JOINT CONCU RRING OPINION OF JUDGES ROZAKIS AND VAJIĆ

We agree with the majority that there has been no violation of Article 9 of the Convention in the present case. We have also voted for the finding that there was no violation of the first sentence of Article 2 of Protocol No. 1 , mainly because the text of the judgment is drafted in such a way that it makes it difficult to divide these two findings. As stated in paragraph 157 of the judgment , the “analysis of the case by reference to the right to education cannot in this instance be divorced from the conclusion reached by the Court with respect to Article 9 ..., as the considerations taken into account under that provision are clearly applicable to the complaint under Article 2 of Protocol No. 1, which complaint consists of criticism of the regulation concerned that takes much the same form as that made with respect to Article 9”.

In fact , however, we are of the opinion that the case would have been better dealt with only under Article 9, the way it was done in the Chamber judgment. As we see it, the main issue before the Court was the interference of the State with the applicant ’ s right to wear the headscarf at the u niversity and, through that, to manifest in public her religious beliefs. Hence, the central question in the case was the protection of her religious freedom as enshrined in Article 9 of the Convention. Article 9 is, in the circumstances, the obvious lex specialis covering the facts of the case, and the applicant ’ s corollary complaint concerning the same facts under Article 2 of Protocol No. 1, although clearly admissible, does not raise a separate issue under the Convention.

DISSENTING OPINION OF JUDGE TULKENS

(Translation)

For a variety of mutually supporting reasons , I did not vote with the majority on the question of Article 9 of the Convention or of Article 2 of Protocol No. 1, which concerns the right to education. I do, however, fully agree with the Court ’ s ruling that the scope of the latter provision extends to higher and university education.

A . Freedom of religion

1. As regards the general principles reiterated in the judgment , there are points on which I strongly agree with the majority (see paragraphs 104 - 08 of the judgment). The right to freedom of religion guaranteed by Article 9 of the Convention is a “precious asset” not only for believers, but also for atheists, agnostics, sceptics and the unconcerned. It is true that Article 9 of the Convention does not protect every act motivated or inspired by a religion or belief and that in democratic societies , in which several religions co exist, it may be necessary to place restrictions on freedom to manifest one ’ s religion in order to reconcile the interests of the various groups and ensure that everyone ’ s belie fs are respected (see paragraph 106 of the judgment). Further, pluralism, tolerance and broadmindedness are hallmarks of a democratic society and this entails certain consequences. The first is that these ideals and values of a democratic society must also be based on dialogue and a spirit of compromise, which necessarily entails mutual concessions on the part of individuals. The second is that the role of the authorities in such circumstances is not to remove the cause of the tensions by eliminating pluralism, but, as the Court again reiterated only recently, to ensure that the competing groups tolerate each other ( see Ouranio Toxo and Others v. Greece , no. 74989/01 , § 40 , ECHR 2005-X ).

2. Once the majority had accepted that the ban on wearing the Islamic headscarf on university premises constituted interference with the applicant ’ s right under Article 9 of the Convention to manifest her religion, and that the ban was prescribed by law and pursued a legitimate aim – in this case the protection of the rights and freedom of others and of public order – the main issue became whether such interference was “necessary in a democratic society”. Owing to its nature, the Court ’ s review must be conducted in concreto , in principle by reference to three criteria: first ly , whether the interference, which must be capable of protecting the legitimate interest that has been put at risk, was appropriate; second ly , whether the measure that has been chosen is the measure that is the least restrictive of the right or freedom concerned; and, lastly, whether the measure was proportionate, a question which entails a balancing of the competing

interests [1] .

Underlying the majority ’ s approach is the margin of appreciation which the national authorities are recognised as possessing and which reflects, inter alia , the notion that they are “better placed” to decide how best to discharge their Convention obligations in what is a sensitive area (see paragraph 109 of the judgment). The Court ’ s jurisdiction is, of course, subsidiary and its role is not to impose uniform solutions, especially “with regard to establishment of the delicate relations between the Churches and the State” ( see Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84 , ECHR 2000-VII ), even if, in certain other judgments concerning conflicts between religious communities, the Court has not always shown the same judicial restraint ( see Serif v. Greece , no. 38178/97, ECHR 1999-IX, and Metropolitan Church of Bessarabia and Others v. Moldova , no. 45701/99, ECHR 2001-XII ). I therefore entirely agree with the view that the Court must seek to reconcile universality and diversity and that it is not its role to express an opinion on any religious model whatsoever.

