REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

SECOND SECTION

JUDGMENT

ESRA NUR ÖZBEY

(Application no. 2013/7443)

SECOND SECTION

JUDGMENT

I.        SUBJECT-MATTER OF THE APPLICATION

1.      The application concerns the allegations that the freedom of religion and belief of the applicant was violated as she was forced to take off the topcoat she wore as a requisite of her beliefs and that her right to the protection of her honor and reputation was violated as a criminal case was not filed about the suspect despite the fact that she suffered an affront.

II.     APPLICATION PROCESS

2.      The application was lodged on 23/9/2013 with the 6^th Assize Court of Bakırköy. As a result of the preliminary examination of the petition and annexes thereof as conducted in terms of administrative aspects, it was found that there was no deficiency that would prevent referral thereof to the Commission.

3.      It was decided by the Second Commission of the Second Section on 20/11/2013 that the examination of admissibility be conducted by the Section and the file be sent to the Section.

4.      In the session held by the Section on 19/12/2013, it was decided that the examination of admissibility and merits be jointly carried out. 

5.      The facts that are the subject matter of the application were notified to the Ministry of Justice on 23/12/2014. The Ministry of Justice submitted its opinion to the Constitutional Court on 25/2/2014.

6.      The opinion submitted by the Ministry of Justice to the Constitutional Court was notified to the applicant on 5/3/2014. The applicant submitted to the Constitutional Court her counter-opinion on 26/3/2014.  

III. THE FACTS

A.    The Circumstances of the Case

7.      As expressed in the application form and the annexes thereof, the incidents are summarized as follows:

8.      On 22/1/2013, the applicant entered Bakırköy Courthouse through the public gate of the courthouse, whereupon she was asked by the security officers to take off her topcoat as she walked through the electromagnetic device. The applicant stated that she would not take off her topcoat due to her beliefs but that she could be body-searched by a female security officer. A quarrel erupted between the applicant and the security staff upon when the latter said that as long as the instructions that they were given were concerned, taking off the topcoat was mandatory. The applicant could not enter the building through the gate where the security staff she argued with were positioned and walked out to enter the building from another gate.

9.      On the very same day, the applicant filed a criminal complaint pursuant to the claim that she was given a hard time, kept from entering the courthouse and was slandered. The Chief Public Prosecutor's Office of Bakırköy ruled on non-prosecution on 28/1/2013.

10.  The applicant has objected to the decision claiming that the decision for non-prosecution was made without responding to her claims concerning that the video recordings overlooking the scene of the incident were not provided, that wrong persons were investigated and that her freedom of religion and conscience guaranteed in Article 24 of the Constitution was violated. With its judgment on 20/3/2013, the 20^th Assize Court of İstanbul has ruled that the decision on non-prosecution be quashed on the ground that the prosecution carried out was deficient.

11.  The Public Prosecutor has requested the recordings of the camera overlooking the entrance gate of the Courthouse; however, in the letter of 2/5/2013 by the Directorate of Administrative Affairs of the Chief Public Prosecutor's Office of Bakırköy, it was informed that such 'camera recordings did not exist.' 

12.  The Chief Public Prosecutor's Office of Bakırköy ruled on 8/5/2013 that the re-prosecution of the suspects was not necessary. The reasoning by the Chief Public Prosecutor is as follows:

"It was found that the complainant arrived at the Bakırköy Courthouse, warned by the security staff to leave her metallic possessions in the basket and to take her topcoat off before proceeding through the sensor gate, that the complainant resisted to take off her topcoat and that the complainant claimed that the suspect Gürkan Sevinç, arriving on the scene, has slandered her by calling her 'impudent,' that the witness Nuray Özbek, who was at the scene of the incident, did not confirm the incident, that although the witness and the suspect have both explained the security procedure, the complainant insisted to enter the courthouse without adherence to the instructions of the chief prosecutor's office leading up to the incident.After the incident, the complainant who stated that she would file a complaint was escorted into the building by a female police officer, that the decision was objected to upon the decision of non-prosecution and that the decision was revoked upon mentioning that audiovisual recordings could not be taken and that upon the reply on 02/05/2013 it was understood that it was known that such visuals were not recorded in the area where the incident occurred; hence a decision (as a requirement of the CCP Art. 172) of no grounds for public prosecution was ruled concerning the suspect due to lack of evidence to suffice for proceeding with the prosecution apart from the abstract claim."

13.     In line with the Law on the Right to Information No. 4982 of 9/10/2003, the applicant has asked whether or not audiovisual recordings were taken at the public entry points of the Bakırköy Courthouse and for how long these recordings were kept, and the Administrative Affairs Directorate of the Chief Prosecutor's Office of Bakırköy has stated in its letter of response of 2/7/2013 that such audiovisual recordings were made at the points of entry in question and that such recordings were safeguarded for a duration of thirty to forty-five days. The applicant, indicating in the said letter that the investigation which had been carried out was deficient and that her constitutional rights were not defended, has re-objected to the decision of non-prosecution. With its judgment of 22/7/2913, the 4^th Assize Court of İstanbul Anadolu has rejected such objection as no legal contradiction was found in the decision of non-prosecution.  The judgment concerning the rejection of the objection was notified to the applicant on 22/8/2013.

14.   The individual application was submitted to the Constitutional Court on 23/9/2013.

B.     Relevant Law

15.   Article 120 of the Turkish Criminal Code No. 5237 of 26/9/2004 with the side heading ''Unlawful search'' is as follows:

"(1) A prison sentence of three months to one year shall be imposed on a public official who unlawfully searches an individual’s person or his/her belongings."

16.  The relevant part of Article 3 of the Regulation on Judicial and Preventive Searches (the Regulation) of 1/6/2005 with the side heading 'Grounds' is as follows:

"This Regulation has been prepared as per the provisions of the Criminal Procedure Law No. 5271 of 4/12/2004, the Law on the Duties and Authorities of the Police No. 2559 of 4/7/1934, the Law on the Organization, Duties and Authorities of the Gendarme No. 2803 of 10/3/1983, the Coast Guard Law No. 2692 of 9/7/1982, the Anti-smuggling Law No. 4926 of 10/7/2003, the Provincial Administration Law No. 5442 of 10/6/1949, the Law Concerning the prevention of Violence and Disorder in Athletic Competitions No. 5149 of 28/4/2004, the Law on Private Security Services No. 5188 of 10/6/2004, Law on Associations No. 5253 of 4/11/2004, the State of Emergency Law No. 2935 of 25/10/1983, the Law on Martial Law No. 1402 of 13/5/1971 and the Decree in the Force of Law on the Organization and the Duties of the Undersecretary of Customs No. 485 of 2/7/1993 as well as the relevant provisions of other legislation."

17.  The relevant part of Article 25 of the Regulation with the side heading 'Circumstances which do not require a preventive search warrant from the judge' is as follows:

"In searches to be conducted in the circumstances below, a search warrant or an order is not required:

a) In cases where any and all sorts of ingress to and egress from buildings and all sorts of facilities which have been allocated by the State for public service are subject to certain rules, in the search of the persons and the belongings of people entering such facilities,

...

Controls at the points of entry in public or non-public private establishments, institutions or enterprises shall be subject to the consent of those wishing to enter therein. Those who do not agree with such control cannot enter such places. These controls at such places shall be carried out by private security staff. However, depending on the special circumstances of such places as well as of those involved, preventive search can also be performed by law enforcers."

18.  The relevant part of Article 27 of the Regulation with the side heading 'Stop and search' is as follows:

“…

The following procedures shall be carried out upon stopping someone:

a) A pat-down search shall be carried out without taking off any of the clothing on the person stopped. If at the end of such search, a suspicion enough to deduce that the person is bearing arms is established, the officer can automatically conduct a search for a weapon or any other criminal object.

b) Pat-down search shall be carried out by an officer who is of the same sex as the person searched.

c) The reasons and the subject of such search shall be explained to the subject.

...

e) Pat-down search shall be conducted in a way to least disturb the subject.

