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 Religious Culture and Ethics (DKAB) course at her school. In response to this petition, the school administration informed the petitioner of the letter dated October 22, 2009, from the General Directorate of Primary Education of the Ministry of National Education, and the petitioner’s request was rejected. The letter referred to the decision of the Higher Education and Training Council dated July 9, 1990, No. 1, stating that Turkish citizen students of Christian and Jewish faiths attending primary and secondary schools other than minority schools are not required to take the DKAB course, provided they document their affiliation with one of these religions.
Based on the above-mentioned response letter, the applicant applied to the Population Directorate, and the reference to Islam in the religion section of his and his daughter’s identity cards was removed. Acting on behalf of his daughter, the applicant filed a lawsuit with the Administrative Court seeking the annulment of the decision rejecting his request for his daughter to be exempted from the DKAB course and the suspension of its execution, arguing that the reference to Islam in the religion field of his daughter’s identity card had been removed. The Administrative Court hearing the case ruled to annul the decision in question. The decision was overturned on appeal by the Council of State. Following the reversal, the court of first instance complied with the reversal decision and dismissed the case.
This decision has been approved by the Council of State.
Allegations
The applicants argued that the absence of an exemption option from the DKAB course violated the right of parents 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 classes are compulsory subjects in primary and secondary education institutions.” The Constitution does not provide for any exceptions to this provision. Therefore, the religion culture and ethics course is compulsory in all primary and secondary education institutions in Turkey.
In this context, the fact that no exemption from the compulsory religion culture and ethics course is provided for does not constitute a violation of rights from a constitutional perspective. However, the last sentence of Article 24 of the Constitution, which states that “Religious education and instruction other than this shall be based solely on the will of individuals and, in the case of minors, on the request of their legal representatives,” stipulates that religious education and instruction other than the religion culture course is not compulsory and can only be provided on a voluntary basis.
In the current application, it was examined whether the DKAB course, which was conducted according to the curriculum in force 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, exceeded the scope of the religious culture and ethics course, which is considered compulsory under the Constitution, and whether it could be classified as religious education and instruction that can be provided on a voluntary basis.
The exam included in the application must be limited to the curriculum applied only to the applicant’s daughter. Since the applicant’s daughter began her university education in 2018, and the Ministry of National Education (TTK) decision dated 19/1/2018 and numbered 2 (still in force) approved and the decision dated 19/1/2018 and numbered 18 accepted for secondary education for primary school (4th grade), middle school, and imam hatip middle school (5th-8th The DKAB (9th-12th grades) teacher training programs for secondary education, which were implemented starting in the 2018-2019 academic year (dated January 19, 2018, and numbered 18), have not yet 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 program for grades 9, 10, 11, and 12, the DKAB course teaching program for grades 4, 5, 6, 7, and 8, and the changes made to these programs by Decisions No. 328 and 329 dated 30/12/2010 and implemented in the 2011 -2012 academic year.
The DKAB course programs, which were organized by Decisions No. 328 and 329 dated 30/12/2010 and began to be implemented in the 2011-2012 academic year, were also applied to the applicant’s daughter.
During the period of the 1982 Constitution, the content of compulsory DKAB courses was initially shaped entirely according to the understanding of Islam accepted by the majority of Turkish society. However, in subsequent years, information about different religions and beliefs was also included in the scope of the course. Particularly towards the end of the 2000s, influenced by the European Court of Human Rights’ (ECHR) ruling of violation in the Hasan and Eylem Zengin v. Turkey case, significant changes were made to the course content to ensure that students understood the different beliefs in society, especially the Alevi faith.
On the other hand, despite all efforts in this direction, the ECHR concluded that the changes made to the curriculum to provide information about the different beliefs existing in Turkey did not lead to a genuine revision of the main components of the course, which focused on providing information about Islam as practiced and interpreted by the majority of the population in Turkey. did not lead to a genuine revision of the main components of the course, which focused on providing information about Islam as practiced and interpreted by the majority of the population in Turkey. The Court concluded that, despite significant changes to the curriculum and textbooks, the Turkish education system was not equipped with appropriate methods to respect the beliefs of parents.
