Velo islamico - Caso Sahin
why it was not possible to give the lecture and shall bring the incident to the attention of the university authorities
as a matter of urgency so that disciplinary measures can be taken.”
17. 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 secretariat 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.
B. The application for an order setting aside the circular of 23 February 1998
18. 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
had 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 Vice-Chancellor’s Office
had no regulatory power in that sphere.
19. In a judgment of 19 March 1999, the Istanbul Administrative Court dismissed the
application, holding that by virtue of section 13(b) of the Higher-Education Act (Law no. 2547 –
see paragraph 52 below) a university vice chancellor, as the executive organ of the university, had
power to regulate students’ dress for the purposes of maintaining order. That regulatory power had
to be exercised in accordance with the relevant legislation and the judgments of the Constitutional
Court and the Supreme Administrative Court. Referring to the settled case-law of those courts, the
Administrative Court held that neither the regulations in issue, nor the measures taken against the
applicant, could be considered illegal.
20. On 19 April 2001 the Supreme Administrative Court dismissed an appeal on points of law
by the applicant.
C. The disciplinary measures taken against the applicant
21. In May 1998 disciplinary proceedings were brought against the applicant under Article 6(a)
of the Students Disciplinary Procedure Rules (see paragraph 50 below) as a result of her failure to
comply with the rules on dress.
22. 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.
23. On 15 February 1999 an unauthorised assembly gathered outside the deanery of the
Cerrahpaşa Faculty of Medicine to protest against the rules on dress.
24. On 26 February 1999 the dean of the faculty began disciplinary proceedings against various
students, including the applicant, for joining 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 50 below).
25. On 10 June 1999 the applicant lodged an application with the Istanbul Administrative Court
for an order quashing the decision to suspend her. The application was dismissed on 30 November
1999 by the Istanbul Administrative Court, on the ground that in the light of the material in the case
file and the settled case-law on the subject, the impugned measure could not be regarded as illegal.
26. Following the entry into force of Law no. 4584 on 28 June 2000 (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) the applicant was granted an amnesty releasing her from all
the penalties that had been imposed on her and the resultant disabilities.
27. On 28 September 2000 the Supreme Administrative Court held that Law no. 4584 made it
unnecessary to examine the merits of the applicant’s appeal on points of law against the judgment
of 30 November 1999.
28. In the meantime, on 16 September 1999, the applicant abandoned her studies in Turkey and
enrolled at Vienna University, where she pursued her university education.
II. RELEVANT LAW AND PRACTICE
A. The Constitution
29. The relevant provisions of the Constitution provide:
“The Republic of Turkey is a democratic, secular (laik) and social State based on the rule of law that is respectful
of human rights in a spirit of social peace, national solidarity and justice, adheres to the nationalism of Atatürk and
is underpinned by the fundamental principles set out in the Preamble.”
“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
“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.
Men and women shall have equal rights. The State shall take action to achieve such equality in practice.
No privileges shall be granted to any individual, family, group or class.
State bodies and administrative authorities shall act in compliance with the principle of equality before the law in
all circumstances...” Article 13
“Fundamental rights and freedoms may be restricted only by law and on the grounds set out in special provisions
of the Constitution, provided always that the essence of such rights and freedoms must remain intact. Any such
restriction shall not conflict with the letter or spirit of the Constitution or the requirements of a democratic, secular
social order and shall comply with the principle of proportionality.”
“The rights and freedoms set out in the Constitution may be not exercised with a view to undermining the
territorial integrity of the State, the unity of the Nation or the democratic and secular Republic founded on human
No provision of this Constitution shall be interpreted in a manner that would grant the State or individuals the
right to engage in activities intended to destroy the fundamental rights and freedoms embodied in the Constitution
or to restrict them beyond what is permitted by the Constitution.
The penalties to which persons who engage in activities that contravene these provisions are liable shall be
determined by law.” Article 24
“Everyone shall have 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 or her religious
beliefs and convictions; no one shall be censured or prosecuted for his religious beliefs or convictions.
Education and instruction in religion and ethics shall be provided under the supervision and control of the State.
Instruction in religious culture and in morals shall be a compulsory part of the curricula of primary and secondary
schools. Other religious education and instruction shall be a matter for individual choice, with the decision in the
case of minors being taken by their legal guardians.
No one shall 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.” Article 42
“No one may be deprived of the right to instruction and education.
The scope of the right to education shall be defined and regulated by law.
Instruction and teaching shall be provided under the supervision and control of the State in accordance with the
principles and reforms of Atatürk and contemporary scientific and educational methods. No educational or
teaching institution may be set up that does not follow these rules.
Citizens are not absolved from the duty to remain loyal to the Constitution by freedom of instruction and
Primary education shall be compulsory for all citizens of both sexes and provided free of charge in State schools.
The rules governing the functioning of private primary and secondary schools shall be regulated by law in
keeping with the standards set for State schools.
The State shall provide able pupils of limited financial means with the necessary aid in the form of scholarships
or other assistance to enable them to pursue their studies. It shall take suitable measures to rehabilitate those in
need of special training so as to render them useful to society.
Education, teaching, research, and study are the only activities that may be pursued in educational and teaching
institutions. These activities shall not be impeded in any way...”
“The decisions of the Constitutional Court shall be final. A decision to invalidate a provision shall not be made
public without a written statement of reasons.
When striking down a law or legislative-decree or a provision thereof, the Constitutional Court may not act as a
quasi-legislature by drafting provisions that would be enforceable.
Judgments of the Constitutional Court shall be published immediately in the Official Gazette and shall be
binding on the legislative, executive, and judicial organs, the administrative authorities, and natural and juristic
B. History and background
1. Religious dress and the principle of secularism
30. The Turkish Republic was founded on the principle that the State should be secular (laik).
Before and 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 29 above).
31. The principle of secularism was inspired by developments in Ottoman society in the period
between the nineteenth century and the proclamation of the Republic. The idea of creating a modern
public society in which equality was guaranteed to all citizens without distinction on grounds of
religion, denomination or sex had already been mooted in the Ottoman debates of the nineteenth
century. Significant advances in women’s rights were made during this period (equality of treatment
in education, the introduction of a ban on polygamy in 1914, the transfer of jurisdiction in
matrimonial cases to the secular courts that had been established in the nineteenth century).
32. The defining feature of the Republican ideal was the presence of women in public life and
their active participation in society. Consequently, the ideas that women should be freed from
religious constraints and that society should be modernised had a common origin. Thus, on
17 February 1926 the Civil Code was adopted, which provided for equality of the sexes in the
enjoyment of civic rights, in particular with regard to 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.
33. The first legislation to regulate dress was the Headgear Act of 28 November 1925 (Law no.
671), which treated dress as a modernity issue. Similarly, a ban was imposed on wearing religious
attire other than in places of worship or at religious ceremonies, irrespective of the religion or belief
concerned, by the Dress (Regulations) Act of 3 December 1934 (Law no. 2596).
34. 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. The Act
is one of the laws with constitutional status that are protected by Article 174 of the Turkish
35. In Turkey wearing the Islamic headscarf to school and university is a recent phenomenon
which only really began to emerge in the 1980s. There has been extensive discussion on the issue
and it continues to be the subject of lively debate in Turkish society. Those in favour of the
headscarf see wearing it as a duty and/or a form of expression linked to religious identity. However,
the supporters of secularism, who draw a distinction between the başörtüsü (traditional Anatolian
headscarf, worn loosely) and the türban (tight, knotted headscarf hiding the hair and the throat), see
the Islamic headscarf as a symbol of a political Islam. As a result of the accession to power on 28
June 1996 of a coalition government comprising the Islamist Refah Partisi, and the centre-right
Doğru Yol Partisi, the debate has taken on strong political overtones. The ambivalence displayed by
the leaders of the Refah Partisi, including the then Prime Minister, over their attachment to
democratic values, and their advocacy of a plurality of legal systems functioning according to
different religious rules for each religious community was perceived in Turkish society as a genuine
threat to republican values and civil peace (see Refah Partisi (the Welfare Party) and Others v.
Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II).
2. The rules on dress in institutions of higher education and the case-law of the Constitutional
36. The first piece of legislation on dress in institutions of higher education was a set of
regulations issued by the Cabinet on 22 July 1981 requiring staff working for public organisations
and institutions and personnel and female 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.
37. On 20 December 1982 the Higher-Education Authority issued a circular on the wearing of
headscarves in institutions of higher education. The Islamic headscarf was banned in lecture
theatres. In a judgment of 13 December 1984, the Supreme Administrative Court held that the
regulations were lawful, noting:
“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.”
38. 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 institutions of higher education,
preparatory schools, laboratories, clinics and multidisciplinary clinics. A veil or headscarf covering the neck and
hair may be worn out of religious conviction.”
39. 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 Constitutional Court judges explained, firstly, that secularism had acquired
constitutional status by reason of the historical experience of the country and the particularities of
Islam compared to other religions; secularism was an essential condition for democracy and acted
as a guarantor of freedom of religion and of equality before the law. It also prevented the State from
showing a preference for a particular religion or belief; consequently, a secular State could not
invoke religious conviction when performing its legislative function. They stated, inter alia:
“Secularism is the civil organiser of political, social and cultural life, based on national sovereignty, democracy,
freedom and science. Secularism is the principle which offers the individual the possibility to affirm his or her own
personality through freedom of thought and which, by the distinction it makes between politics and religious
beliefs, renders freedom of conscience and religion effective. In societies based on religion, which function with
religious thought and religious rules, political organisation is religious in character. In a secular regime, religion is
shielded from a political role. It is not a tool of the authorities and remains in its respectable place, to be
determined by the conscience of each and everyone...”
Stressing its inviolable nature, the Constitutional Court observed that freedom of religion,
conscience and worship, which could not be equated with a right to wear any particular religious
attire, guaranteed first and foremost the liberty to decide whether or not to follow a religion. It
explained that, once outside the private sphere of individual conscience, freedom to manifest one’s
religion could be restricted on public-order grounds to defend the principle of secularism.
