1146 FREEDOM OF RELIGION AND BELIEF Ch.

will on the side of the state. A civil servant can therefore not rely on the effect
of the fundamental rights to guarantee freedom in the same way as someone
who is not part of the state organisation. In exercise of their public office,
therefore, civil servants are protected by the promise of freedom as against
the state guaranteed by fundamental rights only to the extent that no re-
strictions arise from the special reservation to civil servants of the exercise
of sovereign powers. Teachers with the status of civil servants, even within
the scope of their personal pedagogical responsibility, do not teach in exercise
of their own freedom, but on the instructions of the general public and with
responsibility to the state. Teachers who are civil servants therefore from the
outset do not enjoy the same protection by fundamental rights as parents and
pupils: instead, the teachers are bound by the fundamental rights because
they share in the exercise of state authority.
***
A person who wishes to become a civil servant may therefore not reject
the requirement of moderation and of occupational neutrality, neither in gen-
eral nor with reference to specific official or private constellations that can be
recognised in advance.

LEYIA SAHIN V. TuRKEY (2005)

European Court of Human Rights (Grand Chamber)
Application no. 44774/98, (GC) (2005)
***
16. On 23 February 1998 the Vice Chancellor of Istanbul University is-
sued a circular, the relevant part of which provides:
"students whose 'heads are covered' (who wear the Islamic headscarf) and
students (including overseas students) with beards must not be admitted
to lectures, courses or tutorials. Consequently, the name and number of
any student with a beard or wearing the Islamic headscarf must not be
added to the lists of registered students. * ** If they refuse to leave the
lecture theatre, the teacher * * * shall bring the incident to the attention
of the university authorities as a matter of urgency so that disciplinary
measures can be taken."
22. On 26 May 1998, in view ofthe 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.
***
28. [On] 16 September 1999, the applicant abandoned her studies in Tur-
key 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:
Sec.C RELIGIOUS PLURALISM: THE CLASH 1147

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
Ataturk and is underpinned by the fundamental principles set out in the
Preamble."
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 reli-
gious sect or other similar grounds.
Men and women shall have equal rights. The State shall
take action to achieve such equality in practice ..."
Article 24
"Everyone shall have the right to freedom of conscience, be-
lief and religious conviction.
***
Education and instruction in religion and ethics shall be pro-
vided 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."
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 ofthe 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.
***
32. The defining feature of the Republican ideal was the presence of worn-
en in public life and their active participation in society. * * * .
***
35. In Turkey wearing the Islamic headscarf to school and university is
1148 FREEDOM OF RELIGION AND BELIEF Ch.8

a recent phenomenon which only really began to emerge in the 1980s. * * *

Those in favour of the headscarf see wearing it as a duty andlor a form of ex-
pression linked to religious identity. * * *cc
2. The rules on dress in institutions of higher education and the
case-law of the Constitutional Court
38. On 10 December 1988 transitional section 16 of the Higher-Educa-
tion Act (Law no. 2547-"the Higher-Education Act") entered into force. It
provided:
''Modern dress or appearance shall be compulsory in the rooms and corri-
dors 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 of7 March * * * the Constitutional Court held that the
aforementioned provision was contrary to Articles 2 (secularism), 10 (equal-
ity before the law) and 24 (freedom of religion) ofthe Constitution. * * * They
stated, inter alia:
"Secularism is the civil organiser of political, social and cultural life,
based on national sovereignty, democracy, freedom and science. Secu-
larism is the principle which offers the individual the possibility to af-
firm his or her own personality through freedom of thought and which,
by the distinction it makes between politics and religious beliefs, ren-
ders freedom of conscience and religion effective. In societies based on
religion, which function with religious thought and religious rules, po-
litical 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 ..."
***
* * * [W]hen a particular dress code was imposed on individuals by ref-
erence to a religion, the religion concerned was perceived and presented as
a set of values that were incompatible with those of contemporary society.
* * * [T]he 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
non-religious.
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 re-
ligious affiliation. It found that, irrespective of whether the Islamic headscarf
was a precept ofIslam, 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 con-
flicts between students with differing religious convictions or beliefs.
***

cc, For additional developments see Refah Partisi case, Chapter 11.
Sec.C RELIGIOUS PLURALISM: THE CLASH 1149

