II Council of Europe
| Date | 01 September 2004 |
| DOI | 10.1177/016934410402200306 |
| Published date | 01 September 2004 |
| Subject Matter | Part B: Human Rights News |
442
II COUNCIL OF EUROPE
LEO ZWAAK AND YVES HAECK
SELECTED DECISIONS OF THE EUROPEAN COURT
Interim Measures (Rule 39 of the Rules of the Court)
On 29 June 2004 the European Court of Human Rights decided not to grant a
request for an interim measure submitted by lawyers acting on behalf of Saddam
Hussein. Mr Hussein’s lawyers had asked the Court ‘to permanently prohibit the
United Kingdom from facilitating, allowing for, acquiescing in, or in any other form
whatsoever effectively participating, through an act or omission, in the transfer of
the applicant to the custody of the Iraqi Interim Government unless and until the
Iraqi Interim Government has provided adequate assurances that the applicant will
not be subject to the death penalty’. They relied on Articles 2 (right to life) and 3
(prohibition of torture and inhuman and degrading treatment) and Article 1 of
Protocols Nos. 6 (abolition of the death penalty in time of peace) and 13 (abolition
of the death penalty in all circumstances) to the Convention. They argued that
under those provisions the United Kingdom had an obligation to ensure individuals
are not subject to the death penalty and therefore not to surrender legal or physical
custody of individuals to a country or jurisdiction where they would face such
consequences and other breaches of the Convention. It remains open to Mr Hussein
to pursue his application before the Court.
Imposing limitations on freedom to wear the Islamic headscarf (Article 9).
In the case of Leyla S¸ahin vs Turkey the applicant comes from a traditional family of
practising Muslims and considers it her religious duty to wear the Islamic headscarf.
Leyla Sahin was a fifth-year student at the faculty of medicine of the University of
Istanbul. The Vice-Chancellor of the University issued a circular directing that
students with beards and students wearing the Islamic headscarf would be refused
admission to lectures, courses and tutorials.
On 29 June 2004 without deciding whether it was always the case that Islamic
headscarves were worn to fulfil a religious duty, the Court noted that Miss S¸ahin’s
decision was inspired by a religion or belief. Accordingly, it proceeded on the
assumption that the regulations in issue, which placed restrictions of place and
manner on the right to wear the Islamic headscarf in universities, constituted an
interference with her right to manifest her religion. There was a legal basis for that
interference in Turkish law, as the case-law of the Constitutional Court made it clear
that authorising students to ‘cover the neck and hair with a veil or headscarf for
reasons of religious conviction’ in universities was contrary to the Constitution. In
addition, the Supreme Administrative Court had for many years taken the view that
wearing the Islamic headscarf was not compatible with the fundamental principles
of the Republic. Furthermore, it was beyond doubt that regulations on wearing the
Islamic headscarf had existed well before the applicant had enrolled at the
university. Students, particularly those who, like the applicant, were studying a
health-related subject, were required to comply with rules on dress. In those
circumstances, it would have been clear to Miss S¸ahin, from the moment she entered
the University of Istanbul, that there were regulations on wearing the Islamic
headscarf and, after the circular was published in 1998, that she was liable to be
refused access to lectures if she continued to do so. The Court found that the
impugned measure primarily pursued the legitimate aims of protecting the rights
and freedoms of others and of protecting public order.
As to the ‘necessity’ of the interference, the Court observed that it was based on
two principles – secularism and equality – which reinforced and complemented each
other. Under the Constitutional Court’s case-law, secularism in Turkey was, among
other things, the guarantor of: democratic values; the principle that freedom of
religion was inviolable, to the extent that it stemmed from individual conscience; and,
the principle that citizens were equal before the law. Restrictions could be placed on
the freedom to manifest one’s religion in order to defend those values and principles.
That notion of secularism appeared to the Court to be consistent with the values
underpinning the Convention and it noted that upholding that principle could be
regarded as necessary for the protection of the democratic system in Turkey. It
further noted the emphasis placed in the Turkish constitutional system on the
protection of the rights of women. Gender equality – recognised by the European
Court as one of the key principles underlying the Convention and a goal to be
achieved by member States of the Council of Europe – was also regarded by the
Turkish Constitutional Court as a principle implicit in the values underlying the
Constitution. Like the Constitutional Court, the Court considered that, when
examining the question of the Islamic headscarf in the Turkish context, there had to
be borne in mind the impact which wearing such a symbol, which was presented or
perceived as a compulsory religious duty, could have on those who chose not to wear
it. The issues at stake included the protection of the ‘rights and freedoms of others’
and the ‘maintenance of public order’ in a country in which the majority of the
population, while professing a strong attachment to the rights of women and a secular
way of life, adhered to the Islamic faith. Imposing limitations on the freedom to wear
the Islamic headscarf could, therefore, be regarded as meeting a pressing social need
by seeking to achieve those two legitimate aims, especially since that religious symbol
had taken on political significance in Turkey in recent years. The Court did not lose
sight of the fact that there were extremist political movements in Turkey which sought
to impose on society as a whole their religious symbols and conception of a society
founded on religious precepts. It considered that the regulations concerned were
also intended to preserve pluralism in the university. It was the principle of secularism
which was the paramount consideration underlying the ban on the wearing of
religious insignia in universities. It was understandable in such a context where the
values of pluralism, respect for the rights of others and, in particular, equality between
men and women, were being taught and applied in practice, that the relevant
authorities would consider that it ran counter to the furtherance of such values to
accept the wearing of religious insignia, including as in the case before the Court, that
women students covered their heads with a headscarf while on university premises.
As to the manner in which the university authorities had applied the measures,
the Court noted that it was undisputed that in Turkish universities, to the extent that
they did not overstep the limits imposed by the organisational requirements of State
education, practising Muslim students were free to perform the religious duties that
were habitually part of Muslim observance. In addition, the resolution adopted by
Istanbul University on 9 July 1998 had treated all forms of dress symbolising or
II Council of Europe
Netherlands Quarterly of Human Rights, Vol. 22/3 (2004) 443
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