LEYLA ŞAHIN VS TURKEY

INTRODUCTION

The applicant Ms Leyla Şahin alleged her rights and freedoms had been violated by the Turkish regulations on wearing the Islamic headscarf in institutions of higher education.

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

ART. 8 Right to respect for private and family life

ART. 9 Freedom of thought, conscience and religion

ART. 10 Freedom of expression

ART. 14 Prohibition of discrimination

ART. 2 PROTOCOL 1 Right to education

THE FACTS

August 1997 - enrollment at the Istanbul University

February 1998 - the Vice-Chancellor’s circular

March and June 1998 - denied access to examination

April 1998 - refused admission to a lecture application to set aside the circular because it had infringed her rights and the Vice-Chancellor’s Office had no power in that sphere.

March 1999 - Istanbul Administrative Court dismissed the application

THE FACTS

May 1998 - disciplinary proceedings warning

February 1999 - an unauthorized assembly gathered to protest against the rules on dress disciplinary proceedings

April 1999 - applicant suspended for one semester

THE FACTS

June 1999 - application with the Istanbul Administrative Court to set aside the decision to suspend her dismissed

2000 - entry into force of Law no.4584 - amnesty in respect of penalties imposed for disciplinary offences applicant released from suspension

September 1999 - applicant abandoned her studies in Turkey and enrolled at Vienna University

ISTANBUL ADMINISTRATIVE COURT

JUDGMENT

Art. 13 Constitution- University authorities may not place restrictions on fundamental rights without basis in law

Art. 130 Constitution- Universities have a degree of autonomy

Section 13 (b) of the Higher Education Act (Law.2545)- Vice-chancellor responsible to take necessary decisions and safety measures for the university functioning

Rules of dress in institutions of higher education- Circular 1982: Islamic headscarf banned in lecture theatres

ISTANBUL SUPREME ADMINISTRATIVE COURT

1999 Applicant lodged an application against suspension

Meanwhile in 2000: a new law entered into force - Granting amnesty to students imposed for disciplinary offences

Court dismissed application- New law made it unnecessary to examine the merits of the applicant

GENERAL PRINCIPLES OF TURKEY’S POSITION

Republic State

Secularism

Non-discrimination based on sex or religion

Equal rights of women

Plurality

THE CHAMBER JUDGMENT

Applicant’submission:• Interference with her right to freedom of

religion, to manifest religion• She relied on Art. 9 of the Convention

Court assessment:• There was interference• However there was no violation of Art. 9

because the interference was prescribed by law and measures taken were proportionate to the legitimate aims pursued

THE GRAND CHAMBER JUDGMENT

1. Violation of Article 9 of the Convention

2. Violation of Article 2 of Protocol No.1 (separate examination)

3.Violation of Articles 8, 10 and 14 of the Convention

THE GRAND CHAMBER JUDGMENT

1. Violation of Article 9

Whether there was interference

Applicant : There was interference with the right to manifest her

religion

Court assessment :

The Grand Chamber endorses the findings of the Chamber

“the regulations constitued an interference with the applicant’s right to manifest her religion”

THE GRAND CHAMBER JUDGMENT

1. Violation of Article 9Prescribed by law Applicant:

There had been no ‘written law’ to prohibit students from

wearing the Islamic headscarf at university The Vice Chancellor did not posses the power to refuse

students ‘wearing the headscarf’ access to university

The interference with her right had not been foreseeable and

was not based on a ‘law’ within the meaning of the Convention

THE GRAND CHAMBER JUDGMENT

1. Violation of Article 9Prescribed by law Court assessment: Regulations on wearing the Islamic headscarf existed at

Istanbul University since 1994 The Vice Chancellor was responsible for overseeing and

monitoring the administrative aspects of the functioning of the university

‘substantive’ meaning of law: includes both statutory law and judge-made law

There was a legal basis for the interference in the Turkish law, transitional section 17 of Law no. 2547

The law was accessible and foreseeable

THE GRAND CHAMBER JUDGMENT

1. Violation of Article 9Necessary in a democratic society Applicant:

A true democracy could only be based on pluralism and broadmindedness

The Convention Contracting States should not be given a wide margin of appreciation to regulate students’ dress.

The allegation that, by wearing the Islamic headscarf, she had shown a lack of respect for the convictions of others or sought to influence fellow students was wholly unfounded.

Court assessment: The restrictions in issue according to the Court are based on two

principles of secularism and equality granted in the Turkish Constitution

The disciplinary penalties are proportionate to the aims pursued.

THE GRAND CHAMBER JUDGMENT

2. Violation of Article 2 of Protocol no.1Applicant:

She alleged also that her right to education was violated

Court assessment: The complaint under Article 2 of Protocol no.1 can be

considered as separate from the complaint under Article 9 of the Convention.

The right to education is not absolute but may be subject to limitations. Contracting States enjoy a certain margin of appreciation in this sphere.

The right to education cannot be divorced from the conclusion reach in respect to Article 9

The restriction in question did not impair the very essence of the applicant’s right to education

THE GRAND CHAMBER JUDGMENT

3. Violations of Articles 8, 10 and 14 of the Convention

Applicant: The restrictions have also infringed her right to respect for her

private life and her right to freedom of expression and was discriminatory

Court assessment: No violations of Articles 8, 10 and 14 , being the

Applicant’s claims a mere reformulation of her complaint under Art. 9 and Art.2 of Protocol no.1.

THE GRAND CHAMBER JUDGMENT

Conclusions:

1. By sixteen votes to one, that there has been no violation of Article 9 of the Convention

2. By sixteen votes to one, that there has been no violation of the first sentence of Article 2 of Protocol no.1

3. Unanimously, that there has been no violation of Article 8, 10 and 14 of the Convention

DISSENTING OPINION OF JUDGE TULKENS

Judge Tulkens did not vote with the majority on the question of Art.9 or of Art. 2 of Protocol No.1

Main issue on which she disagrees: The interference with the applicant’s right to

manifest her religion was “necessary in a democratic society” (Art.9)

DISSENTING OPINION OF JUDGE TULKENS

Disagreement on the Violation of Art. 9 based on:

Margin of appreciation: Looking at comparative European law, none of the member States has the ban on wearing religious symbols extended to university education

Issue of the European Supervision

Principles: Secularism and Equality

DISSENTING OPINION OF JUDGE TULKENS

Disagreement on the Violation of Art.2 of Protocol n.1

The reasoning with regard to religious freedom is not clearly applicable to her right to education

The Applicant’s exclusion from lectures,

examinations and from the university itself, rendered her right to education ineffective and therefore, impaired the very essence of the right to education