AİHM "zorunlu din dersinin özgürlük ihlali" ilişkin kararı
Avrupa Insan Haklari Mahkemesi'nin okullardaki din egitimi ile ilgili
bir dava cercevesinde verdigi "zorunlu din dersinin özgürlük ihlali"
kararinin tam metnini bulacaksiniz.
CONSEIL DE L’EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS FORMER SECOND SECTION
CASE OF HASAN AND EYLEM ZENGİN v. TURKEY (Application no. 1448/04) JUDGMENT STRASBOURG 9 October 2007
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT 1
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. KILISLIOĞLU, Mr İ. AYCAN, Mr S. DUMAN, Advisers;
2 HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT
– for the applicants Mr K. GENÇ, Counsel, Mr A.Ş. YAKIŞAN, Ms İ. MELİKOFF Mr T. ÖKER, Advisers, Mr H. ZENGİN, 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 Avcılar, 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 Bektaşi Veli (14th century). This belief system, which has deep roots in Turkish society and history, is generally considered as one of the branches of Islam, influenced in particular by Sufism and by certain pre-Islamic beliefs. Its religious practices differ from those of the Sunni1 schools of law in certain aspects such as prayer, fasting and pilgrimage.
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.
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,
HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT 3
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:
4 HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT
“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.”
HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT 5
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
bir dava cercevesinde verdigi "zorunlu din dersinin özgürlük ihlali"
kararinin tam metnini bulacaksiniz.
CONSEIL DE L’EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS FORMER SECOND SECTION
CASE OF HASAN AND EYLEM ZENGİN v. TURKEY (Application no. 1448/04) JUDGMENT STRASBOURG 9 October 2007
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT 1
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. KILISLIOĞLU, Mr İ. AYCAN, Mr S. DUMAN, Advisers;
2 HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT
– for the applicants Mr K. GENÇ, Counsel, Mr A.Ş. YAKIŞAN, Ms İ. MELİKOFF Mr T. ÖKER, Advisers, Mr H. ZENGİN, 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 Avcılar, 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 Bektaşi Veli (14th century). This belief system, which has deep roots in Turkish society and history, is generally considered as one of the branches of Islam, influenced in particular by Sufism and by certain pre-Islamic beliefs. Its religious practices differ from those of the Sunni1 schools of law in certain aspects such as prayer, fasting and pilgrimage.
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.
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,
HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT 3
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:
4 HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT
“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.”
HASAN AND EYLEM ZENGİN v. TURKEY JUDGMENT 5
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