Köse and Others v. Turkey (dec.)

Information Note on the Court’s case-law No. 82

January 2006

Köse and Others v. Turkey (dec.) - 26625/02

Decision 24.1.2006 [Section II]

Article 2 of Protocol No. 1

Right to education

Prohibition for students of religiously-oriented public secondary schools to wear the Islamic head-scarf within the limits of the school: inadmissible

Article 9

Article 9-1

Manifest religion or belief

Prohibition for students of religiously-oriented public secondary schools to wear the Islamic head-scarf within the limits of the school: inadmissible

The applicants are pupils at İman-Hatip schools – State secondary schools whose main task is to train religious functionaries – and the parents of some of the pupils. The applicants contended that they had been allowed to attend school wearing Islamic headscarves until 26 February 2002, after which time pupils wearing headscarves were no longer allowed into the schools. The measure was based on a directive of 12 February 2002 from the Istanbul Governor’s Office requesting head teachers and teaching staff to ensure rigorous compliance with the rules in force on pupils’ dress. Failure to do so would make them liable to penalties. A further memorandum on the same subject from the Governor’s Office, dated 2 March 2002, characterised any failure to comply with the rules on dress as a collective breach of the fundamental principles of the Republic, and reminded head teachers of the conduct to be adopted and the penalties to be applied in the event of non‑compliance with the rules. These documents appear to have been the subject of a series of complaints and incidents involving pupils wearing headscarves who were refused entry to school. In addition, numerous petitions were sent to the human rights committee attached to the Istanbul Governor’s Office. On 27 March 2002 the committee issued an opinion on the matter, in which it concluded that the impugned rules observed human rights and the constitutional principles of secularism and neutrality in the education system. It reiterated that those principles had already been expounded in detail in the Constitutional Court judgment of 7 March 1989.

Exhaustion of domestic remedies: The applicants had not raised their complaints under the Convention with the Turkish courts. However, there was no need to establish whether or not they had had domestic remedies available to them, as the application was in any event inadmissible for the reasons set out below.

Inadmissible under the first sentence of Article 2 of Protocol No. 1 – The right to education set forth in that provision guaranteed everyone a right of access to educational institutions existing at a given time, but that right could be subject to restrictions. In the present case the measures applied to the applicants had been clearly foreseeable, given that they had undertaken when enrolling in the school to comply with the dress code for pupils, that the Turkish Constitutional Court and Supreme Administrative Court had both found the wearing of Islamic headscarves by pupils to be incompatible with the principle of secularism and that, contrary to the applicants’ assertions, the attitude of the school authorities towards the wearing of headscarves by certain pupils had in no way suggested tacit approval of the situation on their part. Furthermore, the impugned measures could be considered to pursue the legitimate aims of the prevention of disorder and protection of the rights of others. As to whether they had been proportionate, binding rules regarding dress were in place in Turkish secondary schools. An exception to those rules had been granted to the İman‑Hatip schools, allowing girls to cover their hair during Koran lessons. It was important to note that internal rules of that kind in schools constituted general measures applicable to all pupils, irrespective of their religious beliefs, and pursued in particular the legitimate aim of preserving the neutral character of secondary education, which concerned adolescents who were liable to be subject to pressure. The Court also noted that the school authorities in question, before prohibiting pupils wearing headscarves from entering their schools, had attempted to negotiate a solution with the pupils concerned. Finally, the Court considered the principles set forth in the opinion of the human rights committee attached to the Governor’s Office to be clear and perfectly legitimate. Accordingly, the restriction at issue was based on clear principles and was proportionate to the aims of preventing disorder and protecting the rights and freedoms of others, and of preserving the neutrality of secondary education: manifestly ill‑founded.

Inadmissible under the second sentence of Article 2 of Protocol No. 1 – The main thrust of the provision in question was that the State, in the exercise of its functions in relation to education and teaching, must ensure that information and knowledge were imparted in an objective, critical and pluralist manner. The Court noted that the establishments in question, although their chief task was to train future religious functionaries, were not denominational schools and were not exempt from the principle of secularism. As a result, a State which had set up establishments of that kind must still fulfil its role as an impartial arbiter, and must take great care to ensure that the manifestation of pupils’ religious beliefs within schools did not take on the nature of an ostentatious act which might constitute a source of pressure and exclusion. In the present case both the pupils and their parents had been informed of the consequences that would result from a failure to observe the rules in force, and the refusal to allow pupils wearing headscarves to enter the school premises had not been accompanied by disciplinary measures. Furthermore, the rules at issue did not deprive parents of the ability to guide their children in a direction which accorded with their own religious or philosophical beliefs. Accordingly, the dress code imposed in the present case and the related measures were not in breach of the right set forth in the second sentence of Article 2 of Protocol No. 1: manifestly ill-founded.

Inadmissible under Article 9 of the Convention – The dress code imposed on pupils was a general measure applicable to all pupils irrespective of their religious beliefs. Consequently, even assuming that there had been interference with the applicants’ right to manifest their religion, there was no appearance of a violation of Article 9: manifestly ill-founded.

Inadmissible under the other provisions of the Convention relied on by the applicants – Some of the applicants, who had been arrested and detained at the police station for a few hours during the demonstrations against the impugned measures, alleged a violation of Articles 5 and 11 of the Convention. However, there was nothing to indicate that they had been deprived of their liberty in an arbitrary fashion or that their right to freedom of assembly had been violated. As to the complaints under Articles 6 and 7, the applicants could have had access to a court by applying to have the measures set aside, which they had not done. Nor could the decision not to allow pupils wearing headscarves access to the schools be regarded as a punishment resulting from a criminal conviction: manifestly ill-founded.

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This summary by the Registry does not bind the Court.

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