...

h) Pat-down search shall be carried out at the first place where the subject or the vehicle is stopped, or nearby and in a way to be away from the sight of others to the extent possible. Search cannot be carried out by taking the subject elsewhere.

i) Nearby closed quarters or the law enforcers' vehicle can be availed of if there is reasonable justification for a more comprehensive search.

j) The minutes of the search shall be immediately drawn up upon request and right on the scene following the search.

19.  The relevant part of Article 28 of the Regulation with the side heading 'Search of the person and of the belongings upon a written warrant or order' is as follows:

“…

Body search shall be carried out by an officer who is of the same sex as the person searched.

During body search and search of personal belongings, the particular belonging which is the subject of such search and the reasons underlying such a search shall be explained to the person concerned.

During body search, goods in the company of the person concerned shall also be scanned with electromagnetic devices if possible and if not, by the five sensory organs. The same provision shall also apply for unattended articles.

In cases where the subject resists, the body search and search of the belongings shall be carried out by use of proportional force.

Body search and search of the belongings shall be carried out at the first place where the subject or the vehicle is stopped, or nearby and in a way to out of the sight of others to the extent possible. Search cannot be carried out by taking the subject elsewhere. Nearby closed quarters or the law enforcers' vehicle can be availed of if there is reasonable justification for a more comprehensive search.

Private papers and envelopes found on the person or among the belongings of the subject during body search shall not be opened apart from the possibility of any goods that are subject to seizure being present within them; nor shall information written thereupon be read even if such papers are open.

In cases where there is reasonable doubt that the person bears something which the laws forbid and where the aim of the search cannot be achieved in any other way, body search can be carried out as follows, by undressing:

a) Before the performance of the search, the senior law enforcement officer tasked in that unit shall inform the person concerned as to why the search has been deemed necessary and how it will be carried out.

b) The search shall be carried out by officers of the same sex as the person searched whereby measures to provide privacy against the eye of others are ensured.

c) The search shall be carried out in a way to violate the person's sense of shame at a minimum; firstly, the clothing of the upper body is removed and those of the lower body shall be removed after those of the upper body are put back on. These clothes must be searched.

d) Care so as not to touch the body during the search shall be taken.

e) The search shall be carried out and completed in as short a time frame as possible.

…”

IV.  EXAMINATION AND GROUNDS

20.  The individual application of the applicant (App No: 2013/7443 of 23/9/2015)  was examined during the session held by the court on 20/5/2013 and the following were ordered and adjudged:

A.    The Applicant's Allegations

21.   The applicant indicated that;

                          i.      The private security officers at the public entrance gate of the Bakırköy Courthouse have asked her to remove her topcoat as she walked past the electromagnetic device and that she has not agreed to do so since her clothing under the topcoat was not appropriate and also as a requirement of her belief; that she stated that she would agree to a body or a detector search by a female officer and that the officers have told her that it was not possible for her to enter the courthouse unless she removed the topcoat and that she was slandered during the quarrel that occurred,

                        ii.      she has filed a criminal complaint about the officers, yet a decision favoring no grounds for prosecution was made without a request for the footage of the security cameras and without carrying out any investigation, and that Article 17 of the Constitution was violated since she was not protected from slanders towards herself,

                      iii.      Articles 36 and 40 of the Constitution have been violated as a result of deficient investigation and the investigation of a wrong individual,

                      iv.      Article 24 of the Constitution has been violated since she was insisted to take her topcoat off although she mentioned she could not take her topcoat off because of her religious belief and due to the fact that she was consequently not allowed in the courthouse.

                  The applicant has requested that a compensation of TRY 50,000.00 be ruled for pecuniary and non-pecuniary damages upon the establishment of the violation.

B.     The Constitutional Court’s Assessment 

1. Admissibility

22.  The applicant has claimed that the right to a fair trial regulated in Article 36 of the Constitution was violated when the perpetrator was not penalized as a result of the investigation and prosecution which has been launched upon the complaint that she had filed regarding the act of slander and the assailants of her honor and reputation. However, the main point of this complaint by the applicant is the state's failure to perform its positive liability to establish effective mechanisms against third-person attacks on the honor and reputation of individuals.

