No violation of Art. 10;No violation of P1-1;No violation of Art. 14;No violation of Art. 18

Historical

The applicant , Mr. PERSON , is proprietor of the publishing firm " Stage CARDINAL " in GPE which he opened in DATE . He has published , among other books , ORG ( hereinafter called " the Schoolbook " ) , the original edition of which was the subject of the present case and a revised edition of which appeared on DATE .

The applicant 's firm had previously published Socialism and Man in GPE , by PERSON , Major Speeches , by PERSON , and GPE , by ORG . Since DATE CARDINAL further titles have appeared , namely Revolution in the GPE , by PERSON , a book of writings from ORG called ORG , GPE 's Socialist Revolution , by PERSON and PERSON , and ORG , by PERSON .

The NORP rights of the Schoolbook , written by PERSON and PERSON , CARDINAL NORP authors , had been purchased by the applicant in DATE . The book had first been published in GPE in DATE and subsequently , after translation and with certain adaptations , in GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE as well as several non - NORP countries . Furthermore it circulated freely in GPE and GPE .

After having arranged for the translation of the book into LANGUAGE the applicant prepared an edition for GPE with the help of a group of children and teachers . He had previously consulted a variety of people about the value of the book and intended publication in GPE on DATE . As soon as printing was completed he sent out CARDINAL review copies of the book , together with a press release , to a selection of publications from national and local newspapers to educational and medical journals . He also placed advertisements for the book in various publications including ORG , ORG .

On DATE , ORG published an account of the book 's contents , and other accounts appeared in ORG and the DATE FAC on DATE . Further reports were carried by ORG on DATE and DATE ; they also indicated that representations would be made to ORG demanding that action should be taken against the publication of the book . The Schoolbook was also the subject of further extensive press comment , some favourable and some not , immediately after and around the time of the seizure referred to below .

After receipt of a number of complaints , on DATE ORG asked ORG to undertake enquiries . As a result of these , on DATE , a successful application was made for a warrant under LAW CARDINAL/CARDINAL to search the premises occupied by CARDINAL in GPE . The warrant was issued in the applicant 's absence but in accordance with the procedure laid down by LANGUAGE law and a copy of the Schoolbook was before the judicial authority which issued the warrant . It was executed on DATE and CARDINAL copies of the book were provisionally seized together with leaflets , posters , showcards and correspondence relating to its publication and sale .

Acting on the advice of his lawyers the applicant continued distributing copies of the book in DATE . After ORG had received information that further copies had been taken to Stage CARDINAL 's LOC after the search , further successful applications were made on DATE ( in conditions similar to those described above ) to search again those premises and also the premises of the printers of the book . DATE altogether CARDINAL copies of the book were seized at Stage CARDINAL 's premises and , at the printer 's , CARDINAL spoiled copies of the book , together with correspondence relating to it and the matrix with which the book was printed . CARDINAL copies of a total print of CARDINAL copies were missed and subsequently sold , for example , to schools which had placed orders .

On DATE , a ORG issued , under LAW , as amended by LAW CARDINAL ( CARDINAL ) of LAW DATE , CARDINAL summonses against the applicant for the following offences :

( a ) on DATE having in his possession CARDINAL obscene books entitled " The Little Red Schoolbook " for publication for gain ;

( b ) on DATE , having in his possession CARDINAL obscene books entitled " The Little Red Schoolbook " for publication for gain .

The summonses were served on the applicant on DATE . He thereupon ceased distribution of the book and advised bookshops accordingly but , by that time , CARDINAL copies were already in circulation .

The summonses were answerable on CARDINAL DATE at ORG but , on the application of ORG , the case was adjourned until DATE . On DATE the applicant appeared at ORG to which the case had been transferred , having consented to the case being heard and determined in summary proceedings by a magistrate rather than by a judge and a jury on indictment . He claims that this choice was dictated by his financial plight and the need to avoid the delays inherent in the indictment procedure although this is questioned by the Government . Having been granted legal aid , he was represented by counsel . On DATE , after witnesses had been called for both prosecution and defence , the applicant was found guilty of both offences and fined £ MONEY on each summons and ordered to pay £ MONEY costs . At the same time the court made a forfeiture order for the destruction of the books by the police .

On DATE notices of appeal against both convictions were received by ORG from the applicant 's solicitors . The grounds stated were " that the magistrate 's decision was wrong and against the weight of the evidence " . The appeal was heard before the Inner London Quarter Sessions on DATE , DATE , DATE and DATE . At this hearing witnesses gave evidence on behalf of the prosecution and on behalf of the applicant . Judgment was delivered on CARDINAL DATE : the decision at first instance was upheld and the applicant was ordered to pay another £ MONEY costs . The material seized as described above was then destroyed .

The applicant did not exercise his right of making a further appeal to ORG since he did not dispute that the judgment of CARDINAL DATE had correctly applied LANGUAGE law .

Whilst the Schoolbook was not the subject of proceedings in GPE , GPE or GPE , the same was not true of GPE .

Indeed a GPE bookseller was charged under a local Act . However he was acquitted on DATE by a stipendiary magistrate who considered that the book was not indecent or obscene within the meaning of that Act . It does not appear from the file whether the case concerned the original or the revised edition .

Further , a complaint was brought under NORP law against LAW in respect of the revised edition . It was dismissed on DATE by an GPE court solely on the ground that the accused could not have the necessary mens rea . In DATE the Procurator Fiscal announced that he would not appeal against this decision ; he also did not avail himself of his right to initiate criminal proceedings against Mr. PERSON personally .