Everyone was free to choose how to dress, 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 Turkey, where the majority
of the population were Muslims, presenting the wearing of the Islamic headscarf as a mandatory
religious duty would result in discrimination between practising Muslims, non-practising Muslims
and non-believers on grounds of dress with anyone who refused to wear the headscarf undoubtedly
being regarded as opposed to religion or as irreligious.
The Constitutional Court also said that students had to be permitted to work and pursue their
education together in a calm, tolerant and mutually supportive atmosphere without being deflected
from that goal by signs of religious affiliation. It found that, irrespective of whether the Islamic
headscarf was a precept of Islam, granting legal recognition to a religious symbol of that type in
institutions of higher education was not compatible with the principle that State education must be
neutral, as it would be liable to generate conflicts between students with differing religious
convictions or beliefs.
40. On 25 October 1990 transitional section 17 of Law no. 2547 entered into force. It provides:
“Choice of dress shall be free in institutions of higher education, provided that it does not contravene the laws in
41. 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 institutions of
higher education on religious grounds and so was consistent with the Constitution. It stated, inter
alia: “... the expression ‘laws in force’ refers first and foremost to the Constitution... In institutions of higher
education, 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 conviction. In these circumstances, the freedom of dress which the impugned
provision permits in institutions of higher education ‘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
Constitutional Court establishes that covering one’s neck and hair with the headscarf is first and foremost contrary
to the Constitution. Consequently, the condition set out in the aforementioned section requiring [choice of] dress
not to contravene the laws in force removes from the scope of freedom of dress the act of ‘covering one’s neck and
hair with the headscarf’...”
3. Application of the regulations at Istanbul University
42. Istanbul University was founded in the fifteenth century and is one of the main centres of
State higher education in Turkey. It has seventeen faculties (including two faculties of medicine –
Cerrahpaşa and Çapa) and twelve schools of higher education. It is attended by approximately
43. In 1994, following a petitioning campaign launched by female students enrolled on the
midwifery course at the University School of Medicine, 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, noting in particular:
“The ban prohibiting 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 remove it from an incubator, or assisting a doctor in an operating
theatre or maternity unit while wearing a long-sleeved coat.”
44. 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, the Cerrahpaşa Hospital and the School of
Medicine. He called on the students to comply with the rules on dress, reminding them, in
particular, of the rights of the patients.
45. A resolution regarding the rules on dress for students and university staff was adopted on 1
June 1994 by the University executive and provides:
“The rules governing dress in universities are set out in the laws and regulations. The Constitutional Court has
delivered a judgment which prevents religious attire being worn in universities.
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
46. On 23 February 1998 a circular signed by the Vice Chancellor of Istanbul University was
distributed containing instructions on the admission of students with beards or wearing the Islamic
headscarf (for the text of this circular, see paragraph 16 above).
47. The University adopted a resolution (no. 11 of 9 July 1998 ) worded as follows:
“1. Students at Istanbul University shall comply with the legal principles and rules on dress set out in the
decisions of the Constitutional Court and higher judicial bodies.
2. Students shall not wear clothes that symbolise or manifest any religion, faith, race, or political or ideological
persuasion in any institution or department of the university, or on any of its premises.
3. Students shall comply with the rules requiring specific clothes to be worn for occupational reasons in the
institutions and departments at which they are enrolled.
4. Photographs supplied by students to their institution or department [must be taken] from the ‘front’ ‘with
head and neck uncovered’. They must be no more than six months old and make the student readily identifiable.
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 Students
Disciplinary Proceedings Rules.”
4. Students Disciplinary Procedure Rules
48. 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
49. Merely wearing the Islamic headscarf on university premises does not constitute a
50. By virtue of paragraph 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 (paragraph 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 institutions of
higher education or who engage in political activities in such institutions are liable to temporary
suspension of between a week and a month (paragraph 8(a) and (c)). Paragraph 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.
51. The procedure for investigating disciplinary complaints is governed by paragraphs 13 to 34
of the Rules. Paragraphs 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 authorities
52. 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 Law no. 2547 provide:
“... (b) Vice chancellors shall 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 shall have primary responsibility for taking safety measures and for supervising and
monitoring the administrative and scientific aspects of the functioning of the university...”
53. The monitoring and supervisory power conferred on the vice chancellor by section 13 of
Law no. 2547 is subject to the requirement of lawfulness and to scrutiny by the administrative
C. The binding force of the reasoning in judgments of the Constitutional Court
54. 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 Constitutional Court stated, inter alia:
“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.”
D. Comparative law
55. For more than twenty years the place of the Islamic headscarf in State education has been
the subject of debate across Europe. In most European countries, the debate has focused mainly on
primary and secondary schools. However, in Turkey, Azerbaijan and Albania it has concerned not
just the question of individual liberty, but also the political meaning of the Islamic headscarf. These
are the only member States to have introduced regulations on wearing the Islamic headscarf in
56. In France, where secularism is regarded as one of the cornerstones of republican values,
legislation was passed on 15 March 2004 regulating, in accordance with the principle of secularism,
the wearing of signs or dress manifesting a religious affiliation in State primary and secondary
schools. The legislation inserted a new Article L. 141-5-1 in the Education Code which provides:
“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 dialogue with the pupil”.
