KURTULMUS v. TURKEY - 65500/01 [2006] ECHR 1169 24 January 2006

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KURTULMUŞ v. TURKEY DECISION 10

The applicant, Ms Sevgi Kurtulmuş, is a Turkish national who was born in 1958 and lives in Istanbul. She was represented before the Court by Ms F. Benli, a member of the Istanbul Bar.

The facts of the case, as submitted by the applicant, may be summarised as follows.

At the material time, the applicant was an associate professor at the Faculty of Economics of the University of Istanbul. She began her career in 1982 and said that she had worn the Islamic headscarf when she obtained her doctorate in 1992 and professorship in 1996.

In 1998 she was the subject of a disciplinary investigation following an allegation that she had failed to comply with the rules on dress for public servants. On 5 January 1998 she was suspended from her duties pending the outcome of the investigation. On 12 February 1998, pursuant to paragraphs 5 (g) and 9 (m) of the Disciplinary Procedure Rules for Public Servants and Administrators in Higher-Education Institutions (Yüksek Öğretim Kurumları Yönetici, Öğretim Elemanı ve Memurları Disiplin Yönetmeliği – “the Disciplinary Procedure Rules”), she was given a warning and declared ineligible for promotion for two years on the ground that she had wilfully and persistently failed to comply with the applicable rules, despite receiving verbal and written reminders.

On 18 May 1998 the applicant was reprimanded for continuing to wear the Islamic headscarf while teaching. Finally, on 27 May 1998 she was deemed to have resigned from her post under paragraph 15 of the Disciplinary Procedure Rules, again on the ground that she had wilfully failed to comply with the Rules on Dress applicable to Staff in State Institutions (Kamu Kurum ve kuruluşlarında çalışan personelin kılık-kıyafet yönetmeliği – “the Rules on Dress”).

On 30 July 1998 she applied for an order setting aside the decision of 27 May. She submitted, inter alia, that there was no statutory basis for the measure and that the relevant rules of procedure had not been followed.

On 27 April 1999 a public hearing was held, which the applicant’s counsel attended. On the same day, after deliberations, the Istanbul Administrative Court rejected the applicant’s application on the ground that the evidence in the investigation file showed that she had wilfully and persistently refused to comply with the rules on dress for public servants, despite being sent numerous reminders. It further found that the decision had been taken in accordance with the relevant procedural rules.

On 17 June 1999 the applicant appealed on points of law against the judgment of 27 April 1999. She explained that, although paragraph 5 (a) of the Rules on Dress prohibited female members of staff from wearing the headscarf when performing their duties in educational institutions, the penalty prescribed by paragraph 5 (g) of the Disciplinary Procedure Rules for breaches of the Rules on Dress was a warning. Consequently, she argued that the only penalty to which she should have been liable was a warning or a reprimand and that the penalty imposed on her was unduly harsh and incompatible with the rights and freedoms protected by the European Convention on Human Rights.

On 3 September 1999 Law no. 4455 came into force. It provided for public servants to be given an amnesty in respect of penalties imposed for disciplinary offences and for any resulting disability to be annulled.

In a judgment of 9 December 1999, the Supreme Administrative Court ruled on the basis of Law no. 4455 that it was unnecessary to examine the merits of the applicant’s appeal on points of law since she had received an amnesty in respect of the penalties that had been imposed on her and the resulting disabilities had been annulled.

However, on 16 February 2000 the applicant exercised her right under Law no. 4455 to lodge an application for orders reviving the proceedings and setting aside the judgment of 27 April 1999. She also requested a hearing.

In a judgment of 27 June 2000, the Supreme Administrative Court upheld the judgment of 27 April 1999 without holding a hearing.

The Court does not have any precise information on developments since the disciplinary penalties imposed on the applicant were cancelled, thereby giving her an opportunity to request reinstatement. However, the material before it indicates that the applicant, who argues that she has not received any written notification from the University, has not, in fact, requested reinstatement.

Provisional section 19 of Law no. 657 on State employees (Devlet Memurları Kanunu) of 14 July 1965, which was published in the Official Gazette of 23 July 1965, requires public servants to comply with rules on dress laid down by statute, circulars or regulations. Section 125 of the Law provides that a failure by a public servant to comply with the rules will result in a warning and, in the event of a repeated breach, the “maximum penalty”.