The Schoolbook

The original LANGUAGE language edition of the book , priced at MONEY a copy , had altogether CARDINAL pages . It contained an introduction headed " All grown - ups are paper tigers " , an " Introduction to the NORP edition " , and chapters on the following subjects : Education , ORG , Pupils and The System . The chapter on Pupils contained a CARDINAL page section concerning " Sex " which included the following sub - sections : Masturbation , Orgasm , Intercourse and petting , Contraceptives , GPE dreams , ORG Child - molesters or " dirty old men " , Pornography , Impotence , Homosexuality , Normal and abnormal , Find out more , Venereal diseases , ORG and illegal abortion , Remember , Methods of abortion , Addresses for help and advice on sexual matters . The LAW stated : " This book is meant to be a reference book . The idea is not to read it straight through , but to use the list of contents to find and read about the things you 're interested in or want to know more about . Even if you 're at a particularly progressive school you should find a lot of ideas in the book for improving things . "

The applicant had planned the distribution of the book through the ordinary book - selling channels although it was said at the appeal hearing to have been accepted that the work was intended for , and intended to be made available to , school - children of DATE .

Pending the appeal hearing , the applicant consulted his legal advisers concerning a revision of the ORG to avoid further prosecutions ; apparently he tried to consult ORG as well , but in vain . It was decided to eliminate or re - write the offending lines which had been attacked before ORG by the prosecution but to do so necessitated , in some cases , re - writing substantially more than these criticised sentences . There were other alterations made to the text by way of general improvement , for example in response to comments and suggestions from readers and the updating of changed data ( addresses , etc . ) .

The revised edition was published on DATE . After consulting the Attorney General , ORG announced on DATE that the new edition would not be the subject of a prosecution . This publication took place after the CARDINAL Sessions judgment but the revision of the ORG had been completed , and the printing of the new version was in train , well before .

Domestic law

The action against the ORG was based on LAW , as amended by LAW ( hereinafter called " the CARDINAL/CARDINAL Acts " ) .

The relevant extracts from the CARDINAL/CARDINAL Acts , read together , are as follows :

" ( CARDINAL ) For the purposes of this act an article shall be deemed to be obscene if its effect or ( where the article comprises CARDINAL or more distinct items ) the effect of any CARDINAL of its items is , if taken as a whole , such as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances , to read , see or hear the matter contained or embodied in it .

( CARDINAL ) In this LAW ' article ' means any description of article containing

or embodying matter to be read or looked at or both , any sound record ,

and any film or other record of a picture or pictures .

" ( CARDINAL ) Subject as hereinafter provided , any person who , whether for gain or not , publishes an obscene article or who has an obscene article for publication for gain ( whether gain to himself or gain to another ) shall be liable -

( a ) on summary conviction to a fine not exceeding QUANTITY or to imprisonment for a term not exceeding DATE ;

( b ) on conviction on indictment to a fine or to imprisonment for a term not exceeding DATE or both .

... A person shall be deemed to have an article for publication for gain if with a view to such publication he has the article in his ownership , possession or control .

( CARDINAL ) A person publishing an article shall not be proceeded against for an offence at common law consisting of the publication of any matter contained or embodied in the article where it is of the essence of the offence that the matter is obscene .

" ( CARDINAL ) If a justice of the peace is satisfied by information on oath that there is reasonable ground for suspecting that , in any LOC ... specified in the information , obscene articles are , or are from time to time , kept for publication for gain , the justice may issue a warrant ... empowering any constable to enter ( if need be by force ) and search the LOC ... within DATE from DATE of the warrant , and to seize and remove any articles found therein ... which the constable has reason to believe to be obscene articles and to be kept for publication for gain .

( CARDINAL ) A warrant under the foregoing subsection shall , if any obscene articles are seized under the warrant , also empower the seizure and removal of any documents found in the LOC ... which relate to a trade or business carried on at the LOC ...

( CARDINAL ) Any articles seized ... shall be brought before a justice of the peace ... who ... may thereupon issue a summons to the occupier of the LOC ... to appear ... before a magistrates ' court ... to show cause why the articles or any of them should not be forfeited ; and if the court is satisfied , as respects any of the articles , that at the time when they were seized they were obscene articles kept for publication for gain , the court shall order those articles to be forfeited .

( CARDINAL ) In addition to the person summoned , any other person being the owner , author or maker of any of the articles brought before the court , or any other person through whose hands they had passed before being seized , shall be entitled to appear before the court ... to show cause why they should not be forfeited .

( CARDINAL ) Where an order is made under this section for the forfeiture of any articles , any person who appeared , or was entitled to appear , to show cause against the making of the order may appeal to CARDINAL sessions ; and no such order shall take effect until the expiration of DATE after DATE on which the order is made , or , if before the expiration thereof notice of appeal is duly given or application is made for the statement of a case for the opinion of ORG , until the final determination or abandonment of the proceedings on the appeal or case .

( CARDINAL ) For the purposes of this section the question whether an article is obscene shall be determined on the assumption that copies of it would be published in any manner likely having regard to the circumstances in which it was found , but in no other manner .

... Where articles are seized under LAW ... and a person is convicted under LAW ... of having them for publication for gain , the court on his conviction shall order the forfeiture of those articles .

Provided that an order made by virtue of this subsection ( including an order so made on appeal ) shall not take effect until the expiration of the ordinary time within which an appeal in the matter of the proceedings in which the order was made may be instituted or , where such an appeal is duly instituted , until the appeal is finally decided or abandoned ;

" ( CARDINAL ) A person shall not be convicted of an offence against section CARDINAL of this LAW and an order for forfeiture shall not be made under the foregoing section if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science , literature , art of learning , or of other objects of general concern .

