CEDH · CASELAW;CLIN;ENG — 10 novembre 2005

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Turkey [GC] - 44774/98 Judgment 10.11.2005 [GC] Article 9 Article 9-1 Manifest religion or belief Prohibition for a student to wear the islamic headscarf at university: no violation Article 2 of Protocol No. 1 Right to education Prohibition for a student to wear the islamic headscarf at university: no violation Facts : On 23 February 1998 the Vice-Chancellor of Istanbul University issued a circular directing that students wearing the Islamic headscarf would be refused admission to lectures, courses and tutorials. At the material time the applicant was a student at the faculty of medicine of the university. In March 1998 she was refused access to a written examination on one of the subjects she was studying because she was wearing the Islamic headscarf. Subsequently, on the same grounds, the university authorities refused to enrol her on a course, and to admit her to various lectures and a written examination. The faculty also issued her with a warning for contravening the university’s rules on dress and suspended her from the university for a semester for taking part in an unauthorised assembly that had gathered to protest against the rules. All the disciplinary penalties imposed on the applicant were revoked under an amnesty law. The applicant lodged an application for an order setting aside the circular, but it was dismissed by the administrative courts, who found that that a university vice-chancellor had power to regulate students’ dress for the purposes of maintaining order by virtue of the legislation and decisions of the Constitutional Court and the Supreme Administrative Court, and that the regulations and measures criticised by the applicant were not, under the settled case-law of those courts, illegal. Law : Article 9 – The circular issued on 23 February 1998 by Istanbul University, which placed restrictions of place and manner on the students’ right to wear the Islamic headscarf, constituted an interference with the applicant’s right to manifest her religion. As to whether the interference had been “prescribed by law”, the Court noted that the circular had a statutory basis which was supplemented by a 1991 decision in which the Constitutional Court had followed its previous case-law. In addition, the Supreme Administrative Court had by then consistently held for a number of years that wearing the Islamic headscarf at university was not compatible with the fundamental principles of the Republic. Furthermore, regulations on wearing the Islamic headscarf had existed at Istanbul University since 1994 at the latest, well before the applicant had enrolled there. Accordingly, there was a legal basis for the interference in Turkish law, the law was accessible and its effects foreseeable so that the applicant would have been aware, from the moment she entered the university, that there were restrictions on wearing the Islamic headscarf and, from 23 February 1998, that she was liable to be refused access to lectures and examinations if she continued to wear the headscarf. The interference pursued the legitimate aims of protecting the rights and freedoms of others and of protecting public order. As to whether the interference was necessary, the Court noted that it was based in particular on the principle of secularism, which prevented the State from manifesting a preference for a particular religion or belief and whose defence could entail restrictions on freedom of religion. That notion of secularism was consistent with the values underpinning the Convention and upholding that principle could be considered necessary to protect the democratic system in Turkey. In the Turkish context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women were being taught and applied in practice, it was understandable that the relevant authorities should consider it contrary to such values to allow religious attire to be worn on university premises. As regards the conduct of the university authorities, the Court noted that it was common ground that practising Muslim students in Turkish universities were free, within the limits imposed by educational organisational constraints, to manifest their religion in accordance with habitual forms of Muslim observance. In addition, various forms of religious attire were forbidden at Istanbul University. Further, throughout the decision-making process, the university authorities had sought to avoid barring access to the university to students wearing the Islamic headscarf, through continued dialogue with those concerned, while at the same time ensuring that order was maintained on the premises. In those circumstances, and having regard to the Contracting States’ margin of appreciation, the Court found that the interference in issue was justified in principle and proportionate to the aims pursued, and could therefore be considered to have been “necessary in a democratic society”. Conclusion : no violation (sixteen votes to one). Article 2 of Protocol No. 1: On the question of the applicability of the provision, the Court reiterated that while the first sentence essentially established access to primary and secondary education, it would be hard to imagine that institutions of higher education existing at a given time did not come within its scope. Nevertheless, in a democratic society, the right to education, which was indispensable to the furtherance of human rights, played such a fundamental role that a restrictive interpretation of the first sentence of Article 2 would not be consistent with the aim or purpose of that provision. Consequently, any institutions of higher education existing at a given time came within the scope of the first sentence of Article 2 of Protocol No. 1, since the right of access to such institutions was an inherent part of the right set out in that provision. In the case before it, by analogy with its reasoning under Article 9, the Court accepted that the regulations on the basis of which the applicant had been refused access to various lectures and examinations for wearing the Islamic headscarf constituted a restriction on her right to education. As with Article 9, the restriction was foreseeable to those concerned and pursued legitimate aims and the means used were proportionate. The decision-making process had clearly entailed the weighing up of the various interests at stake and was accompanied by safeguards (the rule requiring conformity with statute and judicial review) that were apt to protect the students’ interests. Further, the applicant could reasonably have foreseen that she ran the risk of being refused access to lectures and examinations if she continued to wear the Islamic headscarf. Accordingly, the ban on wearing the Islamic headscarf had not impaired the very essence of the applicant’s right to education. Conclusion : no violation (sixteen votes to one). Articles   8, 10 and 14 – The regulations on the Islamic headscarf were not directed against the applicant’s religious affiliation, but pursued the legitimate aim of protecting order and the rights and freedoms of others and were manifestly intended to preserve the secular nature of educational institutions. Conclusion : no violation (unanimously)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes