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CASE OF LEYLA
SAHIN v. (Application
no. 44774/98) JUDGMENT 29 June 2004 This judgment will become final in the circumstances set out in Article
44 § 2 of the Convention. It may be subject to editorial revision. In the case of Leyla Sahin v. The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of: Sir Nicolas Bratza,
President, Having deliberated in private on 2 July and 19 November 2002,
9 December 2003 and 8 June 2004, Delivers the following judgment, which was adopted on the
last-mentioned date: 1. The case originated in an application (no. 44774/98)
against the 2. The applicant alleged that a ban on wearing the
Islamic headscarf in higher-education institutions violated her rights and
freedoms under Articles 8, 9, 10 and 14 of the Convention, and Article 2
of Protocol No. 1. 3. The application was transmitted to the Court on 1
November 1998, when Protocol No. 11 to the Convention came into force (Article
5 § 2 of Protocol No. 11). 4. The application was allocated to the First Section
of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1 of the Rules of Court. 5. On 1 November 2001 the Court changed the
composition of its Sections (Rule 52 § 1). This case was assigned to the newly
composed Fourth Section. 6. By a decision of 2 July 2002 the Chamber declared
the application admissible. 7. The applicant and the Government each filed
written observations on the merits (Rule 59 § 1). 8. A hearing took place
in public in the There appeared before the Court: – for the Government – for the applicant The Court heard addresses by Mr Grosz,
Mr Alpaslan and Mr Güran. 9. Both the applicant (on 21 November 2002, 9 May, 4
July and 25 September 2003) and the Government (on 5 and 18 March, 7 and
13 November 2003) lodged written observations and additional evidence
(Rule 59 §§ 1 and 4, and Rule 60). On 11 December 2003, without providing
any explanation, the Government withdrew from the case file
the observations and appendices they had lodged on 7 and 13 November 2003. I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1973 and has lived in 11. On 26 August 1997 the applicant, who was then in
her fifth year at the Faculty of Medicine at the 12. On 23 February 1998 the Vice-Chancellor of
Istanbul University issued a circular regulating students’ admission to the
university campus. The relevant part of the circular provides: “By virtue of the Constitution, the law
and regulations, and in accordance with the case-law of the Supreme
Administrative Court and the European Commission of Human Rights and the
resolutions adopted by the university administrative boards, students whose
‘heads are covered’ (wearing the Islamic headscarf) and students (including
overseas students) with beards must not be admitted to lectures, courses or
tutorials. Consequently, the name and number of any student with a beard or
wearing the Islamic headscarf must not be added to the lists of registered
students. However, if students whose names and numbers are not on the lists
insist on attending tutorials and entering lecture theatres, they must be
advised of the position and, should they refuse to leave, their names and
numbers must be noted and they must be informed that they are not entitled to
attend lectures. If they refuse to leave the lecture theatre, the teacher shall
record what has happened in a report explaining why it has not been possible to
give the lecture and shall bring the matter to the attention of the university
authorities as a matter of urgency so that disciplinary measures can be taken.” 13. On 12 March 1998, in accordance with the
aforementioned circular, the applicant was denied access by invigilators to a
written examination on oncology because she was wearing the Islamic headscarf.
On 20 March 1998 the secretarial offices of the chair of orthopaedic traumatology refused
to allow her to enrol because she was wearing a
headscarf. On 16 April 1998 she was refused admission to a neurology
lecture and on 10 June 1998 to a written examination on public health,
again for the same reason. 14. On 29 July 1998 the applicant lodged an
application for an order setting aside the circular of 23 February 1998. In her
written pleadings, she submitted that the circular and its implementation
infringed her rights guaranteed by Articles 8, 9 and 14 of the Convention and
Article 2 of Protocol No. 1, in that there was no statutory basis for the
circular and the education authority had no regulatory power in this sphere. 15. In a judgment of 19 March 1999, the 16. On 19 April 2001 the 17. In May 1998 disciplinary proceedings were brought
against the applicant under Article 6(a) of the Students Disciplinary Procedure
Rules (see paragraph 48 below) as a result
of her failure to comply with the rules on dress. 18. On 26 May 1998, in view of the fact that the
applicant had shown by her actions that she intended to continue wearing the
headscarf to lectures and/or tutorials, the dean of the faculty declared that
her attitude and failure to comply with the rules on dress were not befitting
of a student. He therefore decided to issue her with a warning. 19. On 15 February 1999 an unauthorised
assembly gathered outside the deanery of the Cerrahpasa
Faculty of Medicine to protest against the rules on dress. 20. On 26 February 1999 the dean of the faculty began
disciplinary proceedings against various students, including the applicant, for
taking part in the assembly. On 13 April 1999, after hearing her
representations, he suspended her from the university for a semester pursuant
to Article 9(j) of the Students Disciplinary Procedure Rules (see paragraph 48
below). 21. On 10 June 1999 the applicant lodged an
application with the 22. On 20 August 1999 23. On 30 November 1999 the applicant’s application
to have the disciplinary penalty quashed was dismissed by the 24. Following the entry into force of Law no. 4584 of
28 June 2000 (which afforded students an amnesty for disciplinary offences and
