Events
With a petition dated 1/10/2009, the applicant (Hüseyin El) applied to the school of his daughter (Nazlı Şirin El), who was a 4th grade student in primary school on that date, and requested that she be exempted from the religious culture and ethics course (RCME). In response to this petition, the school directorate notified the applicant of the letter dated 22/10/2009 of the Ministry of National Education General Directorate of Primary Education and rejected the applicant’s request. In the letter, with reference to the decision of the Higher Council of Education and Training dated 9/7/1990 and numbered 1, it was stated that students of Turkish nationality who are members of Christianity and Judaism religions studying in primary and secondary schools other than minority schools are not obliged to attend the Religious Education and Religious Education course, provided that they certify that they belong to one of these religions.
After the applicant made a request to the Population Directorate upon the aforementioned response letter, the word Islam was removed from the religion section of his and his daughter’s identity card. The applicant filed an action for annulment against the rejection of his daughter’s request to be exempted from the Religious Education and Religious Education course, on behalf of his daughter, with a request for stay of execution at the Administrative Court, stating that Islam was removed from the religion section of the identity card. The Administrative Court ruled for the cancellation of the action. The decision was reversed by the Council of State at the appeal stage. After the reversal, the court of first instance complied with the reversal decision and dismissed the case. This decision was upheld by the Council of State.
Allegations
The applicants argued that the parents’ right to have their religious and philosophical beliefs respected in education and training had been violated as the student could not be exempted from the DKAB course.
The Court’s Assessment
Article 24 of the Constitution stipulates that “Religious culture and ethics teaching is among the compulsory subjects taught in primary and secondary education institutions”. There is no exception to this provision in the Constitution. Therefore, teaching religious culture and ethics is compulsory in all primary and secondary education institutions in Turkey. In this sense, not providing exemptions for compulsory religious culture and ethics teaching will not lead to a constitutional violation of rights. However, the last sentence of Article 24 of the Constitution, which reads as follows: “Religious education and training other than this depends on the request of the individuals themselves and the request of the legal representative of the minors.”, stipulates that religious education and training other than religious culture and ethics education will not be compulsory and can only be provided voluntarily. In the present application, it has been examined whether the Religious Culture and Ethics course, which is conducted according to the curriculum applied as of the date of the incident subject to the application and which the applicant’s daughter had to take after her exemption request was rejected, exceeds the dimensions of religious culture and ethics education, which is foreseen to be compulsory according to the Constitution, and whether it can be characterised as optional religious education and training.
It is imperative that the examination in the application is limited to the curriculum applied to the applicant’s daughter. Since the applicant’s daughter started her university education in 2018, the primary school (4th grade), secondary school and imam hatip secondary school (grades 5-8) curricula adopted by the decision of the Board of Education (TTK) dated 19/1/2018 and numbered 2, and the secondary education RCRE (grades 9-12) curricula adopted by the decision dated 19/1/2018 and numbered 18 have been put into practice as of the 2018-2019 academic year and have not been applied to the applicant’s daughter. Therefore, the RCAB curricula put into practice as of the 2018-2019 academic year are not examined in this decision.
The evaluations in this decision are based on the secondary education 9th, 10th, 11th and 12th grades DKAB curricula in force at the time when the applicant’s daughter was a primary and secondary school student, which were also the subject of the ECtHR’s Mansur Yalçın and Others v. Turkey judgment, and which were adopted by the TCC’s decision dated 31/3/2005 and numbered 16. 9th, 10th, 11th and 12th grades RCCE curriculum adopted by the TCC’s decision dated 31/3/2005 and numbered 16, the primary education 4th, 5th, 6th, 7th and 8th grades RCCE curriculum adopted by the TCC’s decision dated 28/12/2006 and numbered 410, and the RCCE curriculum amended by the TCC’s decisions dated 30/12/2010 and numbered 328 and 329, which were put into practice in the 2011-2012 academic year, and limited to these.
The Religious Religious Education curriculum, which was regulated by the decisions dated 30/12/2010 and numbered 328 and 329 and started to be implemented in the 2011-2012 academic year, was also applied to the applicant’s daughter. For this reason, the Constitutional Court has considered the concrete application not only in the light of the Religious Religious Education curriculum taught at the time of the incident in the case, but also in the light of other developments in the curriculum until the 2018-2019 academic year.
Under the 1982 Constitution, the content of the compulsory Religious Education and Religious Education courses was initially shaped entirely around the interpretation of Islam adopted by the majority of the people in Turkey, but in the following years, it was observed that information on other religions and beliefs was also included in the course. Especially towards the end of the 2000s and with the effect of the violation decision of the ECtHR in the case of Hasan and Eylem Zengin v. Turkey, significant changes were made in the content of the course in order to comprehend different beliefs in the society, especially the Alevi belief.