The Council of State also essentially concurred with the ECtHR’s Mansur Yalçın and Others v. Turkey and the Hasan and Eylem Zengin v. Turkey judgment referred to in that decision, concluding that “religious culture and ethics education is not provided in an objective and rational manner within a pluralistic understanding” in our country and finding the rejection of requests for exemption from DKAB courses to be contrary to the law.
However, in its 2017 decision, the Council of State determined that DKAB education was provided in accordance with Article 24 of the Constitution. However, the decision did not explain why it changed its previous ruling that religious culture and ethics education in our country was not provided objectively and rationally within the framework of pluralism.
In this case, the ECtHR found that the DKAB curriculum in force until the 2018-2019 academic year focused primarily on providing information about Islam and that the changes made to the curriculum did not lead to 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 in our country is not presented objectively within a pluralistic framework.
An examination of the primary education DKAB course (grades 4, 5, 6, 7, and 8) curriculum reveals that the course programs focus primarily on information about the Islamic religion as practiced and interpreted by the majority of the Turkish people within the framework of our country’s unique historical heritage and sociological structure, and that it has been determined that the course has educational content beyond merely teaching Islamic worship practices. and that it has an educational content beyond teaching. Therefore, it has been assessed that, until the 2018-2019 academic year, this course did not meet the content of religious culture and ethics education, which has the obligation to provide impartial and informative information about religions and to instill moral values, as stipulated in Article 24 of the Constitution.
Within the framework of the teaching program in effect until the 2018-2019 academic year, it has been concluded that the DKAB course exceeds the boundaries of the religion culture and ethics course, which must be taught compulsorily in primary and secondary education institutions in accordance with Article 24 of the Constitution; and that religious education and instruction must be provided at the request of the minor’s legal representative and at the request of the minor’s legal representative. In this case, in order not to violate this right, alternatives must be provided, such as granting exemption to parents who do not want their children to take this course, which is of a religious education and instruction nature, providing alternative courses to religious education and instruction, or providing the option of enrolling or not enrolling in the course in question.
However, until the 2018-2019 academic year, the Turkish education system did not offer any exemption options other than exempting students belonging to the Christian and Jewish faiths if they could prove their affiliation with one of these religions. Not only is there no exemption from the DKAB course, which is considered to have reached a level of religious education and instruction that goes beyond teaching religious culture, but there is also no alternative to meet parents’ requests that their children not take this course.
Consequently, it has been determined that the DKAB curriculum up to the 2018-2019 academic year went beyond the mandatory religious culture education, which aims to provide impartial and introductory information about religions, and instead encompassed the education and teaching of Islam and a specific interpretation thereof. Therefore, the failure to offer suitable alternatives to the applicant, who did not want her daughter to take the DKAB course in question, violated the applicant’s right to respect for her religious and philosophical beliefs in education and teaching.
However, it is clear that this conclusion does not mean that teaching Islamic education and instruction courses in schools is unconstitutional under Article 24 of the Constitution. The Constitutional Court has ruled that, in the context of religious education and instruction, “measures and practices that offer individuals choices and facilitate the fulfillment of the common and widespread needs of individuals in society” In this context, it ruled that teaching the courses “The Holy Quran” and “The Life of the Prophet” as 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 and that this freedom is ensured based on the fact that religion is one of the fundamental sources that individuals belonging to a religion refer to in understanding and giving meaning to their lives, and that it plays an important role in shaping social life.
(Tuğba Arslan [GK], Case No. 2014/256, June 25, 2014, § 52; Sara Akgül [GK], Case No. 2015/269, November 22, 2018, § 79). Again, the Constitutional Court, evaluating religious education and instruction as one of the positive obligations of the state 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 in 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 explained, 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.