annulled any resulting penalties or disabilities), the applicant was granted an
amnesty releasing her from all the disciplinary penalties and their effects. On 28 September 2000 the 25. In the meantime, on 16 September 1999, the
applicant had enrolled at A. The Constitution 26. The relevant provisions of the Constitution
provide: Article
2 “The Article
4 “No amendment may be made or proposed
to the provisions of Article 1 of the Constitution laying
down that the State shall be a Republic, the provisions of Article 2
concerning the characteristics of the Republic or the provisions of Article 3.” Article
10 § 1 “All individuals shall be equal before
the law without any distinction based on language, race, colour,
sex, political opinion, philosophical belief, religion,
membership of a religious sect or other similar grounds.” Article
14 § 1 “None of the rights and freedoms
referred to in the Constitution shall be exercised with a view to undermining
the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or
Republic, abolishing fundamental rights and freedoms, placing the control of
the State in the hands of a single individual or group, ensuring the domination
of one social class over other social classes, introducing discrimination on
the grounds of language, race, religion or membership of a religious body, or
establishing by any other means a political system based on such concepts and
opinions.” Article
24 §§ 1 and 4 “Everyone has the right to freedom of
conscience, belief and religious conviction. Prayers, worship and religious
services shall be conducted freely, provided that they do not violate the
provisions of Article 14. No one shall be compelled to participate in prayers,
worship or religious services or to reveal his religious beliefs and
convictions; nor shall he be censured or prosecuted because of his religious
beliefs or convictions. ... No one may exploit or abuse religion,
religious feelings or things held sacred by religion in any manner whatsoever
with a view to causing the social, economic, political or legal order of the
State to be based on religious precepts, even if only in part, or for the
purpose of securing political or personal interest or influence thereby.” 1. Religious dress and the principle of secularism 27. The Turkish Republic was founded on the principle
that the State should be secular (laik). After
the proclamation of the Republic on 29 October 1923, the public and
religious spheres were separated through a series of revolutionary reforms: the
abolition of the caliphate on 3 March 1923; the repeal of the
constitutional provision declaring Islam the religion of the State on 10 April
1928; and, lastly, on 5 February 1937 a constitutional amendment according
constitutional status to the principle of secularism (see Article 2 of the
Constitution of 1924 and Article 2 of the Constitutions of 1961 and 1982, as
set out in paragraph 26 above). 28. The main feature of the republican system was the
status accorded to women’s rights, with women being granted equality in the
enjoyment of individual rights. The process began on 17 February 1926 with the
adoption of the Civil Code, which provided for equality of the sexes in the
enjoyment of civic rights, in particular as regards divorce and succession.
Subsequently, through a constitutional amendment of 5 December 1934
(Article 10 of the 1924 Constitution), women obtained equal political
rights with men. 29. At the time of the 30. Under the Education Services (Merger) Act of 3
March 1924 (Law no. 430), religious schools were closed and all
schools came under the control of the Ministry for Education. This Act is one
of the laws enjoying constitutional status that are protected by Article 174 of
the Turkish Constitution. 31. Wearing the Islamic headscarf to school and
university is a recent phenomenon in 32. It should be noted in that connection that one of
the matters taken into consideration by the 2. The rules on dress in higher-education institutions and the
case-law of the 33. The first piece of legislation on dress in
higher-education institutions was a set of regulations that was issued by the
Cabinet on 22 July 1981, which required staff working for public organisations and institutions and personnel and students
at State institutions to wear ordinary, sober, modern dress. The regulations
also provided that female members of staff and students should not wear veils
in educational institutions. 34. On 20 December 1982 the Higher-Education
Authority issued a circular on the wearing of headscarves in higher-education
institutions. The Islamic headscarf was banned in lecture theatres. In a
judgment of 13 December 1984, the “Beyond being a mere innocent practice,
wearing the headscarf is in the process of becoming the symbol of a vision that
is contrary to the freedoms of women and the fundamental principles of the
Republic.” 35. On 10 December 1988 transitional section 16 of
the Higher-Education Act (Law no. 2547 – “the Higher-Education Act”) entered
into force. It provided: “Modern dress or appearance shall be
compulsory in the rooms and corridors of higher-education institutions,
preparatory schools, laboratories, clinics and multidisciplinary clinics. A
veil or headscarf covering the neck and hair may be worn out of religious
conviction.” 36. In a judgment of 7 March 1989 published in the
Official Gazette of 5 July 1989, the Constitutional Court held that the
aforementioned provision was contrary to Articles 2 (secularism), 10 (equality
before the law) and 24 (freedom of religion) of the Constitution. It also
found that it could not be reconciled with the principle of sexual equality
implicit, inter alia, in republican and revolutionary values (see the
Constitution – Preamble and Article 174). In their judgment, the Stressing its inviolable nature, the Everyone was free to dress how he or she wished, as the social
and religious values and traditions of society also had to be respected.