The Act applies to all State schools and educational institutions, including post-baccalaureate
courses (preparatory classes for entrance to the grandes écoles and vocational training courses). It
does not apply to State universities. In addition, as the circular of 18 May 2004 makes clear, it only
concerns “... signs ..., such as the Islamic headscarf, however named, the kippa or a cross that is
manifestly oversized, which make the wearer’s religious affiliation immediately identifiable”.
57. In Belgium there is no general ban on wearing religious signs at school. In the French
Community a decree of 13 March 1994 stipulates that education shall be neutral within the
Community. Pupils are in principle allowed to wear religious signs. However, they may do so only
if human rights, the reputation of others, national security, public order, and public health and
morals are protected and internal rules complied with. Further, teachers must not permit religious or
philosophical proselytism under their authority or the organisation of political militancy by or on
behalf of pupils. The decree stipulates that restrictions may be imposed by school rules. On 19 May
2004 the French Community issued a decree intended to institute equality of treatment. In the
Flemish Community, there is no uniform policy among schools on whether to allow religious or
philosophical signs to be worn. Some do, others do not. When pupils are permitted to wear such
signs, restrictions may be imposed on grounds of hygiene or safety.
58. In other countries (Austria, Germany, the Netherlands, Spain, Sweden, Switzerland and the
United Kingdom), in some cases following a protracted legal debate, the State education authorities
permit Muslim pupils and students to wear the Islamic headscarf.
59. In Germany, where the debate focused on whether teachers should be allowed to wear the
Islamic headscarf, the Constitutional Court stated on 24 September 2003 in a case between a teacher
and the Land of Baden-Württemberg that the lack of any express statutory prohibition meant that
teachers were entitled to wear the headscarf. Consequently, it imposed a duty on the Länder to lay
down rules on dress if they wished to prohibit the wearing of the Islamic headscarf in State schools.
60. In Austria there is no special legislation governing the wearing of the headscarf, turban or
kippa. In general, it is considered that a ban on wearing the headscarf will only be justified if it
poses a health or safety hazard for pupils.
61. In the United Kingdom a tolerant attitude is shown to pupils who wear religious signs.
Difficulties with respect to the Islamic headscarf are rare. The issue has also been debated in the
context of the elimination of racial discrimination in schools in order to preserve their multicultural
character (see, in particular, Mandla v. Dowell, ‘The Law Reports’ 1983, 548-570). The
Commission for Racial Equality, whose opinions have recommendation status only, also considered
the issue of the Islamic headscarf in 1988 in the Altrincham Grammar School case, which ended in
a compromise between a private school and members of the family of two sisters who wished to be
allowed to wear the Islamic headscarf at the school. The school agreed to allow them to wear the
headscarf provided it was navy blue (the colour of the school uniform), kept fastened at the neck
and not decorated.
In the case of R (On the application of Begum) v. Headteacher and Governors of Denbigh High
School , the High Court had to decide a dispute between the school and a Muslim pupil
wishing to wear the jilbab (a full-length gown). The school required pupils to wear a uniform, one
of the possible options being the headscarf and a shalwar kameeze (long traditional garments from
the Indian subcontinent). In June 2004 the High Court dismissed the pupil’s application, holding
that there had been no violation of her freedom of religion. However, that judgment was reversed in
March 2005 by the Court of Appeal, which accepted that there had been interference with the
pupil’s freedom of religion, as a minority of Muslims in the United Kingdom considered that a
religious duty to wear the jilbab from the age of puberty existed and the pupil was genuinely of that
opinion. No justification for the interference had been provided by the school authorities, as the
decision-making process was not compatible with freedom of religion.
62. In Spain, there is no express statutory prohibition on pupils’ wearing religious head
coverings in State schools. By virtue of two royal Decrees of 26 January 1996, which are applicable
in primary and secondary schools unless the competent authority – the autonomous community –
has introduced specific measures, the school governors have power to issue school rules which may
include provisions on dress. Generally speaking, State schools allow the headscarf to be worn.
63. In Finland and Sweden the veil can be worn at school. However, a distinction is made
between the burka (the term used to describe the full veil covering the whole of the body and the
face) and the niqab (a veil covering all the upper body with the exception of the eyes). In Sweden
mandatory directives were issued in 2003 by the National Education Agency. These allow schools
to prohibit the burka and niqab, provided they do so in a spirit of dialogue on the common values of
equality of the sexes and respect for the democratic principle on which the education system is
64. In the Netherlands, where the question of the Islamic headscarf is considered from the
standpoint of discrimination rather than of freedom of religion, it is generally tolerated. In 2003 a
non-binding directive was issued. Schools may require pupils to wear a uniform provided that the
rules are not discriminatory and are included in the school prospectus and that the punishment for
transgressions is not disproportionate. A ban on the burka is regarded as justified by the need to be
able to identify and communicate with pupils. In addition, the Equal Treatment Commission ruled
in 1997 that a ban on wearing the veil during general lessons for safety reasons was not
65. In a number of other countries (the Czech Republic, Greece, Hungary, Poland or Slovakia),
the issue of the Islamic headscarf does not yet appear to have given rise to any detailed legal debate.