3 . I would perhaps have been able to follow the margin-of-appreciation approach had two factors not drastically reduced its relevance in the instant case. The first concerns the argument the majority use to justify the width of the margin, namely the diversity of practice between the States on the issue of regulating the wearing of religious symbols in educational institutions and, thus, the lack of a European consensus in this sphere. The comparative-law materials do not allow of such a conclusion, as in none of the member States has the ban on wearing religious symbols extended to university education, which is intended for young adults, who are less amenable to pressure. The second factor concerns the European supervision that must accompany the margin of appreciation and which, even though less extensive than in cases in which the national authorities have no margin of appreciation, goes hand in hand with it. However, other than in connection with Turkey ’ s specific historical background, European supervision seems quite simply to be absent from the judgment. However, the issue raised in the application, whose significance to the right to freedom of religion guaranteed by the Convention is evident, is not merely a “local” issue, but one of importance to all the member States. European supervision cannot, therefore, be escaped simply by invoking the margin of appreciation.

4. On what grounds was the interference with the applicant ’ s right to freedom of religion through the ban on wearing the headscarf based? In the present case, relying exclusively on the reasons cited by the national authorities and courts, the majority put forward, in general and abstract terms, two main arguments: secularism and equality. While I fully and totally subscribe to each of these principles, I disagree with the manner in which they were applied here and to the way they were interpreted in relation to the practice of wearing the headscarf. In a democratic society, I believe that it is necessary to seek to harmonise the principles of secularism, equality and liberty, not to weigh one against the other.

5 . As regards, firstly, secularism , I would reiterate that I consider it an essential principle and one which, as the Constitutional Court stated in its judgment of 7 March 1989 , is undoubtedly necessary for the protection of the democratic system in Turkey . Religious freedom is, however, also a founding principle of democratic societies. Accordingly, the fact that the Grand Chamber recognised the force of the principle of secularism did not release it from its obligation to establish that the ban on wearing the Islamic headscarf to which the applicant was subject was necessary to secure compliance with that principle and , therefore, met a “pressing social need”. Only indisputable facts and reasons whose legitimacy is beyond doubt – not mere worries or fears – are capable of satisfying that requirement and justifying interference with a right guaranteed by the Convention. Moreover, where there has been interference with a fundamental right, the Court ’ s case-law clearly establishes that mere affirmations do not suffice: they must be supported by concrete examples ( see Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96 , § 89 , ECHR 1999-VI ). Such examples do not appear to have been forthcoming in the present case.

6 . Under Article 9 of the Convention, the freedom with which this case is concerned is not freedom to have a religion (the internal conviction) but to manifest one ’ s religion (the expression of that conviction). If the Court has been very protective ( perhaps over protective) of religious sentiment ( see Otto-Preminger-Institut v. Austria , judgment of 20 September 1994 , Series A no. 295-A, and Wingrove v. the United Kingdom , judgment of 25 November 1996 , Reports of Judgments and Decisions 1996-V ), it has shown itself less willing to intervene in cases concerning religious practices ( see Cha ’ are Shalom Ve Tsedek , cited above, and Dahlab v. Switzerland (dec.) , no. 42393/98, ECHR 2001-V ), which only appear to receive a subsidiary form of protection (see paragraph 105 of the judgment). This is, in fact, an aspect of freedom of religion with which the Court has rarely been confronted up to now and on which it has not yet had an opportunity to form an opinion with regard to external symbols of religious practice, such as particular items of clothing, whose symbolic importance may vary greatly according to the faith concerned [2] .

7 . Referring to Refah Partisi (the Welfare Party) and Others v. Turkey ([GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II) , the judgment states: “An attitude which fails to respect that principle [of secularism] will not necessarily be accepted as being covered by the freedom to manifest one ’ s religion” (see paragraph 114). The majority thus consider that wearing the headscarf contravenes the principle of secularism. In so doing, they take up position on an issue that has been the subject of much debate, namely the signification of wearing the headscarf and its relationship with the principle of secularism [3] .

In the present case, a generalised assessment of that type gives rise to at least three difficulties. Firstly, the judgment does not address the applicant ’ s argument – which the Government did not dispute – that she had no intention of calling the principle of secularism, a principle with which she agreed, into question . Secondly, there is no evidence to show that the applicant, through her attitude, conduct or acts, contravened that principle. This is a test the Court has always applied in its case-law ( see Kokkinakis v. Greece , judgment of 25 May 1993 , Series A no. 260-A, and United Communist Party of Turkey and Others v. Turkey , judgment of 30 January 1998 , Reports 1998-I ). Lastly, the judgment makes no distinction between teachers and students, whereas in Dahlab (decision cited above) , which concerned a teacher, the Court expressly noted the role-model aspect which the teacher ’ s wearing the headscarf had . While the principle of secularism requires education to be provided without any manifestation of religion and while it has to be compulsory for teachers and all public servants, as they have voluntarily taken up posts in a neutral environment, the position of pupils and students seems to me to be different.