( CARDINAL ) It is hereby declared that the opinion of experts as to the literary , artistic , scientific or other merits of an article may be admitted in any proceedings under LAW either to establish or to negative the said ground . "

( CARDINAL ) This Act shall not extend to GPE or to GPE . "

At the time of the events under review , the authorities frequently adopted a non - contentious procedure ( " disclaimer / caution procedure " ) rather than instituting , as in this case , criminal proceedings . However it could only be used when the individual admitted that the article was obscene and consented to its destruction . The procedure constituted no more than a matter of practice and was abandoned in DATE following criticisms expressed in a judicial decision .

The judgment of the Inner London Quarter Sessions

At the appeal hearing CARDINAL principal issues were examined by the court , namely , first , whether or not the ORG had proved beyond reasonable doubt that the Schoolbook was an obscene article within the meaning of the CARDINAL/CARDINAL Acts ; and secondly , if so , whether or not the applicant had established the defence under LAW to the effect that he had shown , on a balance of probabilities , that publication of the book was justified as being for the public good .

The court first dealt with the issue of obscenity . Following a decision in another case the court noted that it had to be satisfied that the persons who it was alleged were likely to read the article would constitute a significant proportion . It also accepted the meaning of the words " deprave and corrupt " as it had been explained in that other case and about which there had been no dispute between the parties .

Following further previous case - law , the court had decided that expert evidence should be admitted on the question of whether the ORG was obscene . Such evidence , though not normally admissible for this purpose but only in connection with the defence under section CARDINAL of the CARDINAL/CARDINAL Acts , could be heard in the present case which was concerned with the effect of the article upon children .

The court had therefore heard CARDINAL witnesses on behalf of the prosecution and CARDINAL on behalf of the applicant , being experts in various fields , in particular those of psychiatry and teaching ; the views they had expressed were very different . After they had been heard , the applicant had argued that , when one had the sincere opinion of many highly - qualified experts against the prosecution 's case , it was impossible to say that the tendency to deprave and corrupt had been established with certainty . The court was unable to accept this submission : in its judgment of CARDINAL DATE it pointed out that there was an almost infinite variation in the relevant background of the children who would be in CARDINAL way or another affected by the book , so that it was difficult to speak of " true facts " in this case . The views of the applicant 's witnesses had been those approaching the extreme of CARDINAL wing of the more broadly varied outlook on the education and upbringing of children , whereas the evidence given on behalf of the prosecution tended to cover the views of those who , although clearly tending in the opposite direction , were less radical . Particularly , when looking at the evidence on behalf of the applicant , the court had been driven to the conclusion that most of the witnesses were so uncritical of the book looked at as a whole , and so unrestrained in their praise of it , as to make them at times less convincing than otherwise they might have been . In summary the court considered that a good deal of the witnesses had been so single - minded in an extreme point of view as to forfeit in a large measure the power to judge with that degree of responsibility which makes the evidence of any great value on a matter of this sort .

Concerning the Schoolbook itself , the court first stressed that it was intended for children passing through a highly critical stage of their development . At such a time a very high degree of responsibility ought to be exercised by the courts . In the present case , they had before them , as something said to be a perfectly responsible adult opinion , a work of an extreme kind , unrelieved by any indication that there were any alternative views ; this was something which detracted from the opportunity for children to form a balanced view on some of the very strong advice given therein .

The court then briefly examined the background . For example , looking at the book as a whole , marriage was very largely ignored . Mixing a very CARDINAL - sided opinion with fact and purporting to be a book of reference , it would tend to undermine , for a very considerable proportion of children , many of the influences , such as those of parents , the ORG and youth organisations , which might otherwise provide the restraint and sense of responsibility for oneself which found inadequate expression in the book .

The court reached the conclusion that , on the whole , and quite clearly through the mind of the child , the ORG was inimical to good teacher / child relationships ; in particular , there were numerous passages that it found to be subversive , not only to the authority but to the influence of the trust between children and teachers .

Passing to the tendency to deprave and corrupt , the court considered the atmosphere of the book looked at as a whole , noting that the sense of some responsibility for the community as well as to oneself , if not wholly absent , was completely subordinated to the development of the expression of itself by the child . As indications of what it considered to result in a tendency to deprave and corrupt , the court quoted or referred to the following :

" Maybe you smoke pot or go to bed with your boyfriend or girlfriend - and do n't tell your parents or teachers , either because you do n't dare to or just because you want to keep it secret .

Do n't feel ashamed or guilty about doing things you really want to do and think are right just because your parents or teachers might disapprove . A lot of these things will be more important to you later in life than the things that are ' approved of ' . "

The objectionable point was that there was no reference there to the illegality of smoking pot which was only to be found many pages further on in an entirely different part of the book . Similarly there was no specific mention at all in the book of the illegality of sexual intercourse by a boy who has attained the age of DATE and a girl who has not yet attained DATE . It had to be remembered that the Schoolbook was indicated as a work of reference and that one looked up the part which one wanted rather than read it as a whole book .

" Porn is a harmless pleasure if it is n't taken seriously and believed to be real life . Anybody who mistakes it for reality will be greatly disappointed .

