Leyla Sahin, is a Turkish national who was born in 1973. She has lived in Vienna since 1999, when she left Istanbul to pursue her medical studies at the Faculty of Medicine at Vienna University. She comes from a traditional family of practising Muslims and considers it her religious duty to wear the Islamic headscarf.

At the material time she was a fifth-year student at the faculty of medicine of the University of Istanbul. On 23 February 1998 the Vice-Chancellor of the University issued a circular directing that students with beards and students wearing the Islamic headscarf would be refused admission to lectures, courses and tutorials.

In March 1998 the applicant was denied access to a written examination on one of the subjects she was studying because was wearing the Islamic headscarf. Subsequently the university authorities refused on the same grounds to enrol her on a course, or to admit her to various lectures and a written examination.

The faculty also issued her with a warning for contravening the university’s rules on dress and suspended her from the university for a term for taking part in an unauthorised assembly that had gathered to protest against them. All the disciplinary penalties imposed on the applicant were revoked under an amnesty law.

 The applicant complained under Article 9 of the Convention that they had been prohibited from wearing the Islamic headscarf at university and  also complained of an unjustified interference with their right to education, within the meaning of Article 2 of Protocol No. 1 to the Convention.Miss Sahin further complained of a violation of Article 14, taken together with Article 9, arguing that the prohibition on wearing the Islamic headscarf obliged students to choose between education and religion and discriminated between believers and non-believers. Lastly, she relied on Articles 8 and 10.

Decision of the Court  : Article 9 of the Convention

Without deciding whether it was always the case that Islamic headscarves were worn to fulfil a religious duty, the Court noted that Miss Sahin’s decision was inspired by a religion or belief. Accordingly, it proceeded 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 her right to manifest her religion.

There was a legal basis for that interference in Turkish law, as the case-law of the Constitutional Court made it clear that authorising students to “cover the neck and hair with a veil or headscarf for reasons of religious conviction” in universities was contrary to the Constitution. In addition, the Supreme Administrative Court had for many years taken the view that wearing the Islamic headscarf was not compatible with the fundamental principles of the Republic. Furthermore, it was beyond doubt that regulations on wearing the Islamic headscarf had existed well before the applicant had enrolled at the university. Students, particularly those who, like the applicant, were studying a health-related subject, were required to comply with rules on dress. In those circumstances, it would have been clear to Miss Sahin, from the moment she entered the University of Istanbul, that there were regulations on wearing the Islamic headscarf and, after the circular was published in 1998, that she was liable to be refused access to lectures if she continued to do so.

The Court found that the impugned measure primarily pursued the legitimate aims of protecting the rights and freedoms of others and of protecting public order.

As to the “necessity” of the interference, the Court observed that it was based on two principles – secularism and equality – which reinforced and complemented each other.

Under the Constitutional Court’s case-law, secularism in Turkey was, among other things, the guarantor of: democratic values; the principle that freedom of religion was inviolable, to the extent that it stemmed from individual conscience; and, the principle that citizens were equal before the law. Restrictions could be placed on freedom to manifest one’s religion in order to defend those values and principles. That notion of secularism appeared to the Court to be consistent with the values underpinning the Convention and it noted that upholding that principle could be regarded as necessary for the protection of the democratic system in Turkey. It further noted 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 – was also regarded by the Turkish Constitutional Court as a principle implicit in the values underlying the Constitution.

Like the Constitutional Court, the Court considered that, when examining the question of the Islamic headscarf in the Turkish context, there had to be borne in mind the impact which wearing such a symbol, which was presented or perceived as a compulsory religious duty, could have on those who chose not to wear it. The issues at stake included 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, adhered to the Islamic faith. Imposing limitations on freedom to wear the Islamic headscarf could, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since that religious symbol had taken on political significance in Turkey in recent years. The Court did not lose sight of the fact that there were extremist political movements in Turkey which sought to impose on society as a whole their religious symbols and conception of a society founded on religious precepts. It considered that the regulations concerned were also intended to preserve pluralism in the university.

It was the principle of secularism which was the paramount consideration underlying the ban on the wearing of religious insignia in universities. It was understandable in such a context where the values of pluralism, respect for the rights of others and, in particular, equality between men and women, were being taught and applied in practice, that the relevant authorities would consider that it ran counter to the furtherance of such values to accept the wearing of religious insignia, including as in the case before the Court, that women students covered their heads with a headscarf while on university premises.

As to the manner in which the university authorities had applied the measures, the Court noted that it was undisputed that in Turkish universities, to the extent that they did not overstep the limits imposed by the organisational requirements of State education, practising Muslim students were free to perform the religious duties that were habitually part of Muslim observance. In addition, the resolution adopted by Istanbul University on 9 July 1998 had treated all forms of dress symbolising or manifesting a religion or faith on an equal footing in barring them from the university premises.

Irrespective of the case-law of the Turkish courts and the applicable rules, the fact that some universities might not have applied the rules rigorously – depending on the context and the special features of individual courses – did not mean that the rules were unjustified. Nor did it mean that the university authorities had waived their right to exercise the regulatory power they derived from statute, the rules governing the functioning of universities and the needs of individual courses. Likewise, whatever a university’s policy on the wearing of religious symbols, its regulations and the individual measures taken to implement them were amenable to judicial review in the administrative courts.

The Court noted that by the time the circular was issued on 23 February 1998 there had already been a lengthy debate on whether students could wear the Islamic headscarf. When the issue had surfaced at Istanbul University in 1994 in relation to the medical courses, the university authorities had reminded the students of the applicable rules. Rather than barring students wearing the Islamic headscarf access to the university, the university authorities had sought throughout the decision-making process to adapt to the evolving situation through continued dialogue with those concerned, while at the same time ensuring that order was maintained on the premises.

In those circumstances and having regard in particular to the margin of appreciation left to the Contracting States, the Court found that the University of Istanbul’s regulations imposing restrictions on the wearing of Islamic headscarves and the measures taken to implement them were justified in principle and proportionate to the aims pursued and, therefore, could be regarded as “necessary in a democratic society”.(The Leyla Sahin v. Turkey judgment is available in English and French)