CASE OF HASAN AND EYLEM ZENGİN v. TURKEY
Violation of P1-2;No separate issue under Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
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. 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 Sunni schools of law in certain aspects such as prayer, fasting and pilgrimage. 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 Hanafite 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, 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. 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: “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. 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.” 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.” 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. 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. 3. Take advantage, in so far as possible, of pupils' feelings and behaviour in order to socialise them and to educate them as good citizens through religious and ethical knowledge. 4. Seek to ensure that pupils internalise the principles of love, respect, fraternity and friendship, which strengthen national unity and union, and national concepts and values such as the homeland, the nation, the flag, the martyr... 5. Emphasise that religion is one of the important principles of the national culture. ... 9. Teach the concept of worship in the wide sense; that work, cleanliness and high moral standards are ways of worshipping... 10. Make pupils aware that acts of worship, as well as being demonstrations of love, respect and gratitude towards Allah, enable the individuals in a group to bond in love and respect, to help each other, to show solidarity... 11. When studying subjects related to the prophet Mohammed, provide examples concerning his morality. ... 13. Base lesson material on verses [from the Koran] and relevant sayings and traditions [of Mohammed]..., the passages for reading should be illustrated by stories and images. 14. Throughout the entire teaching process, make a careful distinction, in covering topics and the choice of examples, between those from the Koran and those developed subsequently. To this end, taking into account public and community events, emphasise those which have their source in the Koran and those which result from habit, customs, tradition, beliefs, lifestyles and cultural influence. ... Using different examples, explain that, far from being a myth, Islam is a rational and universal religion. ... 7th grade... Units: Unit 1 – Knowledge of the Koran. Unit 2 – Religion is good morals. Unit 3 – Pilgrimage and sacrifice. Unit 4 – Angels and other invisible beings. Unit 5 – Belief in the other world. Unit 6 – Our family. Unit 7 – Knowledge of religions...” 22. The applicants submitted five textbooks, for grades 4, 5, 6, 7 and 8, on religious culture and ethics. They are used in schools, having been authorised by the Ministry of Education. In the 4th grade textbook, instruction moved from the concept of religion to examine the relationship between morality and religion, the Creator and the creature, the family and religion, and knowledge of the life of the prophet Mohamed. The 5th grade textbook begins by explaining the meaning of the expression “I believe in God”. It focuses particularly on teaching the fundamental concepts of Islam: the profession of faith, prayer, the mosque as the place of worship, the nature of the prayers recited during the month of Ramadan, the prophet Mohammed's family life. A general overview is given of the prophets whose names appear in the Koran. The 6th grade textbook begins by covering the different daily prayers. It is explained that every Muslim is obliged to pray five times daily. The corresponding rituals are illustrated in the book, which then deals with subjects such as charity, love for the homeland and the nation, harmful behaviour, friendship and brotherhood, and the four holy books, namely the Torah, the Zabur (psalms), the Gospels and the Koran. The 7th grade textbook emphasises knowledge of the Koran, the link between religion and high moral standards, pilgrimage and sacrifice, angels and invisible creatures, belief in the other world and the family. In addition, the main religions, namely Judaism, Christianity, Islam, Hinduism and Buddhism, are presented over fifteen pages. The 8th grade textbook discusses the prophet Mohammed's high moral standards, culture and religion, the concepts of religion, reason and science, belief in fate and the link between faith and conduct. Subjects such as “differences in approach in religion”, “advice of religions and of Islam”, “secularism”, “freedom of religion and conviction” are also covered in this book. It appears from reading these textbooks that the pupils are also required to learn several suras from the Koran by heart. 23. For their part, the Government submitted the textbook for the 9th grade (the first year of upper secondary school). This textbook begins by dealing with man's place in the universe. It subsequently covers topics such as human nature and religion, the role of religion in human life and the various forms of belief, namely monotheism, polytheism, Gnosticism, agnosticism and atheism. Explanations are also provided for various concepts, such as prayer and the link between prayer and cleanliness; this chapter illustrates the rituals surrounding the partial and total ablutions in Islam (gusul and abdest). In addition, certain essential elements, such as the life of Mohammed, the Koran and fundamental concepts (interpretation, the suras, etc.), are described with the aim of providing information on Islam. The rest of the textbook deals primarily with the concepts of “values and family”, “the homeland, flag, freedom, independence, human rights, secularism, the secular State, Ataturk and secularism, etc”. Finally, it deals with the subject of “the Turks and Islam” in the context of Turkish history; this chapter examines the Turks' former beliefs, such as the concept of “God-heaven”, Manichaeism, Buddhism, the Christian religion and Judaism. Individuals who influenced the Turks' understanding of Islam are also discussed, in particular Ebu Hanife (born 699, died 767, founder of the Hanafite school) and Imam Şafii (born 767, died 820, founder of the Shafite School), as well as Hoca Ahmet Yesevi and Haci Bektas Veli (see paragraph 8 above). 24. The Government also explained that pupils were assessed in this subject only by written examinations. 