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HASAN AND EYLEM ZENGIN v. TURKEY - 1448/04 [2007] ECHR 787 (9 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/787.html
Cite as:
(2008) 46 EHRR 44,
[2007] ECHR 787
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FORMER
SECOND SECTION
CASE OF HASAN AND EYLEM ZENGİN v. TURKEY
(Application
no. 1448/04)
JUDGMENT
STRASBOURG
9 October
2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Hasan
and Eylem Zengin v. Turkey,
The
European Court of Human Rights (former Second Section), sitting as a
Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
judges,
and Mrs F. Elens-Passos, Deputy Section
Registrar,
Having
deliberated in private on 3 October 2006 and 18 September 2007,
Delivers
the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
The
case originated in an application (no. 1448/04) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Turkish nationals, Mr Hasan Zengin and
Miss Eylem Zengin (“the applicants”) on 2 January
2004.
The
applicants were granted legal aid.
The
applicants maintained, in particular, that the manner in which the
compulsory lessons in religious culture and ethics were taught
infringed their rights as guaranteed by the second sentence of
Article 2 of Protocol No. 1 and Article 9 of the Convention.
In
a decision of 6 June 2006, the Chamber declared the application
admissible.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 3 October 2006 (Rule 59 § 3 of the Rules of
Court).
There appeared before the Court:
– for the Government
Mr M.
Özmen, Co-Agent,
Mr H. Ünler,
Ms Z.G.
Acar,
Ms E. Esin,
Ms D.
Kilislioğlu,
Mr İ.
Aycan,
Mr S.
Duman, Advisers;
– for the applicants
Mr K.
Genç, Counsel,
Mr A.Ş. Yakişan,
Ms İ.
Melikoff
Mr T. Öker, Advisers,
Mr H.
Zengin, First applicant.
The
Court heard addresses by Mr Genç and Mr Özmen.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
Hasan
Zengin, who was born in 1960, and his daughter Eylem Zengin, who was
born in 1988, live in Istanbul.
At
the time Mr Zengin lodged the application on his own and his
daughter's behalf, she was attending the seventh grade of the state
school in Avcılar, Istanbul.
A. Background to the case
Hasan
Zengin stated that his family were adherents of Alevism.
Alevism
originated in central Asia but developed largely in Turkey. Two
important Sufis had a considerable impact on the emergence of this
religious movement: Hoca Ahmet Yesevi (12th century) and
Haci Bektaşi Veli (14th century). This belief system,
which has deep roots in Turkish society and history, is generally
considered as one of the branches of Islam, influenced in particular
by Sufism and by certain pre-Islamic beliefs. Its religious practices
differ from those of the Sunni
schools of law in certain aspects such as prayer, fasting and
pilgrimage.
According
to the applicant, Alevism is a belief or philosophy influenced by
other cultures, religions and philosophies. It represents one of the
most widespread faiths in Turkey after the Hanafite
branch of Islam. It advocates close contact with nature, tolerance,
modesty and love for one's neighbour, within the Islamic faith.
Alevis reject the sharia (code of laws in orthodox Islam) and the
sunna (forms of behaviour and formal rules of orthodox Islam)
and defend freedom of religion, human rights, women's rights,
humanism, democracy, rationalism, modernism, universalism, tolerance
and secularism. Alevis do not pray by the Sunni rite (in particular,
they do not comply with the obligation to pray five times daily) but
express their devotion through religious songs and dances (semah);
they do not attend mosques, but meet regularly in cemevi
(meeting and worship rooms) for ritual ceremonies. Equally, Alevis do
not consider the pilgrimage to Mecca as a religious obligation. They
believe that Allah is present in each person. According to Alevism,
Allah created Adam in his image and all his manifestations in this
world are in human form. Allah is neither in the sky nor in paradise,
but in the centre of the human heart.
B. The applicants' request for exemption and
application to have the decision set aside
On
23 February 2001 the applicant submitted a request to the Provincial
Directorate of National Education (“the Directorate”) at
the Istanbul Governor's Office, seeking to have his daughter exempted
from religious culture and ethics classes. Pointing out that his
family were followers of Alevism, he stressed that, under
international treaties such as, for example, the Universal
Declaration of Human Rights, parents had the right to choose the type
of education their children were to receive. In addition, he alleged
that the compulsory course in religious culture and ethics was
incompatible with the principle of secularism.
On
2 April 2001 the Directorate replied that it was impossible to grant
the exemption request. In particular, it stated:
“... Article 24 of the Constitution states that
'Education and instruction in religion and ethics shall be conducted
under State supervision and control. Instruction in religious culture
and moral education shall be compulsory in the curricula of primary
and secondary schools. Other religious education and instruction
shall be subject to the individual's own desire, and in the case of
minors, to the request of their legal representatives.'
Article 12 of the State Education Act (Law no. 1739) ...
provides that 'secularism shall be the basis of Turkish national
education. Religious culture and ethics shall be among the compulsory
subjects taught in primary and upper secondary schools, and in
schools of these levels.'”
For these reasons, your request cannot be granted.”
Following
the Directorate's refusal, the applicant applied to the Istanbul
Administrative Court for judicial review. He alleged that the
compulsory classes in religious culture and ethics were essentially
based on the fundamental rules of Hanafite Islam and that no teaching
was given on his own faith. He challenged, inter alia, the
compulsory nature of this school subject.
In
a decision of 28 December 2001, the Administrative Court dismissed
the applicant's request, holding, inter alia:
“Article 24 of the Constitution has established
that religious culture and ethics are among the compulsory subjects
taught in primary and secondary schools, and section 12 of Law
no. 1739 [states] that religious culture and ethics are among the
compulsory subjects taught in primary and upper secondary schools of
the equivalent level.
In this context, the dismissal of the plaintiff's
request is not contrary to the law...”