However, when a particular dress code was imposed on individuals by reference
to a religion, the religion concerned was perceived and presented as a set of
values that were incompatible with those of contemporary society. In addition,
in The 37. On 25 October 1990 transitional section 17 of the
Higher-Education Act (Law no. 2547) entered into force. It provides: “Choice of dress shall be free in
higher-education institutions, provided that it does not contravene the laws in
force.” 38. In a judgment of 9 April 1991, which was
published in the Official Gazette of 31 July 1991, the Constitutional Court
noted that, in the light of the principles it had established in its judgment
of 7 March 1989, the aforementioned provision did not allow headscarves to be
worn in higher-education institutions on religious grounds and so was
consistent with the Constitution. It stated, inter alia: “In higher-education institutions, it
is contrary to the principles of secularism and equality for the neck and hair
to be covered with a veil or headscarf on grounds of religious belief. In these
circumstances, the freedom of dress which the impugned provision permits in
higher-education institutions ‘does not concern dress of a religious nature or
the act of covering one’s neck and hair with a veil and headscarf’... The
freedom afforded by this provision [transitional section 17] is conditional on
its not being contrary ‘to the laws in force’. The judgment [of 7 March 1989]
of the 3. Application of the regulations at 39. 40. In 1994, following a petitioning campaign
launched by female students enrolled on the midwifery course at the University
High School for the Medical Professions, the Vice Chancellor circulated a
memorandum in which he explained the background to the Islamic-headscarf issue
and the legal basis for the relevant regulations. He said in particular: “The ban prohibiting female students
enrolled on the midwifery course from wearing the headscarf during tutorials is
not intended to infringe their freedom of conscience and religion, but to
comply with the laws and regulations in force. When doing their work, midwives
and nurses wear a uniform. That uniform is described in and identified by
regulations issued by the Ministry of Health... Students who wish to join the
profession are aware of this. Imagine a student of midwifery trying to put a
baby in or to remove it from an incubator, or assisting a doctor in an
operating theatre or maternity unit while wearing a long-sleeved coat.” 41. The Vice Chancellor was concerned that the
campaign for permission to wear the Islamic headscarf on all university
premises had reached the point where there was a risk of its undermining order
and causing unrest at the University, the Faculty and the 42. A resolution regarding the rules on dress for
students and university staff was adopted on 1 June 1994 by the University
executive and provides as follows: “The rules governing dress in
universities are set out in the laws and regulations. The This judgment applies to all students
of our University and the academic staff, both administrative and otherwise, at
all levels. In particular, nurses, midwives, doctors and vets are required to
comply with the regulations on dress, as dictated by scientific considerations
and the legislation, during health and applied science tutorials (on nursing,
laboratory work, surgery and microbiology). Anyone not complying with the rules
on dress will be refused access to tutorials.” 43. On 23 February 1998 a circular was distributed
containing instructions on the admission of students with beards or wearing the
Islamic headscarf. It was signed by the Vice Chancellor of the 44. After the hearing on 19 November 2002 the
applicant produced a letter of 1 April 2002 which the Higher-Education
Authority had sent to the university authorities inviting them to grant a
request by students of the Jewish faith for their attendance to be excused
during Jewish holidays. 45. On 18 March 2003 the Government produced to the
Court a resolution (no. 11) adopted by the University of Istanbul on 9 July
1998, which is worded as follows: “1. Students
at the 2. Students at the 3. In the institutions and
departments at which they are enrolled, students at the 4. Photographs supplied by
students of the 5. Anyone displaying an
attitude that is contrary to the aforementioned points or who, through his
words, writings or deeds, encourages such an attitude shall be liable to action
under the provisions of the regulations relating to disciplinary proceedings
against students.” 4. Students Disciplinary Procedure Rules 46. The Students Disciplinary Procedure Rules, which
were published in the Official Gazette of 13 January 1985, prescribe five forms
of disciplinary penalty: a warning, a reprimand, temporary suspension of
between a week and a month, temporary suspension of one or two semesters and
expulsion. 47. Merely wearing the Islamic headscarf on
university premises does not constitute a disciplinary offence. However,
failure to comply with the rules on dress may entail the application of another
provision of the rules. 48. By virtue of Article 6(a) of the Rules, a student
whose “behaviour and attitude are not befitting of
students” will be liable to a warning. A reprimand will be issued, inter
alia, to students whose conduct is such as to lose them the respect and
trust which students are required to command or who disrupt lectures, seminars,
tutorials in laboratories or workshops (Article 7(a) and (e)). Students
who directly or indirectly restrict the freedom of others to learn and teach or
whose conduct is liable to disturb the calm, tranquillity
and industriousness required in higher-education institutions or who engage in
political activities in such institutions are liable to temporary suspension of
between a week and a month (Article 8(a) and (c)). Article 9(j) lays
down that students who organise or take part in unauthorised meetings on university premises are liable to
one or two semesters’ suspension. 49. The procedure for investigating disciplinary
complaints is governed by Articles 13 to 34 of the Rules. Articles 16 and 33
provide that the rights of defence of students must
be respected and the disciplinary board must take into account the reasons that
caused the student to transgress the rules. All disciplinary measures are
subject to judicial review in the administrative courts. 5. The regulatory power of the university vice chancellors 50. Since universities are public-law bodies by virtue
of Article 130 of the Constitution, they enjoy a degree of autonomy,
subject to State control, that is reflected in the fact that they are run by
management organs, such as the vice chancellor, with delegated statutory
powers. The relevant parts of section 13 of the Higher-Education Act
(Law no. 2547) provide: “... (b) Vice chancellors
have the following powers, competence and responsibilities: 1. To chair meetings of
university boards, implement their resolutions, examine proposals by the university
boards and take such decisions as shall be necessary, and ensure that
institutions forming part of the university function in a coordinated manner;
... 5. To supervise and monitor
the university departments and university staff at all levels. It is the vice chancellor who is
primarily responsible for taking security measures and for supervising and
monitoring teaching from the administrative and scientific perspectives...” 51. Both legal commentators and the administrative
courts regard the monitoring and supervisory powers conferred on the vice
chancellor by the aforementioned provision as including a power to issue
regulations, as well as to take individual measures. Exercise of this power is
subject to the requirement of lawfulness and to scrutiny by the administrative
courts. Both written instruments (legislation and the Constitution) and
judge-made law (the case-law of the administrative courts and the 52. In its judgment of 27 May 1999 (E. 1998/58, K.