25. The relevant passage of Article 18 of the International Covenant on Civil and Political Rights provides: “4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” 26. In Recommendation 1396 (1999) on religion and democracy, adopted on 27 January 1999, the Assembly recommended that the Committee of Ministers invite the governments of the member States, inter alia: “13. ... (ii) to promote education about religions and, in particular, to: (a) step up the teaching about religions as sets of values towards which young people must develop a discerning approach, within the framework of education on ethics and democratic citizenship; (b) promote the teaching in schools of the comparative history of different religions, stressing their origins, the similarities in some of their values and the diversity of their customs, traditions, festivals, and so on; ... (e) avoid – in the case of children – any conflict between the state-promoted education about religion and the religious faith of the families, in order to respect the free decision of the families in this very sensitive matter...” 27. In Recommendation 1720 (2005), adopted on 4 October 2005, the Assembly recommended that the Committee of Minsters encourage the governments of member States to ensure that religious studies were taught at the primary and secondary levels of state education, on the basis, inter alia, of the following criteria: “14.1. the aim of this education should be to make pupils discover the religions practised in their own and neighbouring countries, to make them perceive that everyone has the same right to believe that their religion is the “true faith” and that other people are not different human beings through having a different religion or not having a religion at all; 14.2. it should include, with complete impartiality, the history of the main religions, as well as the option of having no religion; 14.3. it should provide young people with educational tools that enable them to be quite secure in approaching supporters of a fanatical religious practice; 14.4. it must not overstep the borderline between the realms of culture and worship, even where a country with a state religion is concerned. It is not a matter of instilling a faith but of making young people understand why religions are sources of faith for millions; 14.5. teachers on religions need to have specific training. They should be teachers of a cultural or literary discipline. However, specialists in another discipline could be made responsible for this education; 14.6. the state authorities should look after teacher training and lay down the syllabuses which should be adapted to each country's peculiarities and to the pupils' ages. In devising these programmes, the Council of Europe will consult all partners concerned, including representatives of the religious faiths.” 28. The European Commission against Racism and Intolerance has already given its view on the teaching of religion in schools in General policy recommendation no. 5 on “Combating intolerance and discrimination against Muslims” (CRI (2000) 21, 27 April 2000). After reiterating the principles of respect for equality and non-discrimination between religions and recognising the great diversity intrinsic in the practice of Islam, it recommended that the governments of member States “ensure that religious instruction in schools respects cultural pluralism and make provision for teacher training to this effect”. 29. In its third report on Turkey (CRI (2005), the ECRI also considered, in particular, that: “The syllabus covers all religions and is chiefly designed to give pupils an idea of all existing religions. However, several sources have described these courses as instruction in the principles of the Muslim faith rather than a course covering several religious cultures. ECRI notes that only Muslim pupils are required to follow these courses, while pupils belonging to minority religious groups can be exempted. ECRI considers the situation unclear: if this is indeed a course on the different religious cultures, there is no reason to make it compulsory for Muslim children alone. Conversely, if the course is essentially designed to teach the Muslim religion, it is a course on a specific religion and should not be compulsory, in order to preserve children's and their parents' religious freedom.” In consequence, ECRI urged the Turkish authorities: “... to reconsider their approach to instruction in religious culture. They should take steps either to make this instruction optional for everyone or to revise its content so as to ensure that it genuinely covers all religious cultures and is no longer perceived as instruction in the Muslim religion.” 30. In Europe, religious education is closely tied in with secular education. Of the 46 Council of Europe member States which were examined, 43 provide religious education classes in state schools. Only Albania, France (with the exception of the Alsace and Moselle regions) and the former Yugoslav Republic of Macedonia are the exceptions to this rule. In Slovenia, non-confessional teaching is offered in the last years of state education. 31. In 25 of the 46 member States (including Turkey), religious education is a compulsory subject. However, the scope of this obligation varies depending on the State. In five countries, namely Finland, Greece, Norway, Sweden and Turkey, the obligation to attend classes in religious education is absolute. All pupils who belong to the religious faith taught in the classes are obliged to follow them, partially or fully. However, ten States allow for exemptions under certain conditions. This is the case in Austria, Cyprus, Denmark, Ireland, Iceland, Liechtenstein, Malta, Monaco, San Marino and the United Kingdom. In the majority of these countries, religious education is denominational. 32. Ten other countries give pupils the opportunity to choose a substitute lesson in place of compulsory religious education. This is the case in Germany, Belgium, Bosnia and Herzegovina, Lithuania, Luxembourg, the Netherlands, Serbia, Slovakia and Switzerland. In those countries, denominational education is included in the curriculum drawn up by the relevant ministries and pupils are obliged to attend unless they have opted for the substitute lesson proposed. 33. In contrast, 21 member States do not oblige pupils to follow classes in religious education. Religious education is generally authorised in the school system but pupils only attend if they have made a request to that effect. This is what happens in the largest group of States: Andorra, Armenia, Azerbaijan, Bulgaria, Croatia, Spain, Estonia, Georgia, Hungary, Italy, Latvia, Moldova, Poland, Portugal, the Czech Republic, Romania, Russia and Ukraine. Finally, in a third group of States, pupils are obliged to attend a religious education or substitute class, but always have the option of attending a secular lesson. 34. This general overview of religious education in Europe shows that, in spite of the variety of teaching methods, almost all of the member States offer at least one route by which pupils can opt out of religious education classes (by providing an exemption mechanism or the option of attending a lesson in a substitute subject, or by giving pupils the choice of whether or not to sign up to a religious studies class).