L EYLA Ş AHIN VS T URKEY

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

C ONVENTION FOR THE P ROTECTION OF H UMAN R IGHTS AND F UNDAMENTAL F REEDOMS ART. 8 Right to respect for private and family life ART. 9 Freedom of thought, conscience and religion ART. 10 Freedom of expression ART. 14 Prohibition of discrimination ART. 2 PROTOCOL 1 Right to education

T HE F ACTS August enrollment at the Istanbul University February the Vice-Chancellor’s circular March and June denied access to examination April refused admission to a lecture  application to set aside the circular because it had infringed her rights and the Vice-Chancellor’s Office had no power in that sphere. March Istanbul Administrative Court dismissed the application

T HE F ACTS May disciplinary proceedings  warning February an unauthorized assembly gathered to protest against the rules on dress  disciplinary proceedings April applicant suspended for one semester

T HE F ACTS June application with the Istanbul Administrative Court to set aside the decision to suspend her  dismissed entry into force of Law no amnesty in respect of penalties imposed for disciplinary offences  applicant released from suspension September applicant abandoned her studies in Turkey and enrolled at Vienna University

I STANBUL A DMINISTRATIVE C OURT J UDGMENT Art. 13 Constitution - University authorities may not place restrictions on fundamental rights without basis in law Art. 130 Constitution - Universities have a degree of autonomy Section 13 (b) of the Higher Education Act (Law.2545) - Vice-chancellor responsible to take necessary decisions and safety measures for the university functioning Rules of dress in institutions of higher education - Circular 1982: Islamic headscarf banned in lecture theatres

I STANBUL S UPREME A DMINISTRATIVE C OURT 1999 Applicant lodged an application against suspension Meanwhile in 2000: a new law entered into force - Granting amnesty to students imposed for disciplinary offences Court dismissed application - New law made it unnecessary to examine the merits of the applicant

G ENERAL P RINCIPLES OF T URKEY ’ S POSITION Republic State Secularism Non-discrimination based on sex or religion Equal rights of women Plurality

T HE C HAMBER J UDGMENT Applicant’submission: Interference with her right to freedom of religion, to manifest religion She relied on Art. 9 of the Convention Court assessment: There was interference However there was no violation of Art. 9 because the interference was prescribed by law and measures taken were proportionate to the legitimate aims pursued

T HE G RAND C HAMBER J UDGMENT 1. Violation of Article 9 of the Convention 2. Violation of Article 2 of Protocol No.1 (separate examination) 3.Violation of Articles 8, 10 and 14 of the Convention

T HE G RAND C HAMBER J UDGMENT 1. Violation of Article 9 Whether there was interference Applicant : There was interference with the right to manifest her religion Court assessment : The Grand Chamber endorses the findings of the Chamber “ the regulations constitued an interference with the applicant’s right to manifest her religion ”

T HE G RAND C HAMBER J UDGMENT 1. Violation of Article 9 Prescribed by law Applicant : There had been no ‘written law’ to prohibit students from wearing the Islamic headscarf at university The Vice Chancellor did not posses the power to refuse students ‘wearing the headscarf’ access to university The interference with her right had not been foreseeable and was not based on a ‘law’ within the meaning of the Convention

T HE G RAND C HAMBER J UDGMENT 1. Violation of Article 9 Prescribed by law Court assessment : Regulations on wearing the Islamic headscarf existed at Istanbul University since 1994 The Vice Chancellor was responsible for overseeing and monitoring the administrative aspects of the functioning of the university ‘ substantive’ meaning of law : includes both statutory law and judge-made law There was a legal basis for the interference in the Turkish law, transitional section 17 of Law no The law was accessible and foreseeable

T HE G RAND C HAMBER J UDGMENT 1. Violation of Article 9 Necessary in a democratic society Applicant : A true democracy could only be based on pluralism and broadmindedness The Convention Contracting States should not be given a wide margin of appreciation to regulate students’ dress. The allegation that, by wearing the Islamic headscarf, she had shown a lack of respect for the convictions of others or sought to influence fellow students was wholly unfounded. Court assessment: The restrictions in issue according to the Court are based on two principles of secularism and equality granted in the Turkish Constitution The disciplinary penalties are proportionate to the aims pursued.

T HE G RAND C HAMBER J UDGMENT 2. Violation of Article 2 of Protocol no.1 Applicant: She alleged also that her right to education was violated Court assessment: The complaint under Article 2 of Protocol no.1 can be considered as separate from the complaint under Article 9 of the Convention. The right to education is not absolute but may be subject to limitations. Contracting States enjoy a certain margin of appreciation in this sphere. The right to education cannot be divorced from the conclusion reach in respect to Article 9 The restriction in question did not impair the very essence of the applicant’s right to education

T HE G RAND C HAMBER J UDGMENT 3. Violations of Articles 8, 10 and 14 of the Convention Applicant: The restrictions have also infringed her right to respect for her private life and her right to freedom of expression and was discriminatory Court assessment: No violations of Articles 8, 10 and 14, being the Applicant’s claims a mere reformulation of her complaint under Art. 9 and Art.2 of Protocol no.1.

T HE G RAND C HAMBER J UDGMENT Conclusions: 1. By sixteen votes to one, that there has been no violation of Article 9 of the Convention 2. By sixteen votes to one, that there has been no violation of the first sentence of Article 2 of Protocol no.1 3. Unanimously, that there has been no violation of Article 8, 10 and 14 of the Convention

DISSENTING OPINION OF JUDGE TULKENS Judge Tulkens did not vote with the majority on the question of Art.9 or of Art. 2 of Protocol No.1 Main issue on which she disagrees: The interference with the applicant’s right to manifest her religion was “necessary in a democratic society” (Art.9)

DISSENTING OPINION OF JUDGE TULKENS Disagreement on the Violation of Art. 9 based on: Margin of appreciation: Looking at comparative European law, none of the member States has the ban on wearing religious symbols extended to university education Issue of the European Supervision Principles: Secularism and Equality

DISSENTING OPINION OF JUDGE TULKENS Disagreement on the Violation of Art.2 of Protocol n.1 The reasoning with regard to religious freedom is not clearly applicable to her right to education The Applicant’s exclusion from lectures, examinations and from the university itself, rendered her right to education ineffective and therefore, impaired the very essence of the right to education