Human Rights Committee

Revised Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2274/2013 * , ** , ***

Communication submitted by:Seyma Türkan (not represented by counsel)

Alleged victim:The author

State party:Turkey

Date of communication:26 June 2012 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 19 July 2013 (not issued in document form)

Date of adoption of Views:17 July 2018

Subject matter:Refusal of university admission to the author who was wearing a wig substituting for a headscarf

Procedural issue: Lack of substantiation of the claims

Substantive issues: Lack of effective remedies; gender discrimination; fair trial; freedom of religion; taking part in conduct of public affairs

Articles of the Covenant: 2, 3, 14, 18, 25 and 26

Articles of the Optional Protocol:2 and 3

1.The author of the communication is Seyma Türkan, a national of Turkey born in 1987. She claims that Turkey has violated her rights under articles 2, 3, 14, 18, 25 and 26 of the Covenant. The Optional Protocol entered into force for Turkey on 24 February 2007. The author is not represented by counsel.

Factual background

2.1The author is a Muslim woman who wears a headscarf covering her hair and neck, in line with her religious beliefs. In 2006, she successfully passed the Student Selection and Placement Examination after which high school graduates are assigned to university according to their performance. She became eligible to enrol in the School of Economics and Administrative Sciences of Kahramanmaraş Sütçü İmam University. The author took the Student Selection and Placement Examination wearing a wig to cover her hair. Although doing so made her feel belittled and uncomfortable, she did not have a choice, as the examination rules prevent students wearing headscarves from entering the examination room.

2.2On 9 May 2006, the author paid her tuition fees and travelled to the University for registration. She used a wig again. Two different school officers refused to register her as a student, on the ground that the President of the University had given instructions not to register students wearing wigs and because she refused to remove it. The author emphasizes that she had the exact same appearance then as when she was allowed to attend the Student Selection and Placement Examination, with her neck uncovered but her hair hidden under the wig. Her request to see the head of the Registrar’s Office was denied.

2.3On 7 September 2006, the school refused the request of the author’s father to register his daughter, stating that higher education students had to comply with legal regulations based on decisions made by higher courts relating to appearance. Following an offer by the University to reimburse her tuition fees, on 4 October 2006 the author sent a letter to the University refusing to be reimbursed and requesting to be registered as a student instead.

2.4On 21 October 2006, the author filed a complaint before the Second Administrative Court of Gaziantep. She also requested a stay of execution of the University’s administrative order. She argued that no statutory provision explicitly prohibited wearing a wig, and that the oral order given by the rector was therefore arbitrary, as the University had inferred from her wearing a wig that it had been done with a religious purpose. The author asserted that she had been discriminated against regarding her right to education, as she had succeeded in passing the Student Selection and Placement Examination but had then been denied access to university on the sole ground that her hair had not been visible.

2.5On 20 February 2007, the Second Administrative Court of Gaziantep dismissed the author’s request for a stay of execution. On 16 April 2007, the author submitted to the same Court additional arguments regarding her complaint, stating that she had not received a copy of the documents presented by the University in its defence, in breach of her right to a fair trial. She argued that newspaper clippings provided by the University contained a photograph of her wearing a headscarf taken the day following her attempt to register at the University, and that her appearance in the photograph did not match the way she looked when she had presented herself at the University. The author also argued that, pursuant to articles 13 and 42 of the Constitution, a fundamental right such as the right to education could only be restricted by law.

2.6On 7 December 2007, the Second Administrative Court of Gaziantep dismissed the author’s complaint. It referred to the Constitutional Court judgment of 9 April 1991 interpreting transitional section 17 of the Higher Education Act (Law No. 2547), in which the Constitutional Court had stated that “in institutions of higher education, it is contrary to the principles of secularism and equality for the neck and hair to be covered with a veil or headscarf on grounds of religious conviction”.

2.7On 14 March 2008, the author filed an appeal with the Council of State. She argued that the Second Administrative Court of Gaziantep had made an error on the facts, as the Court’s decision mentioned her wearing a headscarf during her application for registration, whereas she had not worn a headscarf but a wig. The author also pointed out that the Court had inferred from her wearing a wig that she had intended to circumvent the principle of secularism, although she had never actually expressed such an intention, and that the decision to refuse her registration should therefore be considered arbitrary. The author argued that her rights to education, freedom of expression, religious freedom and respect for private life, protected under the Covenant and the Convention on the Elimination of All Forms of Discrimination against Women, had been violated.

2.8On 20 April 2011, the author received notification that, on 2 March 2011, the Eighth Department of the State Council had dismissed her appeal without further justification. According to article 155 (1) of the 1982 Turkish Constitution, the Council of State is the last instance for reviewing decisions and judgments of administrative courts.