1999/19), which was published in the Official Gazette of 4 March 2000, the “The legislature and executive are
bound by both the operative provisions of judgments and the reasoning taken as
a whole. Judgments and the reasons stated in them lay down the standards by
which legislative activity will be measured and establish guidelines for such
activity.” 53. In European countries, the debate on the Islamic
headscarf is concerned more with primary and secondary State schools than with
higher-education institutions. In the French speaking parts of 54. In “In State primary and secondary
schools, the wearing of signs or dress by which pupils overtly manifest a
religious affiliation is prohibited. The school rules shall state that the
institution of disciplinary proceedings shall be preceded by a dialogue with
the pupil.” 55. As regards the universities, the Commission on
Secularism considered that precedence should be given to the students’ right to
express their religious, political and philosophical convictions. However, it
stated in its report that such expression should not lead to transgressions of
the rules on the functioning of universities. 56. In other countries, in some cases after a
protracted legal debate, the State education authorities permit Muslim pupils
and students to wear the Islamic headscarf (in 57. It would appear that in a number of other
countries, the issue of the Islamic headscarf has yet to give rise to any
detailed legal debate ( I. THE GOVERNMENT’S PRELIMINARY OBJECTION 58. The Government pleaded a failure to exhaust
domestic remedies. In their submission, since the applicant had not contested
the legality of the rules on dress in the administrative courts, she could not
be regarded as having exhausted domestic remedies. 59. The applicant argued in her initial observations
that, in view of the settled case-law of the Turkish courts, she had no
effective remedy. 60. The Court notes, firstly, that on 2 July 2002 it
decided, in the light of the material in its possession, to declare the case admissible
and to join the issue of exhaustion to the merits. 61. Subsequently, at the Court’s request, the
applicant produced with her observations of 29 September 2003 the documents
concerning an application to the domestic courts on 29 July 1998 for an order
setting aside the circular of 23 February 1998 (see paragraphs 14-16 above) and asserted that she had exhausted
domestic remedies. The Court notes that the applicant did not inform it that
she had exercised the aforementioned domestic remedy until after the issue of
admissibility had been examined or inform it that various disciplinary measures
had been taken against her (see paragraphs 19-24 above). 62. The Court reiterates that, under its case-law,
while an applicant is, as a rule, in duty bound to exercise the different
domestic remedies before applying to the Convention institutions, it must be
left open to the Convention institutions to accept the fact that the last stage
of such remedies may be reached after the lodging of the application, as long
as the remedies are exhausted before the decision on admissibility (Ringeisen v. Austria, judgment of 16
July 1971, Series A no. 13, pp. 37-38, §§ 89-93; and Vgt
Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 33, ECHR
2001-VI). 63. Having examined the information which was
submitted out of time, the Court finds that the applicant, who exhausted
domestic remedies on 19 April 2001 (see paragraph
16 above) before the decision on admissibility was handed down, can be
regarded as having satisfied the requirements of Article 35 § 1 of the
Convention. Consequently, it dismisses the Government’s preliminary objection. 64. The applicant submitted that the ban on wearing
the Islamic headscarf in higher-education institutions constituted an
unjustified interference with her right to freedom of religion, and, in
particular, her right to manifest her religion. She relied on Article 9 of the
Convention, which provides: “1. Everyone has the right to
freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance. 2. Freedom to manifest one’s
religion or beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others.” 65. The Government denied that there had been such a
breach. In their submission, there had been no interference with the
applicant’s right to exercise her freedom of religion. Even if there had been,
it was justified under paragraph 2 of Article 9 of the Convention. 66. The Court reiterates that as enshrined in Article
9, freedom of thought, conscience and religion is one of the foundations of a
“democratic society” within the meaning of the Convention. This freedom is, in
its religious dimension, one of the most vital elements that go to make up the
identity of believers and their conception of life, but it is also a precious
asset for atheists, agnostics, sceptics and the unconcerned.