23.  The Constitutional Court is not bound by the legal qualification of the facts made by the applicant, it appraises the legal definition of the facts and cases itself. For this reason, it was decided that her complaints that Article 17 of the Constitution was violated as the applicant was not protected against insults directed at her; so were Articles 36 and 40 since a deficient investigation was carried out, are examined as a whole from the perspective of her request concerning her right to request the protection of her honor and reputation.

24.  The complaints of the applicant concerning being forced to take off her topcoat which she wore as a requirement of her religious belief while entering the courthouse has to be examined from the perspective of freedom of religion and faith.

a.      The Allegation Concerning the Violation of the Right to Request the Protection of One's Honor and Reputation

25.  Article 17 (1) of the Constitution is as follows:

“Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence. ."

26.  In Article 148 (3) of the Constitution and Article 45 (2) of the Law No. 6216, it is stated that all administrative and judicial application remedies, which are prescribed in the law for the act, action or negligence that forms the basis of the violation claim, need to be exhausted before lodging an individual application. Exhaustion of legal remedies is mandated by the fact that violations of fundamental rights have to be firstly redressed by the courts of instance (Necati Gündüz and Recep Gündüz, B. No: 2012/1027, 12/2/2013, § 19-20; Güher Ergun and others, B. No: 2012/13, 2/7/2013, § 26).

27.  However, the expression 'ordinary remedies' used in the said provisions has to be understood as effective legal remedies having the quality to offer a chance of reasonable success regarding the complaints of the applicant, of a quality to provide a solution, usable and effective. Furthermore, the rule to exhaust legal remedies is not applicable neither as an absolute or a formal rule whereby checks and balances to ensure conformity with such rule requires taking the circumstances of the application into consideration.  Therefore, not just the existence of a number of remedies in the legal system but also the circumstances for the implementation thereof and the individual circumstances of the applicant must be taken into account in a realistic manner. For this reason, it has to be examined with a consideration for the circumstances of the application whether or not the applicant has taken all the steps that s/he would be expected to take in order to exhaust legal remedies (for a similar judgment of the ECtHR, see: İlhan  v. Turkey, 22277/93, 27/7/2000, § 56-64).

28.  The honor and reputation of an individual is included within the scope of "spiritual existence" which is stipulated in Article 17 of the Constitution. The state is obliged not to intervene in the honor and reputation, which are a part of the spiritual existence of an individual, and to prevent the attacks of third parties. The positive liability of the State within the framework of establishing effective mechanisms against the interventions of third parties in the corporeal and spiritual existence of individuals, however, shall not necessarily entail the performance of a criminal investigation and prosecution. It is also possible to protect an individual against the unjust interventions of third parties through civil procedure. As a matter of fact, both criminal and legal protection have been envisaged in our country for the interventions which are made by third parties in honor and reputation. Insult is considered as a crime in terms of criminal law, as a wrongful act in terms of private law and can be subjected to an action for compensation. Therefore, it is also possible for an individual to ensure a remedy through a civil case with the claim that an intervention has been made by third parties in his/her honor and reputation (Abdullah Doğtaş, B. No: 2013/1123, 2/10/2013, § 35).

29.  In cases where there is more than one effective remediy that can be resorted to concerning a claim regarding a violation, the applicant, as a rule, cannot be expected to exhaust all legal remedies serving the same purpose (see: S.S.A., B. No: 2013/2355, 7/11/2013, § 30). Yet, the legal responsibility which refers to the liability to compensate a damage incurred by someone else as a result of an act which is contrary to law and the convention comprises of a larger group of behaviors which is contrary to law than the human behavior called as an offense in criminal law. In order for an act to constitute an offense, it has to be explicitly defined in the relevant law; however, such a restriction has not been defined for the wrongful act.  On the other hand, as objective responsibility is not included in criminal law, in the field of legal responsibility, the principle of objective responsibility is effectively applied.  Personal responsibility can be considered by way of implementing a lower standard of proof within the framework of the same material cases in the field of legal responsibility. Furthermore, the possibility to make personal claims in criminal procedures does not exist in our system of law. Considering that the main objective of the liability of compensation in the field of legal responsibility is to remedy the damage of the damaged, regarding especially the disputes concerning the claim of violation which is the subject of the present application it is understood that the legal compensation is a usable and an effective legal remedy which offers a higher chance of success (see: S.S.A., § 31).