The complaint

3.1The author claims that the State party has violated her rights under articles 2, 3, 14, 18, 25 and 26 of the Covenant.

3.2As regards article 18 of the Covenant, the author claims that the interference with her right to freedom of religion was not prescribed by law, as no statutory provision formally bans the headscarf in the State party. The author argues that no specific meaning can be associated with wearing a wig, but that the University and domestic courts nevertheless inferred that she had a religious and even a political purpose. She stressed that she was not trying to challenge secularism in the State party, nor was she trying to advance any claim through covering her hair. Prohibiting her from registering at university cannot be seen as a measure pursuing a legitimate aim within the meaning of article 18, as wearing a wig cannot be considered as posing a threat to public safety, health, order, or morals, and she cannot be accused of infringing the rights of third parties, as her appearance with her wig is completely natural.

3.3The author claims that the State party discriminated against her on the basis of her gender and her religion. She argues that, despite having passed the same examination as male students holding similar religious beliefs, she was not even allowed to enter the University for five years. As there was no alternative way for her to receive higher education, she had to stay at home. The author points out that the ban on headscarves disproportionately falls on Muslim women and results in inequalities in terms of access to education, employment and participation in public life. She also claims that the courts are ineffective in protecting women wearing a headscarf from discrimination, because they are influenced by the Government and the military, and rely on the jurisprudence of the Constitutional Court. The author alleges that the State party breached articles 2, 3, 25 and 26 of the Covenant.

3.4The author contends that the State party breached article 14 of the Covenant. She argues that the addenda filed by the University with the Second Administrative Court of Gaziantep as evidence were not transmitted to her prior to the hearing, in breach of her right to defend herself. She also claims that the courts did not respond to her claims that her rights under the Covenant had been violated, and that the length of the proceedings had exceeded a reasonable period of time, as the Council of State took five years to decide on her appeal.

State party’s observations on admissibility and the merits

4.1In a note verbale dated 20 January 2014, the State party submitted its observations on the communication, specifying the facts of the case and the relevant constitutional provisions. The State party submits that the University refused the author’s registration in accordance with legal provisions in force and the rulings of the Constitutional Court, which have a binding effect. The registration officer asked the author to comply with the dress and appearance regulations in force and to remove the wig she was wearing for religious purposes. As she refused to do so, her request to register was denied. Compliance with the national dress and appearance legislation established on the basis of higher court judgments was listed in the “Requirements for registration” section of the 2006 Handbook of Student Selection and Placement, Higher Education Programmes and Quotas. The lawfulness of that administrative regulation was confirmed by the Second Administrative Court of Gaziantep in its decision of 7 December 2007. The Court found that the dress and appearance regulations adopted by the higher educational institutions in accordance with Law No. 2547 were obligatory.

4.2The State party submits that Law No. 2547 was amended on 25 February 2011 and 12 July 2012. According to the new provisions, students who have left higher educational institutions of their own accord, students dismissed for any reason except for committing terrorism-related crimes and students who did not register upon receiving the right to be enrolled in a higher educational establishment are entitled to submit an application to the institution in question and continue their education in the following academic year. Pursuant to these amendments, the author is entitled to be enrolled and continue her education at Kahramanmaraş Sütçü İmam University if she lodges an application with the University administration. The State party submits that there has been no violation of the author’s rights. The State party further asserts that, even if there has been a violation, the author now has the right to request in-kind restitution, and was notified in writing by the University administration of this possibility in a letter dated 19 September 2013. In this light, the State party concludes that the communication should be declared inadmissible, as the author’s claims no longer have a legal basis following the legislative changes in question.

Author’s comments on the State party’s observations on admissibility and the merits

5.1On 27 February 2014, the author submitted that, despite the legislative amendments referred to by the State party, her rights, violated in 2006 by the University’s refusal to register her, could not possibly be restored. If she had been duly registered, she would have graduated in 2011 and, given her history of academic achievement and her good command of the English language, by now she would have been working in a financial institution. Moreover, the legislative amendments mentioned by the State party cannot guarantee that she would not be subject to a similar violation in the future if she started her university education. The author claims that there are no clear legal provisions banning headscarves, and that the practice has changed repeatedly over the years. She provides concrete examples demonstrating that the ban on headscarves was practised in 1987, was not enforced from 1988 to 1997, and then began to be enforced again starting in 1997. As of 2014, there has been a de facto lifting of the ban on headscarves, but without any legal provisions to prevent its re-imposition in the future. The author further claims that the amendments to Law No. 2547 introduced by Law No. 6111 and Law No. 6353, mentioned by the State party, concern general student amnesty and not the issue of headscarves, and therefore do not remedy the treatment she suffered. She adds that, having lost eight years since she first attempted to matriculate at university, she is no longer able to enrol in a higher educational establishment and will remain a high school graduate.

