COMBATING RESTRICTIONS ON THE HEADSCARF

A campaign to restrict the wearing of head scarves for religious reasons in educational settings or on state premises has continued unabated, strongly supported by the Office of the Chief of General Staff. This campaign, waged in the name of secularism, has resulted in thousands of devout Muslim women being temporarily or permanently denied access to education, while others have been suspended or discharged from employment in teaching or health care.

On February 10, the Minister of Education announced that more than 300 primary and secondary school teachers had been dismissed by the ministry for defying the dress code by wearing a head scarf to work. Regarding the dismissals, the minister declared, "This is a crime, the punishment of which is dismissal from civil service. Everybody must comply with this rule. If they don't, they have no place among us."37 On May 31, 2000, Istanbul Fatih Primary Court sentenced Nuray Canan Bezirgan to six months' imprisonment for "obstructing the education of others" because she wore a head scarf during an examination at the Health Services Vocational Institute of Istanbul University. The sentence was later converted to a fine, but she faces several similar charges that will result in her imprisonment if convicted.

Arrangements are being put in place to exclude the openly devout from state privileges. In a reply to a parliamentary question in July, Deputy Prime Minister Devlet Bahceli confirmed that a circular issued by the State Planning Organization bars any civil servants or family members wearing a head scarf from entering the organization's rest and recreation facilities.38 A Regulation on Army Hostels, Clubs and Social Facilities, published in the Official Gazette on August 20, 2000, lists those who may not be admitted: "Those wearing beards, cloaks, turbans, skullcaps, headscarves or similar uncontemporary garb, other than men of advanced age who have grown a modest beard in accordance with their religious beliefs and elderly mothers who wear a scarf which leaves their face open."

Even elected representatives are subject to the ban. A recent confrontation took place on May 2, 1999, when Merve Kavakçi, elected the previous month as a Fazilet deputy, entered the Grand National Assembly wearing a head scarf. There was pandemonium as other deputies beat on desktops and called for her to get out. Prime Minister Bülent Ecevit denounced Ms. Kavakçi in very strong terms and called a recess. Media close to the state interpreted Ms. Kavakçi's act as a political attack on democracy and secularism. The incident triggered a move for closure of Fazilet by the Constitutional Court; the case is still under consideration. In the wake of the incident it emerged that following an earlier marriage to an American, Merve Kavakçi had accepted U.S. citizenship without asking prior permission fromthe Turkish authorities. The Turkish Council of Ministers seized on this technical breach of Turkish law to withdraw her citizenship, and she is no longer able to represent her constituency in parliament.

Women who wear head scarves say that they adopt this dress as a sincere expression of their religious beliefs. The decision to wear (or not to wear39) dress such as head-covering in public is a form of personal and religious expression protected by various instruments, including Articles 9 and 10 of the European Convention on Human Rights, and can only be limited where interests of the individual are outweighed by the state's legitimate concerns regarding, for example, public order, health or morality. In Turkey the wearing of the head scarf by students or elected representatives has not presented a threat to public order, health or morality, and it is difficult to imagine circumstances in which it might.

The head scarf issue has not been tested in the European Court of Human Rights either with respect to educational institutions or the workplace. However, the Turkish educational establishment is using the considerable prestige and authority of the Council of Europe to justify the ban. An evaluation of legal issues relating to the ban, believed to have been prepared by the Council for Higher Education (YÖK) and circulated to university rectors, as well as a statement by the Turkish Prime Minister's Office's High Coordinating Council for Human Rights, refer to and summarize an admissibility decision in the case of Lamiye Bulut.40

Ms. Bulut finished studies in the faculty of education at Ankara Gazi University in 1980 and applied for her diploma in 1984. This was refused because the photograph she supplied to be attached to the diploma showed her wearing a head scarf. After unsuccessful appeals to Ankara Administrative Court and the Council of State, Ms. Bulut exercised her right of personal petition to the Council of Europe, claiming a breach of (among others) Article 9. At that time, individual petitions did not go straight to the European Court of Human Rights but were examined by the European Commission of Human Rights. The grounds for the Commission's 1993 decision against Ms. Bulut were that in applying to a secular university, she had effectively accepted the conditions of a secular university in which religious requirements could not be expected to be safeguarded unconditionally, that the diploma was not intended to be shown to the general public (and would therefore not expose her bareheaded to public view), and that in a country with a majority Muslim population such as Turkey, permitting such a visible token of religion might result in non-Muslim students being put under pressure. There is no question that women expelled from educational institutions feel let down by this decision. Since November 1998, Zehra Ergül has been prevented from entering Istanbul University to complete her final year at the art history and archeology department of the faculty of literature. She told Human Rights Watch that in practice students did not have the choice of a secular or religious university, since there were no religious universities in Turkey.41

The admissibility decision referred to by the Turkish authorities was made seven years ago by the European Commission of Human Rights, which has now been effectively replaced by the full-time European Court of Human Rights. To Human Rights Watch's knowledge, at least two new applications have been made to the European Court of Human Rights by women excluded from their studies, but no decisions have yet been reached in these cases.

Article 2(1) of the ICCPR specifically requires state parties to respect and ensure rights to all "without distinction of any kind" including religious and political or other opinion. Article 13 of the ICESCR sets forth the right to education, and article 2(2) mandates that state parties undertake to guarantee nondiscrimination in the exercise of all of the rights identified in the covenant, specifically including "religion" and "political or other opinion" as impermissible bases for distinctions. Article 13 (1)(c) of the ICESCR states: "Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means...." These provisions require that access to higher education should be based upon a student's ability to study at an advanced level, and not their religious orientation.

Accession Partnership Recommendations:

* The Turkish authorities should lift the ban on the wearing of head scarves or other religious head-covering by students in higher education, and should be encouraged to reconsider the dress restriction imposed on civil servants. There can be no grounds for dress restrictions imposed on elected representatives in the Turkish parliament. This measure is not specified in the Report or the Calendar.

* In 1999 the U.N. Special Rapporteur on religious discrimination visited Turkey. The government of Turkey and the E.U. should seek ways to ensure that his findings and recommendations, which are not expected to be made public until early 2001, are considered when preparing the accession partnership. This measure is not specified in the Report or the Calendar.