11 November 2005

Leyla Sahin v. Turkey: ECHR Grand Chamber Judgment

Yesterday, the Grand Chamber of the European Court of Human Rights delivered its judgment in Leyla Sahin v. Turkey, in which it upheld a ban on wearing the Islamic headscarf at Turkish universities. Felix Ronkes Agerbeek posted the following text (à titre personnel); thanks for that. I've added a few observations of my own below. (Added 15/11: some further thoughts from Felix now appear as a comment to this post)

In Turkey, wearing a veil or headscarf in higher-education institutions on grounds of religious belief is considered contrary to the principles of secularism and equality. Universities accordingly apply certain dress-codes for their staff and students. Leyla Sahin was a medical student at the University of Istanbul who was denied access to lectures, courses and two written exams because she was wearing an Islamic headscarf. The ECtHR held that this did not constitute a violation of the Convention (focusing foremost on Article 9 thereof, which guarantees the freedom of thought, conscience and religion). The Grand Chamber essentially confirmed the judgment of 29 June 2004 of the Fourth Section of the ECtHR. Yesterday's judgment closely resembles that decision.

Just like the Fourth Section, the Grand Chamber pays close attention to the social context of the ban on wearing the Islamic headscarf. When assessing whether there was a pressing social need for the interference with the right to freedom of religion, the Grand Chamber simply repeats the core of the reasoning of the decision of June 2004:

...when examining the question of the Islamic headscarf in the Turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. ... [T]he issues at stake include 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, adhere to the Islamic faith. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since ... 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 political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts...

... The regulations concerned have to be viewed in that context and constitute a measure intended to achieve the legitimate aims referred to above and thereby to preserve pluralism in the university.

Emphasising the national authorities' margin of appreciation the Court decides - by sixteen votes to one - that there has been no breach of Article 9 ECHR.

The dissenting opinion is from judge Tulkens (Belgium). She criticises two arguments which the Court uses to justify the large margin of appreciation left to the Turkish authorities, namely diversity of Member State practice and Turkey's specific historical background. According to her "the comparative-law materials do not allow [of the conclusion that there is a lack of a European consensus in this sphere], as in none of the member States has the ban on wearing religious symbols extended to university education, which is intended for young adults, who are less amenable to pressure." She argues that, because of the extensive reference to Turkey's specific historical background, "European supervision seems quite simply to be absent from the judgment". She also notes that, according to her, "it is necessary to seek to harmonise the principles of secularism, equality and liberty, not to weigh one against the other" and that "it has been neither suggested nor demonstrated that there was any disruption in teaching or in everyday life at the University, or any disorderly conduct, as a result of the applicant's wearing the headscarf". Although she "agrees on the need to prevent radical Islamism" she observes that "[m]erely wearing the headscarf cannot be associated with fundamentalism and it is vital to distinguish between those who wear the headscarf and "extremists" who seek to impose the headscarf as they do other religious symbols. Not all women who wear the headscarf are fundamentalists and there is nothing to suggest that the applicant held fundamentalist views." Hence, she considers that the interference with Sahin's right to freedom of religion was not "necessary in a democratic society" and that there was a violation of Art 9 ECHR.

The wearing of the Islamic headscarf in public institutions has given rise to debate in many other European countries, notably in France, where the principle of secularism is enshrined in Article 1 of the Constitution. A law was adopted in March 2004 prohibiting pupils from wearing signs or clothing in public schools, by which they overtly manifest a religious affiliation (Law No. 2004-228). A measure implementing that law was deemed in conformity with the freedom of expression by the French Conseil d'État in a decision of 8 October 2004. In a decision of December last year, the French Conseil Constitutionnel underlined the importance of the constitutional principle of secularism, referring expressly to the decision of the Fourth Section of the ECtHR in Leyla Sahin v Turkey (Decision No. 2004-505 DC).


This is an important judgment, and Felix is very right to draw attention to the Court's ruling, in particular its use of the comparative law / lack of consensus argument. A few other aspects of the decision are perhaps worth mentioning as well:

*The Court frequently refers to the legitimate aim of 'protecting the rights and freedoms of others'. Several of the cases cited can be placed in this category, in particular the judgments of Chassagnou v. France and Young, James and Webster v. United Kingdom. The invocation of this legitimate aim and the passages from these cited cases, however, is highly problematic in the Sahin case, for two related reasons: (1) At issue in Sahin are not the rights and freedoms of others (those who feel threatened in the exercise of their freedom of religion by the wearing of scarves by others?) but the perceived threat to the structure and survival of the Turkish Republic as a whole; (2) The Sahin case does not concern the domination of a (religious) minority by an intolerant majority as a large majority of people in Turkey adheres to the Muslim faith.

A closer look at the cited cases - where the rights of others and the risk of inadequate protection of minorities were indeed at issue - underscores these points. Chassagnou concerned the rights of French farmers to object to hunting on their grounds, expressed a.o. in the form of their right to object to an obligation to join an association for the benefit of hunting on private lands; the Young case also concerned the right to freedom of association (art. 11), more specifically the right to refuse compulsory membership of trade-unions. These context gave rise to observations that are now reproduced in Sahin, a.o. as "a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position" and the need for a "constant search for a balance between the fundamental rights of each individual". Viewing the issues in Sahin through the lenses of (a) the protection of minorities and (b) the 'rights' of individuals in the majority, is not only unhelpful, but could even be dangerous.

*The Court's assessment, as happens more often, hovers uncomfortably between concrete review and review in abstracto. One the one hand, the highly individualized question of whether Leyla Sahin was adequately warned of the restrictions in force is addressed, while on the other hand it is absolutely clear that what is truly at issue is a general ruling by the Convention mechanism on a crucial nationwide policy in a Member State.


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  2. Perhaps the aim of the ban is better described by Judge Tulkens, namely "the need to prevent radical Islamism". The assumption of the ECtHR accordingly seems to be that radical Islamism forms a threat to equality (and therefore "the rights and freedoms of others") and to the Turkish public order. Interestingly, the Court seems to assume this without giving arguments based on an examination of the phenomenon of radical islamism itself. This is particularly important because the whole focus of the proportionality test is on whether the headscarf-ban is 'necessary' in light of the perceived threat. As Tulkens rightly notes, the necessity of the restrictions imposed on Leyla Sahin can be questioned. However, the Court leaves a large MoA to the national authorities - the implication being that people who pose no fundamentalist threat may nevertheless be made to suffer restrictions of their rights and freedoms in order to prevent radicalism. This also appears to be the underlying motivation for the the Court's hovering between abstract and concrete review. The Court, as it were, allows the use of a net with a small mesh-size in order to catch large fish. This may have important implications for the general issue of how European democracies should respond to radical islamism. The Court apparently accepts that radical islamism forms so great a threat to the European conception of democracy and individual rights that MS have leeway in taking measures to limit it's influence, even if that works to the detriment of the rights and freedoms of people simply adhering to the muslim faith, with no radical intentions whatsoever. This indeed a potentially dangerous proposition. The only proviso so far seems to be that Turkey is seen as a 'special case' because of its history and social structure. In Turkey, the Court seems to think, radical islamism is particularly likely to gain a strong foothold in society (cf. also the Welfare Party case). One could ask the question if the outcome would have been different in another European country, e.g. France...