5.2The author submits that the Second Administrative Court of Gaziantep did not take into consideration the fact that she was not wearing a headscarf but a wig, and states that the judges were not willing to find a violation in similar cases out of fear of repercussions.

5.3The author responds to the State party’s reliance on the Constitution, stating that she was discriminated against on the ground of her religious belief, contrary to article 10 of the Constitution, because she covers her hair. Because she covers her hair, she was barred from studying, unlike others who had passed the same entry exam. Moreover, her right to privacy under article 20 of the Constitution was violated by the ban on headscarves enforced in the country. She also claims that her right to freedom of religion under article 24 of the Constitution was violated by the ban on headscarves worn out of religious belief, noting that such a ban does not apply to people wearing headscarves if they have cancer or are bald. The author further claims that her right to freedom of thought and opinion under article 25 of the Constitution was violated because she was not allowed to enter the University premises and her father had to talk to the administration on her behalf, and her right to education under article 42 of the Constitution was violated because she was not allowed to study. She claims that the restriction on wearing headscarves in the Handbook of Student Selection and Placement, Higher Education Programmes and Quotas did not comply with the Constitution and the Law on Higher Education.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

6.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

6.3The Committee notes the author’s claim that all available domestic remedies have been exhausted. In the absence of any objection by the State party in this regard, the Committee considers that it is not precluded by article 5 (2) (b) from considering the present communication.

6.4The Committee notes the State party’s claim that the author does not presently have victim status because the 2011 amendments to Law No. 2547 allowed her to enrol in university and to request in-kind restitution, and she was notified in 2013 of this possibility. The Committee also notes that the State party does not clarify the meaning or content of the “in-kind” restitution. It further notes the author’s response that, between her first attempt to matriculate in 2006 and her notification in 2013 that she had a new opportunity to do so, she lost eight years of opportunity to enrol in university and to enjoy the economic and employment benefits resulting from a university education, and that it is now no longer possible for her to pursue university studies. The Committee notes that even if the author eventually received the opportunity to enrol, this does not address the substance of the author’s complaint, namely the denial of registration in 2006 because her hair was covered for religious purposes and the resulting harms she experienced. The Committee also notes that the harm caused to the author has not been compensated. Accordingly, the Committee considers that the author remains a victim in the meaning of articles 1 and 2 of the Optional Protocol.

6.5The Committee notes the author’s claim that her rights under article 2 of the Covenant have been violated because the domestic courts were acting under political influence. The Committee recalls that article 2 of the Covenant, which lays down general obligations for States parties, can be invoked by individuals only in conjunction with other articles of the Covenant, and cannot, in and of itself, give rise to a claim under the Optional Protocol. The Committee thus finds this part of the communication inadmissible under article 3 of the Optional Protocol.

6.6With respect to the author’s claim under article 14 of the Covenant, the Committee notes that the author does not present sufficient details concerning the alleged failure of the Second Administrative Court of Gaziantep to forward to her the appendices submitted to the Court by the University in its defence or concerning her claim that the courts were ineffective in protecting her rights because they were under political influence. The Committee therefore declares this part of the communication insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

6.7The Committee notes that the author has not provided sufficient details to support her claim under article 25 of the Covenant. In the absence of any further information or explanations on file, the Committee declares this part of the communication insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

6.8The Committee considers that the author has sufficiently substantiated the remaining claims under articles 3, 18 and 26 of the Covenant, for the purpose of admissibility. It therefore declares the communication admissible. Although the author appears to invoke article 3 of the Covenant separately, the Committee notes from the material on file that it should be considered in conjunction with article 18 of the Covenant and will therefore proceed with its consideration of the merits.

Consideration of the merits

7.1The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

7.2The Committee notes the author’s claim under article 18 of the Covenant that she was not allowed to register at and attend Kahramanmaraş Sütçü İmam University, to which she was duly admitted through the competitive examination process, because she was wearing a wig to cover her hair in place of a headscarf. The author claims that the authorities have thus imposed a restriction on her right to freedom of religion. The Committee notes the author’s claim that the restriction in question was neither prescribed by law, nor necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, as stipulated in article 18 (3) of the Covenant.