30.  On the other hand, concerning the remedy of damages arising from slandering rhetoric against individuals' honor and reputation within the framework of the state's positive liabilities, the decision making bodies of the European Council and the United Nations have many recommendations offering the exclusion of slander from being an offense whereby it would be sanctioned within the area of private law (Abdullah Doğtaş, § 37-39).

31.  In the present case, which is the subject of the application, the applicant claims that the security officer with whom she has quarreled has slandered her by calling her 'impudent', and hence lodged a complaint with the Chief Public Prosecutor's Office of Bakırköy with a request for legal action be taken for slander. At the end of the prosecution which has been carried out, it is understood that a decision concerning the absence of any grounds for the prosecution of those concerned due to such offenses was made and also that the applicant has not opted for lodging of a civil case which is a more effective remedy in terms of the present case.

32.  Within the framework of the findings provided hereinabove, considering the applicant has only resorted to the remedy of criminal proceedings regarding third-person interventions in honor and reputation, it cannot be said that the condition to exhaust all remedies to be able to address the Constitutional Court have been fulfilled.

33.  For the reasons explained, since it is understood that the applicant has resorted only to the remedy of criminal proceedings regarding third-party interventions in honor and reputation without availing of the possibility to lodge a civil case which is a more effective remedy in terms of the present case; it has to be decided without examining from the perspective of other admissibility criteria that this part of the application is inadmissible due to 'non-exhaustion of remedies.'

b.      Alleged Violation the Violation of the Freedom of Religion and Conscience

34.  The complaint of the applicant that Article 24 of the Constitution has been violated when the security officers at the public entrance gate of the Bakırköy Courthouse have insisted that she removed her topcoat although she had previously informed them that she could not do so because of her religious belief and whereupon she was not allowed in from the gate where this incident took place, is not manifestly ill-founded. In addition, as there is no other reason for inadmissibility, it should be decided that the part of the application as regards this complaint is admissible.

2.          Merits

35.  The applicant states that she wears her topcoat as a religious duty. On the day of the incident, the security officers at the public entrance of the Bakırköy Courthouse asked the applicant to remove her topcoat before walking through the electromagnetic device; however, the applicant told them that she wore the topcoat as a religious requirement and hence could not take it off. The applicant said that she could be body searched by a female security officer or as well by a detector, that she was not asked to remove her topcoat not even at the airports where she would be hand-searched or searched with a detector. The security officers informed her that it would not be possible for her to enter the Courthouse building without removing her topcoat in line with the instructions they had. When she was not allowed in the building from this door, the applicant claimed that she had egressed the building and entered therein through another gate of the Courthouse. The applicant filed a criminal complaint about the security officers on the same day.

36.  The applicant has alleged that her being forced to remove her topcoat which she wore as a requirement of her religious belief and not being allowed in the courthouse for not complying constitutes an intervention in the freedom of religion and conscience stipulated in Article 24 of the Constitution. 

37.  In the opinion of the Ministry of Justice;

                          i.      It was stated that it would be suitable to examine the applicant's complaints under this heading within the scope of Article 9 of the Convention (European Convention on Human Rights) and Article 24 of the Constitution and that as per the case law of the European Court of Human Rights (ECtHR), wearing religious attires and bearing caps, veils or symbols are considered as religion-originated behaviors of individuals whereby individuals' covering themselves on their own will thereto and due to their desire to be bound by a religious edict, or their bearing religious symbols should be considered within the scope of freedom of religion and conscience.

                        ii.      Furthermore, the Ministry, in its opinion, reminded that the ECtHR delivered judgments of violation by stating that the states did not secure the freedom of religion and conscience in a sufficient manner contrary to the positive liabilities in Article 9 in the interventions made by the states in the right of the individuals in the event that it cannot be proven that wearing religious symbols such as the cross, headscarf, or veil harms the professional image and interests of others.

                      iii.      It was stated that in its established case law the ECtHR considers that the states have a broad scope to exercise the right of discretion on regulations concerning the freedom of religion and conscience, that the state has both positive and negative liabilities within the framework of freedom of religion and belief and that the state must be cautious in its actions regarding ensuring the full balance between individual and public good despite its right of discretion regarding the field of freedom of religion and belief.

                      iv.      It was also stated, with reference to some of the judgments of the ECtHR, that the intervention in the freedom of religion and belief in the present complaint is based on public safety, requiring an assessment as to whether the state has positive liabilities regarding ensuring the balance between individual-based application of general religious acceptances and public good.