The Rules on Dress applicable to Staff in State Institutions (Kamu Kurum ve kuruluşlarında çalışan personelin kılık-kıyafet yönetmeliği) were adopted on 17 July 1982 and published in the Official Gazette of 16 July 1982. At the material time, paragraph 5 provided:

Clothes shall be clean, proper, ironed and plain. Shoes shall be plain, low-heeled and polished. No head covering shall be worn on work premises; hair shall be properly brushed and gathered, and nails cut. Trousers, blouses, and sleeveless or open-necked suits are prohibited. Skirts shall not be split or less than knee-length. Open shoes (sandals) shall not be worn.

Clothes shall be clean, proper, ironed and plain. Shoes shall be plain and polished ... No head covering shall be worn on work premises ... Male members of staff shall not wear a beard and must shave every day ... Ties shall be obligatory.”

Paragraph 4 of the Disciplinary Procedure Rules for Public Servants and Administrators in Higher-Education Institutions sets out a list of the disciplinary penalties, namely a warning, a reprimand, suspension from administrative duties, loss of salary, ineligibility for promotion, deemed resignation and dismissal from office. Paragraph 5 (g) lays down that the penalty for failing to comply with the Rules on Dress shall be a warning and, in the event of a repeated breach, the “maximum penalty”.

The Amnesty for Public Servants and State Employees (Disciplinary Penalties) Act (Law no. 4455) came into force on 3 September 1999. Section 1 provided, inter alia, that persons on whom disciplinary penalties had been imposed before 23 April 1999 would receive an amnesty and that the penalty would be expunged from their service record. Section 2 of the Act entitled those concerned to make an application within one month after the date the Act came into force for an order reviving the proceedings.

“Choice of dress shall be free in institutions of higher education, provided that it does not contravene the law.”

1. The applicant submitted that the ban on her wearing a headscarf when teaching had violated her right guaranteed by Article 9 of the Convention to manifest her religion freely. In particular, the disciplinary hearing’s decision that she should be deemed to have resigned as a result of wearing the Islamic headscarf constituted a breach of her rights guaranteed by Articles 8, 9 and 10 of the Convention.

2. The applicant noted that penalties had been imposed only on teachers who wore the headscarf, despite the fact that the Rules on Dress contained a number of restrictions which were not complied with in practice (such as those concerning the length of skirts and the wearing of sandals). In her view, such practices constituted discrimination within the meaning of Article 14 of the Convention taken in conjunction with Articles 9 and 10. She also complained of sexual discrimination on the ground that the religious precept that required the headscarf to be worn applied only to Muslim women, whereas Muslim men were free to go about their occupation without constraint.

3. The applicant further complained that she had not had a fair hearing in the administrative courts, which were neither independent nor impartial but acted on the instructions of the executive and had delivered conflicting decisions in her case. She also complained of a lack of adversarial process and equality of arms in the proceedings in which she had sought rectification of the Istanbul Administrative Court’s judgment, in that the Supreme Administrative Court had refused to reopen the case. She relied in that connection on Article 6 of the Convention.

4. Relying on transitional section 17 of Law no. 2547 of 25 October 1990, the applicant further argued that the disciplinary penalties imposed on her had indisputably infringed the rule in Article 7 of the Convention requiring punishment to be strictly defined by law, as there was no provision of Turkish law that prohibited female teachers from wearing the Islamic headscarf.

5. Lastly, relying on Article 1 of Protocol No. 1, the applicant complained that the measure concerned had violated her right to the peaceful enjoyment of her possessions, as it had deprived her of her sole source of income and of access to social security benefits.

The applicant submitted that the ban on her wearing a headscarf when teaching had violated her right to manifest her religion freely, as guaranteed by Article 9 of the Convention, the relevant parts of which provide:

“1. Everyone has the right to freedom of ... religion; this right includes ... freedom, either alone or in community with others and in public or private, to manifest his religion ..., in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion ... shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The Court notes firstly that the disciplinary penalties imposed on the applicant were made the subject of an amnesty by the entry into force of Law no. 4455 of 3 September 1999. However, it would appear that the applicant did not apply for reinstatement in her teaching post, although that was an option open to her under the Act. The Court considers that it has a duty to pursue its examination despite the adoption of these favourable measures by the authorities, as the substance of the applicant’s complaint is that her right to manifest her religion was infringed by the rules on dress for public servants. These rules, which require her not to wear any head covering on work premises, conflict with her religious beliefs.

In the light of the applicant’s submissions, the Court will proceed on the basis that the rules on dress for public servants constituted interference with her right to manifest her religion, as she considered that Muslim women have a religious duty to wear the Islamic headscarf (see, to the same effect, Leyla Şahin v. Turkey [GC], no. 44774/98, § 78, ECHR 2005-XI).