7.3The Committee recalls its general comment No. 22 (1993) on the right to freedom of thought, conscience and religion, in which it held that the observance and practice of religion or belief may include, inter alia, the wearing of distinctive clothing or head coverings. The Committee observes that, although the author was wearing a wig and not a headscarf, she states that she did so to cover her hair in accordance with her religious beliefs. The Committee further notes the author’s contention that the University inferred from her wearing a wig that it was done with a religious purpose, and that she was denied permission to register for religious reasons. The author further contends that such a ban does not apply to people wearing wigs if they have cancer or are bald. The State party does not refute these arguments. The Committee considers that, although a wig does not have a commonly acknowledged religious meaning or significance in the Muslim faith, the purpose for which the author used it, namely to cover her hair for religious purposes, and the reasons for the restriction, bring the present case under the ambit of article 18 (1) of the Covenant. It therefore considers that the denial of the author’s registration at the University due to her wearing a wig in order to cover her hair for religious purposes constitutes a restriction of her right to manifest her religion.

7.4Article 18 (3) of the Covenant permits restrictions on the freedom to manifest one’s religion or belief only if such limitations are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The Committee recalls its jurisprudence that article 18 (3) is to be strictly interpreted. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.

7.5In the present case, with respect to the requirement that a restriction be prescribed by law, the Committee notes the author’s claim that neither wearing a wig nor wearing a headscarf was legally prohibited. The Committee also notes the State party’s argument that the restriction on wearing headscarves in universities was set out in the 2006 Handbook of Student Selection and Placement, Higher Education Programmes and Quotas, based on Law No. 2547 as interpreted by the courts, and thus was established by law. The Committee need not resolve this issue, since restrictions on the rights enumerated in article 18 (1) must also comply with the other requirements of article 18 (3).

7.6The Committee notes that the State party has not attempted to explain how the restriction on the manifestation of religion or beliefs satisfies the requirements of article 18 (3), that is, whether it served a legitimate aim of protecting public safety, order, health, or morals or the fundamental rights and freedoms of others, and how it was necessary and proportionate to such an aim. The Committee further notes that such a broad restriction, without a clear justification of its purpose, disproportionately affected the author, who lost the opportunity to pursue her university studies. In these circumstances, the Committee considers that the facts as presented reveal a violation of the author’s rights under article 18 of the Covenant.

7.7The Committee notes the author’s claim under articles 3 and 26 of the Covenant that the restriction placed by the University on covering the head for religious purposes was discriminatory on grounds of religion and gender because it disproportionately affected her as a Muslim woman who chose to cover her hair in the exercise of her religious belief. The Committee notes the author’s submission that the restriction on covering the head in a university would be relevant to many Muslim female students in the country and, as a result of this restriction, women who cover their hair in line with their religious belief could effectively be prevented from pursuing a higher education in a university, like the author.

7.8The Committee recalls that regulations that govern the clothing to be worn by women in public may violate a number of rights guaranteed by the Covenant, including non-discrimination. The Committee further notes that the State party did not explain how the restriction in question was based on reasonable and objective criteria, in pursuit of an aim that is legitimate under the Covenant. The Committee concludes that the restriction on covering the head in a university constituted a form of intersectional discrimination against the author as a Muslim woman who chose to cover her hair, and thus violated article 26 and article 3, in conjunction with article 18, of the Covenant.

8.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it discloses a violation by the State party of articles 18 and 26, and of article 3 read in conjunction with article 18, of the Covenant.

9.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide individuals whose Covenant rights have been violated with an effective remedy. Accordingly, the State party is obligated to, inter alia, provide Ms. Türkan with adequate compensation, including as a result of her lost employment opportunities, and to ensure that she is afforded full opportunity to pursue her higher education studies, should she seek it. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

10.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.

Annex

[Original: French]

Individual opinion (concurring) of Olivier de Frouville

1.I regret that I cannot entirely align myself with the Committee’s reasoning in this case.

2.The specific matter at hand — the wearing of religious symbols at university and, more broadly, Turkish secularism — is particularly controversial in Turkish society and has been for many years. This should have spurred the Committee to exercise greater caution and to consider more closely the context and its evolution.

3.First, the Committee should have noted — as the European Court of Human Rights did in its judgment in Leyla Şahin v. Turkey — the origins and significance of secularism in Turkey. The European Court was careful to recall that the Turkish Republic was built around secularism and that the period in which it was founded was also a period of progress with regard to women’s rights: “The defining feature of the Republican ideal was the presence of women in public life and their active participation in society. Consequently, the ideas that women should be freed from religious constraints and that society should be modernised had a common origin.” The first regulations on attire in public institutions were part of this effort to defend modern values, including equal rights between men and women. It was not until the 1980s and 1990s that the debate became radicalized and that more restrictive measures were adopted, including the ban on veils in universities.

