Events
The applicant (Hüseyin El) submitted a petition dated October 1, 2009, requesting that his daughter (Nazlı Şirin El), who was a fourth-grade elementary school student at the time, be exempted from the religion culture and ethics (DKAB) course at her school. In response to this petition, the school administration notified the petitioner of the letter dated 22/10/2009 from the General Directorate of Primary Education of the Ministry of National Education, and the petitioner’s request was rejected. The letter stated that, with reference to the decision of the Higher Council of Education and Training dated 9/7/1990 and numbered 1, it was not compulsory for students of Christian and Jewish faiths who are Turkish citizens and who attend primary and secondary schools other than minority schools to take the DKAB course, provided that they document their affiliation to one of these religions.
Following the applicant’s request to the Population Directorate based on the aforementioned response letter, the reference to Islam in the religion section of his and his daughter’s identity cards was removed. The applicant filed a lawsuit with the Administrative Court seeking suspension of execution and annulment of the decision rejecting his request for his daughter to be exempted from the DKAB course, acting on behalf of his daughter and stating that the reference to Islam in the religion section of her identity card had been removed. The Administrative Court hearing the case ruled to annul the decision in question. The decision was overturned by the Council of State on appeal. Following the reversal, the court of first instance complied with the reversal decision and dismissed the case. This decision was upheld by the Council of State.
Allegations
The applicants argued that the absence of an exemption option from the DKAB course violated the parents’ right to have their religious and philosophical beliefs respected in education and teaching.
The Court’s Assessment
Article 24 of the Constitution states that “Religious culture and ethics education shall be among the compulsory subjects taught in primary and secondary education institutions.” The Constitution does not provide for any exceptions to this provision. Therefore, religious culture and ethics education is compulsory in all primary and secondary education institutions in Turkey. In this sense, not providing for exemption from compulsory religious culture and ethics education does not constitute a violation of rights from a constitutional perspective. However, the last sentence of Article 24 of the Constitution, which states, “Religious education and instruction other than this shall be subject only to the will of the individuals and, in the case of minors, to the request of their legal representative,” stipulates that religious education and instruction other than religious culture instruction shall not be compulsory and may only be provided on a voluntary basis. In the current application, it has been examined whether the DKAB course, which was conducted according to the curriculum applied at the time of the events subject to the application and which the applicant’s daughter was forced to take after her request for exemption was rejected, exceeds the scope of religious culture and ethics education, which is considered compulsory under the Constitution, and whether it can be classified as religious education and instruction that can be provided on a voluntary basis.
It is imperative that the examination in the application be limited solely to the curriculum applied to the applicant’s daughter. This is because the applicant’s daughter began her university education in 2018, and the primary school (4th grade), middle school, and imam hatip middle school (5th-8th grades) teaching programs for secondary education, which were approved by the Council of Education (TTK) decision dated 19/1/2018 and numbered 2 (currently in effect) and accepted by decision dated 19/1/2018 and numbered 18, were in effect at that time. grades) and the secondary education DKAB (9th-12th grades) teaching programs approved by its decision dated 19/1/2018 and numbered 18, which have been implemented since the 2018-2019 academic year, have not been applied to the applicant’s daughter. Therefore, the DKAB programs implemented starting from the 2018-2019 academic year have not been examined in this decision.
The assessments in this decision concern the secondary education curriculum for grades 9, 10, 11th, and 12th grades, and the DKAB course teaching program for grades 4, 5, 6, 7, and 8th grades, and the amendments to these programs introduced by Decisions No. 328 and 329 dated December 30, 2010, which were implemented in the 2011-2012 academic year.
The DKAB course programs, which were regulated by Decisions No. 328 and No. 329 dated 30/12/2010 and started to be implemented in the 2011-2012 academic year, were also applied to the applicant’s daughter. Therefore, the Constitutional Court considered the concrete application not only in light of the DKAB course curriculum taught at the time of the incident in question, but also took into account other developments regarding the DKAB course curriculum that occurred up to the 2018-2019 academic year.
During the period of the 1982 Constitution, the content of the compulsory DKAB courses was initially shaped entirely around the interpretation of Islam accepted by the majority of the Turkish population. However, in subsequent years, information about different religions and beliefs was also incorporated into the scope of the course. Particularly towards the end of the 2000s, and influenced by the violation ruling issued by the ECtHR in the Hasan and Eylem Zengin v. Turkey application, significant changes were made to the content of the course with the aim of enabling students to understand different beliefs in society, particularly the Alevi faith.
