Freedom of Association and Assembly / Protests, National Security, Political Expression
Vogt v. Germany
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In February 1998, Istanbul University informed students and faculty that students wearing headscarves and having long beards would not be permitted to enter lectures and examinations. Leyla Şahin was in her fifth year of medical school at Istanbul University at the time, and she was subsequently denied entrance to lecture halls and prohibited from taking exams because of her headscarf, which she wore according to her religious beliefs. Şahin brought a suit against Turkey, claiming it had violated her right to education by denying her the right to religious expression. Ultimately, Istanbul University was found to be within its right to enact a headscarf ban, and Turkey was found not to have violated Şahin’s right to education when it upheld the ban.
Şahin was in her fifth year of medical school when Istanbul University’s Vice-Chancellor distributed a circular banning beards and headscarves in University lectures and examinations. The banning of headscarves in Turkey is not unusual, as public servants have been banned from wearing religious clothing and symbols since the early twentieth century. Secularism in Turkey, similar to that in France, is regarded as a founding principle of the nation. In addition, the wearing of headscarves at Turkish universities had risen alongside the expansion of fundamental Islam throughout the region. Given this history, throughout Turkey the wearing of the headscarf is associated with political ideas. The state and the University argued that banning the headscarf in public institutions was done to prevent proselytizing in spaces that represented the secular state.
After the introduction of the circular at the University, Şahin was refused entrance into lectures and examinations on a number of occasions, and university officials prevented her from enrolling in a course. Her numerous refusals to remove her head scarf resulted in a warning from the University and, ultimately, a disciplinary hearing in March 1999. After participating in a demonstration at the Faculty of Medicine in protest against the headscarf ban, Şahin and other demonstrators were suspended from the University. However, under a newly entered into force amnesty law, all disciplinary penalties against the Şahin were revoked.
Şahin filed an application with the Istanbul Administrative Court, requesting an order for the circular to be set aside. The Administrative Court dismissed her application and held that the Vice-Chancellor was within his right to regulate dress as a way to maintain order. In June 2004, a Chamber Court of the European Court of Human Rights (ECtHR) issued a judgment that found “no violation of Article 9 and that no separate question arose under Articles 8 and 10, Article 14 taken together with Article 9, and Article 2 of Protocol No. 1 to the Convention.” Şahin requested that the case be referred the Grand Chamber, and, in November, a Grand Chamber panel accepted the application.
Şahin claimed that her rights under Articles 8, 9, 10, and 14 of the European Convention on Human Rights (ECHR) and Article 2 of Protocol No. 1 of the ECHR had been violated by both the headscarf ban and her subsequent suspension from Istanbul University. However, as an initial matter, the ECtHR found that Sahin’s arguments under Articles 8, 10, and 14 all related to her allegations under Article 9 (freedom of religion). As such, the ECtHR addressed only the violations alleged under Article 9 and Article 2 of Protocol No. 1 (the right to education). The ECtHR found that her religious freedom had been restricted, but that the restrictions were proportionate to the aims of the University and of the state in their attempts to protect the nation’s secularism.
The Grand Chamber of the ECtHR ruled in favor of Turkey because it found that the actions of the University were in accordance with Turkish Law. The ECtHR also held that the restriction of religious freedoms in the form of religious attire was proportionate to the aim of promoting democracy through the maintenance of secularism. The ECtHR ruled, 16-1, that there had been no violation of either Article 9 of the ECHR or Article 2 of Protocol No. 1, and it held unanimously that there had been no violation of Articles 8, 10, or 14.
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