But it 's quite possible that you may get some good ideas from it and you may find something which looks interesting and that you have n't tried before . "

Unfortunately , the sane and sensible first paragraph quoted above was immediately followed by a passage suggesting to children that in pornography they might find some good ideas which they might adopt . This was to raise the real likelihood that a substantial number of children would feel it incumbent upon them to look for and practise such things . Moreover , just on the previous page there was the following passage : " But there are other kinds - for example pictures of intercourse with animals or pictures of people hurting each other in various ways . Pornographic stories describe the same sort of thing . " The court considered that , although it was improbable that young people would be likely to commit sexual offences with animals as a result of this , the possibility that they should practise some other forms of cruelty to CARDINAL another , for sexual satisfaction , was a real likelihood in the case of a significant number of children if this got into the hands of children at a disturbed , unsettled and sexually excited stage of their lives . Such acts might very well be criminal offences just like smoking pot and sexual intercourse between a boy of CARDINAL and a girl not yet CARDINAL . The expression " to deprave and corrupt " must include the admission of or the encouragement to commit criminal offences of that kind .

The court concluded " in the light of the whole of the book that this book or this article on sex or this section or chapter on pupils , whichever one chooses as an article , looked at as a whole does tend to deprave and corrupt a significant number , significant proportion , of the children likely to read it " . Such children would , it was satisfied , include a very substantial number aged DATE .

The court finally dealt with the issue of the defence under LAW . It stated that no doubt there were many features about the book which , taken by themselves , were good . The unfortunate thing was that so frequently the good was intermixed with things that were bad and detracted from it .

For example , much of the information about contraceptives ( pp . CARDINAL ) was very relevant and desirable which should be laid before very many children who might not otherwise readily have access to it . But it was damaged by the suggestion , backed by the recommendation to take direct action if the school authorities would not give way that every school should have CARDINAL contraceptive vending machine ( p. CARDINAL ) .

Similarly , the treatment of the subject of homosexuality ( pp . CARDINAL - CARDINAL ) was a factual , very compassionate , understanding and valuable statement . But again , no matter how good one assessed the value of this section , it was hopelessly damning by its setting and context , and the fact that it , only , contained any suggestion of a stable relationship in relation to sex and that marriage received no such treatment at all . Moreover , there was a very real danger that this passage would create in the minds of children a conclusion that that kind of relationship was something permanent .

Again , there were passages with regard to venereal diseases ( pp . CARDINAL - CARDINAL ) , contraception ( pp . CARDINAL ) and abortion ( pp . CARDINAL - CARDINAL ) , containing dispassionately and sensibly , and on the whole completely accurately , a great deal of advice which ought not to be denied to young children . However , on the balance of probabilities , these matters could not outweigh what the court was convinced had a tendency to deprave and corrupt . The court asked itself whether , granted the degree of indecency which it found , the good likely to result from the Schoolbook was such that it ought , nevertheless , to be published in the public interest ; it regretfully came to the conclusion that the burden on the appellant to show that " publication of the article in question is justified as being for the public good " had not been discharged .

Further details concerning the revised edition

The passages from the original edition of the ORG whose " extreme " tone or " subversive " aspects had been emphasised by the judgment of DATE ( paragraphs CARDINAL and DATE above ) are repeated either with no , or with no important , changes in the revised edition which was prepared before that date but published on DATE ( paragraphs CARDINAL above ) .

Of the passages cited by DATE as striking examples of the tendency to deprave and corrupt ( paragraph CARDINAL above ) , one was not altered ( p. CARDINAL , " Be yourself " ) . On the other hand , the others were fairly extensively softened ( pp . CARDINAL - CARDINAL , " Intercourse and petting " , and pp . CARDINAL - CARDINAL , " Pornography " ) and on page CARDINAL of the work there is now a mention of the illegality of sexual intercourse with a girl under CARDINAL .

Furthermore , the revised edition no longer has any reference to the installation in schools of contraceptive vending machines and points out , on page CARDINAL , that homosexual tendencies are often temporary .


Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

The applicant was convicted of murder and has been serving a life sentence in Straubing Maximum Security Prison since DATE . The highest level of security applies at the prison , as it houses solely inmates serving long - term or life - imprisonment sentences or those in subsequent preventive detention . Radios are permitted in the prison facility in question .

On DATE the applicant applied for permission to have a CD player and audio CDs and a play station and its necessary accessories .

On DATE ORG rejected his application in accordance with section QUANTITY of FAC , arguing that granting it would have jeopardised security and order in the prison .

The applicant applied for judicial review .

ORG submitted to the court that , given the maximum - security regime of the prison and the significant number of inmates who had been involved with drugs , every object that was handed over to an inmate had to be thoroughly checked for hidden drugs or facilities that could enable a breakout . The electronic facilities which the applicant applied for had multiple cavities and owing to their high complexity could have been modified to carry illegal or impermissible information . Moreover , every audio CD would have had to be checked for possible hidden electronic data . Therefore , maintaining security and order in the prison would have necessitated time - consuming checks by specially qualified prison staff . Having regard to the possibility of multiple similar requests , allowing prisoners to have the devices in question would have necessitated substantial additional work and would possibly have required a raise in the number of staff . Therefore , the necessary security measures to be taken would have been disproportionate to the applicant ’s interests at stake .

The applicant submitted that the possession of a CD player and a play station would not have posed a real threat to security . To this end he referred at large to the decisions of ORG of DATE and ORG of DATE , which found that a play station did not pose a relevant threat to prison order . The applicant also referred to ORG decision of DATE . He relied , in particular , on the principle of equality . None of these decisions directly concerned the applicant PERSON ( see relevant domestic law and practice below ) .

On DATE ORG upheld ORG decision , endorsing the arguments given by it and noting that the case - law cited by the applicant did not provide for a decision in his favour .

On DATE ORG rejected the applicant ’s appeal on points of law ( Rechtsbeschwerde ) as inadmissible . It found that neither the development of law nor the necessity of uniform case - law demanded the examination of its merits . The decisions of ORG and ORG were based on sufficient grounds , namely , the special circumstances of the prison concerned , and thereby complied with the law .