On the other hand, despite all efforts in this direction, the ECHR concluded that the changes in the course curriculum, although made with the aim of providing information about different beliefs existing in Turkey, did not result in a genuine revision of the main components of the course, which primarily focused on information about Islam as practiced and interpreted by the majority of the population in Turkey. and that despite the significant changes in the curriculum and textbooks, the Turkish education system is not equipped with appropriate methods to respect the beliefs of parents.
The Council of State also essentially agreed with the ECtHR’s Mansur Yalçın and Others v. Turkey and the Hasan and Eylem Zengin v. Turkey judgment referred to in that judgment, concluding that “religious culture and ethics education is not provided in an objective and rational manner within a pluralistic understanding” in our country, and found the rejection of requests for exemption from DKAB courses to be unlawful. However, in its 2017 decision, the Council of State determined that DKAB instruction was being provided in accordance with Article 24 of the Constitution. However, the decision did not explain the reasons for changing its previous ruling that religious culture and ethics instruction was not being provided objectively and rationally within the framework of pluralism in our country.
In this case, regarding the DKAB curriculum in force until the 2018-2019 academic year, the ECtHR found that the curriculum primarily focused on information about Islam, and that the changes made to the curriculum did not result in a genuine revision of the main components of the course. There is no reason to depart from the Council of State’s findings that DKAB teaching is not provided objectively within the framework of pluralism in our country.
The review of the primary school DKAB course (grades 4, 5, 6, 7, and 8) curriculum shows that it was determined that the lesson programs predominantly focused on information related to Islam as practiced and interpreted by the majority of the Turkish nation within the framework of our country’s unique historical heritage and sociological structure, that only Islamic worship was taught, and that the curriculum went beyond teaching and had educational content. Therefore, it was assessed that until the 2018-2019 academic year, this course did not meet the content of religious culture and ethics education, which is required by Article 24 of the Constitution to provide impartial and informative information about religions and to instill moral values.
It was concluded that, within the framework of the curriculum in force until the 2018-2019 academic year, the DKAB course exceeded the limits of religious culture and ethics education, which must be taught compulsorily in primary and secondary education institutions in accordance with Article 24 of the Constitution; it was determined that religious education and instruction should be provided at the request of the legal representative of minors, and the request of the legal representative of minors. In this case, in order not to violate the right in question, alternatives such as exemption for parents who do not want their children to take this course, which is of a religious education and instruction nature, the possibility of alternative courses to religious education and instruction, or the possibility of enrolling or not enrolling in the aforementioned course must be provided.
However, until the 2018-2019 academic year, the Turkish education system did not provide any exemptions other than allowing students belonging to the Christian and Jewish faiths to be exempted if they could prove their affiliation to one of these religions. there was no exemption option from the DKAB course, which was considered to have reached a level of religious education and instruction that exceeded religious culture teaching, nor was there an alternative that would accommodate parents’ requests not to have their children take this course.
As a result, the DKAB course curriculum for the period up to the 2018-2019 academic year was evaluated as exceeding religious culture education, which is intended to provide impartial and introductory information about religions and is considered mandatory, and instead falls within the scope of the education and teaching of Islam and a specific interpretation of it. Therefore, the failure to offer suitable alternatives to the applicant, who did not want her daughter to take the aforementioned DKAB course, violated the applicant’s right to have her religious and philosophical beliefs respected in education and teaching.
However, it is self-evident that this conclusion does not imply that teaching courses on the education and instruction of Islam in schools, within the scope of Article 24 of the Constitution, is unconstitutional. This is because the Constitutional Court has stated that, in the context of religious education and instruction, “measures and practices that offer individuals options and facilitate the fulfillment of the common and widespread needs of individuals in society in this area,” in this context, that teaching the courses “The Holy Quran” and “The Life of the Prophet” as optional elective courses in middle schools and high schools cannot be considered unconstitutional (AYM, E.2012/65, K.2012/128, 20/9/2012).
In its previous decisions, the Constitutional Court has stated that freedom of religion and conscience is one of the foundations of a democratic society, rooted in the fact that religion is both one of the fundamental sources to which individuals who adhere to a religion turn to understand and give meaning to life, and that it plays an important role in shaping social life (Tuğba Arslan [GK], B. No: 2014/256, 25/6/2014, § 52; Sara Akgül [GK], B. No: 2015/269, 22/11/2018, § 79). Again, the Constitutional Court, viewing religious education and instruction as one of the state’s positive obligations within the scope of freedom of religion and conscience, emphasized that religious education and instruction are accepted as a requirement of freedom of religion and conscience under Article 24 of the Constitution, that the Constitution views religious services as a social need, and that it imposes obligations on the state to meet these needs (AYM, E.2012/65, K.2012/128, 20/09/2012).
Based on the reasons stated, the Constitutional Court ruled that the right of parents to demand respect for their religious and philosophical beliefs in education and instruction had been violated.
