October 10, 2014
This guest post was written by Yousra Benfquih, FWO aspirant, PhD Fellow Research Foundation Flanders at the University of Antwerp.
In the case of Mansur Yalçın v. Turkey, 14 Turkish nationals living in Istanbul who are adherents of the Alevi faith, complained before the Court that the way in which the religion and ethics class – a compulsory subject in primary and secondary public education under article 24 of the Turkish Constitution – was taught, violated Article 2 of Protocol No. 1. In this connection, they moreover put forward a violation of Articles 9 and 14 of the Convention.
At the relevant time, when the domestic proceedings were started, the children of Mr Mansur Yalçın, Yüksel Polat and Hasan Kılıç, were attending secondary school whereas Mr Sofuoğlu’s son and daughter were already in higher education. Ms Serap Topçu and Eylem Onat Karataş indicated that their young children, of whom they did not specify the age, would be obliged to attend the aforesaid classes – which they had previously attended themselves.
As for the internal procedure, the applicants had asked the Ministry of Education on June 22 2005 to consult the leading members of the Alevi community in pursuance of a revision of the curriculum of the religion and ethics class and the integration therein of the Alevi culture and philosophy, together with a compulsory teachers training and a control- and monitoring mechanism. The decision to reject this proposition by the Directorate of Religious Education of the Ministry of Education was contested before the Ankara Administrative Court, who appointed a tripartite expert commission. The latter’s report emphasized the supra-denominational approach of the class and the important alterations to which the curriculum had been subject following a number of round tables and gatherings. The applicants however held that the content of the class centered on a Sunni interpretation of Islam, with the Alevi faith being presented only summary and as a tradition or culture instead of a belief in its own right.
Subsequent to their claim being dismissed on 1 October 2009 by the Administrative Court – who, relying on the supra-denominational approach indicated by the expert report and the curriculum changes, decided that the principle of neutrality was respected – the applicants’ appeal on points of law was also rejected on 13 July 2010.
Decision of the Court
Contrary to the claims of Mr Mansur Yalçin, Yüksel Polat and Hasan Kiliç, the Court considers the remaining applicants’ claims as complaints in abstracto concerning the litigious class resembling an actio popularis, declaring them incompatible ratione personae with the Convention.
As mentioned before, Mr Mansur Yalçin, Yüksel Polat and Hasan Kiliç argue that the way in which the compulsory religion and ethics classes are taught in primary and secondary education infringes their rights under the second sentence of Article 2 of Protocol No. 1, which guarantees that:
In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
The Court starts by reiterating that, while education providing information on religion is not contrary to the Convention, there must be careful scrutiny whether pupils are obliged to take part in a form of religious worship or were exposed to any form of religious indoctrination, and that in the same context, exemption arrangements must also be taken into account. The Turkish educational system only provides such an exemption for two categories of pupils of Turkish nationality, namely those whose parents belong to the Christian or Jewish faiths.
The parties do not contest the important changes made to the curriculum of the religion and ethics classes following the case of Hasan and Eylem Zengin v. Turkey and the introduction of the application at hand. The Court therefore proceeds with the examination of the case in light of these changes, of which it however notes that, though primarily introduced to provide information about the different beliefs in Turkey, including the Alevi faith, do not amount to an actual revision of the main axes of the class.
Subsequently identifying the content of the education provided on Islam in the compulsory class as the main point of contention, the Court underscores its manifest incompetence to take a stance on matters of Islamic theology while reiterating its jurisprudence according to which the State must be neutral and impartial in the exercise of its regulatory powers in the domain of religion, worship and belief. The fact that the curriculum pays more attention to Islam as practiced and interpreted by the majority of the Turkish population than to other minority interpretations of Islam and other religions and beliefs does not, as such, constitute a lack of the principles of pluralism and objectivity which could be regarded as indoctrination.
However, taking into account the particularities of the Alevi faith in comparison to the Sunni conception of Islam, the Court believes that the applicants could legitimately consider that the teaching methods concerned could, for their children, trigger a conflict of allegiance. The Court recalls the positive State duty under Article 2 Protocol No.1 to, when including religious instruction in the curriculum, to the extent possible, avoid situations where pupils face such a conflict between the religious education at school and the religious or philosophical convictions of their parents. The Court fails to see how such conflicts can be avoided without an appropriate exemption mechanism.
Notwithstanding that parents can always educate their children in line with their own religious or philosophical convictions, the deviations between the approach of the curriculum and the particular features of the Alevi faith are such that they can hardly be sufficiently attenuated by the mere information about the Alevi beliefs and practice. Moreover, the exemption procedure being restricted to two categories for the Court necessarily suggests that the instruction is likely to lead pupils to face the aforementioned allegiance conflicts. Against the background of almost all member States offering at least one opt-out route for religious education, the Court concludes that the one offered by the Turkish education system is very limited, and moreover susceptible of subjecting parents to a heavy burden in terms of disclosure of their religious or philosophical convictions.
Having regard to its finding of Article 2 of Protocol No. 1, the Court does not find it necessary to examine the applicants’ complaints under Articles 9 and 14 ECHR. This to the discontent of judges Sajó, Vučinić and Kūris who highlight the importance of the underlying question of religious discrimination of the Alevi faith – which is not granted the status of a separate religion with the rights associated thereto – and regret the Court’s reluctance to dig deeper into the issue.
The decision of the Court must be read in light of the case of Hasan and Eylem Zengin, which had already identified the structural problem of the Turkish education system in terms of lack of objectivity of the religion and ethics class and the inappropriate exemption system. Furthermore, the judgment is in line with its general stance on the compatibility of religious instruction with public education.
