PROCEDURE

The case originated in an application (no. 44774/98) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Leyla Şahin (“the applicant”), on 21 July 1998.

The applicant alleged that a ban on wearing the Islamic headscarf in higher-education institutions violated her rights and freedoms under Articles 8, 9, 10 and 14 of the Convention, and Article 2 of Protocol No. 1.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

On 1 November 2001 the Court changed the composition of its Sections (Rule 52 § 1). This case was assigned to the newly composed Fourth Section.

By a decision of 2 July 2002 the Chamber declared the application admissible.

The applicant and the Government each filed written observations on the merits (Rule 59 § 1).

A hearing took place in public in the Human Rights Building, Strasbourg, on 19 November 2002 (Rule 59 § 3). There appeared before the Court: – for the Government Mr. Ş. Alpaslan, Agent, Mr S. Güran, Mr B. Yildiz, Counsel, Ms D. Kilislioğlu, Ms B. Özaydin, Ms M. Gülşen, Advisers; – for the applicant Mr S. Grosz, Counsel, Mr H. Tuna, Mr A. Selamet Mr M. Emery Mr M. Erbay Mr M. Özkaya Advisers, Ms L. Şahın, Applicant. The Court heard addresses by Mr Grosz, Mr Alpaslan and Mr Güran.

Both the applicant (on 21 November 2002, 9 May, 4 July and 25 September 2003) and the Government (on 5 and 18 March, 7 and 13 November 2003) lodged written observations and additional evidence (Rule 59 §§ 1 and 4, and Rule 60). On 11 December 2003, without providing any explanation, the Government withdrew from the case file the observations and appendices they had lodged on 7 and 13 November 2003.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1973 and has lived in Vienna since 1999, when she left Istanbul to pursue her medical studies at the Faculty of Medicine at Vienna University. She comes from a traditional family of practising Muslims and considers it her religious duty to wear the Islamic headscarf.

A. Circular of 23 February 1998

On 26 August 1997 the applicant, who was then in her fifth year at the Faculty of Medicine at the University of Bursa, enrolled at the Cerrahpaşa Faculty of Medicine at the University of Istanbul. She says that she wore the Islamic headscarf during the four years she spent studying medicine at the University of Bursa and continued to do so until February 1998.

On 23 February 1998 the Vice-Chancellor of Istanbul University issued a circular regulating students’ admission to the university campus. The relevant part of the circular provides: “By virtue of the Constitution, the law and regulations, and in accordance with the case-law of the Supreme Administrative Court and the European Commission of Human Rights and the resolutions adopted by the university administrative boards, students whose ‘heads are covered’ (wearing the Islamic headscarf) and students (including overseas students) with beards must not be admitted to lectures, courses or tutorials. Consequently, the name and number of any student with a beard or wearing the Islamic headscarf must not be added to the lists of registered students. However, if students whose names and numbers are not on the lists insist on attending tutorials and entering lecture theatres, they must be advised of the position and, should they refuse to leave, their names and numbers must be noted and they must be informed that they are not entitled to attend lectures. If they refuse to leave the lecture theatre, the teacher shall record what has happened in a report explaining why it has not been possible to give the lecture and shall bring the matter to the attention of the university authorities as a matter of urgency so that disciplinary measures can be taken.”

On 12 March 1998, in accordance with the aforementioned circular, the applicant was denied access by invigilators to a written examination on oncology because she was wearing the Islamic headscarf. On 20 March 1998 the secretarial offices of the chair of orthopaedic traumatology refused to allow her to enrol because she was wearing a headscarf. On 16 April 1998 she was refused admission to a neurology lecture and on 10 June 1998 to a written examination on public health, again for the same reason.

B. The application for an order setting aside the circular of 23 February 1998

On 29 July 1998 the applicant lodged an application for an order setting aside the circular of 23 February 1998. In her written pleadings, she submitted that the circular and its implementation infringed her rights guaranteed by Articles 8, 9 and 14 of the Convention and Article 2 of Protocol No. 1, in that there was no statutory basis for the circular and the education authority had no regulatory power in this sphere.

In a judgment of 19 March 1999, the Istanbul Administrative Court dismissed the application, holding that by virtue of section 13(b) of the Higher-Education Act (Law no. 2547 – see paragraph 50 below) a university vice chancellor, as the executive organ of the university, had power to regulate students’ dress in order to maintain order. That regulatory power had to be exercised in accordance with the relevant legislation and the judgments of the Constitutional Court and the Supreme Administrative Court. Referring to the settled case-law of those courts, the Administrative Court held that neither the regulation in issue, nor the individual measures, could be considered illegal.

On 19 April 2001 the Supreme Administrative Court dismissed an appeal by the applicant on points of law.

C. The disciplinary measures taken against the applicant

In May 1998 disciplinary proceedings were brought against the applicant under Article 6(a) of the Students Disciplinary Procedure Rules (see paragraph 48 below) as a result of her failure to comply with the rules on dress.

On 26 May 1998, in view of the fact that the applicant had shown by her actions that she intended to continue wearing the headscarf to lectures and/or tutorials, the dean of the faculty declared that her attitude and failure to comply with the rules on dress were not befitting of a student. He therefore decided to issue her with a warning.

On 15 February 1999 an unauthorised assembly gathered outside the deanery of the Cerrahpaşa Faculty of Medicine to protest against the rules on dress.

On 26 February 1999 the dean of the faculty began disciplinary proceedings against various students, including the applicant, for taking part in the assembly. On 13 April 1999, after hearing her representations, he suspended her from the university for a semester pursuant to Article 9(j) of the Students Disciplinary Procedure Rules (see paragraph 48 below).

On 10 June 1999 the applicant lodged an application with the Istanbul Administrative Court for an order quashing the decision to suspend her.

On 20 August 1999 Istanbul University submitted its observations on her application. It argued, inter alia, that the disciplinary penalty was lawful as the reason for the applicant’s one-semester suspension was that she had taken part in an unauthorised assembly.

On 30 November 1999 the applicant’s application to have the disciplinary penalty quashed was dismissed by the Istanbul Administrative Court, which held that in the light of the material in the case file and the settled case-law on the subject, the impugned measure could not be regarded as illegal.

Following the entry into force of Law no. 4584 of 28 June 2000 (which afforded students an amnesty for disciplinary offences and annulled any resulting penalties or disabilities), the applicant was granted an amnesty releasing her from all the disciplinary penalties and their effects. On 28 September 2000 the Supreme Administrative Court held that the aforementioned legislation made it unnecessary to examine the merits of the applicant’s appeal on points of law against the judgment of 30 November 1999.

In the meantime, on 16 September 1999, the applicant had enrolled at Vienna University, where she pursued her university education.