The
applicant appealed on points of law against that judgment, relying,
inter alia, on the Convention.
In
a judgment of 14 April 2003, served on 5 August 2003, the Supreme
Administrative Court dismissed his appeal and upheld the
first-instance judgment, holding that the latter complied with the
procedural rules and the legislation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution
Article
24 of the Constitution, in so far as relevant, provides:
“1. Everyone has the right to freedom
of conscience, religious belief and conviction.
2. Acts of worship, religious services, and
ceremonies shall be conducted freely, provided that they do not
violate the provisions of Article 14.
3. No one shall be compelled to worship, or
to participate in religious ceremonies and rites, to reveal religious
beliefs and convictions, or be blamed or accused because of his
religious beliefs and convictions.
4. Education and instruction in religion and
ethics shall be conducted under State supervision and control.
Instruction in religious culture and moral education shall be
compulsory in the curricula of primary and secondary schools. Other
religious education and instruction shall be subject to the
individual's own desire, and in the case of minors, to the request of
their legal representatives.
5. No one shall be allowed to exploit or
abuse religion or religious feelings, or things held sacred by
religion, in any manner whatsoever, for the purpose of personal or
political influence, or for even partially basing the fundamental,
social, economic, political, and legal order of the State on
religious tenets.”
B. The State Education Act (Law no. 1739)
Section
12 of the State Education Act (Law no. 1739) provides:
“Secularism is the basis of Turkish state
education. Religious culture and ethics shall be among the compulsory
subjects taught in primary and upper secondary schools and in schools
of an equivalent level.”
C. Decisions on exemptions and on the syllabus
1. Decision no. 1 of 9 July 1990 on exemptions
On
9 July 1990 the Supreme Council for Education adopted a decision on
religious culture and ethics classes and pupils who were entitled to
exemption from them. It stated:
“Following the proposal by the Ministry of
Education, pupils of Turkish nationality who belong to the Christian
or Jewish religions and who attend primary and secondary schools,
with the exception of schools for minorities, are not obliged to
follow the classes in religious culture and ethics, provided they
affirm their adherence to those religions. If, however, such pupils
wish to attend such classes, they must submit a written request from
their legal representative.”
At
the hearing the Government explained that this exemption procedure
could be extended to other religious or philosophical convictions,
such as atheism, without however producing specific examples.
2. The Turkish education system and decision no. 373 of
19 September 2000 on guidelines for classes in religious culture
and ethics
Since
1997 compulsory state education has lasted eight years (instead of
the previous five) for children aged 6 to 14; the first five years
correspond to primary school (1st to 5th grade)
and the following three to secondary school (6th to 8th
grade).
In
decision no. 373 of 19 September 2000, the Minister of Education
approved the guidelines for classes in religious culture and ethics
(taught in grades 4, 5, 6, 7 and 8).
The
principles adopted in this connection are as follows:
“... today, when intercultural influence is
increasing, it has become necessary, in order to foster a culture of
peace and a context of tolerance to know about other religions.
For this reason, the school syllabus...;
... includes teaching [to the effect] that the aim of
all religions is to educate upright individuals. [Religious
instruction also aims to educate people] who are informed about the
historical development of Judaism, Christianity, Hinduism and
Buddhism, their main features and the content of their doctrine, and
to be able to assess, using objective criteria, the position of Islam
in relation to Judaism and Christianity...
A. The principles to be observed during the
teaching and learning experience...
Always
bear in mind the principle of secularism. There should be no
infringement of freedom of religion, conscience, thought and
expression.
Emphasise
that differences in religious understanding and practice are of
value.
Take
advantage, in so far as possible, of pupils' feelings and behaviour
in order to socialise them and to educate them as good citizens
through religious and ethical knowledge.
Seek
to ensure that pupils internalise the principles of love, respect,
fraternity and friendship, which strengthen national unity and union,
and national concepts and values such as the homeland, the nation,
the flag, the martyr...
Emphasise
that religion is one of the important principles of the national
culture.
...
Teach
the concept of worship in the wide sense; that work, cleanliness and
high moral standards are ways of worshipping...
Make
pupils aware that acts of worship, as well as being demonstrations of
love, respect and gratitude towards Allah, enable the individuals in
a group to bond in love and respect, to help each other, to show
solidarity...
When
studying subjects related to the prophet Mohammed, provide examples
concerning his morality.
...
Base
lesson material on verses [from the Koran] and relevant sayings and
traditions [of Mohammed]..., the passages for reading should be
illustrated by stories and images.
Throughout
the entire teaching process, make a careful distinction, in covering
topics and the choice of examples, between those from the Koran and
those developed subsequently. To this end, taking into account public
and community events, emphasise those which have their source in the
Koran and those which result from habit, customs, tradition, beliefs,
lifestyles and cultural influence.
...
Using different examples, explain that, far from being a
myth, Islam is a rational and universal religion.
...
7th grade... Units: Unit 1 – Knowledge
of the Koran. Unit 2 – Religion is good morals. Unit 3 –
Pilgrimage and sacrifice. Unit 4 – Angels and other invisible
beings. Unit 5 – Belief in the other world. Unit 6 –
Our family. Unit 7 – Knowledge of religions...”
The
applicants submitted five textbooks, for grades 4, 5, 6, 7 and 8,
on religious culture and ethics. They are used in schools, having
been authorised by the Ministry of Education.
In
the 4th grade textbook, instruction moved from the concept
of religion to examine the relationship between morality and
religion, the Creator and the creature, the family and religion, and
knowledge of the life of the prophet Mohamed.
The
5th grade textbook begins by explaining the meaning of the
expression “I believe in God”. It focuses particularly on
teaching the fundamental concepts of Islam: the profession of faith,
prayer, the mosque as the place of worship, the nature of the prayers
recited during the month of Ramadan, the prophet Mohammed's family
life. A general overview is given of the prophets whose names appear
in the Koran.
