FORMER SECOND SECTION
CASE OF HASAN AND EYLEM ZENGÝN 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
1. 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.
2. The
applicants were granted legal aid.
3. 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.
4. In a
decision of 6 June 2006, the Chamber declared the application admissible.
5. 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.
Kilislioðlu,
Mr Ý.
Aycan,
Mr S.
Duman, Advisers;
– for
the applicants
Mr K. Genç, Counsel,
Mr A.Þ. Yakiþan,
Ms Ý. 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
6. 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 Avcýlar, Istanbul.
A. Background
to the case
7. Hasan
Zengin stated that his family were adherents of Alevism.
8. 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 Bektaþi 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 Sunni1 schools of
law in certain aspects such as prayer, fasting and pilgrimage.
9. 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 Hanafite2 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
10. 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.
11. 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.”
12. 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.
13. 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...”
14. The
applicant appealed on points of law against that judgment, relying, inter
alia, on the Convention.
15. 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
16. 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)
17. 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
18. 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.”
19. 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
20. 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).
21. 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...
1. Always bear in mind the principle of secularism. There
should be no infringement of freedom of religion, conscience, thought and
expression.
2. Emphasise that differences in religious understanding and
practice are of value.
3. 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.
4. 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...
5. Emphasise that religion is one of the important
principles of the national culture.
...
9. Teach the concept of worship in the wide sense; that work,
cleanliness and high moral standards are ways of worshipping...
10. 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...
11. When studying subjects related to the prophet Mohammed,
provide examples concerning his morality.
...
13. 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.
14. 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...”
22. 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.
23. 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 Þafii
(born 767, died 820, founder of the Shafite School), as well as Hoca Ahmet
Yesevi and Haci Bektas Veli (see paragraph 8 above).
24. 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
25. 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
26. 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...”
27. 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)
28. 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”.
29. 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
30. 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.
31. 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.
32. 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.
33. 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.
34. 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
35. 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
36. 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.
37. 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.
38. 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.
39. 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
40. 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.
41. 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.
42. 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.
43. 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).
44. 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.
45. 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.
46. 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
47. 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).
48. 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).
49. 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).
50. 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).
51. 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).
52. 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 Þefika 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).
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).
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).
55. 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
56. 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.
57. 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
58. 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).
59. 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 Þahin 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.
60. 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”.
61. 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).
62. 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).
63. 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.
64. 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.
65. 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.
66. 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.
67. 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.
68. 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.
69. 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).
70. 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
71. 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).
72. 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”.
73. 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).
74. 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).
75. 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).
76. 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
77. 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
78. 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.”
79. 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
80. 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
81. 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.
82. In the
Government's view, the question of just satisfaction did not arise, since the
applicants' complaints were manifestly unfounded.
83. 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.
84. 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
85. 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
1. Holds
that there has been a violation of Article 2 of Protocol No. 1;
2. Holds
that no separate question arises under Article 9 of the Convention;
3. Holds
that the finding of a violation provides in itself sufficient just satisfaction
for the non-pecuniary damage sustained by the applicants;
4. 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
1. The
majority of Turkey’s population follows the Hanafite theological school’s moderate
interpretation of Islam.
2. Hanafism
is one of the four theological schools of Sunni Islam.
HASAN AND EYLEM ZENGÝN v. TURKEY JUDGMENT
HASAN AND EYLEM ZENGÝN v. TURKEY JUDGMENT