The impugned interference indisputably had a statutory basis in Turkish law, namely transitional section 19 of Law no. 657 on State employees, as supplemented by paragraph 5 of the Rules on Dress applicable to Staff in State Institutions. Furthermore, having regard to the decisions of the domestic courts, the Court considers that the measure can be regarded as having pursued legitimate aims within the meaning of Article 9 § 2, namely the protection of the rights and freedoms of others and the protection of public order. This is not disputed by the applicant. The Court must now examine whether the interference was “necessary in a democratic society”.

Freedom of thought, conscience and religion, as enshrined in Article 9 of the Convention, represents one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I).

While freedom of religion is in the first place a matter of individual conscience, it also implies freedom to manifest one’s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists the various forms which manifestation of a religion or belief may take, namely worship, teaching, practice and observance. Article 9 does not, however, protect every act motivated or inspired by a religion or belief. It does not always guarantee the right to behave in a manner governed by a religious belief and does not confer on people who do so the right to disregard rules that have proved to be justified (see Leyla Şahin, cited above, § 121).

These principles apply also to public servants. Although it is legitimate for a State to impose on public servants, on account of their status, a duty to refrain from any ostentation in the expression of their religious beliefs in public, public servants are individuals and, as such, qualify for the protection of Article 9 of the Convention. It therefore falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of religion and the legitimate interest of a democratic State in ensuring that its public service properly furthers the purposes enumerated in Article 9 § 2 (see, mutatis mutandis, Vogt v. Germany, 26 September 1995, § 53, Series A no. 323, and also, Rekvényi v. Hungary [GC], no. 25390/94, § 43, ECHR 1999-III). Likewise, where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions (see Leyla Şahin, cited above, § 109). In this context, in Leyla Şahin (§ 111) and Dahlab v. Switzerland ((dec.) no. 42393/98, ECHR 2001-V), the Court found that in a democratic society the State was entitled to place restrictions on the wearing of the Islamic headscarf if it was incompatible with the pursued aim of protecting the rights and freedoms of others and public order. In particular, with reference to the decisions of the domestic authorities in Dahlab, it stressed the importance of ensuring the neutrality of State education in schools.

The Court notes that the rules on dress apply equally to all public servants, irrespective of their functions or religious beliefs. As public servants act as representatives of the State when they perform their duties, the rules require their appearance to be neutral in order to preserve the principle of secularism and its corollary, the principle of a neutral public service. The rules on dress require public servants to refrain from wearing a head covering on work premises.

There is no doubt that the applicant assumed the status of a public servant of her own free will. As a university lecturer, and thus a person in authority at the university and a representative of the State, she could not have been unaware of the rules requiring her not to express her religious beliefs in public in an ostentatious manner.

Furthermore, the Court has consistently stated that upholding the principle of secularism is undoubtedly one of the fundamental principles of the Turkish State (see Leyla Şahin, cited above, § 114). It is that principle, and not objections to the way a person dresses as a result of his or her religious beliefs, that is the paramount consideration underpinning the rules. On this subject, the Court notes that it has in the past accepted that a democratic State may be entitled to require public servants to be loyal to the constitutional principles on which it is founded (see Vogt, cited above, § 59).

The Court further notes that the applicant says that she wore her headscarf until 1998 without any intervention on the part of the university authorities. However, it is clear that the fact that an existing rule is applied less rigorously because of a specific context does not mean that there is no justification for the rule or that it is no longer binding in law (see Leyla Şahin, above, §§ 95 and 120; and Dahlab, cited above).

The Court also takes into account the margin of appreciation that has to be left to the States in determining the obligations on teachers in the State education system depending on the level of education concerned (primary, secondary or higher). In that connection, it notes that in Dahlab it found that the authorities in Geneva, who had instructed Ms Dahlab not to wear the headscarf when teaching, had not exceeded their margin of appreciation, regard being had to the tender age of the children she was responsible for and the principle of neutrality in the State primary-education system. In the present case, the rules complained of by Ms Kurtulmuş were justified by imperatives pertaining to the principle of neutrality in the public service and, in particular in the State education system, and to the principle of secularism. In the light of the aforementioned decision and of the judgment in the case of Leyla Sahin, which concerned the dress code of female students at the university (see the judgment cited above, § 116), the Court ruled that the choice of the extent and form such regulations should take must inevitably be left, up to a point, to the State concerned (ibid., § 109). Differences in the rules applied by the States may thus be regarded as coming within the scope of the margin of appreciation.

In the light of the foregoing and having regard to the margin of appreciation left to the Contracting States in this sphere, the Court finds that the impugned interference was justified in principle and proportionate to the aim pursued.

