The Leyla Şahin v. Turkey case: a reasoning in abstract

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pluralism and accept the detachment of modernization from the traditional understanding of secularization without questioning the modern character of today’s societies.

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found that the University regulation that prohibited the use headscarves was indeed an interference with applicant’s right to manifest her religion but, in spite of the arguments discussed above, it added that such measure was justified under Art. 9(2) ECHR because it was «necessary in a democratic society» and pursued a legitimate aim.

In her request for a referral to the ECtHR, Ms Şahin surprisingly maintained that, even though she regarded the use of the hijab as an Islamic «recognized practice», she did not contest that university authorities could use the powers prescribed by law to limit the right to wear the headscarf.²²⁰ The applicant nonetheless claimed that the lack of a national norm prohibiting the exhibition of the Islamic veil made the University measure unlawful, because «it could not validly be argued that the legal basis for that regulation was the case law of the Turkish courts, as the courts only had jurisdiction to apply the law [and] not to establish new legal rules».²²¹ In return, the European judges rejected such formal interpretation of the expression “prescribed by law” and argued that the impugned measure had a legal basis since «“law” must be understood to include both statutory law and judge-made “law”».²²² Furthermore, after having noted that other Turkish universities allowed the use of Islamic religious symbols, the ECtHR observed that the approval of the ban on the headscarf had been the subject of a long-running debate and that, therefore the Istanbul University authorities were better placed than an international court to concretely evaluate whether such decision was adequate to their local needs. The Strasbourg judges then concluded that, by endorsing the prohibition of the headscarf, the Turkish Constitutional Court had pursued the legitimate aims of protecting the rights and freedoms of others and of protecting the democratic public order. Referring to the coups d’état which had determined the structure of the judicial and university systems in Turkey, Ms Dahlab nevertheless questioned the democratic character of the State and contested the wide margin of appreciation recognized to national public authorities in the matter at hand. In addition, she claimed that the allegation that her use of the headscarf could have violated the rights and freedoms of other was wholly unfounded. In response, the ECtHR argued that the majority of the Turkish population could not easily tell apart the religious

220 Judgment Şahin, above, paras. 73 and 76.

221 Ibid., para. 80.

222 Ibid., para. 88.

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and political meaning of the hijab and observed the presence on the territory of extremist political groups aiming to impose on society a theocratic order. In light of this, the European judges considered the adoption of drastic measures such as that in the main proceedings to be lawful, especially since the ban on the headscarf was «based in particular on the two principles of secularism and equality».²²³ The ECtHR finally pointed to the specific characteristics of the university environment, arguing that exhibition of religious symbols in this context would be contrary to the values of gender equality and respect of the rights of others that are taught there, and found the impugned measure to be compatible with the principle that State education must be neutral.

One of the most interesting aspects of Şahin is the dissenting opinion delivered by Judge Mrs Tulkens, who argued that the consequence of the use of the margin of appreciation in this case was to diminish critically the rigour with which the ECtHR assessed whether a State’s action could be considered “necessary in a democratic society”. As will be discussed in section 4.,the margin of appreciation doctrine normally accompanies the lack of a European consensus on a subject-matter by wider discretionary powers allowed to States in that area. Yet, not only the Strasbourg Court adopted a position on the meaning of wearing the Islamic headscarf by accepting without question the reasons given by the Turkish authorities, but it also ignored that no other European State has the ban on exhibiting religious symbols extended to university education. According to the dissenting opinion, an authentic democratic (and, it might be added, post-secular) society should «seek to harmonise the principles of secularism, equality and liberty, not to weigh one against the other».²²⁴ In this perspective, the freedom to religious manifestation cannot be sacrificed a priori in the name of State secularism. On the contrary, limitations to such right can be introduced only if founded on clear norms and indisputable facts. The ECtHR nevertheless reasoned only in abstract terms, while, in practice, there was no evidence that Ms Şahin herself posed any threat whatsoever to the constitutional principles of secularism and equality. As Judge Tulkens said, the rights and freedoms of others would have been infringed

223 Ibid., para. 112.

224 Judgment Şahin, above, dissenting opinion of Judge F. Tulkens, para. 4.

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«if the headscarf the applicant wore as a religious symbol had been ostentatious or aggressive or was used to exert pressure, to provoke a reaction, to proselytise or to spread propaganda and undermined – or was liable to undermine – the convictions of others.

However, the Government did not argue that this was the case and there was no evidence before the Court to suggest that Ms Şahin had any such intention».²²⁵

Judge Tulkens further argued that the existence of radical Islamic political groups, which surely pose a threat to pluralism, cannot justify the straightforward association of the wearing of the headscarf with fundamentalism. Analogously, in contrast to what the ECtHR suggested, the use of the hijab does not necessarily symbolise the submission of women to a patriarchal culture and, in certain cases, can even be a means of emancipation.