The pluralism indissociable from a democratic
society, which has been dearly won over the centuries, depends on it. That
freedom entails, inter alia, freedom to hold or not to hold religious
beliefs and to practise or not to practise
a religion (see, among other authorities, Kokkinakis v. Greece,
25 May 1993, Series A no. 260-A, p. 17, § 3; and Buscarini
and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I). While religious freedom is primarily a matter of individual
conscience, it also implies, inter alia, freedom to manifest one’s
religion, alone and in private, or in community with others, in public and
within the circle of those whose faith one shares. Article 9 lists a number of
forms which manifestation of one’s religion or belief may take, namely worship,
teaching, practice and observance (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR
2000-VII). Article 9 does not protect every act motivated or inspired by a
religion or belief and does not in all cases guarantee the right to behave in
the public sphere in a way which is dictated by a belief (see, among many other
authorities, Kalaç v. Turkey, judgment
of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1209, §
27; Arrowsmith v. the United Kingdom,
no. 7050/75, Commission decision of 12 October 1978, Decisions and Reports
(DR) 19, p. 5; and C. v. the United Kingdom, no. 10358/83,
Commission decision of 15 December 1983, DR 37, p. 142). 67. The Court must consider whether the applicant’s
right under Article 9 was interfered with and, if so, whether such
interference was “prescribed by law”, pursued a legitimate aim and was
“necessary in a democratic society” within the meaning of Article 9 § 2 of the
Convention. 68. The applicant said that her manner of dressing
had to be treated as the observance of a religious rule which she regarded as a
“recognised practice”. She maintained that the
restriction and her resulting exclusion from the 69. The Government rejected that argument, saying
that the university regulations were based both on rules of domestic law on
students’ dress and principles of international law. They submitted that
Article 9 of the Convention did not afford a right to invoke one’s beliefs as a
reason for refusing to comply with legislation whose implementation was
contemplated by the Convention and which applied generally and without
distinction in the public sphere. 70. The Court notes, firstly, that, according to the
material in the case file, no disciplinary proceedings have been brought
against the applicant that resulted in her expulsion for failure to comply with
the rules on dress. Nor has the applicant complained about the disciplinary
penalties that were imposed on her before being annulled on 28 June 2000 (see
paragraph 24 above). The present
application, therefore, only concerns a general measure issued by the 71. The applicant said that, by wearing the
headscarf, she was obeying a religious precept and thereby manifesting her
desire to comply strictly with the duties imposed by the Islamic faith.
Accordingly, her decision to wear the headscarf may be regarded as motivated or
inspired by a religion or belief and, without deciding whether such decisions
are in every case taken to fulfil a religious duty,
the Court proceeds on the assumption that the regulations in issue, which
placed restrictions of place and manner on the right to wear the Islamic
headscarf in universities, constituted an interference with the applicant’s
right to manifest her religion. 72. The applicant maintained that the ban on wearing
the headscarf on university premises had no statutory basis, as it was founded
on an erroneous interpretation by the university authorities of the Furthermore, the fact that the authorities of the universities
of 73. The Government contested those submissions. 74. The Court reiterates its established case-law,
according to which the words “prescribed by law” not only require that the
impugned measure should have some basis in domestic law, but also refer to the
quality of the law in question, requiring that it should be accessible to the
person concerned and foreseeable as to its effects (see, among many other
authorities, Rotaru v. Romania [GC],
no. 28341/95, § 52, ECHR 2000-V). 75. In the instant case, the Court notes that the
circular of 23 February 1998, which banned students with beards or wearing
veils from access to lectures, courses and tutorials, is a regulatory provision
that was issued by the Vice Chancellor of the 76. The Court must therefore consider whether
transitional section 17 of the Higher-Education Act (Law no. 2547) can
constitute a legal basis for the circular. It reiterates that it is primarily
for the national authorities, notably the courts, to interpret and apply
domestic law (Kruslin v. France,
judgment of 24 April 1990, Series A no. 176-A, p. 21, § 29). In that regard, it
notes that in rejecting the argument that the circular was illegal, the
administrative courts relied on the settled case-law of the 77. Further, as regards the words “in accordance with
the law” and “prescribed by law” which appear in Articles 8 to 11 of the
Convention, the Court observes that it has always understood the term “law” in
its “substantive” sense, not its “formal” one; it has included both “written law”,
encompassing enactments of lower rank than statutes (De Wilde, Ooms and Versyp v. Belgium,
judgment of 18 June 1971, Series A no 12, p. 45, § 93) and regulatory
measures taken by professional regulatory bodies under independent rule-making
powers delegated to them by parliament (Bartold
v. Germany, judgment of 25 March 1985, Series A no. 90, p. 21, § 46)
and unwritten law. “Law” must be understood to include both statutory law and
judge-made “law” (see, among other authorities, Sunday Times v. United-Kingdom
(no 1), judgment of 26 April 1979, Series A no. 30, p. 30, § 47;
Kruslin, cited above, § 29 in fine;
and Casado Coca v. Spain, judgment of
24 February 1994, Series A no 285-A, p. 18, § 43). Judge-made law
is regarded as a valid source of law under Turkish law (see paragraph 51
above). In sum, the “law” is the provision in force as the competent courts
have interpreted it. 78. Accordingly, the question must be examined on the
basis not only of the wording of transitional section 17 of the Higher-Education
Act (Law no. 2547), but also of the case-law. From that standpoint, the
question of the foreseeability of the “law” concerned
does not give rise to any problem, as the Constitutional Court’s judgment makes
it clear that authorising students to “cover the neck
and hair with a veil or headscarf for reasons of religious conviction” in the
universities was contrary to the Constitution (see paragraph 38 above). That judgment of the Constitutional Court, which was both
binding (see paragraph 52 above) and
accessible, as it had been published in the Official Gazette of 31 July 1991
(see paragraph 38 above), supplemented the letter of transitional section 17
and followed the Constitutional Court’s own previous case-law (see paragraph 36
above). In addition, the 79. As to the manner in which the 80. As regards the lack of a uniform practice in the
Universities of Bursa and 81. In these circumstances, the Court finds that
there was a basis for the interference in Turkish law. The law was also
accessible and sufficiently precise in its terms to satisfy the requirement of foreseeability. It would have been clear to the applicant,
from the moment she entered the 82. The Government submitted that the interference
pursued a number of legitimate aims: maintaining public order in the
universities, upholding the principle of secularism and protecting the rights
and freedoms of others. 83. The applicant accepted that, in view of the
importance of upholding the principle of secularism and ensuring the neutrality
of universities in 84. Having regard to the circumstances of the case
and the terms of the domestic courts’ decisions, the Court finds that the
impugned measure primarily pursued the legitimate aims of protecting the rights
and freedoms of others and of protecting public order. 1. Submissions of the parties (a) The applicant 85. The applicant submitted that the interference
with her right to freedom to manifest her religion was extremely serious in
view of its purpose, nature and scope, and that particularly strong reasons
were required to justify it. She explained that she was a practising
Muslim and wore the Islamic headscarf because of her religious belief that
Muslim women were required to cover their heads and necks. She had not
expressed any opinion on or made any statement or protest against the
Constitutional principles of the 86. Furthermore, referring to the four years she had
spent studying at the 87. The applicant affirmed that the vast majority of
Turkish people – who were deeply attached to the principle of secularism – were
opposed to theocracy, but not to the Islamic headscarf. To her mind, the ban on
the headscarf was not intended to preserve the neutral, secular nature of
teaching institutions. The Islamic headscarf did not challenge republican
values or the rights of others and could not be regarded as inherently
incompatible with the principles of secularism and of neutrality in education.
