Information Note on the Court’s case-law No. 82
January 2006
Kurtulmuş v. Turkey (dec.) - 65500/01
Decision 24.1.2006 [Section II]
Article 9
Article 9-1
Manifest religion or belief
Prohibition for a university professor to wear the Islamic head-scarf in the exercise of her functions: inadmissible
At the time of the events the applicant was an associate professor at Istanbul University. She stated that she had obtained her doctorate in 1992 and passed the competitive examination for senior teaching posts in 1996 while wearing an Islamic headscarf. In 1998 she was the subject of a disciplinary investigation under the rules in force on the dress of civil servants, which resulted in her receiving a caution and being barred from promotion for two years for failing to observe the rules. As she continued to wear the headscarf while performing her duties, she received a reprimand and was deemed to have resigned. Her application to have the last of these penalties set aside was rejected by the administrative court following a hearing. The applicant then appealed to the Supreme Administrative Court against the severity of the penalty. Before the Supreme Administrative Court could examine the case, a law entered into force granting an amnesty to civil servants who had been the subject of disciplinary measures and erasing the effects of such measures. After the applicant requested that her case continue to be heard notwithstanding the amnesty, the Supreme Administrative Court upheld the first‑instance judgment, without holding a hearing. According to the information in the Court’s possession, the applicant appeared not to have requested reinstatement in her post.
Inadmissible under Article 9 – Despite the amnesty granted to the applicant and the fact that she had not applied to be reinstated, the Court considered that it must continue its examination of her complaints, which in substance amounted to an allegation that her right to manifest her religion had been violated as a result of the dress code imposed on civil servants in the performance of their duties. The Court proceeded on the basis that the rules at issue amounted to an interference with the exercise of the right in question. The interference could be considered to have pursued legitimate aims, namely the protection of the rights and freedoms of others and the prevention of disorder. As to whether it had been necessary, Article 9 did not confer on individuals who chose to behave in a certain way on the basis of their religious beliefs the right to disregard rules which had been shown to be justified; that principle applied also to civil servants. The Court therefore had to consider whether a fair balance had been struck in the present case between the fundamental right of the individual to freedom of religion and the legitimate interest of a democratic State in ensuring that its civil service properly furthered the purposes enumerated in Article 9(2). In the particular context of relations between the State and religions, the role of the domestic policy-maker needed to be given special weight. In a democratic society, the State was entitled to restrict the wearing of Islamic headscarves if the practice clashed with the aim of protecting the rights and freedoms of others. In the present case, the applicant had chosen to become a civil servant; the “tolerance” shown by the authorities, on which the applicant relied, did not make the rule at issue any less legally binding. The dress code in question, which applied without distinction to all members of the civil service, was aimed at upholding the principles of secularism and neutrality of the civil service, and in particular of State education. Furthermore, the scope of such measures and the arrangements for their implementation must inevitably be left to some extent to the State concerned. Consequently, given the margin of appreciation enjoyed by the Contracting States in the matter, the interference complained of had been justified in principle and proportionate to the aim pursued: manifestly ill‑founded.
Inadmissible under Articles 6 and 7 – As to the alleged lack of impartiality and independence, the Court noted the constitutional and legal safeguards which attached to judges in administrative tribunals and the lack of any relevant argument which might cast doubt on their independence and impartiality. As to the fact that there had been no public hearing before the Supreme Administrative Court, the lower administrative court had had full jurisdiction to rule in the case and had held a hearing at which the applicant had been represented. The proceedings considered as a whole did not therefore disclose any appearance of a violation of Article 6: manifestly ill-founded.
With regard to Article 7, the penalties imposed on the applicant had indisputably been of a disciplinary nature and could not be considered as a punishment resulting from a criminal conviction. Consequently, Article 7 did not therefore apply to the present case: incompatible ratione materiae.
Inadmissible under the other provisions of the Convention relied on by the applicant – The applicant’s arguments concerning Articles 8 and 10 merely reiterated the complaint under Article 9. As to Article 14, the Court noted that the impugned rules had not been based on the applicant’s religion or the fact that she was a woman. Finally, with regard to the complaint under Article 1 of Protocol No. 1, the penalties imposed on the applicant had been the subject of an amnesty. In any event, the dismissal of a civil servant and the resulting loss of future earnings did not constitute an interference with that person’s right to peaceful enjoyment of his or her “possessions”: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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