The
6th grade textbook begins by covering the different daily
prayers. It is explained that every Muslim is obliged to pray five
times daily. The corresponding rituals are illustrated in the book,
which then deals with subjects such as charity, love for the homeland
and the nation, harmful behaviour, friendship and brotherhood, and
the four holy books, namely the Torah, the Zabur (psalms), the
Gospels and the Koran.
The
7th grade textbook emphasises knowledge of the Koran, the
link between religion and high moral standards, pilgrimage and
sacrifice, angels and invisible creatures, belief in the other world
and the family. In addition, the main religions, namely Judaism,
Christianity, Islam, Hinduism and Buddhism, are presented over
fifteen pages.
The
8th grade textbook discusses the prophet Mohammed's high
moral standards, culture and religion, the concepts of religion,
reason and science, belief in fate and the link between faith and
conduct. Subjects such as “differences in approach in
religion”, “advice of religions and of Islam”,
“secularism”, “freedom of religion and conviction”
are also covered in this book.
It
appears from reading these textbooks that the pupils are also
required to learn several suras from the Koran by heart.
For
their part, the Government submitted the textbook for the 9th grade
(the first year of upper secondary school).
This
textbook begins by dealing with man's place in the universe. It
subsequently covers topics such as human nature and religion, the
role of religion in human life and the various forms of belief,
namely monotheism, polytheism, Gnosticism, agnosticism and atheism.
Explanations are also provided for various concepts, such as prayer
and the link between prayer and cleanliness; this chapter illustrates
the rituals surrounding the partial and total ablutions in Islam
(gusul and abdest). In addition, certain essential
elements, such as the life of Mohammed, the Koran and fundamental
concepts (interpretation, the suras, etc.), are described with the
aim of providing information on Islam. The rest of the textbook deals
primarily with the concepts of “values and family”, “the
homeland, flag, freedom, independence, human rights, secularism, the
secular State, Ataturk and secularism, etc”. Finally, it deals
with the subject of “the Turks and Islam” in the context
of Turkish history; this chapter examines the Turks' former beliefs,
such as the concept of “God-heaven”, Manichaeism,
Buddhism, the Christian religion and Judaism. Individuals who
influenced the Turks' understanding of Islam are also discussed, in
particular Ebu Hanife (born 699, died 767, founder of the
Hanafite school) and Imam Şafii (born 767, died 820,
founder of the Shafite School), as well as Hoca Ahmet Yesevi and Haci
Bektas Veli (see paragraph 8 above).
The
Government also explained that pupils were assessed in this subject
only by written examinations.
III. RELEVANT INTERNATIONAL TEXTS
A. International Covenant on
Civil and Political Rights
The
relevant passage of Article 18 of the International Covenant on Civil
and Political Rights provides:
“4. The States Parties to the present
Covenant undertake to have respect for the liberty of parents and,
when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own
convictions.”
B. Recommendations 1396 (1999) and 1720 (2005) of the
Parliamentary Assembly of the Council of Europe
In
Recommendation 1396 (1999) on religion and democracy, adopted on 27
January 1999, the Assembly recommended that the Committee of
Ministers invite the governments of the member States, inter alia:
“13. ... (ii) to promote education about
religions and, in particular, to:
(a) step up the teaching about religions as
sets of values towards which young people must develop a discerning
approach, within the framework of education on ethics and democratic
citizenship;
(b) promote the teaching in schools of the
comparative history of different religions, stressing their origins,
the similarities in some of their values and the diversity of their
customs, traditions, festivals, and so on; ...
(e) avoid – in the case of children –
any conflict between the state-promoted education about religion and
the religious faith of the families, in order to respect the free
decision of the families in this very sensitive matter...”
In
Recommendation 1720 (2005), adopted on 4 October 2005, the Assembly
recommended that the Committee of Minsters encourage the governments
of member States to ensure that religious studies were taught at the
primary and secondary levels of state education, on the basis, inter
alia, of the following criteria:
“14.1. the aim of this education should
be to make pupils discover the religions practised in their own and
neighbouring countries, to make them perceive that everyone has the
same right to believe that their religion is the “true faith”
and that other people are not different human beings through having a
different religion or not having a religion at all;
14.2. it should include, with complete
impartiality, the history of the main religions, as well as the
option of having no religion;
14.3. it should provide young people with
educational tools that enable them to be quite secure in approaching
supporters of a fanatical religious practice;
14.4. it must not overstep the borderline
between the realms of culture and worship, even where a country with
a state religion is concerned. It is not a matter of instilling a
faith but of making young people understand why religions are sources
of faith for millions;
14.5. teachers on religions need to have
specific training. They should be teachers of a cultural or literary
discipline. However, specialists in another discipline could be made
responsible for this education;
14.6. the state authorities should look after
teacher training and lay down the syllabuses which should be adapted
to each country's peculiarities and to the pupils' ages. In devising
these programmes, the Council of Europe will consult all partners
concerned, including representatives of the religious faiths.”
C. The European Commission against Racism and
Intolerance (ECRI)
The
European Commission against Racism and Intolerance has already given
its view on the teaching of religion in schools in General policy
recommendation no. 5 on “Combating intolerance and
discrimination against Muslims” (CRI (2000) 21, 27 April
2000). After reiterating the principles of respect for equality and
non-discrimination between religions and recognising the great
diversity intrinsic in the practice of Islam, it recommended that the
governments of member States “ensure that religious instruction
in schools respects cultural pluralism and make provision for teacher
training to this effect”.
