Case: Leyla Şahin v. Turkey

Learning about Freedom of religion

ECHR Article(s): Art. 9 "Freedom of religion"

in relation to:

Art. 8 "Right to respect for private and family life"

Art. 10 "Freedom of expression"

Art. 14 "Non-discrimination clause"

in conjunction with
Art. 2 of Protocol No. 1 "Right to education"

Project group:

Sunčica Brnardić: Faculty of Law, University of Zagreb, Croatia

Slavica Mihalić: Faculty of Humanities and Social Sciences, University of Zagreb, Croatia

A Landmark decision

A.0 Rationale: why this Article? Why this judgment??

For many years, different societies have tried to resolve the paradox that, even though our religious precepts are regarded as ultimately falling into the realm of personal, if not intimate, the question of religion still appears to be one of the important, even defining political questions. This has often resulted in intolerance and suppression of those in power towards different religious standings and groups. The problem gains a whole new level of complexity if we are able to understand just how deep of an impact religious convictions have on lives of those who choose to practice them. Limitations to freedom of manifesting one's religion endanger a whole other set of values: privacy, family life, expression of identity etc.
Thus today we value freedom of religion deeply, and it should remain so. Not only that the state is to refrain from any action that would consist an interference with an individual's right to religious freedoms; this notion of freedom - which also encompasses the freedom not to hold religious beliefs and not to practice a religion - has become an important asset of pluralism, a virtue indissociable from democratic societies. However, it should also be noted that all of these beliefs and practices undoubtedly have a strong presence in a life of a society, and that in some cases, this influence may also reflect negatively on the enjoyment of rights and freedoms of others and maintenance of certain public interests within the state competence.
This particular judgement in the Leyla Şahin case examines when is it legitimate to restrict one from manifesting their religion and what are the legal methods to tackle this issue. A number of interesting questions are risen in relation to how we regard religion and religious freedoms in contemporary multicultural Europe, and what kind of roles should state and education play when this matters are concerned.
Another notion that certainly deserves our attention is the importance of context when considering possible human rights violations on an international level, especially when materialized in constitutional traditions. The outcome of this case depended heavily on compelling arguments the Turkish State has made in elaborating the significance of protecting values behind their constitutional order in terms of historical experience and current state of affairs within the Turkish society.

A.1 Background and facts

A.1.1 Applicants

Ms Leyla Şahin is a Turkish national who was born in 1973 and has lived in Vienna since 1999. She comes from a traditional family of practising Muslims and considers it her religious duty to wear the Islamic headscarf.

A.1.2 Case summary

Leyla Şahin enrolled to Istanbul University in 1998, as a fifth year medical student. Prior to that, she spent four years studying at the University of Bursa in Turkey, during which time she had reportedly been wearing an Islamic headscarf, and thus continued to do so upon transferring to the other academic institution.

In February 1998 the Vice-Chancellor of Istanbul University issued a notice providing that students whose "heads are covered", along with students with beards, must not be admitted to lectures, courses or tutorials. The notice also stated that, in the case these students refuse to leave the lecture after being asked so, they shall be subject to disciplinary measures.

In accordance to this, within the course of the following three months, Ms Şahin was denied access to two written examinations and refused admission to a lecture - as well as enrollment to a course- in various subjects. In view of the fact that her actions have clearly shown 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, and therefore issued her with a warning.

In February 1999 an unauthorised assembly to protest the issue of dress took place outside the deanery of the Faculty of Medicine, which Leyla Şahin has joined. Subsequently, disciplinary proceedings were brought against many students including herself, and after the hearing representations, she was suspended from the university for a semester pursuant.

Şahin addressed the Turkish courts in two occasions.

Briefly after she was denied access to lectures and examinations, she lodged an application to the Istanbul Administrative Court for an order setting aside the aforementioned notice, submitting that its application had infringed her rights to manifest her religion. The Court dismissed it holding that, with regards to the Turkish Higher Education Act and settled case law of the higher courts, the Vice-Chancellor, as the executive organ of the university:

·  had the power to regulate students’ dress for the purposes of maintaining order, and

·  that this power had to be exercised accordingly.

In 2001 the appeal was dismissed by Supreme Administrative Court, the highest court of this type in the country.

Second application was lodged with the same court for an order quashing the decision to suspend her. It was also dismissed on the ground that, in the light of settled case-law on the subject, the impugned measure could not be regarded as illegal.

Therefore, neither the regulations at issue nor the measures taken could have been considered illegal.

In 2000 a law has entered into force which provided for students to be given an amnesty in respect of penalties imposed for disciplinary offences and for any resulting disability to be annulled; and Leyla Şahin was granted one releasing her from all legal consequences of her acts. Therefore, the Supreme Administrative Court held it became unnecessary to examine the merits of the applicant’s appeal on points of law in the latter judgment, because she was now allowed to return to Istanbul University.

In the meantime, however, Şahin had already abandoned her studies in Turkey and enrolled at Vienna University starting from 1999, where she pursued her university education onwards.

A.1.3 KEy questions before the court

Leyla Şahin submitted that the ban on wearing the Islamic headscarf in institutions of higher education constituted an unjustified interference with her right to freedom of religion, in particular, her right to manifest her religion.

She relied on Article 9 of the Convention, which provides:

Thus, the Court had to consider:

firstly, whether the applicant’s right under Article 9 was interfered with at all, and, if so,

whether this particular interference was:

1)“prescribed by law”

2) pursuing a legitimate aim and

3) “necessary in a democratic society.”

