Individual Application

The Facts

The applicant (Hüseyin El) applied to the administration of the school where his daughter (Nazlı Şirin El) was a pupil in the fourth grade in primary school at the relevant time through his petition of 1 October 2009, seeking his daughter to exempt from religious education and morals classes. In reply to this petition, the school administration served the letter of 22 October 2009, which was issued by the Ministry of National Education, Directorate General of Primary School, on the applicant whose request was thereby dismissed. It is noted in the letter, with a reference to the decision of the Supreme Educational Council dated 9 July 1990 and no. 1, that the pupils of Turkish nationality studying at the primary and secondary schools, save for the schools of minorities, and followers of the Christian or Jewish religions are not obliged to attend the religious education and morals classes on condition of proving that they are a member of these religions.

Upon the applicant’s request following the reply letter in question, the indication “Islam” on his and his daughter’s identity cards was removed by the Civil Registry. Stating that the indication Islam had been removed from the identity cards, the applicant then lodged an action, on behalf of his daughter, for the stay of execution of the administration’s act, whereby his request for exemption of his daughter from religious education and morals classes had been dismissed, before the incumbent administrative court. The administrative court revoked the impugned act. However, this decision was quashed by the Council of State at the appellate stage. The first instance court, re-handling the action upon quashing, acted in line with the quashing decision and dismissed the applicant’s action, which was ultimately upheld by the Council of State.

The Applicants’ Allegations

The applicants claimed that there had been a violation of the parents’ right to respect for their religious and philosophical convictions due to the refusal of the applicant’s exemption from the religious education and morals classes.

The Court’s Assessment

Article 24 of the Constitution reads as follows: “Instruction in religious culture and morals shall be one of the compulsory lessons in the curricula of primary and secondary schools.”  No exemption in this regard is laid down in the Constitution. Therefore, it is obligatory to conduct instruction in religious culture and morals in all primary and secondary schools within Türkiye. In this sense, granting no exemption with respect to the attendance in compulsory religious education and morals classes will not lead to violation of any right in constitutional terms. On the other hand, in the last sentence of Article 24 of the Constitution, “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.”, it is stipulated that any religious education classes other than the compulsory religious education course shall not be compulsory and may be attended only by desire. In the present application, the Court examined whether the religious education and morals class, which was held in accordance with the syllabus that was in force at the relevant time and which the applicant’s daughter had to attend upon the dismissal of the request for her exemption, went beyond the extent of the religious education and morals course envisaged to be compulsory in the Constitution and whether it could be qualified as the optional religious education course.

The examination to be conducted with respect to the present application must be limited to the syllabus merely to which the applicant’s daughter was subject. That is because, the applicant’s daughter started studying at university in 2018, and the syllabus of the primary school (4th grade), secondary school and religious secondary school (5th-8th grades), adopted by the decision of the Board of Education and Discipline (Board) dated 19 January 2018 and no. 2, as well as of the religious education course of the secondary education, adopted by the Board’s decision dated 19 January 2018 and no. 18  were put into practice by the 20182019 school year (they are still in force). Therefore, the applicant’s daughter was not subject to these syllabuses. Accordingly, the syllabuses of religious education and morals course that have been in force since the 2018-2019 school year were not examined in the applicants’ case.

The assessments in this case were made on the basis of and limited to the syllabus on the religious education and morals of the 9th, 10th, 11th and 12th grades of the secondary school, which was in force at the relevant time when the applicant’s daughter was a pupil of the primary and secondary schools, was also dealt with by the European Court of Human Rights (ECHR) in its judgment Mansur Yalçın and Others v. Türkiye, and adopted by the Board’s decision no. 16 and dated 31 March 2005, the syllabus on the religious education and morals of the 4th, 5th, 6th, 7th and 8th grades of the primary school, which was adopted  by the Board’s decision no. 410 and dated 28 December 2006, as well as the syllabuses on the religious education and morals, which were intended for introducing amendments to former two syllabuses, issued by the decisions no. 328 and 329 and dated 30 December 2010, and which were first applied in the 2011-2012 school year.

The syllabuses of religious education and morals course, which were drawn up by the decisions no. 328 and 329 and dated 30 December 2010 and first implemented at schools in the 2011-2012 school year, were applied in the period when the applicant’s daughter was studying. Therefore, in dealing with this case, the Court took into consideration not only the syllabus of the religious education and morals course, which was taught at the relevant time, but also the other developments taking place with respect to the syllabus of the religious education and morals course until the 2018-2019 school year.

The theme and scope of the religious education and morals course, which was a compulsory course during the 1982 Constitution, were at the outset designated in line with the interpretation of the Islamic religion embraced by the majority of the population in Türkiye. At the subsequent period, information pertaining to different religions and faiths was also incorporated into the syllabus. Notably by the end of the 2000s and in line with the ECHR’s violation judgment Hasan and Eylem Zengin v. Türkiye, significant changes were made in the syllabus of the course for the purpose of providing an insight into different faiths within the society, especially the Alevi faith.

