Judgment finding a violation of the freedom of religion and the right to education for being dismissed from university due to headscarf ban and ordered to repay the scholarship
22 November 2018 Thursday
Sara Akgül [PA] (no. 2015/269, 22 November 2018)
The applicant studying at the Boğaziçi University received a scholarship on compulsory service from the Ministry of National Education (Ministry) between 2000 and 2005.
When she was a fourth-grade student, the applicant was dismissed from the University for failing to re-register by the decision taken by the Board of Directors of the Faculty of Education of the University.
The applicant facing no problem while attending the University prior to 2004 stated that she was thereafter asked for taking off her headscarf at the University’s campus gate where there were also police officers and panzers. She also noted that she could not continue her education as she had not been allowed to attend courses and exams under these conditions by wearing a headscarf; and that she had been dismissed from the University due to absence. In support of her allegations, she submitted certain documents.
Pursuant to Law no. 5806, enacted on a subsequent date and known to public as the Amnesty Law, the applicant re-enrolled at the University in 2009 and was then graduated in 2012.
By the end of 2012, the Ministry issued an order for re-payment, by the applicant, of the amount of scholarship that she had received. The applicant challenged this order; however, the Ministry dismissed her challenge. She than filed an action for annulment of the order, and the incumbent administrative court annulled the Ministry’s order in 2013.
Examining the appeal request of the administration, the regional administrative court quashed the first instance decision and dismissed the action in 2014. The applicant whose request for rectification of the judgment had been also dismissed then lodged an individual application with the Court.
The Applicant’s Allegations
The applicant maintained that she had not been allowed to attend courses due to headscarf ban and had been therefore dismissed from the university, as a result of which she had to repay the scholarship she had received. She accordingly alleged that her freedom of religion and right to education had been violated.
The Court’s Assessment
- Alleged Violation of the Freedom of Religion
Freedom of religion is one of the indispensable requirements of a democratic state, as set out in Article 2 of the Constitution. Freedom of religion safeguarded by Article 24 of the Constitution safeguards everyone’s “freedom to manifest his/her religion and belief”. In a secular political system, individual preferences as to religious issues and life styles formed by these preferences are exempted from the State’s interference, but under its protection. In this sense, the principle of secularism is safeguarded by the freedom of religion.
Secularism imposes negative and positive obligations on the State. Negative obligation requires avoiding of any interference with the individuals’ freedom of religion unless there are compelling grounds. Positive obligation entails the duty on the part of the State to eliminate obstacles before the freedom of religion and to provide appropriate environment and opportunities whereby individuals may live in the way they believe.
Article 26 of the Constitution does not introduce any restriction, as to content, on the freedom of expression and dissemination of thought. It is possible to ban the manifestation of religion by wearing headscarf only if there are considerable grounds indicating that other individuals are prevented from enjoying their rights and freedoms.
The documents in the case-file reveal that the headscarf ban started to be enforced at the Boğaziçi University by the beginning of 2000s. There are also several national news indicating that the said ban remained in force at the University until 2009 and was protested several times.
Considering all these developments, the applicant’s position during the proceedings before the inferior courts and the first instance court’s assessments in her favour as a whole, the Court has concluded that the headscarf ban was imposed on the applicant.
In the present case, the public authorities’ acts and actions, which imposed a restriction on the headscarf that the applicant was wearing as a requirement of her religious belief, constitute an interference with her right to manifest her religion.
It must be determined whether the interference complies with the requirements enshrined in Article 13 of the Constitution; i.e., the requirements of being prescribed by law, relying on one or more valid reasons specified in the relevant articles of the Constitution, and complying with requirements of a democratic society.
An interference falling within the scope of Article 24 of the Constitution is accepted to satisfy the condition of lawfulness only when it has a legal basis.
The Court’s examination as to the present case reveals that there is no provision of law which imposes a restriction on the applicant’s freedom of religion and belief, which prevents, as required by Article 13 of the Constitution, arbitrary acts and actions of the bodies exercising public power and which is accessible, foreseeable and precise to the extent that would facilitate individuals to know the practices in the legal system.
There exists no legal restriction requiring students to continue their university education without wearing a headscarf. Neither the Leyla Şahin judgment of the European Court of Human Rights (ECHR) nor the Court’s judgments of 1989 and 1991, which the ECHR relied on and which formed a basis for the practice as to students’ dressing style in Turkey, cannot be considered as the rules satisfying the condition of lawfulness enshrined in Article 13 of the Constitution, which sets forth that fundamental rights and freedoms may be restricted only by law.
It has been concluded that the interference with the applicant’s freedom of religion in the present case where she was prevented from continuing her university education for wearing a headscarf did not satisfy the condition of lawfulness.
For the reasons explained above, the Court found a violation of the freedom of religion safeguarded by Article 24 of the Constitution.
- Alleged Violation of the Right to Education
Article 42 of the Constitution sets forth that no one may be deprived of the right to education. In its previous judgments, the Court considers that the right to education covers the primary, secondary and higher education, safeguards effective access to educational institutions as well as imposes, on public authorities, a negative duty not to prevent individuals from receiving education.
Principles regulating educational institutions may vary by needs and resources of the society and characteristics specific to different levels of education. Therefore, it must be accepted that the State has a certain degree of discretionary power in regulations and practices to be carried out in this field.
In this scope, the right to education, in its essence, does not preclude recourse to disciplinary measures, including suspension or dismissal from an educational institution, with a view to ensuring compliance with the rules. Disciplinary punishments are undoubtedly a significant part of means that would ensure both students to develop themselves and schools to attain their goals. However, it must be explicitly shown that recourse to such measure is one of the requirements of a democratic society, which must not fall foul of the other rights enshrined in the Constitution.
Given the fact that the right to education guarantees access to educational institutions, the applicant’s inability to continue the University constituted an interference with her right to education.
With regard to the interference with the right to property, the Court, considering the violation it has found in respect of the applicant’s complaints as to the freedom of religion safeguarded by Article 24 of the Constitution, has concluded that her right to education safeguarded by Article 42 of the Constitution was also violated.
For the reasons explained above, the Court found a violation of the right to education safeguarded by Article 42 of the Constitution.