According to the case law of the Court, the setting and planning of the curriculum in principle fall within the competence of the States, and the second sentence of Article 2 of Protocol No. 1 does not prevent them from “disseminating in State schools, by means of the teaching given, objective information or knowledge of a directly or indirectly religious or philosophical kind”. Moreover, parents do not have the right to object to the integration of such teaching or education in the school curriculum, since that would risk making all institutionalized teaching unworkable. The Court’s approach has been fairly pragmatic in the latter regard: “In fact, it seems very difficult for many subjects taught at school not to have, to a greater or lesser extent, some philosophical complexion or implications.” Yet the limit to religious instruction in public education has been clearly drawn in its case law, and lies in the State’s duty of impartiality and neutrality towards various religions, faiths and beliefs, concretized in the requirement that the information or knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner, not amounting to indoctrination.
Often, this implies a scrutiny of the curriculum, which ends up being considered not in line with the principles of objectivity and pluralism. In casu, however, the Court acknowledges that it has been subject to significant changes (and now includes information about the religious diversity prevailing in Turkish society in general, and, for instance, ritual specificities of the Alevi faith in particular), nonetheless bearing in mind that they do not amount to an actual curriculum revision. Instead, the emphasis lies on the particular features of the Alevi faith and the ensuing conflict of allegiance the applicants’ children might face between the religious instruction received at school and the religious convictions of their parents.
This reasoning seems to indicate a proportional relationship between the degree of disparity between the conviction to which prominence is given in the religious instruction concerned and the minority one – and thus the likelihood of allegiance conflicts for the pupils involved – one the one hand, and the need for an appropriate exemption mechanism, on the other hand. This raises several questions, such as on the extent of the disparity needed to be able to speak of an allegiance conflict, or on the aptness of conflict as a criterion, given that one might argue that a pluralist society and educational system thrives on the conflictual opposition of different convictions. Also, the construction is interesting as it builds on a criterion imbedded in a manifest triangular relationship (the conflict of allegiance faced by the pupil, between the parental and the State’s educational values), to assess whether an educational system including religious instruction in the curriculum for study is adequately equipped to comply with the positive state obligation to ensure respect for the religious and philosophical parental convictions, the latter being an obvious binary relationship in which the parent, and not the child, is viewed as the rights-holder. It is a construction that stems from the paternalistic approach of the second sentence of Article 2 of Protocol No. 1 as to the position of the child in the context of religious education.
Qualifying the disparities between the Alevi faith and the classes’ core Sunni understanding as such that they call for an appropriate exemption mechanism, facilitates the Court’s further analysis, as the exemption procedure is manifestly deficient. Though the Court rightly points the foregoing out, it is regrettable that it is the ultimate focus of the case, to the neglect of an actual overhauling of the curriculum of the religion and ethics classes. Such a genuine revision merits primary attention of assessment for various reasons, including the paramount importance of inclusive educational environments as triggers for interreligious dialogue, as well as the risk of an exemption procedure being put in place apologetically for a religious course program of which the objectivity is disputed. While neutralizing the broader educational environment, exemptions do leave the litigious curriculum unaffected. From an inclusive education perspective, prioritizing curriculum reform to exemption therefore seems defendable.
Moreover, if the upshot is that an appropriate opt-out mechanism can mitigate an inappropriate (in terms of objectivity and pluralism) educational issue, such as a religion class, the impossibility to opt-out a contrario would intensify the objectivity and pluralism standards for the educational issue from which no exemption is possible, to ensure respect for parents’ convictions in accordance with Article 2 of Protocol No. 1. In, e.g., the case of Lautsi (where the complaint was also examined mainly from the angle of aforesaid article), this would require heightened scrutiny in the assessment of the compatibility of the display of a crucifix in public schools’ classrooms with the right to education under aforementioned article.
Contrarily, however, the Grand Chamber accentuated the margin of appreciation – something of which the attentive reader cannot help but noticing its entire absence in the Court’s reasoning in the present case. From the identical starting point of a public school giving preponderant visibility to the country’s majority religion, both cases take on quite different routes. Two routes between which, in the field of content and orientation of public education, the Court’s perspective is known to fluctuate: in some cases, driven by a libertarian approach of the public school, more willing to accede to claims or private individuals against majority-friendly educational policies, while giving due weight to the state interest in shaping public education in other, more paternalistic, cases. The decision in Lautsi, clearly reflecting the latter concern, has properly been criticized for the arbitrary differentiation in the neutrality of different religious symbols. Perhaps now, in view of the criterion of conflict allegiance as developed in the cases of Hasan Zengin and Mansur Yalçın in conjunction with the impossibility of an exemption mechanism, it can even be more so.
 ECtHR, Folgerø and Others v. Norway , no 15472/02, par. 84 (g).
 ECtHR, Kjeldsen, Busk Madsen and Pedersen v. Denmark , series A no. 23, par. 53 and Hasan and Eylem Zengin v. Turkey , app. 1448/04, par. 51.
 Ibid., paras 52-54. ECtHR, Lautsi v. Italy , app. 30814/06.
 D. Kyritsis and S. Tsakyrakis, ‘Neutrality in the classroom’, International Journal of Constitutional Law 2013, vol. 11, issue 1, (200) 201-202.
 See, inter alia, previous footnote and L. Zucca, ‘Lautsi: A Commentary on a decision by the ECtHR Grand Chamber’, International Journal of Constitutional Law 2013, vol. 11, issue 1 (200) 220-221.