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Citation. Eur. Ct. of Human Rights, App. No. 44774/98, 44 Eur. H.R. Rep. 99 (2005)
Brief Fact Summary. A Turkish Muslim by the name Sahin (P) alleged that the Republic of Turkey (D) violated her rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms by banning the wearing of the Islamic headscarf in institutions of higher education.
Synopsis of Rule of Law. Students rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms are not violated when a secular country places a ban on wearing religious clothing in institutions of higher education.
Issue. Are students’ rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms violated when a secular country places a ban on the wearing of religious clothing in institutions of higher learning?
Held. No. Student’s rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms are not violated when a secular country places a ban on wearing religious clothing in institutions of higher education. Constitutionally, Turkey (D) is a secular state founded on the principles of equality without regard to distinctions based on sex, religion or denomination. In 1989, Turkey’s (D) Constitutional Court decided that granting legal recognition to a religious symbol such as the Islamic headscarf was not compatible with the principle that the state education must be neutral and might generate conflicts between students of different religions. The Vice Chancellor explained the banning of the headscarf at the University School of Medicine in a memorandum which was circulated that the ban was not intended to infringe on students freedom of conscience or religion, but to comply with the laws and regulations in force and that such compliance would be sensitive to patients’ rights. Hence, the ban did not prohibit Muslim students from manifesting their religion in accordance with habitual forms of Muslim observance and it was not directed only at Muslim attire. So the view of the Court should not be interchanged for that of the University who are better placed to evaluate local needs. The right to behave in a manner governed by a religion belief is not guaranteed by Article 9 and it also does not confer on people who do so the right to disregard rules that have proved to be justified. By giving due regard to Turkey’s (D) margin of appreciation, the interference here was justified in principle and proportionate to aim pursued. Hence, Article 9 was not contravened.
Dissent. (Tulkens, J.) Religious freedom is necessary for the protection of a democratic society and not secularism alone. Therefore, the Court should have established that the ban on wearing the Islamic headscarf was necessary to secure compliance with secularism and met a “pressing social need.” But a cogent example supporting the Court’s view is not provided. Hence, the ban was not based on relevant or sufficient reasons and therefore cannot be deemed interference that is “necessary in a democratic society” within Article 9 S 2’s meaning. Sahin (P) right to freedom of religion under the Convention has therefore been breached.
Discussion. Margin of appreciation is the word-for-word English translation of the French phrase “marge d’appreciation,” a concept used in a number of courts in Europe, among them the Strasbourg human rights court and the European Union courts in Luxembourg. The Court is covered under the margin of appreciation to account for the fact that the Convention will be interpreted differently in different signatory states, so that judges are obliged to take into account the cultural, historic and philosophical contexts of the particular nation in question.