Freedom of religion and conscience protects a person's right to hold a belief, to hold none, and not to be compelled to disclose their belief. Interference with the outward expression of belief is assessed in terms of its legal basis, legitimate aim and proportionality. In concrete circumstances, unequal treatment based on religious dress or symbols may raise the prohibition of discrimination alongside freedom of religion.
This article is based on the decision Tuğba Arslan [Plenary Assembly], Application No. 2014/256, June 25, 2014. The decision on a headscarf-wearing attorney's participation in a hearing does not automatically produce the same result for other professions and settings. Nevertheless, it sets out important constitutional criteria for the legality and justification of unequal treatment.
How is the inner and outer sphere of freedom of religion and conscience separated?
Article 24 of the Constitution guarantees freedom of conscience, religious belief and opinion. A person's inner belief and the way that belief is expressed through conduct are not assessed in the same way. The guarantee against being compelled to believe, not to believe or to disclose one's belief aims to prevent the State from exerting pressure on a person's conscience.
Worship, religious dress and practices connected with belief may come into play in the sphere of outward expression. This sphere may intersect with the rights of others and with public order. However, the fact that a practice causes discomfort to others is not, on its own, sufficient ground for a prohibition. The conformity of the interference with the relevant constitutional and statutory framework must also be shown separately.
When assessing whether a conduct is connected with religion or belief, the person's explanation and the relationship between the belief and the conduct are important. Not every personal preference is automatically treated as freedom of religion. However, it is also a problem of neutrality if public authorities decide which belief is valid by using the majority's understanding of religion as the yardstick.
The relationship between secularism and the individual's freedom of belief
Secularism cannot be interpreted as forcing individuals to conform their beliefs to a single understanding determined by the State. In the Tuğba Arslan decision, emphasis was placed on pluralism, the coexistence of different beliefs and the neutrality of the State. The State's task is to establish an order that jointly protects rights, rather than treating differences as threats in themselves.
Legal characterization: Where a dispute concerns a religious symbol, invoking the principle of secularism alone does not explain the legal basis or the concrete necessity of the restriction. The principles must be linked, and the reasoning must show why the interference is necessary for that person, that duty and that setting.
What happened in the Tuğba Arslan decision?
The applicant claimed that, while attending a hearing as an attorney, she was unable to perform her duties because of her headscarf. The trial court adjourned the hearing and gave her client a period to be represented by another attorney. The Constitutional Court (AYM) found that this practice amounted to an interference with freedom of religion and conscience.
The first important point in the review is the legal basis. The Constitutional Court noted that there was no statutory restriction requiring attorneys to appear in hearings with their heads uncovered. Earlier decisions or interpretations did not replace the requirement of legality for a concrete interference.
Direct quotation from the decision
“Under Article 13 of the Constitution, a law is always required in order to restrict fundamental rights.”
Where the quotation appears: Constitutional Court, Tuğba Arslan [Plenary Assembly], Application No. 2014/256, June 25, 2014, § 98.
This sentence does not mean that every restriction becomes lawful whenever a law exists. Legality is the first stage; where it is met, the review also requires a legitimate aim, a democratic society and a proportionality test. If there is no legal basis, the review faces a significant constitutional deficiency from the outset.
Which rights does the Constitutional Court's judgment concern?
The judgment of the Constitutional Court: It found a violation of freedom of religion and conscience and of the prohibition of discrimination. The decision was taken by majority vote, and the case was referred to the competent court to remove the violation and its consequences. The claim for non-pecuniary damages was rejected. A finding of violation does not mean that every claim was accepted.
The applicant's claims concerning the right to a defense and the right of access to a court were declared inadmissible for lack of jurisdiction ratione personae. Accordingly, the decision should not be reported as finding a violation of the applicant's right under Article 36 of the Constitution. The attorney's own right and the right of the person she represented were assessed separately.
Our assessment: One of the most important contributions of the decision is that it establishes the legal consequence on a right-by-right basis. The fact that the event occurred during the exercise of a profession did not automatically lead to a violation of all professional and judicial rights. A correct reading of the decision also distinguishes admissibility from the examination on the merits.
When does unequal treatment on religious grounds raise a discrimination issue?
Comparable situation and unequal treatment
First, it must be shown which right the person was exercising and how she was disadvantaged. Excluding a person because of a particular religious manifestation, while persons in a similar position enjoy the same service or professional opportunity, may form the starting point of the comparison.
In the Tuğba Arslan decision, the refusal to admit the attorney wearing a headscarf to the hearing, and her placement at a disadvantage compared with other attorneys, were assessed. The link between the unequal treatment and the outward expression of belief is concrete. In every dispute the same comparison group may not exist; an appropriate comparison must be drawn according to the characteristics of the event.
Objective justification and proportionality
Unequal treatment that pursues an aim is not sufficient on its own. The legitimacy of the aim is assessed together with the suitability, necessity and weight of the means used. In the decision, the absence of concrete facts showing that the headscarf infringed the rights of others was important (§§ 146–149).