D. Comparative law
55. For more than twenty years the place of the Islamic headscarfin 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 headscarfin universities.
***
57. In Belgium * * * in the French Community a decree * * * stipulates
that education shall be neutral within the Community. Pupils are in prin-
ciple 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, restric-
tions may be imposed on grounds of hygiene or safety.
***
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. * * *
In the case of R (On the application of Begum) u. Headteacher and Gover-
nors 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 weal' a uniform, one of the possible
options being the headscarf and a shalwar kameez (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 free-
dom 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."

dd, In R (Begum) v Governors of Denbigh. High School [2006] UKHL 15, the House of Lords
found in favor of the school, because a person's right to manifest a particular religious belief was
a qualified one and then: were sufficient grounds for interference in the present case, including
the need to protect the rights of other female students and the possibility that the veil did not
represent a free choice on the student's part.
1150 FREEDOM OF RELIGION AND BELIEF Ch.8

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 un-
less 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 Sweden mandatory directives were issued in 2003 by the Na-
tional Education Agency. These allow schools to prohibit the burka and niqab,
provided they do so in a spirit of dialogue 9D 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. * * *
***
The Law
L Alleged Vwlation of Article 9 of the Convention
70. The applicant submitted that the ban on wearing the Islamic head-
scarf in institutions of higher education constituted an unjustified interfer-
ence with her right to freedom of religion, in particular, her right to manifest
her religion.
***
C. The Court s assessment
***
1. Whether there was interference
***
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 reli-
gion 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 man-
ner on the right to wear the Islamic headscarf in universities, constituted
an interference with the applicant's right to manifest her religion."
***
Sec.C RELIGIOUS PLURALISM: THE CLASH 1151

4. "Necessary in a democratic society"

***
(b) The Court's assessment
(i) General principles
105. * * * Article 9 does not protect every act motivated or inspired by a
religion or belief. * * *
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.* * * [The
Court relies on its doctrine of pluralism and neutrality elaborated in Kok-
kinakis, above.]
***
109. Where questions concerning the relationship between State and reli-
gions are at stake, on which opinion in a democratic society may reasonably dif-
fer widely, the role of the national decision-making body must be given special
importance. * * * This will notably be the case when it comes to regulating the
wearing of religious symbols in educational institutions, especially (as the com-
parative-law materials illustrate-see paragraphs 55-65 above) in view of the
diversity of the approaches taken by national authorities on the issue. * * *
llO. This margin of appreciation goes hand in hand with a European
supervision embracing both the law and the decisions applying it. * * * In de-
limiting 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.

***
(ii) Application of the foregoing principles to the present
case
***
114. [The Court considers the notion of secularism provided by the Turk-
ish Constitutional Court 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. * * *
115. After examining the parties' arguments, the Grand Chamber sees
no good reason to depart from the approach taken by the Chamber (see para-
graphs 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 * * *
. . . In addition, like the Constitutional Court ... , the Court considers
that, when examining the question of the Islamic headscarf in the Turk-
ish context, there must be borne in mind the impact which wearing such
a symbol, which is presented or perceived as a compulsory religious duty,

---~-''''!:;:'
1152 FREEDOM OF RELIGION AND BELIEF Ch.8

may have on those who choose not to wear it. * * * Imposing limitations
on freedom in this sphere may, therefore, be regarded as meeting a press-
ing social need by seeking to achieve those two legitimate aims, especially
since, as the Turkish courts stated ... , this religious symbol has taken on
political significance in Turkey in recent years .
... The Court does not lose sight of the fact that there are extremist po-
litical movements in Turkey which seek to impose on society as a whole
their religious symbols and conception of a society founded on religious
precepts ... It has previously said that each Contracting State may, in ac-
cordance with the Convention provisions" take a stance against such po-
litical movements, based on its historical experience (Refah Partisi and
Others, cited above, § 124). * * *
***
117. The Court must now determine whether in the instant case there
was a reasonable relationship of proportionality between the means employed
and the legitimate objectives pursued by the interference.
***
121 * * * By reason of their direct and continuous contact with the educa-
tion community, the university authorities are in principle better placed than
an international court to evaluate local needs and conditions or the require-
ments of a particular course.
***
123. Consequently, there has been no breach of Article 9 of the Conven-
tion [16 votes to 1].
[The Grand Chamber also considered the alleged violation of Article 2 of
Protocol no. 1 (right to education) and found no violation.]
Dissenting Opinion of JUDGE 'fuLKENS

