SAHIN V.

TURKEY

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.

Facts. Sahin (P) had a traditional background of family practicing Muslims and considered it her
religious duty to wear the Islamic headscarf. When she was in her 5th year at the faculty of medicine
of the University of Istanbul in 1998, the Vice-Chancellor of the University issued a circular which
stipulated that students with beards and wearing the Islamic headscarf would be refused admission to
lectures, courses and tutorials. Sahin (P) was denied access to a written exam and the University
authorities refused to enroll her in a course and to admit her to various lectures and other written
exams because of the Islamic headscarf she was putting on. She later left the University to further her
studies in Vienna and had lived in Vienna since then. Before leaving Istanbul, Sahin (P) filed an
application against the Republic of Turkey (P) with the European Commission of Human Rights and
Fundamental Freedoms alleging that her rights and freedom under the Convention had been violated.
A judgment was rendered by the European Court after it heard the case.

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.