4.However, when the Justice and Development Party (AKP) and its leader, President Recep Tayyip Erdogan, came to power, a diametrically opposed policy was adopted. Turkey transitioned from being openly hostile to religious dress to promoting such attire, in particular the Islamic headscarf, including in the army, which one would have thought would be the ultimate guardian of the values of Kemalism and secularism.

5.Given the way in which the context has evolved, it is hardly surprising that the State party did not even try, in this case, to defend a restrictive measure that not only has been definitively abandoned but has, in fact, been superseded by a completely opposite policy. Indeed, Mr. Erdogan condemned the 2005 judgment of the European Court as going against religious freedom. Consequently, there is little doubt that the decision taken by the Committee will be welcomed by the authorities. However, that is precisely the rub, since those same authorities promote a conservative vision of religion, which goes against the principle of equality between men and women that stems from Turkish secularism and is enshrined in international instruments, including the Covenant.

6.The many statements by Mr. Erdogan and members of AKP show that the regime in power in Turkey is seeking to impose a profoundly degrading and discriminatory vision of women that is incompatible with the Covenant, especially article 3 but also articles 2 and 26. In this context, the Committee ought to have been more cautious in its approach.

7.Concerning the merits, I am convinced, as is the Committee, that article 18 was violated, not only in the present case but also with regard to the general ban on veils in universities. University is a place where freedom of expression should be subject to the highest protection. In this connection, a clear distinction must be made between university and public education: even if children’s freedom of expression must be guaranteed, they should also be protected against all forms of proselytizing and indoctrination. The imposition of dress codes can also be a means of protecting children against discrimination, especially in situations where there is tension between communities. By contrast, universities are the very place for the development of critical thinking: the young adults who attend them are mature enough to form their own opinions, and the contrasting of ideas, even extreme, disturbing or shocking ones, is part of a university education. Any limits should, therefore, be envisaged only in very restricted situations in keeping with articles 19 (3) and 20 of the Covenant. Regarding attire, a particular distinction must be made between, on the one hand, headscarves and turbans and, on the other, clothing that covers the face entirely, such as the niqab or the burqa, which are advocated by fundamentalist groups and send a clear discriminatory message with regard to women, irrespective of the subjective perception and statements of the women who wear them.

8.The present case revealed an even more blatant violation since the author did not even wear a veil but, rather, a wig, which shows that she had made the laudable effort to reconcile the restrictive regulations with her religious convictions. The university authorities’ rejection of her admission, and the fact that they attempted to find in the wearing of a wig a practice that contravened the ban on veils, was clearly an excessive restriction in the light of the legitimate goal being sought.

9.I believe, however, that given the context described above, it would have been wiser for the Committee to find a violation of article 18 on the grounds that the restriction lacked legal basis. The regulations in force at the university at the time were based on a decision of the Constitutional Court banning veils worn for religious reasons. The ban did not in any way cover wigs. On this basis alone, the rejection of admission could have been found contrary to article 18 (paragraph 3 of that article requires that any limitations on freedom of religion be “prescribed by law”). Furthermore, a distinction made on the grounds of wearing a wig cannot be considered to be based on objective and reasonable criteria and therefore constitutes a violation of article 26, without it being necessary, in the present case, to address the matter of the ban on veils in universities, which is no longer in force in Turkey.

10.Had the Committee proceeded in this way, it would have provided justice to the author — who is a genuine victim and deserves reparation — but without resorting to reasoning that might be used to promote a policy that is radically contrary to the principle of equality between men and women.

11.In conclusion, I would like to add two points relating more to the jurisdictional policy that the Committee ought to follow. First, the Committee should be mindful of ensuring consistency between its interpretations and those of other courts, including regional courts, and should diverge from them only after thorough reflection and for nullifying reasons, which should, ideally, be set forth in the reasoning. The Committee did not make enough of an effort to demonstrate that there were, in this case, such reasons justifying the adoption of a position contrary to that of the European Court in Leyla Şahin. Second, I repeat what I said in my individual opinion concerning Rabbae et al. v. Netherlands: from the perspective of the Covenant — which ought to be that of the Committee — religious fundamentalism, irrespective of the religion, should be opposed as firmly as movements and discourse that incite hatred, and particularly nowadays, in Europe, hatred of Islam and Muslims. The Committee ought to pay close attention to the overall context, in which human rights are, in essence, caught in the crossfire. It should not only defend victims of violations but also ensure that “nothing in the present Covenant may be interpreted as implying […] any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein” (art. 5 (1)).