8 . Freedom to manifest a religion entails everyone being allowed to exercise that right, whether individually or collectively, in public or in private, subject to the dual condition that they do not infringe the rights and freedoms of others and do not prejudice public order (Article 9 § 2).

As regards the first condition, this could have not been satisfied 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 M s Şah i n had any such intention. As to the second condition, it has been neither suggested nor demonstrated that there was any disruption in teaching or in everyday life at the u niversity, or any disorderly conduct, as a result of the applicant ’ s wearing the headscarf. Indeed, no disciplinary proceedings were taken against her.

9. The majority maintain, however , that , “when examining the question of the Islamic headscarf in the Turkish context, it must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it” (see paragraph 115 of the judgment).

Unless the level of protection of the right to freedom of religion is reduced to take account of the context, the possible effect which wearing the headscarf, which is presented as a symbol, may have on those who do not wear it does not appear to me, in the light of the Court ’ s case-law, to satisfy the requirement of a pressing social need. Mutatis mutandis , in the sphere of freedom of expression (Article 10), the Court has never accepted that interference with the exercise of the right to freedom of expression can be justified by the fact that the ideas or views concerned are not shared by everyone and may even offend some people . Recently, in Gündüz v. Turkey (no. 35071/97, ECHR 2003-XI) , the Court held that there had been a violation of freedom of expression where a Muslim religious leader had been convicted for violently criticising the secular regime in Turkey, calling for the introduction of the sharia and referring to children born of marriages celebrated solely before the secular authorities as “bastards”. Thus, manifesting one ’ s religion by peacefully wearing a headscarf may be prohibited whereas, in the same context, remarks which could be construed as incitement to religious hatred are covered by freedom of expression [4] .

10. In fact, it is the threat posed by “extremist political movements” seeking to “impose on society as a whole their religious symbols and conception of a society founded on religious precepts” which, in the Court ’ s view, serves to justify the regulations in issue, which constitute “a measure intended to ... preserve pluralism in the university” (see paragraph 115 in fine of the judgment). The Court had already made this clear in Refah Partisi (the Welfare Party) and Others (cited above, § 95) , when it stated: “In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article 9 § 2 of the Convention . ”

While everyone agrees on the need to prevent radical Islamism, a serious objection may nevertheless be made to such reasoning. Merely wearing the headscarf cannot be associated with fundamentalism and it is vital to distinguish between those who wear the headscarf and “extremists” who seek to impose the headscarf as they do other religious symbols. Not all women who wear the headscarf are fundamentalists and there is nothing to suggest that the applicant held fundamentalist views. She is a young adult woman and a university student , and might reasonably be expected to have a heightened capacity to resist pressure, it being noted in this connection that the judgment fails to provide any concrete example of the type of pressure concerned. The applicant ’ s personal interest in exercising the right to freedom of religion and to manifest her religion by an external symbol cannot be wholly absorbed by the public interest in fighting extremism [5] .

11. Turning to equality , the majority focus on the protection of women ’ s rights and the principle of sexual equality (see paragraphs 115 and 116 of the judgment). W earing the headscarf is considered on the contrary to be synonymous with the alienation of women. The ban on wearing the headscarf is therefore seen as promoting equality between men and women. However, what, in fact, is the connection between the ban and sexual equality? The judgment does not say. Indeed, what is the signification of wearing the headscarf? As the German Constitutional Court noted in its judgment of 24 September 2003 [6] , wearing the headscarf has no single meaning; it is a practi c e that is engaged in for a variety of reasons. It does not necessarily symbolise the submission of women to men and there are those who maintain that, in certain cases, it can even be a means of emancipating women. What is lacking in this debate is the opinion of women, both those who wear the headscarf and those who choose not to.

12. On this issue, the Grand Chamber refers in its judgment to Dahlab (cited above) , taking up what to my mind is the most questionable part of the reasoning in that decision, namely that wearing the headscarf represents a “powerful external symbol”, which “appeared to be imposed on women by a religious precept that was hard to reconcile with the principle of gender equality” and that the practice could not easily be “reconciled with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society should convey to their pupils” (see paragraph 111 in fine of the judgment).