On DATE ORG ( CARDINAL BvR CARDINAL/CARDINAL ) refused to examine his constitutional complaint without further reasons .

Section QUANTITY CARDINAL of the law on the execution of prison sentences and measures of rehabilitation and prevention involving deprivation of liberty DATE FAC – provides :

“ ( CARDINAL ) Every inmate is allowed to possess books or other objects to a reasonable extent for educational or leisure purposes .

( CARDINAL ) This does not apply if the possession , the surrender or the use of the object would [ ... ]

jeopardise [ ... ] the security or order of the prison facility . ”

ORG in its decision of DATE ( CARDINAL Ws CARDINAL/CARDINAL ) and ORG in its decision of DATE ( CARDINAL GPE CARDINAL/CARDINAL ) found that a play station did not pose a relevant threat to security and order of the prison and was therefore permitted according to section QUANTITY . These decisions did not deal with the security level of the prison facilities in question .

ORG decided on DATE ( CARDINAL BvR CARDINAL/CARDINAL ) that the refusal to allow a prison inmate to have a play station did not infringe any of that person ’s constitutional rights . ORG decision was , in particular , not contrary to the principle of equality . Referring to the above decisions of the GPE and ORG it found that every request concerning electronic devices in prison had to be decided on its own merits according to the circumstances of the particular case and the conditions of the prison facility concerned .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief)

The applicant was born in DATE and has lived in GPE since DATE , when she left GPE to pursue her medical studies at ORG at ORG . She comes from a traditional family of practising NORP and considers it her religious duty to wear the NORP headscarf .

On DATE the applicant , who was then in DATE at ORG at ORG , enrolled at ORG at ORG . She says that she wore the NORP headscarf during DATE she spent studying medicine at ORG and continued to do so until DATE .

On DATE the Vice - Chancellor of ORG issued a circular regulating students’ admission to the university campus . The relevant part of the circular provides :

“ By virtue of the LAW , the law and regulations , and in accordance with the case - law of ORG and ORG and the resolutions adopted by the university administrative boards , students whose ‘ heads are ORG ( wearing the NORP headscarf ) and students ( including overseas students ) with beards must not be admitted to lectures , courses or tutorials . Consequently , the name and number of any student with a beard or wearing the NORP headscarf must not be added to the lists of registered students . However , if students whose names and numbers are not on the lists insist on attending tutorials and entering lecture theatres , they must be advised of the position and , should they refuse to leave , their names and numbers must be noted and they must be informed that they are not entitled to attend lectures . If they refuse to leave the lecture theatre , the teacher shall record what has happened in a report explaining why it has not been possible to give the lecture and shall bring the matter to the attention of the university authorities as a matter of urgency so that disciplinary measures can be taken . ”

On DATE , in accordance with the aforementioned circular , the applicant was denied access by invigilators to a written examination on oncology because she was wearing the NORP headscarf . On DATE the secretarial offices of the chair of orthopaedic traumatology refused to allow her to enrol because she was wearing a headscarf . On DATE she was refused admission to a neurology lecture and on DATE to a written examination on public health , again for the same reason .

On DATE the applicant lodged an application for an order setting aside the circular of CARDINAL DATE . In her written pleadings , she submitted that the circular and its implementation infringed her rights guaranteed by ORG CARDINAL , CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL , in that there was no statutory basis for the circular and the education authority had no regulatory power in this sphere .

In a judgment of DATE , ORG dismissed the application , holding that by virtue of section CARDINAL(b ) of ORG ( Law no . DATE see paragraph CARDINAL below ) a university vice chancellor , as the executive organ of the university , had power to regulate GPE dress in order to maintain order . That regulatory power had to be exercised in accordance with the relevant legislation and the judgments of ORG and ORG . Referring to the settled case - law of those courts , ORG held that neither the regulation in issue , nor the individual measures , could be considered illegal .

On DATE ORG dismissed an appeal by the applicant on points of law .

In DATE disciplinary proceedings were brought against the applicant under LAW ( see paragraph DATE below ) as a result of her failure to comply with the rules on dress .

On DATE , in view of the fact that the applicant had shown by her actions that she intended to continue wearing the headscarf to lectures and/or tutorials , the dean of the faculty declared that her attitude and failure to comply with the rules on dress were not befitting of a student . He therefore decided to issue her with a warning .

On DATE an unauthorised assembly gathered outside the deanery of ORG to protest against the rules on dress .

On DATE the dean of the faculty began disciplinary proceedings against various students , including the applicant , for taking part in the assembly . On DATE , after hearing her representations , he suspended her from the university for a semester pursuant to Article CARDINAL ) of ORG ( see paragraph CARDINAL below ) .

On DATE the applicant lodged an application with ORG for an order quashing the decision to suspend her .

On DATE ORG submitted its observations on her application . It argued , inter alia , that the disciplinary penalty was lawful as the reason for the applicant ’s DATE suspension was that she had taken part in an unauthorised assembly .

On DATE the applicant ’s application to have the disciplinary penalty quashed was dismissed by ORG , which held that in the light of the material in the case file and the settled case - law on the subject , the impugned measure could not be regarded as illegal .

Following the entry into force of PERSON no . CARDINAL of DATE ( which afforded students an amnesty for disciplinary offences and annulled any resulting penalties or disabilities ) , the applicant was granted an amnesty releasing her from all the disciplinary penalties and their effects .

On DATE ORG held that the aforementioned legislation made it unnecessary to examine the merits of the applicant ’s appeal on points of law against the judgment of DATE .