In contrast to the dissenting opinion, the Strasbourg Court adopted a sensitive approach to Turkey’s political and social reality, at the expense of a concrete protection of personal religious freedom. The Şahin ruling is indeed in tune with the reasoning of Turkish courts, according to which the exhibition of the headscarf not only is equivocal but, in the historic moment in which the dispute arose, supposedly amounted to supporting fundamentalist anti-systemic movements. In principle, this approach is consistent with post-secular

“principled distance”, which, allowing context-specific decision, recognize that States may interfere in some religions more than in others. Yet, as noted in previous chapter,

“principled distance” cannot be interpreted as a mere laissez-passer for differential treatment and international judicial authorities are required to supervise the respect of the principle of proportionality, taking into account all relevant circumstances. The ECtHR itself has regularly pointed out that it is for the Court to have the final say on whether limitations to freedom to manifest one’s own religion are justified in principle and proportionate.²²⁶ Yet, as in Dahlab, the judges applied in a lenient way their traditional margin of appreciation doctrine, performing a poor assessment of the factual evidence presented by the parties. In Şahin, nothing suggested that the applicant wore the headscarf to support subversive political movements. The ECtHR had previously affirmed that

225 Ibid., para. 8.

226 See European Court of Human Rights, judgment of 25 March 1983, Apps. no. 5947/72, no. 6205/73, no.

7052/75, no. 7061/75, no. 7107/75, no. 7113/75 and no. 7136/75, Silver and Others v. United Kingdom, para. 97; European Court of Human Rights, judgment of 25 May 1993, App. no. 14307/88, Kokkinakis v.

Greece, para. 47.

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national authorities have the burden of the proof with regard to the necessity of a restrictive measure, i.e. they must demonstrate that «the applicant […] carries on activities other than those stated»,²²⁷ especially if such activities pose a political threat to State authority.²²⁸ Yet, though Turkey failed to produce concrete evidence of Ms Şahin’s social dangerousness, the Strasbourg judges found the restriction on the applicant’s freedom to manifest her religious belief justified and proportionate. It then appears that «the decision in Şahin is […] strongly influenced by the court’s general ambition to curb political Islam»,²²⁹ as judges’ approach implicitly suggests that Muslims are considered a priori to pose a threat to the increasingly secularized Western societies. If we compare Şahin to Dahlab, two contradictory views of Muslim women then emerge. They are seen simultaneously as victims and aggressors, without any recognition of the inherent contradiction between the two stereotypes and with no evidence to prove that either cliché was accurate with respect to the applicants.²³⁰ On the one hand, Ms Şahin and Ms Dahlab embody gender inequality – oppressed, submissive and victims of Islamic patriarchy. On the other, those very same women are dangerous destabilizers of the democratic State. In this connection, Evans writes that the «link [between the two stereotypes] seems to be the idea of threat […] to the liberal, egalitarian order».²³¹ In its rulings, rather than focusing on the applicants’ actual freedom to manifest their religious convictions, the ECtHR seems to have diverted the debate towards political considerations. As Pimor holds:

«The emerging pattern seems to show that Strasbourg does not necessarily deal with the protection of Muslim women’s individual rights per se, but instead endeavours to tackle the polemical and political angle of Islam, the result of which is an attempt to possibly subdue religious expressions of the Muslim faith in order to render Islam more acceptable in Europe, by making it less visible and therefore less threatening to western and secular

227 European Court of Human Rights, judgment of 13 December 2001, App no. 45071/99, Metropolitan Church of Bessarabia v. Moldova, para. 125.

228 See European Court of Human Rights, judgment of 20 January 1998, App no. 19392/92, United Communist Party and Others v. Turkey, para. 59.

229 H. SKJEJE, Headscarves in Schools: European Comparisons, in M. LOENEN, J. GOLDSCHMIDT (eds.), Religious Pluralism and Human Rights in Europe: Where to Draw the Line?, Intersentia, 2007, p.

133.

230 See E. HOWARD, above, pp. 72-73.

231 C. EVANS, above, pp. 64-65.

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More generally, in such cases, the Strasbourg judges implicitly held that Art. 9 ECHR does not offer any protection to the right to manifest religious beliefs against obligations stemming from national norms that pursue a legitimate secular interest and are not directly aimed at the restriction of freedom of religious choice. From this perspective, «the state’s neutral law must automatically prevail, without the need to justify it under Art. 9(2) ECHR».²³³ Just as in Bulut-Karaduman and Dahlab, the ECtHR took for granted that the neutrality of the public sphere is best preserved when religion is absent or at least conceived. Yet, «the paradoxical consequence of this reasoning is to assume that a climate of tolerance and respect can be achieved through intolerance towards a particular form of religious expression».²³⁴