In
its third report on Turkey (CRI (2005), the ECRI also considered, in
particular, that:
“The syllabus covers all religions and is chiefly
designed to give pupils an idea of all existing religions. However,
several sources have described these courses as instruction in the
principles of the Muslim faith rather than a course covering several
religious cultures. ECRI notes that only Muslim pupils are required
to follow these courses, while pupils belonging to minority religious
groups can be exempted. ECRI considers the situation unclear: if this
is indeed a course on the different religious cultures, there is no
reason to make it compulsory for Muslim children alone. Conversely,
if the course is essentially designed to teach the Muslim religion,
it is a course on a specific religion and should not be compulsory,
in order to preserve children's and their parents' religious
freedom.”
In
consequence, ECRI urged the Turkish authorities:
“... to reconsider their approach to instruction
in religious culture. They should take steps either to make this
instruction optional for everyone or to revise its content so as to
ensure that it genuinely covers all religious cultures and is no
longer perceived as instruction in the Muslim religion.”
IV. COMPARATIVE LAW
In
Europe, religious education is closely tied in with secular
education. Of the 46 Council of Europe member States which were
examined, 43 provide religious education classes in state schools.
Only Albania, France (with the exception of the Alsace and Moselle
regions) and the former Yugoslav Republic of Macedonia are the
exceptions to this rule. In Slovenia, non-confessional teaching is
offered in the last years of state education.
In
25 of the 46 member States (including Turkey), religious education is
a compulsory subject. However, the scope of this obligation varies
depending on the State. In five countries, namely Finland, Greece,
Norway, Sweden and Turkey, the obligation to attend classes in
religious education is absolute. All pupils who belong to the
religious faith taught in the classes are obliged to follow them,
partially or fully. However, ten States allow for exemptions under
certain conditions. This is the case in Austria, Cyprus, Denmark,
Ireland, Iceland, Liechtenstein, Malta, Monaco, San Marino and the
United Kingdom. In the majority of these countries, religious
education is denominational.
Ten
other countries give pupils the opportunity to choose a substitute
lesson in place of compulsory religious education. This is the case
in Germany, Belgium, Bosnia and Herzegovina, Lithuania, Luxembourg,
the Netherlands, Serbia, Slovakia and Switzerland. In those
countries, denominational education is included in the curriculum
drawn up by the relevant ministries and pupils are obliged to attend
unless they have opted for the substitute lesson proposed.
In
contrast, 21 member States do not oblige pupils to follow classes in
religious education. Religious education is generally authorised in
the school system but pupils only attend if they have made a request
to that effect. This is what happens in the largest group of States:
Andorra, Armenia, Azerbaijan, Bulgaria, Croatia, Spain, Estonia,
Georgia, Hungary, Italy, Latvia, Moldova, Poland, Portugal, the Czech
Republic, Romania, Russia and Ukraine. Finally, in a third group of
States, pupils are obliged to attend a religious education or
substitute class, but always have the option of attending a secular
lesson.
This
general overview of religious education in Europe shows that, in
spite of the variety of teaching methods, almost all of the member
States offer at least one route by which pupils can opt out of
religious education classes (by providing an exemption mechanism or
the option of attending a lesson in a substitute subject, or by
giving pupils the choice of whether or not to sign up to a religious
studies class).
THE LAW
I. ALLEGED VIOLATION OF THE SECOND SENTENCE OF ARTICLE 2
OF PROTOCOL No. 1
The
applicants submitted that the way in which religious culture and
ethics were taught in primary and secondary schools infringed their
rights under the second sentence of Article 2 of Protocol No. 1,
which provides:
“In the exercise of any functions which it assumes
in relation to education and to teaching, the State shall respect the
right of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions.”
A. The parties' submissions
1. The applicants
The
applicants alleged that the classes in religious culture and ethics
were not conducted in an objective, critical or pluralist manner, and
thus did not fulfil the criteria identified by the Court in the
context of its interpretation of Article 2 of Protocol No. 1. The
syllabus, which was taught entirely from a religious perspective and
which praised the Sunni interpretation of the Islamic faith and
tradition, together with textbooks describing the traditional rites
of Sunni Islam, clearly indicated that this instruction lacked
objectivity. The fact that fifteen pages of the 7th grade
textbook were used to present certain religions, such as Judaism,
Christianity, Islam, Hinduism and Buddhism, was insufficient to
ensure compliance with the above-mentioned principles. In reality,
only the precepts, rites and prayers of the Muslim faith, always in
its Sunni form, were taught, and no detailed information was provided
about the other religions. As an example, the applicants stated that,
over nineteen pages of the 6th grade textbook, only the
various daily prayers in Islam were described.
Further,
the content and syllabus of the classes in religious culture and
ethics were organised in such a way that the existence of the
applicants' faith was denied and Islam was taught from a Sunni
perspective. The fact that certain information concerning the major
figures of the Alevi faith was provided in the 9th grade textbook was
far from sufficient to remedy this shortcoming, in that the precepts
of Sunni Islam, such as “the fear of committing sin”, in
the religious sense of the term, were inculcated from childhood.
The
applicants challenged the argument that the subject contained no
information of a religious nature on the doctrine and rituals of a
specific religion. In reality, the syllabus and textbooks used in the
schools and all the information concerning the implementation of the
syllabus showed that the main aim of the classes was to strengthen
the pupils' Islamic culture, which was also the main theme in the
teaching. The applicants had no doubt that these classes were
intended to provide cultural teaching and to transmit a set of
beliefs. The fact that morality was also taught was merely a method
of dissimulating the hidden aim of these classes.
In
addition, according to the applicants, a State governed by the
principle of secularism could not have a wide margin of appreciation
in the field of religious education. The State could not teach a
religion to children who were educated in state schools. The
applicants alleged that the State's duty of neutrality and
impartiality was incompatible with any power on the State's part to
assess the legitimacy of religious beliefs or their means of
expression.