The Court was also to examine whether the measure infringed the applicant’s right to education, private and family life, freedom of expression or if it had been discriminatory in nature. (Art 2 of Protocol No.1, Arts. 8,10, 14).

A.2 Court response to the questions asked

The Court emphasized that freedom of religion is considered to be one of the pillars of a democratic society. Apart from freedom to change a religion or belief, it also involves the freedom to manifest it; the latter being the case here. However, the implied freedom to manifest one’s religion can not be understood as an absolute right. Article 9 does not protect every act motivated or inspired by a religion or belief. In fact, in societies in which several religions coexist within one and the same population, it may be necessary to place restrictions in order to promote tolerance and to ensure that everyone’s beliefs are respected, as well as other rights and freedoms set forth in the Convention.

Significance of religion in society and the meaning and impact of the public expression of a religious belief differ according to time and community regarded. Hence, when it comes to regulating the wearing of religious symbols in educational institutions, the choice of the extent and form of such regulations must be left up to a point of the state concerned, as it will depend strongly on the specific domestic context. This margin of appreciation, of course, goes hand in hand with a European supervision.

Within this framework, the Court responded to the questions posed as follows:

1.  Whether there was interference

The Court has come to knowledge that the applicant's decision to wear the headscarf may be regarded as motivated or inspired by a religion or belief, and proceeded on the assumption that the regulations at issue, constituted an interference with the applicant's right to manifest her religion.

2.  “Prescribed by law”

The expression ''prescribed by law", bears the rationale that, in the event of placing limitations on guaranteed freedoms, it should be ensured that:

·  the impugned measure isn't arbitrary, but has a basis in domestic law, and

·  that the law is accessible to the persons concerned and sufficiently clear and precise to enable them to foresee the possible consequences of their actions, and to regulate their conduct accordingly;

According to Ms Şahin, the notice issued by the Vice-Chancellor of Istanbul University was not compatible with the Turkish Higher Education law stating that the choice of dress shall be free in institutions of higher education, as long as it does not contravene the laws in force.

The Court, however, referred to its understanding of the term ''law'' in its substantive sense, including both written law and case-law. In sum, the ''law'' is the provision in force as interpreted by the competent court, and it is primarily the national courts that interpret the national law. Consequently, the question must be examined on the basis not only of the wording of the quoted section, but also of the relevant court decisions.

The Court established that two of the highest Turkish courts have respectively previously observed, and held for many years that hair covered on religious grounds in universities was contrary to the Constitution, and incompatible with the fundamental principles of the Republic.

Even though the Court acknowledged that there indeed was no clear and precise provision in written law concerning internal university rules, it was found that the decisions of the courts were available to the applicant, as they are generally binding on everyone. Moreover, it was proven that the regulations on wearing the Islamic headscarf at Istanbul University existed since 1994, well before the applicant enrolled there.

In these circumstances, the Court found that there was a legal basis for the interference in Turkish law, read in the light of the relevant case-law of the domestic courts. It also should have been clear to the applicant, from the moment she entered Istanbul University, that there were restrictions on wearing the Islamic headscarf on the university premises and, from February 1998, that she was liable to be refused access to lectures and examinations if she continued to do so.

3.  Legitimate aim

The Court accepted that the impugned interference primarily pursued the legitimate aims of protecting the rights and freedoms of others and of protecting public order, a point which was not in issue between the parties.

According to the Turkish courts, the interference caused by the notice was based in particular on two principles: secularism and equality.

It was affirmed by the Court that secularism undisputedly is one of the fundamental principles of the Turkish State, in harmony with the rule of law and respect for human rights. The principle prevents the State from manifesting a preference for a particular religion or belief; it thereby defines the role of the State as an impartial arbiter, which necessarily causes entailment of freedom of religion and conscience. It also serves to protect from pressures from extremist movements which seek to impose their religious symbols and percepts on society as a whole.

The Court also took note of the emphasis on the protection of the rights of women in the Turkish constitutional system. Gender equality - recognized by the Court as one of the key principles underlying the Convention - was also found to be an important value of the Turkish Constitution. The primary consideration was the impact which wearing such a symbol presented or perceived as a compulsory religious duty may have on those who choose not to wear it in a country in which the majority of population adheres to Islamic faith. Furthermore, the Turkish courts have also stated that this religious symbol has taken on political significance in Turkey in recent years.

By standing of the Turkish Constitutional Court, a freedom to manifest one’s religion could be restricted in order to defend those principles. The European Court of Human Rights considered this notion to be compatible with the values underpinning the Convention, and held that upholding these principles therefore, may be regarded as necessary for achieving the two legitimate aims of protecting the rights and freedoms of others and protecting public order.

In the context of university, where the values of pluralism, respect for the rights of others and, in particular, equality of men and women are being taught and applied in practice, the Court held it acceptable that the relevant authorities should wish to preserve the secular nature of the institution and so consider it contrary to such values to allow religious attire, including, as in this case, the Islamic headscarf, to be worn.

4.  “Necessary in a democratic society”

The Court established that there was a reasonable relationship of proportionality between the means employed and the legitimate objectives pursued by the interference.

Apparently the regulations on wearing headscarves were implemented in the course of several years and the entire process was accompanied by a wide debate within Turkish society and the teaching profession. The result taking place solely imposed an obligation to comply with specific constraints of an educational institution; it did not forbid the practicing Muslim students to manifest their religion in accordance with other habitual forms of Muslim observance. In addition, shortly after the notice, a resolution was adopted forbidding various other forms of religious attire on the university premises.