E. The relevant Council of Europe texts on higher education
66. Among the various texts adopted by the Council of Europe on higher education should be
cited, firstly, Parliamentary Assembly Recommendation no. 1353 (1998) on the Access of
Minorities to Higher Education, which was adopted on 27 January 1998, and Committee of
Ministers Recommendation no. R (98) 3 on Access to Higher Education, which was adopted on 17
Another relevant instrument in this sphere is the joint Council of Europe/UNESCO Convention
on the Recognition of Qualifications concerning Higher Education in the European Region, which
was signed in Lisbon on 11 April 1997 and entered into force on 1 February 1999.
67. The preamble to the Convention on the Recognition of Qualifications concerning Higher
Education in the European Region states:
“Conscious of the fact that the right to education is a human right, and that higher education, which is
instrumental in the pursuit and advancement of knowledge, constitutes an exceptionally rich cultural and scientific
asset for both individuals and society. ...”
68. On 17 March 1998 the Committee of Ministers of the Council of Europe adopted
Recommendation no. R (98) 3 on Access to Higher Education. In the preamble to the
recommendation it is stated:
“... higher education has a key role to play in the promotion of human rights and fundamental freedoms and the
strengthening of pluralistic democracy and tolerance [and] ... widening opportunities for members of all groups in
society to participate in higher education can contribute to securing democracy and building confidence in
situations of social tension...”
69. Likewise, Article 2 of Recommendation no. 1353 (1998) on the Access of Minorities to
Higher Education, which was adopted by the Parliamentary Assembly of the Council of Europe on
27 January 1998, provides:
“Education is a fundamental human right and therefore access to all levels, including higher education, should be
equally available to all permanent residents of the states signatories to the European Cultural Convention.”
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
70. The applicant 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:
“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.”
A. The Chamber judgment
71. The Chamber found that the Istanbul University regulations restricting the right to wear the
Islamic headscarf and the measures taken thereunder had interfered with the applicant’s right to
manifest her religion. It went on to find that the interference was prescribed by law and pursued one
of the legitimate aims set out in the second paragraph of Article 9 of the Convention. It was justified
in principle and proportionate to the aims pursued and could therefore be regarded as having been
“necessary in a democratic society” (see paragraphs 66 to 116 of the Chamber judgment).
B. The parties’ submissions before the Grand Chamber
72. In her request for a referral to the Grand Chamber dated 27 September 2004 and in her oral
submissions at the hearing, the applicant contested the grounds on which the Chamber had
concluded that there had been no violation of Article 9 of the Convention.
73. However, in the observations she submitted to the Grand Chamber on 27 January 2005 she
said that she was not seeking legal recognition of a right for all women to wear the Islamic
headscarf in all places, inter alia in these terms: “Implicit in the section judgment is the notion that
the right to wear the headscarf will not always be protected by freedom of religion. [I] do not
contest that approach”.
74. The Government asked the Grand Chamber to endorse the Chamber’s finding that there had
been no violation of Article 9.
C. The Court’s assessment
75. The Court must consider whether the applicant’s right under Article 9 was interfered with
and, if so, whether the 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.
1. Whether there was interference
76. The applicant said that her choice of dress had to be treated as obedience to a religious rule
which she regarded as “recognised practice”. She maintained that the restriction in issue, namely the
rules on wearing the Islamic headscarf on university premises, was a clear interference with her
right to freedom to manifest her religion.
77. The Government did not make any submissions to the Grand Chamber on this question.
78. As to whether there was interference, the Grand Chamber endorses the following findings of
the Chamber (see paragraph 71 of the Chamber judgment):
“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.”
2. “Prescribed by law”
(a) The parties’ submissions to the Grand Chamber
79. The applicant said that there had been no “written law” to prohibit students from wearing the
Islamic headscarf at university, either when she enrolled in 1993 or in the period thereafter. She
explained that under the Students Disciplinary Procedure Rules it was not a disciplinary offence
merely to wear the Islamic headscarf (see paragraphs 49 and 50 above). The first regulation to
restrict her right to wear the headscarf had been the circular issued by the University Vice
Chancellor on 23 February 1998, some four and a half years later.
80. In the applicant’s submission, it could not validly be argued that the legal basis for that
regulation was the case-law of the Turkish courts, as the courts only had jurisdiction to apply the
law, not to establish new legal rules. Although in its judgments of 7 March 1989 and 9 April 1991
(see paragraphs 39 and 41 above) the Constitutional Court had not acted ultra vires in proscribing
the headscarf in individual cases, the legislature had not construed the first of that court’s judgments
as requiring it to introduce legislation prohibiting the Islamic headscarf. There was no statutory
provision in force to prohibit students from wearing the headscarf on the premises of institutions of
higher education, while the reasons given by the Constitutional Court for its decision did not have
the force of law.