2. The Government
On
the basis of the power to regulate, which the Court in its case-law
had acknowledged was enjoyed by the State, the Government argued that
education and religious and moral teaching were conducted under the
State's supervision in order to prevent abuses. The State enjoyed
discretionary power in this area. In this regard, they referred to
the principles set out in the decision adopted on 19 September 2000
(see paragraph 21 above) and stressed that the classes in
question had been drawn up for the purpose of promoting
understanding, tolerance and respect among pupils from differing
backgrounds and in order to develop respect and understanding of each
individual's identity, of Turkey's national history and values and of
other religions and philosophies of life.
The Government emphasised that the syllabus, drawn up
by the Ministry of Education and not by the religious authorities,
complied with the principle of secularism, in accordance with Article
24 of the Constitution and section 12 of the State Education Act (Law
no. 1739), and certainly did not correspond to denominational
instruction. In this connection, they challenged the applicants'
allegation that instruction in religious matters was based on the
Sunni understanding of Islam. In the classes on religious culture and
ethics, no specific instruction was provided on the doctrine and
rituals of a particular religion; general information was given about
various religions. In addition, the compulsory nature of the class
implied only that the children had to attend the lessons.
The
Government also alleged that the mere fact of providing children with
teaching on the Muslim faith could not in itself raise a question
under the Convention, so long as the lessons were taught in an
objective, pluralist and neutral manner. There were legitimate
grounds in contemporary Turkish society for granting more time to the
study of Islam than to other religions and philosophies of life. This
was particularly so given that Turkey was a secular State and that
schools were therefore the most appropriate institution for
transmitting such knowledge.
The
syllabus of the subject “religious culture and ethics”
did not take into consideration the vision of members of a branch
[mezhep] of Islam or a religious order [tarikat]
represented in the country and, consequently, these topics were not
covered. The Government also argued that knowledge of the Alevi
faith, which seemed to belong more to the area of philosophy,
required more in-depth teaching. Thus, information on this topic was
given in the 9th grade (the first year of upper secondary
school).
The
Government emphasised that the compulsory nature of the class arose
from the fact that it was necessary to protect children from myths
and erroneous information, which gave rise to fanaticism. In this
connection, they stressed that Jewish and Christian pupils were
exempted from these lessons under the Treaty of Lausanne and decision
no. 1 of the Supreme Council for Education (see paragraph 18 above).
During the hearing they also indicated that, if individuals
professing atheism wished to be exempted, their request was assessed
by the authorities.
The
Government also pointed out that the teaching was dispensed under the
supervision of the administrative courts, which strictly monitored
compliance with the principle of secularism. In addition, the
teachers responsible for primary school classes were trained in
universities and had obtained diplomas in the discipline of
“knowledge of religious culture and morality”. Teachers
responsible for these classes at secondary level had a Masters-level
degree from a faculty of theology.
Finally,
according to the Government, it was clear from the Court's settled
case-law that the preparation and content of curricula fell within
the discretionary power of the State. Consequently, Article 2 of
Protocol No. 1 did not enable parents to object to this State
prerogative. If it were otherwise, it would be impossible to put in
place institutionalised education.
B. The Court's assessment
1. General principles
As
regards the general interpretation of Article 2 of Protocol No. 1,
the Court has set out the main principles in its case-law (see, in
particular, Kjeldsen, Busk Madsen and Pedersen v. Denmark,
judgment of 7 December 1976, Series A no. 23, pp. 24 28, §§
50 54; Campbell and Cosans v. the United Kingdom,
judgment of 25 February 1982, Series A no. 48, pp. 16 18,
§§ 36 37; Valsamis v. Greece, judgment of
18 December 1996, Reports of Judgments and Decisions 1996 VI,
pp. 2323 2324, §§ 25 28; and, most recently,
Folgerø and Others v. Norway [GC], no. 15472/02, §
84, 29 June 2007). The two sentences of Article 2 of Protocol
No. 1 must be read not only in the light of each other but also, in
particular, of Articles 8, 9 and 10 of the Convention (see
Kjeldsen, Busk Madsen and Pedersen, cited above, § 52).
The
right of parents to respect for their religious and philosophical
convictions is grafted on to this fundamental right, and the first
sentence does not distinguish, any more than the second, between
State and private teaching. In short, the second sentence of Article
2 aims at safeguarding the possibility of pluralism in education, a
possibility which is essential for the preservation of the
“democratic society” as conceived by the Convention. In
view of the power of the modern State, it is above all through State
teaching that this aim must be realised (see Kjeldsen, Busk Madsen
and Pedersen, cited above, § 50).
Article
2 of Protocol No. 1 does not permit a distinction to be drawn between
religious instruction and other subjects. It enjoins the State to
respect parents' convictions, be they religious or philosophical,
throughout the entire State education programme (see Kjeldsen,
Busk Madsen and Pedersen, cited above, § 51). That duty is
broad in its extent as it applies not only to the content of
education and the manner of its provision but also to the performance
of all the “functions” assumed by the State. The verb
“respect” means more than “acknowledge” or
“take into account”. In addition to a primarily negative
undertaking, it implies some positive obligation on the part of the
State. The word “convictions”, taken on its own, is not
synonymous with the words “opinions” and “ideas”.
It denotes views that attain a certain level of cogency, seriousness,
cohesion and importance (see Valsamis, cited above, §§
25 and 27, and Campbell and Cosans, cited above, §§
36 37).
It
is in the discharge of a natural duty towards their children –
parents being primarily responsible for the “education and
teaching” of their children – that parents may require
the State to respect their religious and philosophical convictions.
Their right thus corresponds to a responsibility closely linked to
the enjoyment and the exercise of the right to education (ibid).
However,
the setting and planning of the curriculum fall in principle within
the competence of the Contracting States. This mainly involves
questions of expediency on which it is not for the Court to rule and
whose solution may legitimately vary according to the country and the
era (see Valsamis, cited above, § 28). In particular, the
second sentence of Article 2 of Protocol No. 1 does not prevent
the States from disseminating in State schools, by means of the
teaching given, objective information or knowledge of a directly or
indirectly religious or philosophical kind. It does not even permit
parents to object to the integration of such teaching or education in
the school curriculum, for otherwise all institutionalised teaching
would run the risk of proving impracticable (see Kjeldsen, Busk
Madsen and Pedersen, cited above, § 53).
