human Rights. He also argued that these classes were incompatible with the constitutional principle of secularism and were not neutral, as they were based on a specific interpretation of Islam. His case was dismissed several times, including when he appealed to the Court of Cassation in 2003.
  • [62]
    In addition to these cases directly concerning Aleviness, the ECHR mentions Aleviness in cases associated with freedom of expression, or as an aggravating factor in cases concerning the brutal or discriminatory treatment of opponents by security forces. Moreover, a lawsuit was filed with the ECHR regarding the Gazi events, concerning the disproportionate use of force and the investigation’s ineffectiveness. The Court partially agreed with the plaintiffs and ordered the payment of liability and damages (Şimşek and others v. Turkey, 2005).
  • [63]
    D. Kurban, “Strasbourg Court jurisprudence…”, 21.
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    Aykan Erdemir, “Incorporating Alevis. The transformation of governance and faith-based collective action in Turkey”, unpublished doctoral thesis, Cambridge, Harvard University, 2004, 216.
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    Martin Sökefeld, “Alevis in Germany and the politics of recognition”, New Perspectives on Turkey, 28-29, 2003, 133-61 (153).
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    M. Dressler, “Making religion…”.
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    D. Kurban, O. Erözden, H. Gülalp, “Supranational rights litigation…”, 9.
  • [68]
    D. Kurban, “Strasbourg Court jurisprudence…”, 20.
  • [69]
    A. Sarat, S. Scheingold (eds), Cause Lawyering.
  • [70]
    Interview with a lawyer who was in charge of the CEM Foundation’s appeal, Istanbul, 5 March 2013.
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    D. Kurban, O. Erözden, H. Gülalp, “Supranational rights litigation…”, 46.
  • [72]
    D. Kurban, O. Erözden, H. Gülalp, “Supranational rights litigation…”, 44.
  • [73]
    The Court thus concluded that a violation to the right to education as protected by Article 2 of Protocol 1 had occurred. It declined to examine the complaint with regard to Article 9 (freedom of religion), arguing that no separate issue was raised under Article 9.
  • [74]
    J. Commaille, L. Dumoulin, “Heurs et malheurs…”, 79.
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    Gerald Rosenberg, The Hollow Hope. Can Courts Bring about Social Change? (Chicago: The University of Chicago Press, 1991).
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    D. Kurban, “Strasbourg Court jurisprudence…”, 26.
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    D. Kurban, “Strasbourg Court jurisprudence…”, 29.
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    Dilek Kurban, “Protecting marginalised individuals and minorities in ECtHR. Litigation and jurisprudence in Turkey”, in Dia Anagnostou, Evangelia Psychogiopoulou (eds), The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context (Leiden: Martinus Nijhoff Publishers/Brill Academic, 2009), 119-36 (120).
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    D. Kurban, O. Erözden, H. Gülalp, “Supranational rights litigation…”, 36.
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    Henry R. Glick, “Judicial innovation and policy re-invention. State Supreme Courts and the right to die”, The Western Political Quarterly, 45(1), 1992, 71-92.
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    However, this memorandum was contradicted by another, published two years later.
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    Behzat Miser, “Mahkeme Zorunlu Din Dersini Seçmeli Yapt?”, Radikal, 25 November 2006.
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    “Danış tay. Din dersi hukuka aykırı”, Hürriyet, 4 March 2008.
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    “Danış tay’ ın din dersi kararına kızdı”, Radikal, 7 March 2008.
  • [85]
    D. Kurban, O. Erözden, H. Gülalp, “Supranational rights litigation…”, cit., 43-4.
  • [86]
    “MEB Aı HM kararını önemsemedi”, Radikal, 11 October 2007.
  • [87]
    Although the curriculum was finally modified a few years later, most Alevists are still dissatisfied with its content.
  • [88]
    Since 2006, it is no longer mandatory to indicate one’s religion on identity cards, but this is not related to the outcome of the Işık case.
  • [89]
    D. Anagnostou, E. Psychogiopoulou (eds), The European Court of Human Rights.
  • [90]
    L. Israël, “Usages militants du droit…”, 810.
  • [91]
    Lisa Hajjar, “Cause lawyering in transnational perspective. National conflict and human rights in Israel/ Palestine”, Law and Society Review, 31(3), 1997, 473-504 (497).
  • [92]
    Commission of the European Communities, “Regular report 2002 on Turkey’s progress towards accession”, COM (2002) 700 final, 37.
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    Law on associations no. 5253, November 2004.
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    Ran Hirschl, Constitutional Theocracy (Cambridge: Harvard University Press, 2010).
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    I would like to thank the editors of this thematic issue, Claire Visier, and the anonymous reviewers for their important comments on an earlier version of this article. My work received funding from the Agence nationale de la recherche (French National Research Agency) under reference number ANR-12-GLOB-003, “Matières à transfaire. Espaces-temps d’une globalisation (post-)ottomane”.

The judicialisation of the Alevi issue in three judicial spaces – Turkey, Germany where numerous Alevis have settled, and the ECHR – shows that there is no judicial globalisation, defined as a standardisation of doctrines, case law, and networks of actors on an international scale. In each context, courts are mobilised by various actors for different reasons, and a variety of decisions ensue. However, between those levels there exists a complex interplay of circulating cross-references. This, in turn, impacts the way state-religion relationships are negotiated: the normative framework and case law linked to the transnational field of human rights, but also to rights obtained in other national contexts, provide opportunities for demands by religious minorities, while also shaping the way such demands may be made.

Élise Massicard
Currently a permanent research fellow at the Centre National de la Recherche Scientifique (CNRS)/Centre d’Études et de Recherches Internationales (CERI), Élise Massicard was previously an academic-in-residence and director at the Observatoire de la vie politique turque (Observatory for Turkish Politics) at the Institut français d’études anatoliennes (French Institute for Anatolian Studies) in Istanbul (Turkey). She is the author of L’Autre Turquie. Le mouvement aléviste et ses territoires (Paris: PUF, 2005) [published in English as The Alevis in Turkey and Europe. Identity and Managing Territorial Diversity (Abingdon: Routledge, 2012)]; and the co-editor (with Marc Aymes and Benjamin Gourisse) of Order and Compromise. Government Practices in Turkey from the Late Ottoman Empire to the Early 21st Century (Leiden: Brill, 2015). She works on contemporary Turkish political sociology, especially mobilisations and the sociology of institutions and public action (CERI Sciences Po, 56 rue Jacob, 75006 Paris).
Translated from French by
Sarah-Louise Raillard
Uploaded on on 19/05/2015
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