81. The applicant said that while university authorities, including vice chancellors’ offices and
deaneries, were unquestionably at liberty to use the powers vested in them by law, the scope of
those powers and the limits on them were also defined by law, as were the procedures by which
they were to be exercised and the safeguards against abuse of authority. In the instant case, the Vice
Chancellor had not possessed the authority or power, either under the laws in force or the Students
Disciplinary Procedure Rules, to refuse students “wearing the headscarf” access to university
premises or examination rooms. In addition, the legislature had at no stage sought to issue a general
ban on wearing religious signs in schools and universities and there had never been support for such
a ban in Parliament, despite the fierce debate to which the Islamic headscarf had given rise.
Moreover, the fact that the administrative authorities had not introduced any general regulations
providing for the imposition of disciplinary penalties on students wearing the headscarf in
institutions of higher education meant that no such ban existed.
82. The applicant considered that the interference with her right had not been foreseeable and
was not based on a “law” within the meaning of the Convention.
83. The Government confined themselves to asking the Grand Chamber to endorse the
Chamber’s finding on this point.
(b) The Court’s assessment
84. The Court reiterates its settled case-law that the expression “prescribed by law” requires
firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of
the law in question, requiring that it be accessible to the persons concerned and formulated with
sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given action may entail and to
regulate their conduct (Gorzelik and Others v. Poland [GC], no. 44158/98, § 64, ECHR 2004-...).
85. The Court observes that the applicant’s arguments relating to the alleged unforeseeability of
Turkish law do not concern the circular of 23 February 1998 on which the ban on students wearing
the veil from lectures, courses and tutorials was based. That circular was issued by the Vice
Chancellor of Istanbul University, who, as the person in charge in whom the main decision-making
powers were vested, was responsible for overseeing and monitoring the administrative and
scientific aspects of the functioning of the University. He issued the circular within the statutory
framework set out in section 13 of Law no. 2547 (see paragraph 52 above) and in accordance with
the regulatory provisions that had been adopted earlier.
86. According to the applicant, however, the circular was not compatible with transitional
section 17 of Law no. 2547, as that section did not proscribe the Islamic headscarf and there were
no legislative norms in existence capable of constituting a legal basis for a regulatory provision.
87. The Court must therefore consider whether transitional section 17 of Law no. 2547 was
capable of constituting a legal basis for the circular. It reiterates in that connection that it is
primarily for the national authorities, notably the courts, to interpret and apply domestic law (see
Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A, p. 21, § 29) and notes that in
rejecting the argument that the circular was illegal, the administrative courts relied on the settled
case-law of the Supreme Administrative Court and the Constitutional Court (see paragraph 19
88. 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 ranking 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. the 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). In sum, the “law” is the provision in force as
the competent courts have interpreted it.
89. Accordingly, the question must be examined on the basis not only of the wording of
transitional section 17 of Law no. 2547, but also of the relevant case-law.
In that connection, as the Constitutional Court noted in its judgment of 9 April 1991 (see
paragraph 41 above), the wording of that section shows that freedom of dress in institutions of
higher education is not absolute. Under the terms of that provision, students are free to dress as they
wish “provided that [their choice] does not contravene the laws in force”.
90. The dispute therefore concerns the meaning of the words “laws in force” in the
91. The Court reiterates that the scope of the notion of foreseeability depends to a considerable
degree on the content of the instrument in question, the field it is designed to cover and the number
and status of those to whom it is addressed. It must also be borne in mind that, however clearly
drafted a legal provision may be, its application involves an inevitable element of judicial
interpretation, since there will always be a need for clarification of doubtful points and for
adaptation to particular circumstances. A margin of doubt in relation to borderline facts does not by
itself make a legal provision unforeseeable in its application. Nor does the mere fact that such a
provision is capable of more than one construction mean that it fails to meet the requirement of
“foreseeability” for the purposes of the Convention. The role of adjudication vested in the courts is
precisely to dissipate such interpretational doubts as remain, taking into account the changes in
everyday practice (Gorzelik and Others, judgment cited above, § 65).
92. The Court notes in that connection that in its aforementioned judgment the Constitutional
Court found that the words “laws in force” necessarily included the Constitution. The judgment also
made 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
93. That decision of the Constitutional Court, which was both binding (see paragraphs 29 and 54
above) and accessible, as it had been published in the Official Gazette of 31 July 1991,
supplemented the letter of transitional section 17 and followed the Constitutional Court’s previous
case-law (see paragraph 39 above). 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, since the headscarf was in the process
of becoming the symbol of a vision that was contrary to the freedoms of women and those
fundamental principles (see paragraph 37 above).
94. As to the applicant’s argument that the legislature had at no stage imposed a ban on wearing
the headscarf, the Court reiterates that it is not for it to express a view on the appropriateness of the
methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined
to determining whether the methods adopted and the effects they entail are in conformity with the
Convention (Gorzelik and Others, judgment cited above, § 67).
95. Furthermore, the fact that Istanbul University or other universities may not have applied a
particular rule – in this instance transitional section 17 of Law no. 2547 read in the light of the
relevant case-law – rigorously in all cases, preferring to take into account the context and the
special features of individual courses, does not by itself make that rule unforeseeable. In the Turkish
constitutional system, the university authorities may not under any circumstances place restrictions
on fundamental rights without a basis in law (see Article 13 of the Constitution – paragraph 29
above). Their role is confined to establishing the internal rules of the educational institution
concerned in accordance with the rule requiring conformity with statute and subject to the
administrative courts’ powers of review.