1. * * * [P]luralism, tolerance and broadmindedness are hallmarks of

a democratic society and this entails certain consequences. The first is that
these ideals and values of a democratic society must also be based on dialogue
and a spirit of compromise, which necessarily entails mutual concessions on
the part of individuals. The second is that the role of the authorities in such
circumstances is not to remove the cause of the tensions by eliminating plu-
ralism, but, as the Court again reiterated only recently, to ensure that the
competing groups tolerate each other. * * *
2. * * * [T]he main issue became whether such interference was "neces-
sary in a democratic society". Owing to its nature, the Court's review must be
conducted in concreto * * *
***
5. * * * [8]ecularism (is] an essential principle * * *. Religious freedom is,
however, also a founding principle of democratic societies. Accordingly, the
fact that the Grand Chamber recognised the force of the principle of secular-
ism did not release it from its obligation to establish that the ban on wear-
ing the Islamic headscarf to which the applicant was subject was necessary
to secure compliance with that principle and, therefore, met a "pressing so-
Sec.C RELIGIOUS PLURALISM: THE CLASH 1153

cial need". Only indisputable facts and reasons whose legitimacy is beyond
doubt-not mere worries or fears-are capable of satisfying that requirement
and justifying interference with a right guaranteed by the Convention. * * *
***
10. In fact, it is the threat posed by "extremist political movements" seek-
ing to "impose on society as a whole their religious symbols and conception of
a society founded on religious precepts" which, in the Court's view, serves to
justify the regulations in issue, which constitute "a measure intended to ...
preserve pluralism in the university" (see paragraph 115 of the judgment, in
fine). * * *
While everyone agrees on the need to prevent radical Islamism, a serious
objection may nevertheless be made to such reasoning. * * * Not all women
who wear the headscarf are fundamentalists and there is nothing to suggest
that the applicant held fundamentalist views. * * *
***

Notes and Questions

1. What is the meaning of wearing the headscarf? It has no single mean-

ing. It may stand for the submission of women to men; it can serve the eman-
cipation of women in an oppressive society. What happens if administrators
and courts will be required to consider every case individually? What is the
relevance in matters of expressing personal belief of majority interpretations?
The European Commission against Racism and Intolerance (ECRI) and other
national and international antidiscrimination bodies repeatedly express con-
cern about the climate of hostility directed against persons who are or are
believed to be Muslim. What is the majority view reflects prejudice? What is
there are factual grounds for the prejudice? Would a presumption against the
display of conspicuous religious signs in the public space fair? Consider the
impact of the burden of proof on the free exercise of religion.
2. The Leyla Sahin judgment refers to Dahlab v. Switzerland, 200l·V
Eur. Ct. H.R. 429. Dahlab, a Swiss national, was a primary-school teacher.
She converted to Islam and began wearing an Islamic headscarf. The Direc-
torate General for Primary Education of Geneva (Switzerland) prohibited the
applicant from wearing a headscarf in the performance of her professional
duties on the grounds that such a practice constituted "an obvious means of
identification imposed by a teacher on her pupils, especially in a public, secu-
lar education system".
The ECtHR noted
that the [Swiss] Federal Court held that the measure * * * was by the po-
tential interference with the religious beliefs of her pupils, other pupils at
the school and the pupils' parents, and by the breach of the principle of de-
nominational neutrality in schools. In that connection, the Federal Court
took into account the very nature of the profession of State school teach-
ers, who were both participants in the exercise of educational authority
and representatives of the State, and in doing so weighed the protection