In
fact, it seems very difficult for many subjects taught at school not
to have, to a greater or lesser extent, some philosophical complexion
or implications. The same is true of religious affinities if one
remembers the existence of religions forming a very broad dogmatic
and moral entity which has or may have answers to every question of a
philosophical, cosmological or moral nature (ibid, § 53).
The
second sentence of Article 2 implies on the other hand that the
State, in fulfilling the functions assumed by it in regard to
education and teaching, must take care that information or knowledge
included in the curriculum is conveyed in an objective, critical and
pluralistic manner, enabling pupils to develop a critical mind with
regard to religion (see, in particular, paragraph 14 of
Recommendation 1720 (2005), paragraph 27 above) in a calm
atmosphere which is free of any misplaced proselytism (see Şefika
Köse and 93 Others v. Turkey (dec.), no. 26625/02,
24 January 2006). The State is forbidden to pursue an aim of
indoctrination that might be considered as not respecting parents'
religious and philosophical convictions. That is the limit that must
not be exceeded (see Kjeldsen, Busk Madsen and Pedersen, cited
above, § 53).
In
order to examine the disputed legislation under Article 2 of the
Protocol, interpreted as above, one must, while avoiding any
evaluation of the legislation's expediency, have regard to the
material situation that it sought and still seeks to meet. Although,
in the past, the Convention organs have not found education providing
information on religions to be contrary to the Convention, they have
carefully scrutinised whether pupils were obliged to take part in a
form of religious worship or were exposed to any form of religious
indoctrination. In the same context, the arrangements for exemption
are also a factor to be taken into account (see Anna-Nina Angeleni
v. Sweden, no. 10491/83, Commission decision of 3 December
1986, Decisions and Reports (DR) 51, p. 41; Zénon Bernard
v. Luxembourg, no. 17187/90, Commission decision of 8
September 1993, DR 75, p. 57; C.J., J.J. and E.J. v. Poland,
no. 23380/94, Commission decision of 16 January 1996, DR 84, p. 46).
Certainly, abuses can occur as to the manner in which the provisions
in force are applied by a given school or teacher and the competent
authorities have a duty to take the utmost care to see to it that
parents' religious and philosophical convictions are not disregarded
at this level by carelessness, lack of judgment or misplaced
proselytism (see Kjeldsen, Busk Madsen and Pedersen, cited
above, § 54).
The
Court reiterates that it has always stressed that, in a pluralist
democratic society, the State's duty of impartiality and neutrality
towards various religions, faiths and beliefs is incompatible with
any assessment by the State of the legitimacy of religious beliefs or
the ways in which those beliefs are expressed (see Manoussakis and
Others v. Greece, judgment of 26 September 1996, Reports
1996 IV, p. 1365, § 47, and Hasan and Chaush
v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000 XI).
Further, the State does not need to take measures to ensure that
religious communities remain or are brought under a unified
leadership (see Serif v. Greece, no. 38178/97, § 51,
ECHR 1999 IX).
Such
an interpretation of the second sentence of Article 2 of Protocol
No. 1 is consistent at one and the same time with the first
sentence of the same provision, with Articles 8 to 10 of the
Convention and with the general spirit of the Convention itself, an
instrument designed to maintain and promote the ideals and values of
a democratic society (see Kjeldsen, Busk Madsen and Pedersen,
cited above, § 53). This is particularly true in that teaching
is an integral part of the process whereby a school seeks to achieve
the object for which it was established, including the development
and moulding of the character and mental powers of its pupils as well
as their personal independence.
2. Application of these principles
Pursuant
to the Turkish Constitution, Ms Zengin, who was a pupil in a state
school, was obliged to attend classes in “religious culture and
ethics” from the fourth year of primary school.
In
the light of the principles set out above, the Court must determine,
firstly, if the content-matter of this subject is taught in an
objective, critical and pluralist manner, in order to ensure that it
is compatible with the principles which emerge from the case-law
concerning the second sentence of Article 2 of Protocol No. 1.
Secondly, it will examine whether appropriate provisions have been
introduced in the Turkish educational system to ensure that parents'
convictions are respected.
(a) Content of the lessons
According
to the syllabus for “religious culture and ethics”
classes, the subject is to be taught in compliance with respect for
the principles of secularism and freedom of thought, religion and
conscience, and is intended to “foster a culture of peace and a
context of tolerance”. It also aims to transmit knowledge
concerning all of the major religions. One of the objectives of the
syllabus is educate people “who are informed about the
historical development of Judaism, Christianity, Hinduism and
Buddhism, their main features and the content of their doctrine, and
to be able to assess, using objective criteria, the position of Islam
in relation to Judaism and Christianity” (see paragraph 21
above).
In
the Court's view, the intentions set out above are clearly compatible
with the principles of pluralism and objectivity enshrined in
Article 2 of Protocol No. 1. In this regard, it notes that the
principle of secularism, as guaranteed by the Turkish Constitution,
prevents the State from manifesting a preference for a particular
religion or belief, thereby guiding the State in its role of
impartial arbiter, and necessarily entails freedom of religion and
conscience (see Leyla Şahin v. Turkey [GC], no. 44774/98,
§ 113, ECHR 2005 ...). In this connection, it notes with
interest the Government's observations to the effect that, firstly,
the teaching of religion in schools is an appropriate method of
combating fanaticism and, secondly, the administrative courts are
responsible for supervising compliance with the principle of
secularism, both in terms of preparation of the syllabus and in its
implementation.