96. Further, the Court accepts that it can prove difficult to frame laws with a high degree of
precision on matters such as internal university rules, and tight regulation may be inappropriate
(see, mutatis mutandis, Gorzelik and Others, judgment cited above, § 67).
97. Likewise, it is beyond doubt that regulations on wearing the Islamic headscarf existed at
Istanbul University since 1994 at the latest, well before the applicant enrolled there (see paragraphs
43 and 45 above).
98. In these circumstances, the Court finds that there was a legal basis for the interference in
Turkish law, namely transitional section 17 of Law no. 2547 read in the light of the relevant case-
law of the domestic courts. The law was also accessible and can be considered sufficiently precise
in its terms to satisfy the requirement of foreseeability. It would 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 23 February 1998, that she was liable to be
refused access to lectures and examinations if she continued to do so.
3. Legitimate aim
99. Having regard to the circumstances of the case and the terms of the domestic courts’
decisions, the Court is able to accept 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 is not in issue between the parties.
4. “Necessary in a democratic society”
(a) Submissions of the parties before the Grand Chamber
(i) The applicant
100. The applicant contested the Chamber’s findings. In her observations of 27 September 2004
and her oral submissions at the hearing, she argued that the notions of “democracy” and “republic”
were not alike. While many totalitarian regimes claimed to be “republics”, only a true democracy
could be based on the principles of pluralism and broadmindedness. The structure of the judicial
and university systems in Turkey had been determined by the successive coups d’état by the
military in 1960, 1971 and 1980. Referring to the Court’s case-law and the practice that had been
adopted in a number of countries in Europe, the applicant further submitted that the Contracting
States should not be given a wide margin of appreciation to regulate students’ dress. She explained
that no European State prohibited students from wearing the Islamic headscarf at university and
added that there had been no sign of tension in institutions of higher education that would have
justified such a radical measure.
101. The applicant further explained in her aforementioned observations that students were
discerning adults who enjoyed full legal capacity and were capable of deciding for themselves what
was appropriate conduct. Consequently, 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 and
to undermine their rights and freedoms was wholly unfounded. Nor had she created an external
restriction on any freedom with the support or authority of the State. Her choice had been based on
religious conviction, which was the most important fundamental right that pluralistic, liberal
democracy had granted her. It was, to her mind, indisputable that people were free to subject
themselves to restrictions if they considered it appropriate. It was also unjust to say that merely
wearing the Islamic headscarf was contrary to the principle of equality between men and women, as
all religions imposed such restrictions on dress which people were free to choose whether or not to
102. Conversely, in her observations of 27 January 2005, the applicant said that she was able to
accept that wearing the Islamic headscarf would not always be protected by freedom of religion (see
paragraph 73 above).
(ii) The Government
103. The Government agreed with the Chamber’s findings (see paragraph 71 above).
(b) The Court’s assessment
(i) General principles
104. 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).
105. 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 the various 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,
Article 9 does not protect every act motivated or inspired by a religion or 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; C. v. the United Kingdom, no.
10358/83, Commission decision of 15 December 1983, DR 37, p. 142; and Tepeli and Others v.
Turkey (dec.), no. 31876/96, 11 September 2001).
106. 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). This follows both from paragraph 2 of Article 9
and the State’s positive obligation under Article 1 of the Convention to secure to everyone within its
jurisdiction the rights and freedoms defined in the Convention.
107. The Court has frequently emphasised the State’s role as the neutral and impartial organiser
of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public
order, religious harmony and tolerance in a democratic society. It also considers that the State’s
duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the
legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Manoussakis
and Others v. Greece, judgment of 26 September 1996, Reports 1996-IV, p. 1365, § 47; Hassan
and Tchaouch v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000-XI; Refah Partisi and Others,
judgment cited above, § 91) and that it requires the State to ensure mutual tolerance between
opposing groups (United Communist Party of Turkey and Others v. Turkey, judgment of 30 January
1998, Reports 1998-I, § 57). Accordingly, the role of the authorities in such circumstances is not to
remove the cause of tension by eliminating pluralism, but to ensure that the competing groups
tolerate each other (Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX).
108. Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”.
Although individual interests must on occasion be subordinated to those of a group, democracy
does not simply mean that the views of a majority must always prevail: a balance must be achieved
which ensures the fair and proper treatment of people from minorities and avoids any abuse of a
dominant position (see, mutatis mutandis, Young, James and Webster v. the United Kingdom,
judgment of 13 August 1981, Series A no. 44, p. 25, § 63; and Chassagnou and Others v. France
[GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999-III). Pluralism and democracy
must also be based on dialogue and a spirit of compromise necessarily entailing various concessions
on the part of individuals or groups of individuals which are justified in order to maintain and
promote the ideals and values of a democratic society (see, mutatis mutandis, the United Communist
Party of Turkey and Others, judgment cited above, pp. 21-22, § 45; and Refah Partisi and Others,
judgment cited above § 99). Where these “rights and freedoms” are themselves among those
guaranteed by the Convention or its Protocols, it must be accepted that the need to protect them may
lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely
this constant search for a balance between the fundamental rights of each individual which
constitutes the foundation of a “democratic society” (Chassagnou and Others, judgment cited
above, § 113).
