Events
The applicant was given disciplinary penalties and a negative record on the grounds that she wore a headscarf in the public institution (Administration) where she worked as a civil servant. The applicant, who continued to wear the headscarf, was dismissed from the civil service.
The Court of First Instance gave an annulment decision on the grounds that the verbal defense of the applicant was not received, and the appeal filed by the Administration was accepted by the Council of State. The Court of First Instance, following this decision, dismissed the case. The applicant’s appeal against the dismissal of the case and the applications for correction of the decision were also not accepted.
After the aforementioned annulment decision of the Court of Instance, while the judicial process continued, the procedural deficiencies indicated in the annulment decision of the court were eliminated and the applicant was given a penalty of dismissal from the civil service again. The lawsuit against this penalty was also rejected by the Administrative Court.
The said decision on appeal was upheld by the Council of State. While the application for the correction of the decision made by the applicant was at the stage of examination, the Law No. 5525 on the Amnesty of Certain Disciplinary Penalties of Civil Servants and Other Public Officials, which was referred to in the rejection decision of the Council of State, entered into force.
Apart from these lawsuits, the applicant applied to the Administration with the request to be reassigned to his duty by benefiting from the Law No. 5525, but his request was rejected on the grounds that “no open recruitment was made”.
The lawsuit filed by the applicant against the aforementioned refusal and the circular on “Amendment of Disciplinary Penalties”, which is the basis of this action, was rejected by the Council of State. The applicant, whose appeal and decision rectification application was also rejected, filed an individual application.
The applicant stated in the petition he submitted after making an individual application that he took advantage of the Law No. 5525 and started to work in another public institution and retired from there.
allegations
The applicant claimed that her dismissal from the civil service due to her wearing a headscarf as a requirement of her religious belief violated her freedom of religion.
Court’s Evaluation
Freedom of religion and conscience, the meaning and scope of which is determined by Article 24 of the Constitution, guarantees everyone’s “freedom to manifest their religion or belief”, “freedom to change their religion or belief”, to have any belief and opinion they wish, and not to have any belief or conviction. takes.
The reason why the right protected by Article 24 of the Constitution is indispensable is that freedom of religion is of vital importance 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 do not have any faith are under the protection of the secular state. As a matter of fact, according to the definition made in the justification of Article 2 of the Constitution, secularism, which never means atheism, means that every individual can have the belief and sect they want, practice their worship and not be treated differently from other citizens because of their religious beliefs. The state has to take the necessary measures to prepare the environment where freedom of religion and conscience can be realized.
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 the obstacles to freedom of religion and to provide the appropriate environment and opportunities for people to live as they believe.
It is unacceptable to argue that allowing public officials to wear headscarves due to their beliefs – regardless of the specific conditions of their duties – is categorically against the principle of secularism in public services. Seeing public officials’ use of a means of revealing religion, such as the headscarf, that reflects social diversity, as a threat to social unity, is incompatible with democracy and pluralistic secularism.
The applicant was punished with the sanction of dismissal from the civil service due to her wearing a headscarf as a requirement of her religious belief. This penalty constitutes an interference with the applicant’s right to manifest his religion.
The main axis of the evaluations to be made in terms of the event that is the subject of the application will be whether the courts of instance can convincingly demonstrate that the grounds on which they base their decisions leading to the intervention are in line with the requirements of the democratic social order in terms of restricting freedom of religion. Interventions in freedom of religion with a justification that does not meet the criteria set forth 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 instance acted on the categorical assumption that the mere use of a headscarf by a public official disrupts public order. In the event, neither the administration nor the courts of instance decided that the applicant’s use of the headscarf was offensive, interfered with the beliefs of others, was oppressive and/or provocative, or did not impose one’s own belief by force.
It has been shown that it is harmful or destroys the institutional functioning, causing some confusion and irregularities. The public authorities only made a determination that the applicant insisted on not removing the headscarf, but did not include an assessment as to what kind of negative effects this insistence of the applicant could/could cause. For this reason, it cannot be understood which obligatory social need for the protection of public order corresponds to the interference with the applicant’s right to reveal his religion.
In addition, it has not been understood how the act of wearing a headscarf, the sanction of which was determined as a disciplinary penalty in the relevant legislation in force at the date of the application, was evaluated by the administrative and degree courts as an act requiring dismissal from the civil service.
On the other hand, the penalty imposed on the applicant for wearing a headscarf is the most severe disciplinary sanction. Nor can it be said that this punishment, which imposes heavy financial and moral burdens on the applicant, is proportional.
As a result, it could not be demonstrated with a relevant and sufficient justification that the intervention subject to the application met a compulsory social need and was in a reasonable proportionality relationship with the legitimate aims of protecting public order. For this reason, the intervention that is the subject of the application is not an intervention in accordance with the requirements of the democratic social order.
The Constitutional Court had decided that the freedom of religion guaranteed in Article 24 of the Constitution had been violated.