Violation Of Freedom Of Religion Due To Dismissal From Civil Service For Wearing Headscarf
Events
The applicant was given disciplinary penalties and a negative record grade in the public institution (the Administration) where she worked as a civil servant, on the grounds that she wore the headscarf. The applicant continued to wear the headscarf and was dismissed from the civil service.
Court of First Instance issued a decision of annulment on the grounds that the applicant’s oral defence was not received, and the Council of State accepted the Administration’s appeal. The Court of First Instance followed this decision and dismissed the case. The applicant’s applications for appeal and rectification of the decision to dismiss the case were also not accepted.
While the judicial process continued after the aforementioned cancellation decision of the Court of First Instance, the procedural deficiencies indicated in the court’s cancellation decision were corrected and the applicant was again sentenced to dismissal from civil service. The lawsuit filed against this penalty was also rejected by the Administrative Court
Upon appeal, the decision was upheld by the Council of State. While the applicant’s application for rectification of the decision was under review, the Law No. 5525 on the Amnesty of Certain Disciplinary Penalties of Civil Servants and Other Public Officials, which the Council of State referred to in its rejection decision, entered into force.
Separately from these cases, the applicant applied to the Administration with the request to benefit from Law No. 5525 and be reappointed to his duty, but his request was rejected on the grounds that “there was no recruitment of personnel from open positions”.
The lawsuit filed by the applicant against the aforementioned rejection and the circular on “Amnesty of Disciplinary Penalties” was rejected by the Council of State. The applicant, whose application for appeal and rectification of the decision was also rejected, made an individual application.
In the petition submitted after the individual application, the applicant stated that he started to work in another public institution by benefiting from Law No. 5525 and retired from there.
Allegations
The applicant claimed that his dismissal from civil service on the grounds of wearing headscarf in accordance with his religious beliefs violated his freedom of religion.
The Court’s Assessment
Freedom of religion and conscience, the meaning and scope of which is defined in Article 24 of the Constitution, guarantees everyone the “freedom to manifest one’s religion or belief”, the “freedom to change one’s religion or belief”, and the right of individuals to have whatever beliefs and convictions they wish, or not to have any beliefs or convictions.
The reason why the right protected by Article 24 of the Constitution is indispensable is that freedom of religion is vital for the establishment and maintenance of the foundations of an effective and meaningful democracy based on the rule of law.
Those who have different religious beliefs or who do not have any beliefs are under the protection of the secular state. As a matter of fact, according to the definition given in the preamble of Article 2 of the Constitution, secularism, which never means irreligion, means that every individual can have any belief or sect he or she wishes, can worship and should not be treated differently from other citizens because of his or her religious beliefs. The state is obliged to take the necessary measures to prepare an environment in which freedom of religion and conscience can be realised.
In this sense, secularism imposes negative and positive obligations on the state. The negative obligation requires that individuals’ freedom of religion should not be interfered with unless there are compelling reasons. The positive obligation, on the other hand, brings with it the duty of the state to remove obstacles to freedom of religion and to provide the appropriate environment and opportunities for individuals to live as they believe.
Arguments that allowing public officials to wear the headscarf in accordance with their beliefs – regardless of the specific conditions of their duties – is categorically contrary to the principle of secularism in public service are unacceptable. It is incompatible with democracy and a pluralist understanding of secularism to regard the use of a means of religious expression such as the headscarf by public officials as a threat to social unity.
The applicant was penalised with dismissal from the civil service for wearing the headscarf as a requirement of her religious belief. This penalty constitutes an interference with the applicant’s right to manifest her religion.
The main axis of the assessments to be made in the case of the application will be whether the courts of first instance have convincingly demonstrated that the grounds on which they relied in their decisions leading to the intervention are in line with the requirements of the democratic social order in terms of restricting freedom of religion. Any interference with freedom of religion on grounds that do not fulfil the criteria laid down by the Constitutional Court will violate Article 24 of the Constitution.
In the concrete case, it is understood that the administration and the courts of first instance proceeded from a categorical assumption that the mere fact that a public official wears a headscarf disrupts public order. In the case at hand, neither the decisions of the administration nor of the courts of first instance have shown that the applicant’s wearing of the headscarf was offensive, interfered with the beliefs of others, was oppressive and/or provocative, or had the purpose of imposing her own beliefs by force, or that it disrupted the functioning of the institution or caused disorder and disruption.
The public authorities only found that the applicant insisted on not taking off her headscarf, but did not assess what negative consequences this insistence caused/may cause. Therefore, it cannot be understood which compelling social need for the protection of public order corresponds to the interference with the applicant’s right to manifest her religion.
In addition, it is also not understood how the administration and the courts of first instance considered the act of wearing the headscarf, the sanction of which was determined as a disciplinary penalty of reprimand in the relevant legislation in force at the time of the incident in question, within the scope of acts requiring dismissal from the civil service.
On the other hand, the penalty of dismissal from civil service imposed on the applicant for wearing the headscarf is the most severe disciplinary sanction. It cannot be said that this penalty, which imposes very heavy material and moral burdens on the applicant, is proportionate.
In conclusion, it has not been demonstrated with a relevant and sufficient justification that the intervention subject to the application meets a compelling social need and is in a reasonable proportionality relationship with the legitimate aims for the protection of public order. Therefore, the intervention subject to the application is not in accordance with the requirements of the democratic social order.
For the reasons explained above, the Constitutional Court has decided that the freedom of religion guaranteed under Article 24 of the Constitution has been violated.
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