Events
The applicant was given a negative registration grade with disciplinary penalties for using a headscarf in the public institution (Administration) where he served as an officer. The applicant who continues to use the headscarf has been removed from public office.
The Court of Cassation decided to cancel the applicant’s oral defense on the grounds that he had not been received, after which the appeal filed by the Administration was accepted by the Council of State. The Court of Cassation also complied with this decision and dismissed the case. The applicant’s appeal against the decision to dismiss the case and his applications for correction of the decision were also not accepted.
After the aforementioned annulment decision of the Court of Cassation, the procedural deficiencies shown in the court’s annulment decision were corrected while the judicial process was ongoing and the applicant was again sentenced to be removed from public office. The case against this punishment was also dismissed by the Administrative Court
The above-mentioned decision on appeal was approved by the Council of State. The Law No. 5525 on the Pardon of Certain Disciplinary Penalties of Civil Servants and Other Public Officials, to which the Council of State referred in its rejection decision, has entered into force while the application for correction of the decision made by the applicant is under review.
Apart from these cases, the Applicant applied to the Administration with a request to take advantage of Law No. 5525 and be reappointed to his post, but his request was rejected on the grounds that “there was no open recruitment”.
The case filed by the applicant against the aforementioned refusal and the circular on “Pardon of Disciplinary Penalties”, which is the basis of this action, was rejected by the Council of State. The applicant, whose appeal and application for correction of the decision were also rejected, submitted an individual application.
After submitting an individual application, the applicant stated in his petition that he had started working in another public institution using Law No. 5525 and retired from there.
Claims
The applicant claimed that her removal from public office due to the use of headscarves in accordance with her religious beliefs violated her religious freedom.
Evaluation Of The Court
Article 24 of the Constitution. freedom of religion and conscience, the meaning and scope of which is determined by the article, guarantees everyone the “freedom to reveal their religion or belief”, “freedom to change their religion and belief”, people have the faith and opinion they want, and they do not have any faith and belief.
Article 24 of the Constitution. the reason why the right protected by the article is indispensable is that religious freedom 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 do not have any beliefs are under the protection of the secular state. Indeed, 2 Of The Constitution. according to the definition made in the justification of the article, secularism, which never means irreligion, means that every person can have the desired faith, sect, worship and not be treated differently from other citizens because of their religious beliefs. The state must take the necessary measures to prepare the environment in which freedom of religion and conscience can take place.
In this sense, secularism imposes negative and positive obligations on the state. Negative obligation requires that individuals’ religious freedom should not be interfered with unless there are mandatory reasons. The positive obligation, on the other hand, entails the duty of the state to remove obstacles to religious freedom and to provide the appropriate environment and opportunities for people to live as they believe.
Arguments that it is categorically against the principle of secularism in public services that public servants -regardless of the specific conditions of the task they are performing- are allowed to use a headscarf in accordance with their beliefs are unacceptable. It is incompatible with the understanding of democracy and pluralistic secularism to see the use of public officials as a means of revealing a religion that reflects social diversity, such as the hijab, as an element that threatens social unity.
The applicant was punished with the sanction of removal from public office due to the fact that she used hijab as a requirement of her religious faith. This punishment constitutes an interference with the applicant’s right to reveal his religion.
The main axis of the evaluations to be made in terms of the incident subject to the application will be whether the courts of instance can convincingly establish that the grounds on which they rely in their decisions causing interference are in accordance with the requirements of the democratic order of society in terms of restricting religious freedom. Interference with religious freedom on the grounds that it does not meet the criteria established by the Constitutional Court is prohibited by Article 24 of the Constitution. it will violate the clause.
In the concrete case, it is understood that the administration and the courts of instance acted from a categorical assumption that the mere use of a public official’s headscarf violated public order. In the event, it was shown that the applicant’s use of a hijab in the decisions of neither the Administration nor the courts of instance was offensive, interfering with the beliefs of others, oppressive and/or provocative, or intended to impose his own faith by force, or destroyed corporate functioning, causing some confusion and irregularities. The public authorities determined only that the applicant insisted on not removing her headscarf, but did not give an assessment of what negativity this insistence of the applicant caused/could lead to. For this reason, it is not clear which mandatory 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 administrative and judicial courts evaluated the act in the form of using a hijab, the sanction of which in the relevant legislation in force at the time of the incident subject to the application, was essentially determined as a disciplinary punishment for condemnation, within the scope of acts requiring removal from public office.
On the other hand, the punishment for removing the applicant from public service due to the use of a headscarf is the most severe disciplinary sanction. It cannot be mentioned that this punishment, which imposes very heavy financial and moral burdens on the applicant, is proportionate.
As a result, it has not been shown with a relevant and sufficient justification that the intervention subject to the application meets a mandatory social need and is in a relationship of reasonable proportionality with legitimate purposes for maintaining public order. Therefore, the intervention subject to the application is not an intervention in accordance with the requirements of the democratic social order.
24 of the Constitution on the grounds described in the Constitutional Court. he ruled that the freedom of religion guaranteed in his article had been violated.