Those two principles could not be construed as requiring a ban on all religious
signs in educational institutions. Various examples of this were to be found in
the practices of European countries. 88. In the applicant’s submission, when there was a
risk of tensions coming to the surface in society – as was inevitable in a
pluralist society – the authorities’ role in such circumstances was not to
eliminate the cause of the tensions by doing away with pluralism, but to ensure
that the competing groups were tolerant of each other. She complained, in that
connection, of a discriminatory practice towards Muslim women, pointing out
that the right not to be discriminated against in the enjoyment of the rights
guaranteed by the Convention was also violated when States failed without an
objective and reasonable justification to treat differently persons whose
situations were significantly different (Thlimmenos
v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). In her view,
Muslim students were in a different position from other students and
consequently had to be treated differently. She added that the restriction on
wearing religious symbols was not applied uniformly. The Government had not
produced any evidence to suggest that non-Muslim students had been subjected to
disciplinary proceedings. Furthermore, students of the Jewish faith were not prohibited
from wearing the skullcap or Christian students the crucifix. To her mind, the
letter of 1 April 2002 in which the Higher-Education Authority had invited
the university authorities to agree to a request by students of the Jewish
faith to be excused lessons during Jewish religious holidays (see
paragraph 44 above) provided a concrete
example of the discriminatory manner in which the university authorities were
prone to act. 89. The applicant argued that it followed from the
foregoing that the measure in issue did not meet a pressing social need and was
not necessary in a democratic society. (b) The Government 90. The Government began by observing that freedom to
manifest one’s religion was not an absolute right. When examining individual
cases, the domestic and supranational courts always took into account the
secular nature of the State concerned, the nature of the religious practice and
the measures that had been taken with a view to preserving the neutrality of
public services. 91. The Government said that the principle of
secularism was a preliminary requisite for a liberal, pluralist democracy and
that there were factors peculiar to 92. Turning to the applicant’s argument that the
Koran imposed a duty to wear the Islamic headscarf, the Government argued,
firstly, that religious duty and freedom were two different concepts that were
not easily reconciled. The former notion required, by definition, submission to
divine, immutable laws, while the notion of freedom presupposed that the
individual enjoyed the widest possible range of opportunities and choices. As
to the headscarf, the form it took for Muslim women varied according to the
country and regime. The bandanna, which left the hair partly visible, was worn
by modern women at funerals or by women in rural areas. The burka
(full veil covering the entire body and the face) worn by Afghan women was an
obligation imposed by the Taliban when in power, in accordance with their
interpretation of Islam. The chador or abaya (a black
veil which covered the entire body from head to ankles) was also worn in Arabic
countries and 93. The Government also pointed out that there was no
ban on wearing the Islamic headscarf on private or communal premises. Pupils
were free to wear it outside schools. However, in the sphere of State
education, which was regarded as a public service, the principle of secularism,
of which the principle of neutrality formed an integral part, applied. The
situation in 94. In the Government’s submission, the request for
judicial recognition of the right to wear the Islamic headscarf in public
institutions was tantamount to claiming a privilege for a religion that would
entail in its wake a plurality of legal statuses, a situation that was regarded
by the Court as being contrary to the Convention (Refah Partisi and Others, cited
above § 119). In that connection, they stressed that the provisions of the
Sharia concerning, among other matters, criminal law,
torture as punishment for crime, and the status of women were wholly
incompatible with the principle of secularism and the Convention. 95. As for the applicant, the Government noted that
she had chosen to pursue her medical studies; medicine was a sphere in which a
conservative religious approach would undoubtedly be incompatible with hygiene
requirements and would result in discriminatory conduct towards patients of the
male sex. 96. At the hearing on 19 November 2002, the
Government indicated that the 2. The Court’s assessment (a) The relevant principles 97. In democratic societies, in which several
religions coexist within one and the same population, it may be necessary to
place restrictions on freedom to manifest one’s religion or belief in order to
reconcile the interests of the various groups and ensure that everyone’s
beliefs are respected (Kokkinakis, cited above, p. 18, § 33). 98. The Court notes that, in the decisions of Karaduman v. Turkey (no. 16278/90, Commission
decision of 3 May 1993, DR 74, p. 93) and Dahlab
v. Switzerland (no. 42393/98, ECHR 2001-V), the Convention institutions
found that in a democratic society the State was entitled to place restrictions
on the wearing of the Islamic headscarf if it was incompatible with the pursued
aim of protecting the rights and freedoms of others, public order and public
safety. In the Dahlab case cited above, in
which the applicant was a schoolteacher in charge of a class of small children,
it stressed among other matters the impact that the “powerful external symbol”
conveyed by her wearing a headscarf could have and questioned whether it might
have some kind of proselytising effect, seeing that
it appeared to be imposed on women by a precept laid down in the Koran that was
hard to reconcile with the principle of gender equality. 99. Likewise, the Court has also previously stated
