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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... Vedi di più

Esame di Diritto Costituzionale Avanzato docente Prof. F. Cerrone

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ESTRATTO DOCUMENTO

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:

Article 2

“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.”

Article 4

“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.”

Article 14

“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

rights.

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

teaching.

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...”

Article 153

“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

persons.”

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

Constitution.

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

Court

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

force.”

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

50,000 students.

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

to tutorials.”

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

expulsion.

49. Merely wearing the Islamic headscarf on university premises does not constitute a

disciplinary offence.

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

courts.

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

universities.

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 [2004], 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

based.

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

discriminatory.

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

March 1998.

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.”

THE LAW

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

above).

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

aforementioned provision.

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

41 above).

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

comply with.

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,

ECHR 2000-VII).

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

follows:

“... 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,


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Atreyu

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DESCRIZIONE DISPENSA

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.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

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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Dispensa
Transessualismo - Caso Goodwin
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