Tuğba Arslan, Application No: 2014/256, 25 June 2014

A) Facts

The applicant is registered as a lawyer at the Ankara Bar Association. 11th Family Court of Ankara did not allow the applicant to attend the hearing due to her wearing headscarf and postponed the hearing date. The Court held headscarf indicates a strong religious and political symbol of anti-secularism according to the case-law of European Court of Human Rights (“ECtHR”) and the Constitutional Court of Turkey. Arslan claimed that following the decision of the Council of State suspending the execution of the phrase of “uncovered” stated in Article 20 of the Union of Turkish Bar Associations Code of Conduct for Lawyers, there are now no rule remaining to prevent the attendance to hearing with headscarf.

B) Judgment and Reasoning of the Court

The Constitutional Court held that the freedom of work and contract is not guaranteed under the European Convention of Human Rights (“ECHR”) and the additional protocols thereto, to which Turkey is a party; but related with the freedom of religion and conscience and the prohibition of discrimination (§ 34).

According to the Court, Article 9 of ECHR and Article 24 of the Constitution “recognize and protect the internal area of the freedom of religion and conscience by guaranteeing that the individual has or does not have any belief, that s/he can freely change his/her belief, that s/he cannot be forced to manifest his/her belief, that s/he cannot be condemned and put under pressured due to these and similarly recognizes and protects the external area of the freedom of religion and conscience through the right of manifesting one’s religion or belief by teaching, practice and by praying and performing a ritual either alone or in community with others” (§ 57). The Court also noted that questioning the comments of the applicants as regards their own religions is outside the relevance of the judicial bodies (§ 72). In this context, the Court established that wearing of the headscarf by women with the belief that it is an order of the Islam religion is considered within the scope of freedom of religion and conscience (§ 74).

In the instant case, the Court examined whether the interference with the applicant’s freedom of religion and conscience was lawful. At the outset, it referred to the difference between the ECtHR jurisprudence and the Turkish law. It was observed that the ECtHR gives a broader meaning to the concept of “being prescribed by law” (§ 84). According to the Constitutional Court, in the concrete case, “there is no accessible, foreseeable and final provision of the law […] which helps the individuals be informed about the law” (§ 91). According to the Court, the decisions of the Constitutional Court dated 1989 and 1991, to which the ECtHR referred in the case of Leyla Şahin, may not be accepted as the rules that meet the condition of lawfulness stipulated in Article 13 of the Constitution (§ 98).

In its examination of non-discrimination, the Court established that the same treatment applied for the individuals in different situations affects a certain individual or the members of a group in a disproportionate and negative way, then it will be considered as constituting discrimination (§ 115). Accordingly, in the concrete case, all female lawyers were required to uncover their heads at the hearing, which negatively affects the applicant as it reveals a religious behavior that is a personal preference (§ 116). According to the Court, no reasonable and objective basis was shown to justify the prevention of the applicant from attending to the hearing by wearing headscarf (§ 153).

For these reasons, the Constitutional Court ruled that Article 24 of the Constitution was violated in conjunction with Article 10 (§ 154).

C) Significance of the Judgment

This judgment marks the first individual application that the Constitutional Court found a violation of freedom of religion and conscience and the prohibition of discrimination. With respect to freedom of religion and conscience, it differs from the Leyla Şahin judgment of the ECtHR on whether the intervention meets the requirement of lawfulness. The Constitutional Court established that the principle of lawfulness should be narrowly interpreted in the face of limitations brought against the fundamental rights and freedoms. With respect to non- discrimination, this judgment extends the protection of Article 10 of the Constitution by including indirect discrimination to the definition of the term. The Tuğba Arslan judgment differs from the previous judgments of the Constitutional Court which includes an abstract review of norms on the issue of headscarf, by stating that secularism imposes positive obligations on the State and should be interpreted on the basis of pluralism (See CC, Reg. 1989/1, Judg. 1989/12, 7 March 1989; CC, Reg. 1990/36, Judg. 1991/8, 9 April 1991).