that the principle of secularism in Turkey is undoubtedly one of the
fundamental principles of the State, which are in harmony with the rule of law
and respect for human rights (Refah Partisi and
Others, cited above, § 93). In a country like Turkey, where the
great majority of the population belong to a particular religion, measures
taken in universities to prevent certain fundamentalist religious movements
from exerting pressure on students who do not practise
that religion or on those who belong to another religion may be justified under
Article 9 § 2 of the Convention. In that context, secular universities may
regulate manifestation of the rites and symbols of the said religion by
imposing restrictions as to the place and manner of such manifestation with the
aim of ensuring peaceful co-existence between students of various faiths and
thus protecting public order and the beliefs of others (Refah Partisi and
Others, cited above, § 95). 100. The Court observes at the same time that the
role of the Convention machinery is essentially subsidiary. As is well
established by its case-law, the national authorities are in principle better
placed than an international court to evaluate local needs and conditions (see,
among other authorities, Handyside v. the
United Kingdom, judgment of 7 December 1976, Series A no. 24, §
48). It is for the national authorities to make the initial assessment of the
“necessity” for an interference, as regards both the
legislative framework and the particular measure of implementation. Although a
margin of appreciation is thereby left to the national authorities, their
decision remains subject to review by the Court for conformity with the
requirements of the Convention (see, mutatis mutandis, Hatton and
Others v. the United Kingdom [GC], no. 36022/97, § 101, ECHR
2003-VIII). 101. In determining the scope of the margin of
appreciation left to the States, regard must be had to the importance of the
right guaranteed by the Convention, the nature of the restricted activities and
the aim of the restrictions (see, mutatis mutandis, Hatton and
Others, cited above, § 101; and Buckley v. the United Kingdom
judgment of 25 September 1996, Reports 1996-IV, p. 1292, § 76). Where
questions concerning the relationship between State and religions are at stake,
on which opinion in a democratic society may reasonably differ widely, the role
of the national decision-making body must be given special importance (see, mutatis
mutandis, Cha’are Shalom Ve Tsedek, cited above, § 84;
and Wingrove v. the United Kingdom judgment of 25 November 1996, Reports
1996-V, p. 1958, § 58). In such cases, it is necessary to have regard
to the fair balance that must be struck between the various interests at stake:
the rights and freedoms of others, avoiding civil unrest, the demands of public
order and pluralism (see, mutatis mutandis, Kokkinakis, cited
above, § 31; Manoussakis and Others v. Greece judgment of 26
September 1996, Reports 1996-IV, p. 1364, § 44; and Casado
Coca, cited above, § 55). 102. A margin of appreciation is particularly
appropriate when it comes to the regulation by the Contracting States of the
wearing of religious symbols in teaching institutions, since rules on the
subject vary from one country to another depending on national traditions (see
paragraphs 53-57 above) and there is no uniform European conception of the
requirements of “the protection of the rights of others” and of “public order”
(Wingrove, cited above, § 58; and Casado
Coca, cited above, § 55). It should be noted in this connection that the
very nature of education makes regulatory powers necessary (see, mutatis
mutandis, Kjeldsen, Busk
Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A
no. 23, p. 26, § 53, X v. the United Kingdom, no.
8160/78, Commission decision of 12 March 1981, DR 22, p. 27; and 40
mothers v. Sweden, no. 6853/74, Commission decision of 9 March 1977, DR 9,
p. 27). That, of course, does not exclude European supervision, especially as
such regulations must never entail a breach of the principle of pluralism,
conflict with other rights enshrined in the Convention, or entirely negate the
freedom to manifest one’s religion or belief (see, mutatis mutandis, Case
relating to certain aspects of the laws on the use of languages in education in
Belgium v. Belgium judgment of 23 July 1968, Series A no. 6, p. 32, §
5; and Yanasik v. Turkey,
no. 14524/89, Commission decision of 6 January 1993, DR 74, p. 14). (b) Application of the
foregoing principles to the present case 103. In order to assess the “necessity” of the
interference caused by the circular of 23 February 1998 imposing restrictions
as to place and manner on the rights of students such as Ms Sahin
to wear the Islamic headscarf on university premises, the Court must put the
circular in its legal and social context and examine it in the light of the
circumstances of the case. Regard being had to the principles applicable in the
instant case, the Court’s task is confined to determining whether the reasons given for
the interference were relevant and sufficient and the measures taken at the
national level proportionate[WCD1] to the aims pursued. 104. It must first be observed that the interference
was based, in particular, on two principles – secularism and equality – which
reinforce and complement each other (see paragraphs 34 and 36 above). 105. In its judgment of 7 March 1989, the
Constitutional Court stated that secularism in Turkey was, among other things,
the guarantor of democratic values, the principle that freedom of religion is
inviolable – to the extent that it stems from individual conscience – and the principle
that citizens are equal before the law (see paragraph 36 above). Secularism
also protected the individual from external pressure. It added that
restrictions could be placed on freedom to manifest one’s religion in order to
defend those values and principles. 106. This notion of secularism appears to the Court
to be consistent with the values underpinning the Convention and it accepts
that upholding that principle may be regarded as necessary for the protection
of the democratic system in 107. The Court further notes the emphasis placed in
the Turkish constitutional system on the protection of the rights of women (see