However, despite all efforts exerted to that end, the ECHR has concluded that at the outset these changes were primarily intended to facilitate the provision of information on the various faiths existing in Türkiye; however, the changes did not entail a real overhaul of the key components of the syllabus, which focuses primarily on knowledge of Islam as practised and interpreted by the majority of the population in Türkiye; and that despite the significant changes introduced in the syllabus and textbooks, the Turkish system of education was not equipped with methods appropriate for ensuring respect for the parents’ faiths.

Referring to the ECHR’s judgment Mansur Yalçın and Others v. Türkiye as well as to the judgment Hasan and Eylem Zengin v. Türkiye cited in the former judgment, the Council of State essentially concluded that in Türkiye “‘the instruction on the religious culture and morals course’ cannot be provided in an objective and rational fashion in pursuance of pluralism”, and found unconstitutional the dismissal of the requests for exemption from religious culture and morals classes. However, in its decision of 2017, the Council of State concluded that the instruction on the religious culture and morals course was in accordance with Article 24 of the Constitution but did not explain the reasons why it changed its previous caselaw to the effect that in Türkiye the instruction on the religious culture and morals course cannot be provided in an objective and rational fashion in pursuance of pluralism.

Accordingly, the Court did not find any ground to depart from the ECHR’s conclusion, with respect to  the syllabus of the religious education and morals course, which was in force until the 2018-2019 school year, that the syllabus in question focused primarily on knowledge of Islam and the changes made in the syllabus did not entail a real overhaul of the key components of the syllabus, as well as from the Council of State’s conclusion that the instruction on the religious culture and morals course was not provided in an objective fashion in pursuance of pluralism.

The examinations carried out with respect thereto reveal that the syllabus of the religious education and morals course at the primary school (4th, 5th, 6th, 7th and 8th grades) mainly focus on the information as to the Islam, as practiced and interpreted by the majority of the Turkish nation within the framework of the historical background and sociological structure of the country; that merely the religious practices of the Islamic religion are taught; and that the syllabus went beyond instruction. Therefore, it has been concluded that until the 2018-2019 school year, this course could not be qualified as a course on religious culture and morals which is prescribed to be compulsory in Article 24 of the Constitution for providing impartial and introductory information about religions and ensuring the adoption of moral values.

It has been therefore concluded that the religious culture and morals course in so far as it concerned the syllabus applied until 2018-2019 school year went beyond the boundaries of the religious culture and morals course which is a compulsory course at the primary and secondary schools pursuant to Article 24 of the Constitution; and that it is in the nature of a course on religious education and instruction that must be received upon the person’s own desire and, in case of minors, request of their legal representative. Therefore, in order not to give rise to a violation of the right in question, alternative options must be provided such as exemption from the course for the parents who do not want their children to attend the religious culture and morals classes, another course alternative to the religious education or the option to attend or not to attend the classes in question.

However, during the period until the 2018-2019 school year, the Turkish system of education did not offer any opportunity for exemption from the religious culture and morals classes, which is considered to exceed the instruction on religious culture or any other alternative which may meet the demands of the parents who do not want their children to attend these classes, save for the practice whereby the pupils who are followers of the Christian and Jewish religions may be exempted from attending the religious culture and morals classes provided they affirm their adherence to those religions.

As a result, the syllabus of the religious culture and morals course applied until the 2018-2019 school year is not considered to fall into the scope of religious culture instruction prescribed to be compulsory so as to provide impartial and introductory information about religions, but as the instruction and education of a particular interpretation of the Islam religion, which went beyond the scope of religious culture instruction. Therefore, the failure to offer any appropriate alternative for the applicant who did not want her daughter to attend the classes in religious culture and morals breached the parents’ right to respect for their religious and philosophical convictions.

However, it is beyond doubt that this conclusion reached by the Court cannot be construed to the effect that the instruction and education of the Islamic religion at schools under Article 24 of the Constitution is unconstitutional. In this sense, the Court has held that “the measures and practices within the meaning of religious education and instruction that offer alternatives to the persons and facilitate the meeting of the common and joint needs of the society, as well as the teaching of courses “Koran” and “Life of the Prophet Muhammad” at the secondary schools and high schools as an optional course could not be considered unconstitutional (the Court’s judgment no. E.2012/65, K.2012/128, 20 September 2012).

In its previous judgments, the Court has stated that the freedom of religion and conscience is one of the foundations of a democratic society and that this freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for the formation of the social life (Tuğba Arslan [Plenary], no. 2014/256, 25 June 2014, § 52; Sara Akgül [Plenary], no. 2015/269, 22 November 2018, § 79). The Court has also held that the religious education and instruction falls among the positive obligations incumbent on the State within the scope of the freedom of religion and conscience, and therefore, religious education is considered as a requisite of this freedom enshrined in Article 24 of the Constitution; and that the Constitution regards the religious services as a pressing social need and places obligations in the State for the fulfilment of these needs (the Court’s judgment no. E.2012/65, K.2012/128, 20 September 2012).

Consequently, the Court has found a violation of the parents’ right to respect for their religious and philosophical convictions.