It is not the Court ’ s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. The applicant, a young adult university student, said – and there is nothing to suggest that she was not telling the truth – that she wore the headscarf of her own free will. In this connection, I fail to see how the principle of sexual equality can justify prohibiting a woman from following a practice which, in the absence of proof to the contrary, she must be taken to have freely adopted. Equality and non-discrimination are subjective rights which must remain under the control of those who are entitled to benefit from them. “Paternalism” of this sort runs counter to the case-law of the Court, which has developed a real right to personal autonomy on the basis of Article 8 ( see Keenan v. the United Kingdom , no. 27229/95 , § 92 , ECHR 2001-III ; Pretty v. the United Kingdom , no. 2346/02 , §§ 65-67 , ECHR 2002-III ; and Christine Goodwin v. the United Kingdom [GC] , no. 28957/95 , § 90 , ECHR 2002-VI ) [7] . F inally , if wearing the headscarf really was contrary to the principle of equality between men and women in any event, the State would have a positive obligation to prohibit it in all places, whether public or private [8] .

13. Since, to my mind, the ban on wearing the Islamic headscarf on the university premises was not based on reasons that were relevant and sufficient, it cannot be considered to be interference that was “necessary in a democratic society” within the meaning of Article 9 § 2 of the Convention. In these circumstances, there has been a violation of the applicant ’ s right to freedom of religion, as guaranteed by the Convention.

B . The right to education

14. The majority having decided that the applicant ’ s complaint should also be examined under Article 2 of Protocol No. 1, I entirely agree with the view, which had already been expressed by the Commission in its report of 2 4 Ju ne 196 5 in the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” , that that provision is applicable to higher and university education. The judgment rightly points out that “there is no watertight division separating higher education from other forms of education” and joins the Council of Europe in reiterating “the key role and importance of higher education in the promotion of human rights and fundamental freedoms and the strengtheni ng of democracy” (see paragraph 136 of the judgment). Moreover, since the right to education means a right for everyone to benefit from educational facilities, the Grand Chamber notes that a State which has set up higher education institutions “will be under an obligation to afford an effective right of access to [such facilities] ”, without discrimination (see paragraph 137 of the judgment).

15. However, although the Grand Chamber stresses that in a democratic society the right to education is indispensable to the furtherance of human rights (see paragraph 137 of the judgment), it is surprising and regrettable for it then to proceed to deprive the applicant of that right for reasons which do not appear to me to be either relevant or sufficient. The applicant did not, on religious grounds, seek to be excused from certain activities or request changes to be made to the university course for which she had enrolled as a student (unlike the position in Kjeldsen, Busk Madsen and Pedersen v. Denmark , judgment of 7 December 1976 , Series A no. 23 ). She simply wished to complete her studies in the conditions that had obtained when she first enrolled at the u niversity and during the initial years of her university career, when she had been free to wear the headscarf without a ny problem. I consider that by refusing the applicant access to the lectures and examinations that were part of the course at the Faculty of Medicine, she was de facto deprived of the right of access to the u niversity and, consequently, of her right to education.

16. The Grand Chamber adopted “by analogy” its reasoning on the existence of interference under Article 9 of the Convention and found that an analysis by reference to the right to education “cannot in this instance be divorced from the conclusions reached by the Court with respect to Article 9”, as the considerations taken into account under that provision “are clearly applicable to the complaint under Article 2 of Protocol No. 1” (see paragraph 157 of the judgment). In these circumstances, I consider that the Chamber was undoubtedly right in its judgment of 30 November 2004 to hold that no “separate question” arose under Article 2 of Protocol No. 1, as the relevant circumstances and arguments were the same as those it had considered in relation to Article 9, in respect of which it found no violation.

Whatever the position, I am not entirely satisfied that the reasoning with regard to religious freedom “is clearly applicable” to the right to education. Admittedly, this latter right is not absolute and may be subject to limitations by implication, provided they do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness. Nor may such restrictions conflict with other rights enshrined in the Convention, whose provisions must be considered as a whole. Further, the margin of appreciation is narrower for negative obligations and the Court must, in any event, determine in the last resort whether the Convention requirements have been complied with. Lastly, a limitation will only be consistent with the right to education if there is a reasonable relationship of proportionality between the means employed and the aim pursued.

17. What was the position in the instant case? I will not pursue here the debate concerning the right to freedom of religion, but will confine myself to highlighting the additional elements that concerned the proportionality of the limitations that were imposed on the applicant ’ s right to education.

