CEDH · CASELAW;CLIN;ENG — 29 juin 2004

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Turkey - 44774/98 Judgment 29.6.2004 [Section IV] Article 9 Article 9-1 Manifest religion or belief Prohibition on wearing of Muslim headscarf in a university: no violation Facts: On 23 February 1998 the Vice-Chancellor of the University of Istanbul issued a circular directing that students wearing the Islamic headscarf would be refused admission to lectures, courses and tutorials. The applicant, who wore an Islamic headscarf, was a student at the faculty of medicine of the university at the material time. On 12 March 1998 she was denied access to a written examination for wearing the Islamic headscarf. On 20 March 1998 the university authorities refused to enrol her on a course, on 16 April 1998 she was denied access to a lecture and on 10 June 1998 to another written examination, all for the same reason. The applicant applied for an order setting the circular aside, but her application was dismissed by the administrative courts. They ruled that, under the relevant legislation and in accordance with decisions of the Constitutional Court and the Supreme Administrative Court, the University Vice-Chancellor had power to regulate students’ dress in order to maintain order. Under the settled case-law of those courts, neither the regulation, nor the individual measures, were illegal. Law: Article 9 – The circular issued by the University of Istanbul on 23 February 1998, which placed restrictions of place and manner on the right to wear the Islamic headscarf, constituted an interference with the applicant’s right to manifest her religion. The circular had been issued pursuant to statutory powers, as supplemented by a 1991 judgment of the Constitutional Court in which it followed its own previous case-law. In addition, the Supreme Administrative Court had for many years prior to that taken the view that the Islamic headscarf was not compatible with the fundamental principles of the Republic. As to the manner in which the university had applied the relevant provision, regulations on wearing the Islamic headscarf had existed well before the applicant had enrolled at the university. Accordingly, there was a basis in Turkish law for the interference and the law was accessible and foreseeable. It would have been clear to the applicant, from the moment she entered the university, that there were regulations on wearing the Islamic headscarf and, from 23   February 1998, that she was liable to be refused access to lectures if she continued to do so. The interference pursued the legitimate aims of protecting the rights and freedoms of others and protecting public order. It was the principle of secularism, as interpreted by the Turkish Constitutional Court, which was the paramount consideration underlying the ban on the wearing of religious insignia in universities. That notion of secularism appeared to the Court to be consistent with the values underpinning the Convention and upholding that principle could be regarded as necessary for the protection of the democratic system in Turkey. It was understandable in the context of Turkish society, 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, 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 case before it, that women students covered their heads with a headscarf while on university premises. In Turkish universities, to the extent that they did not overstep the limits imposed by the organisational requirements of State education, practising Muslim students were free to perform the religious duties that were habitually part of Muslim observance. The University of Istanbul treated all forms of dress symbolising or manifesting a religion or faith on an equal footing. Rather than barring students wearing the Islamic headscarf access to the university, the university authorities had sought throughout the decision-making process to adapt to the evolving situation 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 in particular to the margin of appreciation left to the Contracting States, the Court found that the University of Istanbul’s regulations 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”. Conclusion: no violation (unanimously). The Court found that no separate question arose under Articles 8 and 10, Article 14 taken together with Article 9, or Article 2 of Protocol No. 1. [N.B.: An application arising out of the ban on wearing the Islamic headscarf for clinical training at a nursing college was struck out of the Court’s list on 29 June 2004 after it was withdrawn by the applicant (see Zeynep Tekin v. Turkey , no. 41556/98). See Case-Law Information Note no. 44 of July 2002 for the summary.]   © 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