Where a conflict is alleged, measures that protect pluralism and are less restrictive should be considered first. The mere displeasure of some persons at a religious appearance must not become the justification for exclusion. At the same time, it cannot be said that genuine conditions relating to security, health or the rights of others are of no importance.
How are the same criteria applied in employment, education and public services?
Restrictions based on belief in the fields of professional activity, education and the use of public services may rest on different legislation. The identity of the employer, the nature of the duty, the environment in which the service is provided and the status of the person must be examined. A provision on attorneys' attendance at hearings does not abolish all the rules of every uniformed profession.
In a hypothetical example, a conflict may arise between the mandatory use of safety equipment and religious dress. In such a case, the real risk, the technical possibilities and alternative arrangements must be investigated. This example is not the facts of an AYM decision; it is given to show how the proportionality review can be made concrete.
In the field of education, the specific provisions of Article 24 of the Constitution on religious instruction and education are also taken into account. Not every debate in this field can be reduced to the attorney headscarf decision. Compulsory courses, exemptions or school-rule disputes require a separate legal framework and the relevant case law.
Which evidence matters in preparing an application?
The written form of the restrictive decision, the reason given, any institutional rule, the notification document and the chronology of events should be preserved. If the restriction was oral, it should be specified by whom it was imposed, on what grounds and during which procedure. Witness statements and correspondence may help to clarify the event.
In a discrimination claim, information on how persons in comparable situations were treated is important. For this purpose, third parties' personal data should not be collected or published unnecessarily. The comparison should be built on records lawfully obtained and on elements that can be understood from the act itself.
A person may explain the link between their belief and their conduct. However, preparing an application should not turn into a process that forces the disclosure of the content of a belief in unnecessary detail. The balance between the information needed to resolve the dispute and personal privacy must be preserved.
Which application route should be used?
An administrative act, an employment relationship, a decision taken during proceedings or a barrier to access a service may each give rise to different remedies. Whether the relevant route is effective, its time limits and the interim protection that can be requested depend on the concrete act. The existence of a discrimination claim does not mean that only one institution may be approached in every dispute. State interference with the internal organization of a religious community is examined in the article on the freedom of religious communities to choose their leaders.
For individual applications to the Constitutional Court, exhaustion of ordinary remedies, victim status and the common sphere of protection are important. As a rule, the general time limit is thirty days from learning of the final decision. In the Tuğba Arslan decision, the division of jurisdiction shows how important it is for the applicant to clearly demonstrate interference with her own right.
For further detail on the subject, see our article on qualified rights through Constitutional Court decisions. For our office's work in this area, see the page on Constitutional Court and ECtHR applications.
Conclusion
Interference with freedom of religion and conscience cannot be justified by an abstract principle or by discomfort. A legal basis and a concrete necessity must be shown; where there is unequal treatment on religious grounds, the prohibition of discrimination must be examined separately. In setting out these safeguards, the Tuğba Arslan decision does not produce an unlimited result for every profession and setting. The operative part of the judgment should be read together with the rights found violated and the claims found inadmissible.
Frequently Asked Questions
Is keeping one's belief private also protected?
Yes. Freedom of religion and conscience also covers not being compelled to disclose one's belief. Any request for specific information must be assessed together with its legal basis and the guarantees of the right.
Is every restriction relating to religious dress discrimination?
No automatic conclusion can be drawn in every case. Unequal treatment is examined in terms of legal basis, legitimate aim, concrete necessity and proportionality. Abstract assumptions alone are not sufficient.
Did the Tuğba Arslan decision also find a violation of the right of access to a court?
No. The applicant's claims in this respect were declared inadmissible for lack of jurisdiction ratione personae. The consequences of the violation findings concerning freedom of religion and conscience and the prohibition of discrimination must be kept separate.
If a violation is found, must compensation always be paid?
No. In the Tuğba Arslan decision, the claim for non-pecuniary damages was rejected. Redress depends on the nature of the violation and on the route indicated in the operative part of the judgment.
Does this decision invalidate all workplace dress rules?
No. The nature of the work, the applicable legislation, the real risk and the alternatives are examined separately. The decision provides guidance on legality and proportionality; it does not produce an automatic result for every rule.
Sources and legal bases
- Constitution of the Republic of Türkiye, in particular Articles 10, 13, 15 and 24.
- Constitutional Court (AYM), Tuğba Arslan [Plenary Assembly], Application No. 2014/256, June 25, 2014, § 98, §§ 140, 146–149, 158–159 and the operative part; access to the link may require logging in.
- Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court (Anayasa Mahkemesinin Kuruluş ve Yargılama Usulleri Hakkında Kanun), Articles 45–50.
- Constitutional Court, Qualified Rights: Summaries of Decisions (Nitelikli Haklar: Karar Özetleri), June 2025, section on freedom of religion and conscience.