However, despite all the efforts made in this direction, the ECtHR concluded that the changes in the curriculum, while intended to provide information on the different beliefs that exist in Turkey, did not result in a real overhaul of the main components of the course, which primarily focused on information on the form of Islam as practised and interpreted by the majority of the population in Turkey, and that despite the significant changes in the curriculum and textbooks, the Turkish education system was not equipped with appropriate means to respect the beliefs of parents.
The Council of State, referring mainly to the ECtHR’s judgement in Mansur Yalçın and others v. Turkey and the judgement of Hasan and Eylem Zengin v. Turkey referred to in the aforementioned judgement, concluded that in Turkey “the teaching of ‘religious culture and ethics’ is not provided in an objective and rational manner within an understanding of pluralism” and found the rejection of the requests for exemption from the RCME courses unlawful. On the other hand, in its 2017 decision, the Council of State concluded that the teaching of RCME is carried out in accordance with Article 24 of the Constitution. However, in the aforementioned decision, it did not explain the reasons for changing its previous jurisprudence that religious culture and ethics education is not provided in our country in an objective and rational manner within the understanding of pluralism.
In this case, there is no reason to depart from the ECtHR’s findings in respect of the RCME curriculum in force until the 2018-2019 academic year that this curriculum primarily includes information on the religion of Islam, that the changes made to the curriculum did not result in a real revision in terms of the main components of this course, and that the State Council’s findings that RCME education is not provided in an objective manner within the understanding of pluralism in our country.
In the examination conducted, it was determined that the curriculum of the primary education RCCE course (grades 4, 5, 6, 7 and 8) focuses predominantly on information about the form of Islam as practiced and interpreted by the majority of the Turkish nation within the framework of the unique historical accumulation and sociological structure of our country, that only the worships of the Islamic religion are taught, and that the curriculum has an educational content that goes beyond teaching. Therefore, in the period until the 2018-2019 academic year, it was evaluated that this course could not be brought to the content of religious culture and ethics education, which is foreseen to be compulsory in Article 24 of the Constitution in order to provide neutral and introductory information about religions and to adopt moral values.
It has been concluded that, within the framework of the curriculum in force until the 2018-2019 academic year, the Religious Culture and Ethics (DKAB) course exceeded the limits of religious culture and ethics education, which must be taught compulsorily in primary and secondary education institutions in accordance with Article 24 of the Constitution, and that it is in the nature of religious education and training that must be carried out upon the request of the individuals themselves and the request of the legal representative of minors. In this case, in order not to violate the right subject to the application, it is necessary to include alternatives such as exemption for parents who do not want to have their children take this course, which is in the nature of religious education and training, or to provide alternative courses to religious education and training, or to provide the opportunity to enrol or not to enrol in the said course.
On the other hand, in the Turkish education system until the 2018-2019 academic year, except for the practice of exempting students belonging to Christianity and Judaism provided that they certify that they belong to one of these religions, there is no exemption from the RCCE course, which is considered to have reached the level of religious education and training that exceeds religious culture teaching in its nature, nor is there any alternative to accommodate parents’ wishes not to have their children take this course.
As a result, the curriculum of the RCCE course until the 2018-2019 academic year was not considered within the scope of religious culture education, which is foreseen to be compulsory in order to provide neutral and introductory information about religions, but within the scope of education and teaching of the religion of Islam and a certain interpretation of it, which exceeds religious culture education. Therefore, the failure to provide suitable alternatives for the applicant, who did not want her daughter to take the aforementioned Religious Education and Religious Culture course, violated the applicant’s right to demand that parents’ religious and philosophical beliefs be respected in education and training.
However, it is obvious that it cannot be inferred from this conclusion that it is unconstitutional to teach courses in schools that include the education and training of the religion of Islam within the scope of Article 24 of the Constitution. This is because the Constitutional Court has stated that measures and practices that offer “options” to individuals in the context of religious education and training and facilitate the fulfilment of the common and common needs of the individuals constituting the society in this field, and in this context, the teaching of the “Holy Qur’an” and “Life of our Prophet” as optional elective courses in secondary and high schools cannot be considered contrary to the Constitution (Constitutional Court, E.2012/65, K.2012/128, 20/9/2012).
In its previous decisions, the Constitutional Court has stated that freedom of religion and conscience is one of the foundations of a democratic society and that this is rooted in the fact that religion is one of the main sources used by individuals who adhere to a religion to understand and make sense of life and that it plays an important function in shaping social life (Tuğba Arslan [GK], B. No: 2014/256, 25/6/2014, § 52; Sara Akgül [GK], B. No: 2015/269, 22/11/2018, § 79). Again, the Constitutional Court considered religious education and training among the positive obligations of the state within the scope of freedom of religion and conscience and emphasised that religious education and training is accepted as a requirement of freedom of religion and conscience in Article 24 of the Constitution, that the Constitution considers religious services as a social need and imposes obligations on the state to meet these needs (AYM, E.2012/65, K.2012/128, 20/09/2012).
For the reasons explained above, the Constitutional Court decided that the right of parents to demand respect for their religious and philosophical beliefs in education and training was violated.
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