In the meantime , on DATE , the applicant had enrolled at ORG , where she pursued her university education .

The relevant provisions of the LAW provide :

“ GPE is a democratic , secular ( laik ) and social ORG based on the rule of law , respectful of human rights in a spirit of social peace , national solidarity and justice , adhering to the nationalism of PERSON and resting on the fundamental principles set out in the Preamble . ”

“ No amendment may be made or proposed to the provisions of LAW laying down that the ORG shall be a Republic , the provisions of LAW concerning the characteristics of the Republic or the provisions of LAW . ”

“ All individuals shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical belief , religion , membership of a religious sect or other similar grounds . ”

“ None of the rights and freedoms referred to in the LAW shall be exercised with a view to undermining the territorial integrity of the ORG and the unity of the nation , jeopardising the existence of ORG , abolishing fundamental rights and freedoms , placing the control of the ORG in the hands of a single individual or group , ensuring the domination of CARDINAL social class over other social classes , introducing discrimination on the grounds of language , race , religion or membership of a religious body , or establishing by any other means a political system based on such concepts and opinions . ”

“ Everyone has the right to freedom of conscience , belief and religious conviction . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions .

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal interest or influence thereby . ”

GPE was founded on the principle that the ORG should be secular ( laik ) . After the proclamation of GPE DATE , the public and religious spheres were separated through a series of revolutionary reforms : the abolition of the caliphate on DATE ; the repeal of the constitutional provision declaring ORG the religion of the ORG on DATE ; and , lastly , on DATE a constitutional amendment according constitutional status to the principle of secularism ( see LAW of DATE and LAW as set out in paragraph CARDINAL above ) .

The main feature of the NORP system was the status accorded to women ’s rights , with women being granted equality in the enjoyment of individual rights . The process began on DATE with the adoption of LAW , which provided for equality of the sexes in the enjoyment of civic rights , in particular as regards divorce and succession . Subsequently , through a constitutional amendment of DATE ( Article CARDINAL of the DATE LAW ) , women obtained equal political rights with men .

At the time of GPE both the central government and religious groups required people to dress in accordance with their religious affiliations . The reforms introduced by GPE the question of dress were inspired by the evolution of society in DATE and sought first and foremost to create a religion - free zone in which all citizens were guaranteed equality , without distinction on the grounds of religion or denomination . The first enactment in this sphere was LAW of DATE ( Law no . CARDINAL ) , which treated dress as an issue relating to modernity . Similarly , a ban was imposed on wearing religious attire other than in places of worship or at religious ceremonies , irrespective of the religion or belief concerned , by ORG ( Law no . CARDINAL ) .

Under ORG ( LAW of DATE ( Law no . CARDINAL ) , religious schools were closed and all schools came under the control of ORG . This LAW is one of the laws enjoying constitutional status that are protected by LAW .

Wearing the NORP headscarf to school and university is a recent phenomenon in GPE , which began in DATE . There has been extensive discussion on the issue and it continues to be the subject of lively debate in NORP society . Those in favour of the headscarf see wearing it as a duty and/or form of expression linked to religious identity , whereas those against regard it as a symbol of a political ORG that is seeking to establish a regime based on religious precepts and threatens to cause civil unrest and undermine the rights acquired by women under the NORP system . The accession to power on DATE of a coalition government comprising the NORP PERSON , and the centre - right PERSON , has given the debate strong political overtones . The ambivalence displayed by the leaders of FAC , including the then Prime Minister , over their attachment to democratic values , and their advocacy of a plurality of legal systems functioning according to different religious rules for each religious community was perceived in NORP society as a genuine threat to NORP values and civil peace ( see PERSON ( ORG ) and Others v. GPE [ ORG ] , ORG . ORG , CARDINAL , ORG and CARDINAL , ORG CARDINAL-II ) .

It should be noted in that connection that CARDINAL of the matters taken into consideration by ORG in CARDINAL judgments concerning the dissolution of political parties was the use of religious symbols to political ends ( judgments of CARDINAL DATE in LOC case and of DATE in the Fazilet Partisi case ) . It considered that the opinions expressed by the leaders of those parties , inter alia , on the question whether the NORP headscarf should be worn in the public sector and/or schools demonstrated an intention to set up a regime based on the LAW .

The first piece of legislation on dress in higher - education institutions was a set of regulations that was issued by the ORG on DATE , which required staff working for public organisations and institutions and personnel and students at ORG institutions to wear ordinary , sober , modern dress . The regulations also provided that female members of staff and students should not wear veils in educational institutions .

On DATE ORG issued a circular on the wearing of headscarves in higher - education institutions . The NORP headscarf was banned in lecture theatres . In a judgment of CARDINAL DATE , ORG held that the regulations were lawful , noting :

“ Beyond being a mere innocent practice , wearing the headscarf is in the process of becoming the symbol of a vision that is contrary to the freedoms of women and the fundamental principles of the Republic . ”

On DATE transitional section CARDINAL of LAW ( Law no . DATE “ FAC ” ) entered into force . It provided :

“ Modern dress or appearance shall be compulsory in the rooms and corridors of higher - education institutions , preparatory schools , laboratories , clinics and multidisciplinary clinics . A veil or headscarf covering the neck and hair may be worn out of religious conviction . ”

In a judgment of CARDINAL DATE published in ORG of CARDINAL DATE , ORG held that the aforementioned provision was contrary to ORG ( secularism ) , CARDINAL ( equality before the law ) and CARDINAL ( freedom of religion ) of the LAW . It also found that it could not be reconciled with the principle of sexual equality implicit , inter alia , in NORP and revolutionary values ( see LAW and Article CARDINAL ) .

