The analysis Leyla Sahin v Turkey case

Background Facts of Sahin

The Vice-Chancellor of Istanbul University issued a circular in February 1998, stating that
"students whose 'heads are covered' (wearing the Islamic headscarf) must not be allowed to
lectures, courses, or tutorials," in accordance with section 13 of the Higher Education Act. The
circular directs university authorities to prevent all women who wear the Islamic headscarf
from registering or accessing the university, test rooms, or lecture halls. If a woman wearing a
headscarf tries to enter a classroom, the teacher must first advise her of the ban on head
coverings and then urge her to remove her headscarf or leave, according to the circular. The
circular further indicates that if a student does not cooperate, the teacher should not deliver
the prepared lesson to the class. If the student refuses to remove her headscarf, she may be
suspended or removed from school.

The University of Istanbul prevented Leyla Sahin, a fifth-year medical student, from sitting one
of her written exams a month after the Vice-Chancellor issued the circular because she refused
to remove her headscarf. Sahin is from an Istanbul-based traditional Muslim family that
believes it is her religious responsibility to wear the Islamic hijab. There had been no violent
occurrences or interruptions due to Sahin's headscarf at the University of Istanbul or the
University of Bursa, where she had previously studied for four years, prior to the publication of
the circular.

Because Sahin continued to disobey the order, the University of Istanbul took disciplinary
proceedings against her in May 1998. Sahin filed a complaint with the Istanbul Administrative
Court two months later, questioning the constitutionality of the university's clothing code
under the Convention. Based on precedent from the Constitutional Court and the Supreme
Administrative Court, the court determined that the university's clothing code was legal. The
institution prohibited Sahin from enrolling the next year.

Sahin has filed a number of complaints with the ECHR. First, she alleged that Turkey's ban on
the Islamic headscarf in colleges breaches her right to religious freedom under Article 9 of the
Convention. The headscarf prohibition, according to Sahin, inhibits her from expressing her
religion by the wearing of the Islamic headscarf, which is protected under Article 9. Sahin
further stated that the ban is in violation of Articles 14 and 9 since the university discriminates
against students based on their religious beliefs and forces students to choose between
education and religion. She further claimed that the headscarf restriction violates her right to
education under Article 2 of Protocol No. 1 of the Convention, because her decision to follow
her religious views prohibited her from finishing her medical studies. Finally, Sahin contended
that the prohibition violates  Articles 8 and 10 rights by preventing her from expressing her
ideas.

The ECHR's Reasoning in Sahin

The ECHR maintained the Turkish headscarf ban on June 29, 2004, ruling that it does not violate
Article 9. The ECHR dismissed sahin's claims under the Convention's Articles 8, 10, and 14, as
well as Protocol No. 1's Article 2 ""The relevant circumstances are the same as the ones it
looked at in connection to Article 9." While the court acknowledged that the Article 9 freedoms
of thought, conscience, and, most notably, religion are "foundations of a "democratic society""
and a "precious asset," it maintained that they are not "foundations of a "democratic society."
"Article 9 does not protect all acts motivated or inspired by religion or belief, and it does not
always ensure the right to act in the public sphere in a way that is dictated by religion or belief.
Instead, the protection provided by Article 9 is limited by its second portion, which states:

