유럽인권법원의 Leyla Şahin v. Turkey사건에서의 헌법적 원리로서의 세속주의(secularism)에 대한 검토

Is it conform with the freedom of religion under Art. 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) that national university in Turkey prohibit student from wearing the Islamic headscarf through internal university rules. ECHR had made a judgment on this matter in the case of Leyla Şahin v. Turkey. ECHR had already taken a decision on the question of teacher’s wearing the Islamic headscarf in the case of Dahlab v. Switzerland. the about the question of teacher’s wearing the Islamic headscarf. The case of Leyla Şahin v. Turkey started in an application (no. 44774/98) lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) against the Republic of Turkey by a Turkish national, Ms Leyla Şahin (“the applicant”), on 21 July 1998. The applicant alleged that her rights and freedoms under Articles 8, 9, 10 and 14 of the Convention and Article 2 of Protocol No. 1 had been violated by regulations on wearing the Islamic headscarf in institutions of higher education. she as a medical student protested a Turkish law to order student not to wear the Islamic headscarf at universities and other educational and state institutions. The application was delivered to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). The Chamber found that the Istanbul University regulations limiting the right to wear the Islamic headscarf and the measures taken thereunder had interfered with the applicant’s right to manifest her religion. It went on to find that the interference was prescribed by law and pursued one of the legitimate aims set out in the second paragraph of Article 9 of the Convention. It was justified in principle and proportionate to the aims pursued and could therefore be regarded as having been “necessary in a democratic society”. In her request for a referral to the Grand Chamber dated 27 September 2004 and in her oral submissions at the hearing, the applicant challenged the reason on which the Chamber had concluded that there had been no violation of Article 9 of the Convention. In the judgment of the Grand Chamber the Court finds that the interference in issue was justified in principle and proportionate to the aim pursued and consequently, there has been no breach of Article 9 of the Convention, the first sentence of Article 2 of Protocol No. 1. and Articles 8, 10 or 14 of the Convention. The Court’ judgement was supported by 16 votes to 1.