It follows that this aspect of the complaint is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant complained of violations of Articles 6 § 1 and 7 of the Convention.

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court observes that the applicant complains, in substance, of the decision of the administrative courts that were called upon to decide whether the impugned rules and the disciplinary penalties that were imposed on her were lawful. It notes that it has previously had occasion to decide a similar issue that was raised by an applicant in Saltuk v. Turkey ((dec.), no. 31135/96, 24 August 1999). It dismissed that complaint in view of the constitutional and statutory guarantees which judges sitting in the administrative courts enjoy and the lack of any relevant grounds for calling their independence and impartiality into question. Like considerations apply in the present case.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The applicant complained that the Supreme Administrative Court had deliberated on her application for rectification of the judgment of the Istanbul Administrative Court without affording her lawyers an opportunity to make oral submissions.

The Court has held on a number of occasions that, provided there has been a public hearing at first instance, the absence of public hearings at second or third instance may be justified by the special features of the proceedings. Further, the manner in which Article 6 § 1 applies to courts of appeal or cassation depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and of the role of the final court of appeal in them. Given the special nature of that role, which is limited to reviewing whether the law has been correctly applied, the Court is able to accept that the procedure followed in such courts may be more formalistic (see Levages Prestations Service v. France, 23 October 1996, §§ 45-48, Reports of Judgments and Decisions 1996-V, and K.D.B. v. the Netherlands, 27 March 1998, § 38, Reports 1998-II).

The Court notes that in the present case the application for an order setting aside the judgment of 27 April 1999 was made under an exceptional procedure established by Law no. 4455, after the various allegations made by the applicant had been examined by the Istanbul Administrative Court. That court had full jurisdiction to decide the case and held a public hearing which the applicant’s representative was able to attend.

Furthermore, it has to be borne in mind that the Supreme Administrative Court’s task was confined to deciding whether the court below had erred in law and whether it had given logical and proper reasons for its decision. Any legal argument at a hearing in the Supreme Administrative Court of an appeal of the type lodged by the applicant in the present case will be highly technical and confined to points of law, the arguments on the facts having been definitively disposed of at first instance.

In conclusion, having regard to the proceedings as a whole (see, mutatis mutandis, De Jorio v. Italy (dec.), no. 73936/01, 6 March 2003 and, mutatis mutandis, Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, §§ 41-44, ECHR 2002 VII), the role of the Supreme Administrative Court, and the nature of an application for rectification of a judgment, the Court finds no appearance of a violation of Article 6 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The Court notes that this provision embodies the principle that only the law can define a crime and prescribe a penalty. It also prohibits the retrospective application of criminal law (see Kokkinakis, cited above, § 52). It is abundantly clear that the sanctions imposed on the applicant were disciplinary matters and cannot be considered a penalty arising out of a criminal conviction. Consequently, Article 7 is not applicable in the present case.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.

C. Complaints under Articles 8, 10 and 14 of the Convention, and Article 1 of Protocol No. 1

As regards the alleged violation of the applicant’s right to respect for her private life and of her right to freedom of expression, the Court finds no appearance of a violation of the provisions of the Convention. The applicant’s arguments under these provisions are simply a reformulation of her complaint under Article 9, in respect of which the Court found no appearance of a violation.

As to the complaint under Article 14 of the Convention, taken alone or in conjunction with Article 9, the Court notes that the rules on wearing the Islamic headscarf are unrelated to the applicant’s religious affiliation or her sex, but pursue, among other things, the legitimate aim of protecting public order and the rights and freedoms of others. The manifest purpose of the rules is to preserve both secularism within education institutions and its corollary, the principle of the neutrality of the public service. Furthermore, male members of staff are also subject to analogous rules requiring them not to express their religious beliefs in an ostentatious manner. Consequently, the considerations that led the Court to conclude that no violation can be found of Article 9 of the Convention apply equally to the complaint under Article 14, taken alone or in conjunction with that provision.

With regard to the complaint under Article 1 of Protocol No. 1, the Court notes that the disciplinary penalties imposed on the applicant have been the subject of an amnesty. Consequently, there is no evidence in the case file to suggest that the applicant is unable to seek reinstatement in her teaching post.

Irrespective of this, it is further noted that under the Court’s settled case-law, future income is only a “possession” once it has been earned or an enforceable claim to it exists. A public servant’s removal from office and the resultant loss of future income do not affect his or her “possessions” (see, among other authorities, Nazif Yavuz v. Turkey (dec.), no. 69912/01, 27 May 2004).

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

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