In their judgment , the Constitutional Court judges explained , firstly , that secularism had acquired constitutional status by reason of the historical experience of the country and the particularities of ORG compared to other religions ; secularism was an essential condition for democracy and acted as a guarantor of freedom of religion and of equality before the law . It also prevented the ORG from showing a preference for a religion or belief ; consequently , a secular ORG could not invoke religious conviction when performing its legislative function .

Stressing its inviolable nature , ORG observed that freedom of religion , conscience and worship , which could not be likened to a right to wear any particular religious attire , guaranteed first and foremost the liberty to decide whether or not to follow a religion . It explained that , once outside the private sphere of individual conscience , freedom to manifest one ’s religion could be restricted on public - order grounds to defend the principle of secularism .

Everyone was free to dress how he or she wished , as the social and religious values and traditions of society also had to be respected . However , when a particular dress code was imposed on individuals by reference to a religion , the religion concerned was perceived and presented as a set of values that were incompatible with those of contemporary society . In addition , in GPE , where the majority of the population were NORP , presenting the wearing of the NORP headscarf as a mandatory religious duty would result in discrimination between practising NORP , non - practising NORP and non - believers on grounds of dress with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as irreligious .

ORG also said that students had to be able to work and pursue their education together in a calm , tolerant and mutually supportive atmosphere without being deflected from that goal by signs of religious affiliation . It found that , irrespective of whether the NORP headscarf was a precept of ORG , granting legal recognition to a religious symbol of that type in higher - education institutions was not compatible with the principle that ORG education must be neutral , as it would be liable to generate conflicts between students with differing religious convictions or beliefs .

On DATE transitional section CARDINAL of GPE ( Law no . CARDINAL ) entered into force . It provides :

“ Choice of dress shall be free in higher - education institutions , provided that it does not contravene the laws in force . ”

In a judgment of DATE , which was published in ORG of DATE , ORG noted that , in the light of the principles it had established in its judgment of DATE , the aforementioned provision did not allow headscarves to be worn in higher - education institutions on religious grounds and so was consistent with the LAW . It stated , inter alia :

“ In higher - education institutions , it is contrary to the principles of secularism and equality for the neck and hair to be covered with a veil or headscarf on grounds of religious belief . In these circumstances , the freedom of dress which the impugned provision permits in higher - education institutions ‘ does not concern dress of a religious nature or the act of covering one ’s neck and hair with a veil and ORG ... The freedom afforded by this provision [ transitional LAW ] is conditional on its not being contrary ‘ to the laws in CARDINAL . The judgment [ of DATE ] of ORG establishes that covering one ’s neck and hair with the headscarf is first and foremost contrary to LAW . Consequently , the condition set out in the aforementioned section requiring [ choice of ] dress not to contravene the laws in force removes from the scope of freedom of dress the act of ‘ covering one ’s neck and hair with the headscarf’ ... ”

GPE University was founded in DATE and is CARDINAL of the main centres of ORG higher education in GPE . It is a secular University , comprising CARDINAL faculties ( including CARDINAL faculties of medicine – Cerrahpaşa and PERSON ) and CARDINAL schools of higher education . It is attended by CARDINAL students .

NORP In DATE , following a petitioning campaign launched by female students enrolled on the midwifery course at ORG for ORG , the Vice Chancellor circulated a memorandum in which he explained the background to the NORP - headscarf issue and the legal basis for the relevant regulations . He said in particular :

“ The ban prohibiting female students enrolled on the midwifery course from wearing the headscarf during tutorials is not intended to infringe their freedom of conscience and religion , but to comply with the laws and regulations in force . When doing their work , midwives and nurses wear a uniform . That uniform is described in and identified by regulations issued by ORG ... Students who wish to join the profession are aware of this . Imagine a student of midwifery trying to put a baby in or to remove it from an incubator , or assisting a doctor in an operating theatre or maternity unit while wearing a long - sleeved coat . ”

The Vice Chancellor was concerned that the campaign for permission to wear the NORP headscarf on all university premises had reached the point where there was a risk of its undermining order and causing unrest at ORG , the Faculty and ORG for ORG . He called on the students to comply with the rules on dress , reminding them , in particular , of the rights of the patients .

A resolution regarding the rules on dress for students and university staff was adopted on DATE by the ORG executive and provides as follows :

“ The rules governing dress in universities are set out in the laws and regulations . ORG has delivered a judgment which prevents religious attire being worn in universities .

This judgment applies to all students of our University and the academic staff , both administrative and otherwise , at all levels . In particular , nurses , midwives , doctors and vets are required to comply with the regulations on dress , as dictated by scientific considerations and the legislation , during health and applied science tutorials ( on nursing , laboratory work , surgery and microbiology ) . Anyone not complying with the rules on dress will be refused access to tutorials . ”

On DATE a circular was distributed containing instructions on the admission of students with beards or wearing the NORP headscarf . It was signed by the Vice Chancellor of ORG for the text of this circular , see paragraph CARDINAL above ) .

After the hearing on DATE the applicant produced a letter of DATE which ORG had sent to the university authorities inviting them to grant a request by students of the NORP faith for their attendance to be excused during NORP holidays .

On DATE the Government produced to the ORG a resolution ( no . CARDINAL ) adopted by ORG on DATE , which is worded as follows :

“ CARDINAL . Students at ORG shall comply with the legal principles and rules on dress set out in the decisions of ORG and higher judicial bodies .

Students at ORG shall not wear clothes that symbolise or manifest any religion , faith , race , or political or ideological persuasion in any institution or department of ORG , or on any of its LOC .