The
Court observes, however, that, although the instruction is based on
the principles set out above, the teaching programme also aims to
raise awareness among pupils of “[the fact that] acts of
worship, as well as being demonstrations of love, respect and
gratitude towards Allah, enable the individuals in a group to bond
with love and respect, to help each other, to show solidarity”
and “using different examples, to explain that, far from being
a myth, Islam is a rational and universal religion”. The
syllabus also includes study of the conduct of the prophet Mohamed
and of the Koran. Equally, the syllabus for the 7th grade
includes teaching on fundamental aspects of the Islamic religion,
such as “pilgrimage and sacrifice”, “angels and
other invisible creatures” and “belief in the other
world”.
As
to the textbooks used in the context of these classes, examination
shows that they are not limited to transmitting information on
religions in general; they also contain texts which appear to provide
instruction in the major principles of the Muslim faith and provide a
general overview of its cultural rites, such as the profession of
faith, the five daily prayers, Ramadan, pilgrimage, the concepts of
angels and invisible creatures, belief in the other world, etc. (see
paragraph 21 above).
Equally,
pupils must learn several suras from the Koran by heart and study,
with the support of illustrations, the daily prayers (see
paragraph 22 above) and sit written tests for the purpose of
assessment (see paragraph 24 above).
Thus,
the syllabus for teaching in primary schools and the first cycle of
secondary school, and all of the textbooks drawn up in accordance
with the Ministry of Education's decision no. 373 of 19 September
2000, give greater priority to knowledge of Islam than they do to
that of other religions and philosophies. In the Court's view, this
itself cannot be viewed as a departure from the principles of
pluralism and objectivity which would amount to indoctrination (see
Folgerø and Others, cited above, § 89),
having regard to the fact that, notwithstanding the State's secular
nature, Islam is the majority religion practiced in Turkey.
Moreover,
the question arises whether the priority given to the teaching of
Islam may be considered as remaining within acceptable limits for the
purposes of Article 2 of Protocol No. 1. In fact, given the syllabus
and textbooks in question, it may reasonably be supposed that
attendance at these classes is likely to influence the minds of young
children. It is therefore appropriate to examine whether the
information or knowledge in the syllabus is disseminated in an
objective, critical and pluralist manner.
In
this regard, the applicant alleged that no teaching was provided on
the Alevi faith or its rituals in the compulsory “religious
culture and ethics” lessons, although this religious movement
differed in numerous areas from the conception of religion presented
in school. According to the Government, this resulted from the fact
that, in this syllabus, the vision of members of a branch of Islam or
of a religious order represented in the country was not taken into
consideration.
As
to the Alevi faith, it is not disputed between the parties that it is
a religious conviction which has deep roots in Turkish society and
history and that it has features which are particular to it (see
paragraphs 8-9 above). It is thus distinct from the Sunni
understanding of Islam which is taught in schools. It is certainly
neither a sect nor a “belief” which does not attain a
certain level of cogency, seriousness, cohesion and importance (see
Campbell and Cosans, cited above, § 36). In consequence,
the expression “religious convictions”, within the
meaning of the second sentence of Article 2 of Protocol No. 1,
is undoubtedly applicable to this faith.
As
the Government have recognised, however, in the “religious
culture and morals” lessons, the religious diversity which
prevails in Turkish society is not taken into account. In particular,
pupils receive no teaching on the confessional or ritual
specificities of the Alevi faith, although the proportion of the
Turkish population belonging to is very large. As to the Government's
argument that certain information about the Alevis was taught in the
9th grade, the Court, like the applicants (see
paragraph 43 above), considers that, in the absence of
instruction in the basic elements of this faith in primary and
secondary school, the fact that the life and philosophy of two
individuals who had a major impact on its emergence are taught in the
9th grade is insufficient to compensate for the
shortcomings in this teaching.
Admittedly,
parents may always enlighten and advise their children, exercise with
regard to their children natural parental functions as educators, or
guide their children on a path in line with the parents' own
religious or philosophical convictions (see Valsamis, cited
above, § 31 in fine). Nonetheless, where the Contracting
States include the study of religion in the subjects on school
curricula, and irrespective of the arrangements for exemption,
pupils' parents may legitimately expect that the subject will be
taught in such a way as to meet the criteria of objectivity and
pluralism, and with respect for their religious or philosophical
convictions.
In
this regard, the Court considers that, in a democratic society, only
pluralism in education can enable pupils to develop a critical mind
with regard to religious matters in the context of freedom of
thought, conscience and religion (see paragraph 13 (ii) of
Parliamentary Assembly Recommendation no. 1396 and paragraph 14 of
Recommendation no. 1720, paragraphs 26 and 27 above). In
this respect, it should be noted that, as the Court has held on
numerous occasions, this freedom, in its religious dimension, is 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 (see
Buscarini and Others v. San Marino [GC], no. 24645/94, §
34, ECHR 1999 I).
In
the light of the above, the Court concludes that the instruction
provided in the school subject “religious culture and ethics”
cannot be considered to meet the criteria of objectivity and
pluralism and, more particularly in the applicants' specific case, to
respect the religious and philosophical convictions of Ms Zengin's
father, a follower of the Alevi faith, on the subject of which the
syllabus is clearly lacking.
(b) As to whether appropriate means
existed to ensure respect for parents' convictions
The
Court reiterates the Contracting Parties' positive obligation under
the second sentence of Article 2 of Protocol No. 1, which gives
parents the right to demand from the State respect for their
religious and philosophical convictions in the teaching of religion
(see Campbell and Cosans, cited above, § 37). Where a
Contracting State includes religious instruction in the curriculum
for study, it is then necessary, in so far as possible, to avoid a
situation where pupils face a conflict between the religious
education give by the school and the religious or philosophical
convictions of their parents. In this connection, the Court notes
that, with regard to religious instruction in Europe and in spite of
the variety of teaching approaches, almost all of the member States
offer at least one route by which pupils can opt out of religious
education classes, by providing an exemption mechanism or the option
of attending a lesson in a substitute subject, or making attendance
at religious studies classes entirely optional (see paragraph 34
above).
