THE STRASBOURG COURT ON TURKEY AND HUMAN RIGHT TO FREEDOM OF RELIGION OR BELIEF

CRITICAL OVERVIEW IN THE OF THE RECENT RULING IN THE CASE OF OF LEYLA SAHIN VS. TURKEY

Abstract

The issue in the case Shahin vs.Turkeyis whether a Muslim student at the state university inTurkeyhas a human right to wear hijab at the university if she wishes so. The European court for human rights has ruled that ban on wearing hijab at the university represents interference of the state into the right of religious expression, but also that this measure was aimed at legitimately protecting the rights and freedoms of other and protecting the public order. The court has concluded that the intervention of the state in the Shahin case was based on two principles: secularism and gender equality. The court has also accepted that protecting the secular principles (Kamalistic laicism, in fact) can be viewed as necessary in protecting the democratic system inTurkey. Imposition of limitations on freedom in this area can, therefore, be viewed as fulfilling the urgent societal needs that do not breach the Article 9 of the European Convention on Human Rights.

The court rulings regarding the legitimate state limitations on freedom of religious or belief expression in the Shahin case are, to say the least, problematic. It is very hard to accept that measures against hijab-wearing students were aimed at preserving the legitimate rights and freedoms of others and preserving the public order. It is strange that a limitation on pluralism in dressing has been represented by the Court as the defense of “pluralism”. It is also unclear how this Kamalistic hijab ban promotes gender equality for hundreds of students and scientists that are thereby excluded from university education and teaching posts, as well as for tens of thousands of other women that are thereby prevented from obtaining a state employment. Surely, many expressions of religion and beliefs should be limited, but the arguments presented by the Court in this case are not convincing. Since Leial Shahin entered an appeal with the Supreme Council of the Court, this case still remains open.