I would begin by noting that before refusing the applicant access to lectures and examinations, the authorities should have used other means either to encourage her (through mediation, for example) to remove her headscarf and pursue her studies, or to ensure that public order was maintained on the university premises if it was genuinely at risk [9] . The fact of the matter is that no attempt was made to try measures that would have had a less drastic effect on the applicant ’ s right to education in the instant case. My second point is that it is common ground that by making the applicant ’ s pursuit of her studies conditional on removing the headscarf and by refusing her access to the university if she failed to comply with th is requirement, the authorities forced the applicant to leave the country and complete her studies at Vienna University . She was thus left with no alternative. However, in Cha ’ are Shalom Ve Tsedek (cited above, §§ 80 and 81 ) the existence of alternative solutions was one of the factors the Court took into account in holding that there had been no violation of the Convention. Lastly, the Grand Chamber does not weigh up the competing interests, namely, on the one hand, the damage sustained by the applicant – who was deprived of any possibility of completing her studies in Turkey because of her religious convictions and also maintained that it was unlikely that she would be able to return to her country to practise her profession owing to the difficulties that existed there in obtaining recognition for foreign diplomas – and, on the other, the benefit to be gained by Turkish society from prohibiting the applicant from wearing the headscarf on the university premises .

In these circumstances, it can reasonably be argued that the applicant ’ s exclusion from lectures and examinations and, consequently, from the u niversity itself, rendered her right to education ineffective and, therefore , impaired the very essence of that right.

18. The question also arises whether such an infringement of the right to education does not, ultimately, amount to an implicit acceptance of discrimination against the applicant on grounds of religion . In its Reso lution 1464 (2005) of 4 October 2005, the Parliamentary Assembly of the Council of Europe reminded the member States that it was important “ to fully protect all women living in their country against violations of their rights based on or attributed to religion”.

19. More fundamentally, by accepting the applicant ’ s exclusion from the u niversity in the name of secularism and equality, the majority have accepted her exclusion from precisely the type of liberated environment in which the true meaning of these values can take shape and develop . University affords practical access to knowledge that is free and independent of all authority. Experience of this kind is far more effective a means of raising awareness of the principles of secularism and equality than an obligation that is not assumed voluntarily, but imposed . A tolerance-based dialogue between religions and cultures is an education in itself, so it is ironic that young women should be deprived of that education on account of the headscarf. Advocating freedom and equality for women cannot mean depriving them of the chance to decide on their future. Bans and exclusions echo that very fundamentalism these measures are intended to combat. Here, as elsewhere, the risks are familiar : radicalisation of beliefs, silent exclusion, a return to religious schools. When rejected by the law of the land , young women are forced to take refuge in their own law. As we are all aware, intolerance breeds intolerance.

20. I end by noting that all these issues must also be considered in the light of the observations set out in the annual activity report published in June 2005 of the European Commission against Racism and Intolerance (ECRI), which expresses concern about the climate of hostility existing against persons who are or are believed to be Muslim and considers that the situation requir es attention and action in the future [10] . Above all, the message that needs to be repeated over and over again is that the best means of preventing and combating fanaticism and extremism is to uphold human rights.

[1] . See S. V an Drooghenbroeck, La proportionnalité dans le droit de la Convention européenne des Droits de l’Homme. Prendre l’idée simple au sérieux , Brussels, Bruylant, 2001.

[2] . See E. B rems , “ The approach of the European Court of Human Rights to religion ” , in Th. M arauhn (ed.), Die Rechtsstellung des Menschen im Völkerrecht. Entwicklungen und Perspektiven , Tübingen, Mohr Siebeck, 2003, pp. 1 et seq.

[3] . See E. B ribosia and I. R orive , “ Le voile à l’école : une Europe divisée ” , Revue trimestrielle des droits de l’homme , 2004, p. 958.

[4] . See S. V an D rooghenbroeck , “ Strasbourg et le voile ” , Journal du juriste , 2004, no. 34, p. 10.

[5] . See E. B ribosia and I. Rorive , “ Le voile à l’école : une Europe divisée ” , op. cit., p. 960.

[6] . Federal Constitutional Court of Germany, judgment of the Second Division of 24 September 2003, 2BvR 1436/042.

[7] . See S. V an D rooghenbroeck , “ Strasbourg et le voile ” , op. cit.

[8] . See E. B ribosia and I. R orive , “ Le voile à l’école : une Europe divisée ” , op. cit., p. 962.

[9] . See O. De S chutter and J. R ingelheim , “ La renonciation aux droits fondamentaux. La libre disposition du soi et le règne de l’échange ” , CRIDHO Working paper series 1/2005.

[10] . European Commission against Racism and Intolerance, “ Annual report on ECRI’ s activities covering the period from 1 January to 31 December 2004 ” , doc. CRI (2005)36, Strasbourg , June 2005.