The
Court notes that, under Article 24 of the Turkish Constitution,
“religious culture and ethics” is one of the compulsory
subjects. However, it appears that a possibility for exemption was
introduced by the Supreme Council for Education's decision of 9 July
1990 (see paragraph 18 above). According to that decision, only
children “of Turkish nationality who belong to the Christian or
Jewish religion” have the option of exemption, “provided
they affirm their adherence to those religions”.
The
Court considers at the outset that, whatever the category of pupils
concerned, the fact that parents must make a prior declaration to
schools stating that they belong to the Christian or Jewish religion
in order for their children to be exempted from the classes in
question may also raise a problem under Article 9 of the Convention
(see, mutatis mutandis, Folgerø and Others,
cited above, § 97). In this connection, it notes that, according
to Article 24 of the Turkish Constitution, “no one shall be
compelled ... to reveal religious beliefs and convictions...”
(see paragraph 16 above). Furthermore, it reiterates that it has
always stressed that religious convictions are a matter of individual
conscience (see, inter alia, Sofianopoulos and Others v.
Greece (dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002 X,
and also, mutatis mutandis, Buscarini and Others, cited
above, § 39).
In
addition, the Supreme Council for Education's decision provides for
the possibility of exemption to solely two categories of pupils of
Turkish nationality, namely those whose parents belong to the
Christian or Jewish faiths. In the Court's opinion, this necessarily
suggests that the instruction provided in this subject is likely to
lead these categories of pupils to face conflicts between the
religious instruction given by the school and their parents'
religious or philosophical convictions. Like the ECRI, the Court
considers that this situation is open to criticism, in that “if
this is indeed a course on the different religious cultures, there is
no reason to make it compulsory for Muslim children alone.
Conversely, if the course is essentially designed to teach the Muslim
religion, it is a course on a specific religion and should not be
compulsory, in order to preserve children's and their parents'
religious freedoms” (see paragraph 29 above).
The
Court notes that, according to the Government, this possibility for
exemption may be extended to other convictions if such a request is
submitted (see paragraph 19 above). Nonetheless, whatever the scope
of this exemption, the fact that parents are obliged to inform the
school authorities of their religious or philosophical convictions
makes this an inappropriate means of ensuring respect for their
freedom of conviction. In addition, in the absence of any clear text,
the school authorities always have the option of refusing such
requests, as in Ms Zengin's case (see paragraph 11 above).
In
consequence, the Court considers that the exemption procedure is not
an appropriate method and does not provide sufficient protection to
those parents who could legitimately consider that the subject taught
is likely to give rise in their children to a conflict of allegiance
between the school and their own values. This is especially so where
no possibility for an appropriate choice has been envisaged for the
children of parents who have a religious or philosophical conviction
other than that of Sunni Islam, where the procedure for exemption is
likely to subject the latter to a heavy burden and to the necessity
of disclosing their religious or philosophical convictions in order
to have their children exempted from the lessons in religion.
(c) Conclusion
Having
regard to the foregoing, the Court concludes that there has been a
breach of the applicants' right under the second sentence of
Article 2 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
The
applicants also alleged that there had been a violation of Article 9
of the Convention, which provides:
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or
beliefs 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.”
Having
regard to its finding of a violation of Article 2 of Protocol No. 1
(see paragraph 77 above), the Court considers that no separate
question arises under Article 9.
III. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
Articles 41 and 46 of the Convention provide:
Article 41
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
Article 46
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. Damage, costs and expenses
The
applicants made no claim for compensation in respect of pecuniary and
non-pecuniary damage. On the other hand, they claimed the sum of
3,726.80 euros (EUR) jointly to cover their costs and expenses
and the fees corresponding to the work carried out on the case. They
submitted a fees agreement and bills.
In
the Government's view, the question of just satisfaction did not
arise, since the applicants' complaints were manifestly unfounded.
Having
regard to the applicants' position, the Court considers that the
finding of a violation with regard to Article 2 of Protocol No. 1
constitutes in itself sufficient just satisfaction for the damage
they sustained. As to the costs and expenses, it considers that the
applicants' claim under this head is not excessive and awards them
the entirety of the amount claimed, less the EUR 850 granted in legal
aid.
The
Court also observes that it has found in this case a violation of the
Convention on account of the inadequacy of the
Turkish educational system, which, with regard to religious
instruction, does not meet the requirements of objectivity and
pluralism and provides no appropriate method for ensuring respect for
parents' convictions. These conclusions in
themselves imply that the violation of the applicants' rights,
as guaranteed by the second sentence of Article 2 of Protocol No. 1,
originates in a problem related to implementation of the syllabus for
this class and the absence of appropriate methods for ensuring
respect for parents' convictions. In consequence,
the Court considers that bringing the Turkish educational system and
domestic legislation into conformity with the above-cited provision
of the Convention
would represent an appropriate form of compensation which would make
it possible to end the violation found.
B. Default interest
The
Court considers it appropriate to base the default interest on the
marginal lending rate of the European Central Bank, to which should
be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article
2 of Protocol No. 1;
Holds that no separate question arises under
Article 9 of the Convention;
Holds that the finding of a violation provides
in itself sufficient just satisfaction for the non-pecuniary damage
sustained by the applicants;
Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 3,726.80 (three
thousand seven hundred and twenty-six euros, eighty cents) in respect
of costs and expenses, less the sum of EUR 850 granted in legal aid,
plus any tax that may be chargeable, to be converted into new Turkish
liras at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in French, and notified in writing on 9 October 2007 pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F.
Elens-Passos J.-P. Costa Deputy Registrar President