paragraph 28 above). Gender equality – recognised
by the European Court as one of the key principles underlying the Convention
and a goal to be achieved by member States of the Council of Europe (see, among
other authorities, Abdulaziz, Cabales and Balkandali
v. United-Kingdom, judgment of 28 May 1985, Series A no. 77, p. 38, §
78; Schuler-Zgraggen v. Switzerland,
judgment of 24 June 1993, Series A no. 263, pp. 21–22, § 67; Burgharz v. Switzerland, judgment of 22
February 1994, Series A no. 280-B, p. 29, § 27; Van Raalte v. Netherlands, judgment of 21 February
1997, Reports 1997-I, p. 186, § 39, in fine; and Petrovic v. Austria judgment of 27 March 1998, Reports
1998-II, p. 587, § 37) – was also found by the Turkish Constitutional Court
to be a principle implicit in the values underlying the Constitution (see
paragraph 36 above). 108. In addition, like the Constitutional Court (see
paragraph 36 above), the Court considers that, when examining the question of
the Islamic headscarf in the Turkish context, there must be borne in mind the
impact which wearing such a symbol, which is presented or perceived as a
compulsory religious duty, may have on those who choose not to wear it. As has
already been noted (see Karaduman, decision
cited above; and Refah Partisi and Others, cited above, § 95), the
issues at stake include the protection of the “rights and freedoms of others”
and the “maintenance of public order” in a country in which the majority of the
population, while professing a strong attachment to the rights of women and a
secular way of life, adhere to the Islamic faith. Imposing limitations on
freedom in this sphere may, therefore, be regarded as meeting a pressing social
need by seeking to achieve those two legitimate aims, especially since, as the
Turkish courts stated (see paragraphs 32 and 34 above),
this religious symbol has taken on political significance in 109. The Court does not lose sight of the fact that
there are extremist political movements in 110. Having regard to the above background, it is the
principle of secularism, as elucidated by the Constitutional Court (see
paragraph 36 above), which is the paramount consideration underlying the
ban on the wearing of religious insignia in universities. It is understandable
in such a context where the values of pluralism, respect for the rights of
others and, in particular, equality before the law of men and women, are being
taught and applied in practice, that the relevant authorities would consider
that it ran counter to the furtherance of such values to accept the wearing of
religious insignia, including as in the present case, that women students cover
their heads with a headscarf while on university premises. 111. The applicant has been critical of the manner in
which the university authorities applied the measures (see paragraphs 86-88
above). However, the Court notes that it is undisputed that in Turkish
universities, to the extent that they do not overstep the limits imposed by the
organisational requirements of State education, practising Muslim students are free to perform the
religious duties that are habitually part of Muslim observance. In addition,
the resolution which was adopted by 112. As stated above (see paragraph 78), it is quite
clear that the Turkish courts considered the Islamic headscarf to be
incompatible with the Constitution and that regulations on wearing headscarves
on university premises had existed for a number of years (see paragraphs 33, 34
and 42 above). That being so, the fact that some
universities may not have applied the rules rigorously – depending on the
context and the special features of individual courses – does not mean that the
rules were unjustified. Nor does it mean that the university authorities
waived their right to exercise the regulatory power they derived from statute,
the rules governing the functioning of universities and the needs of individual
courses. Likewise, whatever a university’s policy on the wearing of religious
symbols, its regulations and the individual measures taken to implement them
are amenable to judicial review in the administrative courts (see
paragraph 51 above). 113. Moreover, there had already been a lengthy
debate on whether students could wear the Islamic headscarf by the time the
circular was issued on 23 February 1998 (see paragraphs 31 and 33-38 above).
When the issue surfaced at 114. In the light of the foregoing and having regard
in particular to the margin of appreciation left to the Contracting States, the
Court finds that the University of Istanbul’s regulations imposing restrictions
on the wearing of Islamic headscarves and the measures taken to implement them
were justified in principle and proportionate to the aims pursued and,
therefore, could be regarded as “necessary in a democratic society”. 115. Consequently, there has been no breach of
Article 9 of the Convention. 116. The applicant alleged that the ban on wearing
the Islamic headscarf in higher-education institutions had infringed her right
under Article 2 of Protocol No. 1 to the Convention. She also said that it obliged students to choose between
religion and education and discriminated between believers and non-believers.
That, in her view, constituted an unjustified interference with her rights
guaranteed by Article 14 of the Convention, taken together with Article 9. Lastly, she complained of a violation of Articles 8 and 10 of
the Convention. 117. The Court finds that no separate question arises
under the other provisions relied on by the applicant, as the relevant
circumstances are the same as those it examined in relation to Article 9, in
respect of which the Court has found no violation. 1. Dismisses
the Government’s preliminary objection; 2. Holds
that there has been no violation of Article 9 of the Convention; 3. Holds that no separate question arises under Articles 8
and 10, Article 14 taken together with Article 9 of the Convention, and Article
2 of Protocol No. 1. Done in French and English, the French text being authentic, and
notified in writing on 29 June 2004, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court. |
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