109. 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). This will notably be the case when it comes to regulating the
wearing of religious symbols in educational institutions, especially (as the comparative-law
materials illustrate – see paragraphs 55-65 above) in view of the diversity of the approaches taken
by national authorities on the issue. It is not possible to discern throughout Europe a uniform
conception of the significance of religion in society (Otto-Preminger-Institut v. Austria, judgment
of 20 September 1994, Series A no. 295-A, p. 19, § 50) and the meaning or impact of the public
expression of a religious belief will differ according to time and context (see, among other
authorities, Dahlab v. Switzerland (dec.) no. 42393/98, ECHR 2001-V). Rules in this sphere will
consequently vary from one country to another according to national traditions and the requirements
imposed by the need to protect the rights and freedoms of others and to maintain public order (see,
mutatis mutandis, Wingrove, judgment cited above, p. 1957, § 57). Accordingly, the choice of the
extent and form such regulations should take must inevitably be left up to a point to the State
concerned, as it will depend on the domestic context concerned (see, mutatis mutandis, Gorzelik,
judgment cited above, § 67; and Murphy v. Ireland, no. 44179/98, § 73, ECHR 2003-IX (extracts)).
110. This margin of appreciation goes hand in hand with a European supervision embracing
both the law and the decisions applying it. The Court’s task is to determine whether the measures
taken at national level were justified in principle and proportionate (Manoussakis and Others,
judgment cited above, § 44). In delimiting the extent of the margin of appreciation in the present
case the Court must have regard to what is at stake, namely the need to protect the rights and
freedoms of others, to preserve public order and to secure civil peace and true religious pluralism,
which is vital to the survival of a democratic society (see, mutatis mutandis, Kokkinakis, judgment
cited above, § 31; Manoussakis and Others, judgment cited above, p. 1364, § 44; and Casado Coca,
judgment cited above, § 55).
111. The Court also 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
Karaduman case, measures taken in universities to prevent certain fundamentalist religious
movements from exerting pressure on students who did not practise their religion or who belonged
to another religion were not considered to constitute interference for the purposes of Article 9 of the
Convention. Consequently, it is established that institutions of higher education may regulate the
manifestation of the rites and symbols of a 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 (see, among other
authorities, Refah Partisi and Others, cited above, § 95). In the Dahlab case, which concerned the
teacher of a class of small children, the Court stressed among other matters the “powerful external
symbol” which her wearing a headscarf represented and questioned whether it might have some
kind of proselytising effect, seeing that it appeared to be imposed on women by a religious precept
that was hard to reconcile with the principle of gender equality. It also noted that wearing the
Islamic headscarf could not easily be reconciled with the message of tolerance, respect for others
and, above all, equality and non-discrimination that all teachers in a democratic society should
convey to their pupils.
(ii) Application of the foregoing principles to the present case
112. The interference in issue caused by the circular of 23 February 1998 imposing restrictions
as to place and manner on the rights of students such as Ms Şahin to wear the Islamic headscarf on
university premises was, according to the Turkish courts (see paragraphs 37, 39 and 41 above),
based in particular on the two principles of secularism and equality.
113. In its judgment of 7 March 1989, the Constitutional Court stated that secularism, as the
guarantor of democratic values, was the meeting point of liberty and equality. The principle
prevented the State from manifesting a preference for a particular religion or belief; it thereby
guided the State in its role of impartial arbiter, and necessarily entailed freedom of religion and
conscience. It also served to protect the individual not only against arbitrary interference by the
State but from external pressure from extremist movements. The Constitutional Court added that
freedom to manifest one’s religion could be restricted in order to defend those values and principles
(see paragraph 39 above).
114. As the Chamber rightly stated (see paragraph 106 of its judgment), the Court considers this
notion of secularism to be consistent with the values underpinning the Convention. It finds that
upholding that principle, which is undoubtedly one of the fundamental principles of the Turkish
State which are in harmony with the rule of law and respect for human rights, may be considered
necessary to protect the democratic system in Turkey. An attitude which fails to respect that
principle will not necessarily be accepted as being covered by the freedom to manifest one’s
religion and will not enjoy the protection of Article 9 of the Convention (see Refah Partisi and
Others, judgment cited above, § 93).
115. After examining the parties’ arguments, the Grand Chamber sees no good reason to depart
from the approach taken by the Chamber (see paragraphs 107-109 of the Chamber judgment) as
“... The Court ... notes the emphasis placed in the Turkish constitutional system on the protection of the rights of
women... 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...
... In addition, like the Constitutional Court..., 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,
+1 anno fa
La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza della Corte di Strasburgo relativa al Caso Sahin vs la Turchia. Per la Corte non c'è discriminazione e quindi violazione della CEDU nel vietare alle studentesse di entrare nell'Università con il velo islamico.
I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.
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