In the institutions and departments at which they are enrolled , students at ORG shall comply with the rules requiring specific clothes to be worn for work - related reasons .

Photographs supplied by students of ORG to their institution or department [ must be taken ] from the ‘ front’ ‘ with head and neck ORG . They must be DATE and make the student readily identifiable .

Anyone displaying an attitude that is contrary to the aforementioned points or who , through his words , writings or deeds , encourages such an attitude shall be liable to action under the provisions of the regulations relating to disciplinary proceedings against students . ”

The Students Disciplinary Procedure Rules , which were published in ORG of DATE , prescribe CARDINAL forms of disciplinary penalty : a warning , a reprimand , temporary suspension of DATE , temporary suspension of CARDINAL or CARDINAL semesters and expulsion .

Merely wearing the NORP headscarf on university premises does not constitute a disciplinary offence . However , failure to comply with the rules on dress may entail the application of another provision of the rules .

By virtue of Article CARDINAL ) of the Rules , a student whose “ behaviour and attitude are not befitting of students ” will be liable to a warning . A reprimand will be issued , inter alia , to students whose conduct is such as to lose them the respect and trust which students are required to command or who disrupt lectures , seminars , tutorials in laboratories or workshops ( Article CARDINAL(a ) and ( e ) ) . Students who directly or indirectly restrict the freedom of others to learn and teach or whose conduct is liable to disturb the calm , tranquillity and industriousness required in higher - education institutions or who engage in political activities in such institutions are liable to temporary suspension of DATE ( Article CARDINAL(a ) and ( c ) ) . Article PERSON ) lays down that students who organise or take part in unauthorised meetings on university LOC are liable to CARDINAL or CARDINAL semesters’ suspension .

The procedure for investigating disciplinary complaints is governed by ORG CARDINAL of the Rules . Articles CARDINAL and CARDINAL provide that the rights of defence of students must be respected and the disciplinary board must take into account the reasons that caused the student to transgress the rules . All disciplinary measures are subject to judicial review in the administrative courts .

NORP Since universities are public - law bodies by virtue of LAW of the LAW , they enjoy a degree of autonomy , subject to ORG control , that is reflected in the fact that they are run by management organs , such as the vice chancellor , with delegated statutory powers .

The relevant parts of LAW of LAW ( Law no . CARDINAL ) provide :

“ ... ( b ) NORP Vice chancellors have the following powers , competence and responsibilities :

To chair meetings of university boards , implement their resolutions , examine proposals by the university boards and take such decisions as shall be necessary , and ensure that institutions forming part of the university function in a coordinated manner ; ...

To supervise and monitor the university departments and university staff at all levels .

It is the vice chancellor who is primarily responsible for taking security measures and for supervising and monitoring teaching from the administrative and scientific perspectives ... ”

Both legal commentators and the administrative courts regard the monitoring and supervisory powers conferred on the vice chancellor by the aforementioned provision as including a power to issue regulations , as well as to take individual measures . Exercise of this power is subject to the requirement of lawfulness and to scrutiny by the administrative courts . Both written instruments ( legislation and the LAW ) and judge - made law ( the case - law of the administrative courts and ORG ) constitute valid sources of law . Similarly , regulations issued under the proper procedure will themselves be a valid source of law with which individual measures taken thereunder must comply .

In its judgment of CARDINAL DATE ( PERSON , PERSON ) , which was published in ORG , ORG stated , inter alia :

“ The legislature and executive are bound by both the operative provisions of judgments and the reasoning taken as a whole . Judgments and the reasons stated in them lay down the standards by which legislative activity will be measured and establish guidelines for such activity . ”

NORP In NORP countries , the debate on the NORP headscarf is concerned more with primary and secondary ORG schools than with higher - education institutions . In the NORP speaking parts of GPE , where there are no rules concerning the headscarf and disputes on the issue are generally resolved at local level , a number of ORG schools have refused to allow the NORP headscarf . In the cases which have come before them , the NORP courts have consistently held that the principles of equality and neutrality of ORG education take precedence over freedom of religion and have found against the complainants and their families .

In GPE , where secularism is regarded as CARDINAL of the cornerstones of NORP values , the question of the NORP headscarf in ORG schools has given rise to a very lively debate . After the Commission on ORG had reported to the President of the ORG with its opinion , ORG approved a bill on DATE regulating , pursuant to the principle of secularism , the wearing of signs or dress manifesting a religious affiliation in ORG primary and secondary schools . LAW provides :

“ In ORG primary and secondary schools , the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited .

The school rules shall state that the institution of disciplinary proceedings shall be preceded by a dialogue with the pupil . ”

As regards the universities , ORG considered that precedence should be given to the students’ right to express their religious , political and philosophical convictions . However , it stated in its report that such expression should not lead to transgressions of the rules on the functioning of universities .

NORP In other countries , in some cases after a protracted legal debate , the ORG education authorities permit NORP pupils and students to wear the NORP headscarf ( in GPE , the GPE , GPE and GPE ) . Nevertheless , the legal position is not uniform . In GPE , where the debate has for DATE focused on whether teachers should be allowed to wear the NORP headscarf , ORG stated on DATE in a case between a teacher and PERSON that the lack of any express statutory prohibition meant that teachers were entitled to wear the headscarf . In GPE the NORP headscarf is accepted by most teaching institutions and the rare disputes that do arise are generally resolved within the institution concerned .

It would appear that in a number of other countries , the issue of the NORP headscarf has yet to give rise to any detailed legal debate ( GPE , GPE , GPE , GPE , GPE and GPE ) .