The freedom to express one's religion or views is limited only to those restrictions imposed by
law and required in a democratic society in the interests of public safety, public order, health,
and morals, or the protection of others' rights and freedoms.
In reaching its decision, the ECHR considered four factors: (1) whether the ban breaches on
Sahin's right to freedom of religion under Article 9; (2) whether the ban is "prescribed by law";
(3) whether the ban pursues a legitimate goal; and (4) whether the ban is "necessary in a
democratic society" as defined by Article 9. (2). The ECHR promptly dismissed the question of
whether the prohibition infringes on Sahin's right to exercise her religious religion under Article
9 of the European Convention on Human Rights. The court did not rule on whether Sahin's
decision to wear an Islamic hijab was a religious obligation. Instead, the court assumed that a
woman's decision to wear a headscarf is an act of obedience to an Islamic religious law and thus
a manifestation of her willingness to follow Islamic faith. The ECHR proceeded on the
presumption that the Turkish legislation interferes with Sahin's wish to exercise her faith,
notwithstanding the fact that the headscarf is not a requirement of Islam. The ECHR examined
the three remaining concerns to decide if Turkey has the right to interfere with Sahin's religious
practice after recognizing this potential governmental interference with a right protected by
Article 9.
In response to the second question, the ECHR determined that the university's headscarf ban is
mandated by law, both because it is accessible to those affected and because its consequences
are adequately predictable. Furthermore, the ECHR determined that the Turkish Higher
Education Act and a judgement by the Turkish Constitutional Court declaring headscarves in
universities to be in violation of the Turkish Constitution constitute sufficient domestic legal
bases for the ban. Furthermore, the ECHR reasoned that the Turkish Supreme Administrative
Court had ruled that Islamic headscarves were incompatible with Turkey's "basic principles"
"many years earlier" to the Constitutional Court's decision.

The ECHR also answered yes on the third question, whether the headscarf ban serves a
legitimate purpose. The Turkish headscarf ban "mainly pursued" the legitimate government
goals of preserving others' rights and maintaining public order, according to the court. A
regulation restricting religious practice has a valid goal, according to the Convention, if it is
applied "in the interests of public safety, the protection of public order, health, or morals, or
the protection of the rights and freedoms of others." The headscarf ban "may be seen as
compatible" with the Turkish government's goals of "maintaining public order in universities,
preserving the idea of secularism, and defending the rights and freedoms of others," according
to Sahin herself.

The ECHR found that the headscarf ban's interference with Article 9 religious freedom does not
breach the Convention because the ban is "essential in a democratic society" in the fourth and
final step of its review. The government's interference was justified by relevant and adequate
reasons, according to the court, and was commensurate to the goals it pursued. The ECHR
decided that the headscarf ban is founded on the principles of secularism and equality, two
principles it judged "essential for the protection of the democratic system in Turkey" after
studying the ban in Turkey's peculiar legal and social context. Overturning the headscarf
prohibition in universities would obstruct Turkey's ability to protect five distinct state interests
based on these values: secularism itself, other people's rights and freedoms, public order,
plurality principles, and gender equality.

The ECHR also reasoned that allowing headscarves in universities might infringe on the rights
and freedoms of others, hence the restriction is justified. The court voiced concern over the
headscarf's possible evangelizing effect on individuals who do not wear it, describing it as a
"strong external symbol." As a result, the court held that government rules, such as the
headscarf ban, that help prevent religious fanatics from exerting pressure on people who do
not practice their faith, can be allowed under the Convention in the interest of protecting
others' rights.
Finally, the ECHR evaluated Turkey's protection of women's rights in light of the headscarf ban,
stating that gender equality is one of the "key concepts underlying the Convention" and an aim
for all signatories. The ECHR indirectly determined that permitting women to wear the Islamic
headscarf in colleges breaches gender equality in Turkey, deferring to the Constitutional Court's
interpretation of the Turkish Constitution. The ECHR came to this finding in part because it was
difficult to reconcile the islamic headscarf with gender equality because it "looked to be forced
on women by a precept laid down in the Quran."

Conclusion

While the European Court of Human Rights had the potential to bring some logic to the
discussion, it instead used preconceptions and anxieties to deny an entire group of people the
fundamental right to religious freedom. Even more indefensibly, the ECHR's unwillingness to
examine the Turkish headscarf prohibition in its social and historical context, as required by the
Convention, continues to deny an entire class of women access to education indefinitely.

Sources

https://hudoc.echr.coe.int/fre?i=001-70956

https://globalfreedomofexpression.columbia.edu/cases/sahin-v-turkey/

https://swarb.co.uk/leyla-sahin-v-turkey-echr-29-jun-2004/

https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-
damrosche/chapter-13/sahin-v-turkey/

https://minorityrights.org/law-and-legal-cases/leyla-sahin-v-turkey-2/