18 July 2018 Wednesday

B.S. (no. 2015/8491, 18 July 2018)

The Facts

The public institution where the applicant was serving as a civil servant (the administration) assigned a negative qualification grade to the applicant through the disciplinary penalties imposed on her for wearing head scarf. The applicant, who continued wearing headscarf, was later dismissed from public office.

In the action brought by the applicant, the incumbent inferior court rendered an annulment decision on the ground that her oral defence submissions had not been taken. Then, the administration filed an appeal against this decision with the Council of State which rendered a decision in favour of the administration. In line with the Council of State’s decision, the inferior court dismissed the applicant’s action. The applicant’s appeal against the dismissal decision as well as request for rectification of the decision were also rejected.

While the court proceedings were ongoing, the procedural deficiencies indicated in the inferior court’s decision had been rectified, and the applicant was then again dismissed from office. The action brought by the applicant against this decision was also dismissed by the administrative court.

Upon the appellate process, this decision was upheld by the Council of State. In the meantime, the Law no. 5525 on the Remission of Certain Disciplinary Penalties Imposed on the Civil Servants and the Other Public Officers −to which the Council of State made a reference in its dismissal decision− entered into force during the examination of the applicant’s request for rectification of the Council of State’s decision.

The applicant filed an application with the administration, independently of the previous actions, and requested to be re-appointed to her public office on the basis of the Law no. 5525. However, her request was dismissed by the administration on the ground that “it was not entitled to directly employ an officer”.

The action brought by the applicant against the administration’s refusal and the predicate circular relied upon was dismissed by the Council of State. After her appeal and request for rectification of the Council of State’s decision had been also dismissed, the applicant lodged an individual application.

In the petition submitted subsequent to her individual application, she indicated that relying on the Law no 5525, she took office in another public institution where she was later retired.

The Applicant’s Allegations

The applicant alleged that her freedom of religion was violated as she had been dismissed from public office for wearing a headscarf.

The Court’s Assessment

The freedom of religion and conscience, enshrined in Article 24 of the Constitution, safeguards everyone’s “freedom to manifest his/her religion and belief”, “freedom to change his/her religion and belief”, “freedom to have a belief or conviction of his/her choice” and “freedom to have no belief or conviction”.

This right safeguarded by Article 24 of the Constitution is sine qua non as the freedom of religion is vital for building and maintaining an effective and sound democracy based on rule of law.

Those who are believers of different religions or who have no religion or belief are under the protection of the secular State. As a matter of fact, as defined in the legislative intent of Article 2 of the Constitution, secularism –which in no circumstances means irreligiousness− allows individuals to have a belief or sect of their own choice, to worship freely as well as prevents them from being subject to discrimination due to their religious belief. The State is to take necessary measures for providing an environment where the freedom of religion and conscience may be exercised.

In this sense, 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.

The argument that it is in breach of the principle of secularism to allow public officers on duty to wear headscarf on religious ground −without taking into consideration the specific circumstances of their public offices− can be in no way accepted. Considering the practices such as wearing headscarf by public officers to manifest religious beliefs as to threaten social unity is not in conformity with democracy and the understanding of pluralist secularism. Indeed, such practices reflect social diversity rather than constituting a threat against it. The applicant was dismissed from public office for wearing headscarf as required by her religion. This sanction constitutes an interference with the applicant’s right to manifest her religion.

The assessments to be made in the present case will mainly focus on the question as to whether the grounds established by the inferior courts for their judgments which ultimately led to the interference are in compliance with requisites of a democratic society as to the restriction of the freedom of religion. Any interference with the freedom of religion on a ground failing to fulfil the criteria set by the Constitutional Court would be in breach of Article 24 of the Constitution.

In the present case, the administration and the inferior courts acted on a categorical assumption that the mere wear of headscarf by a public officer disturbed public order. Neither the administrative decision nor the court judgments indicated that the applicant’s wearing headscarf was offensive, oppressive, or provocative; or aimed to interfere with others’ belief or to compel others to adopt her own belief; or impaired the institutional public service and caused disorder.

The public institutions only determined that the applicant had insisted on wearing her headscarf but did not make an assessment as to the problems caused or likely to be caused by her insistence. Therefore, it could not be comprehended which pressing social need was met, for maintaining the public order, by the interference with the applicant’s right to manifest her religion.

In addition, the disciplinary penalty prescribed in the relevant legislation that was in force at that time for wearing a headscarf was in fact the sanction of reprimand. However, both the administration and the inferior courts unreasonably regarded it as one of the acts requiring dismissal from public office.

Besides, the penalty of dismissal from public office, imposed on the applicant for wearing a headscarf, is the severest disciplinary sanction. It cannot be therefore concluded that the penalty, which entails very heavy burdens, both pecuniary and non-pecuniary, for the applicant is proportionate.

As a result, it could not be established with a relevant and sufficient ground that the impugned interference met a pressing social need and was reasonably proportionate to the legitimate aims for protecting public order. Therefore, the interference is not in compliance with the requirements of a democratic society.

For the reasons explained above, the Court found a violation of the freedom of religion safeguarded by Article 24 of the Constitution.