38.  The applicant, in her counter statement against the opinion of the Ministry, has stated that her being forced to remove her topcoat in an environment where  numerous individuals were present was inhuman and that she could have been hand-searched or searched with a detector by a female security officer who was present, but this was not resorted to. The applicant has alleged that in a country like Turkey where the majority of the population is Muslim and where most of the women wear some sort of outer attire as a requirement of their religious beliefs, the state has to take certain precautions in relation thereto and that one should also consider the difference between the European and Turkish value judgments during the examination. 

39.  Article 24 (1), (2) and (3) of the Constitution with the heading "Freedom of religion and conscience" are as follows:

"Everyone has the freedom of conscience, religious belief and conviction.

Acts of worship, religious rites and ceremonies shall beconducted freely, as long as they do not violate the provisions ofArticle 14

No one shall be compelled to worship, or to participate in religious rites and ceremonies, or to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions.

...

No one shall be allowed to exploit or abuse religion or religious feelings, or things held sacred by religion, in any manner whatsoever, for the purpose of personal or political interest or influence, or for even partially basing the fundamental, social, economic, political, and legal order of the State on religious tenets."

40.  Article 18 (1), (2) and (3) of the International Covenant on Civil and Political Rights of the United Nations (ICCPR) are as follows:

“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."

41.  Article 9 of the Convention with the heading ''Freedom of thought, conscience and religion'' is as follows:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

42.  In Article 24 (1) of the Constitution, it is stated that everyone has the freedom of conscience, religious faith and conviction, in paragraph two thereof, it is emphasized, as a natural consequence of this freedom, that prayers, religious rituals and ceremonies are freely performed on the condition that they are not in violation of the provisions of Article 14 that bans the misuse of the freedoms. In paragraph three, the principle as to the fact that no one can be forced to attend prayers, religious rituals and ceremonies and to reveal their religious faith and convictions; that no one can be condemned and blamed for their religious faith and convictions is included.

43.  The freedom of religion and conscience is one of the indispensable elements of the democratic state that is stipulated in Article 2 of the Constitution. Similarly, the ECtHR also accepts the freedom of religion and conscience as one of the most important principles of democracy, which is the basic element of the European public order. In its judgment of Kokkinakis v. Greece, the ECHR put forth the importance of the freedom in Article 9 of the Convention for the pluralistic democratic society in this way:

"As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been acquired over the centuries, depends on it." (Kokkinakis v. Greece, App. No. 14307/88, 25/5/1993, § 31)

44.  That religion is both one of the main sources that individuals, who are devoted to a religion, refer to so as to understand and give meaning to life and that it has an important function for the shaping of social life is present in the origin of the fact that the freedom of religion and conscience is one of the foundations of the democratic society. Because of this function, it has been accepted at international level that individuals have freedoms of religions and faith within certain measures independently from the positions of religions as regards freedoms. Just as other freedoms, the freedom of religion was also enshrined with certain legal and constitutional guarantees as a result of a long and difficult process. As a matter of fact, the freedom of religion is a right that is protected in most of the international declarations and conventions regarding human rights at a universal and regional level (Tuğba Arslan, [GA], App. No: 2014/256, 25/6/2014, § 52).  

45.  The fact that the right protected by Article 24 of the Constitution is indispensable is due to the reason that the freedom of religion and conscience is of vital importance for establishment and sustainment of the foundation of an effective and meaningful democracy based on the rule of law. On the other hand, the freedom of religion and conscience can only be protected in a democracy based on the understanding of recognition, pluralism and impartiality (Tuğba Arslan, § 53).

46.  In the context of the freedom of religion, "recognition" requires that the state equally accepts the existence of all religions and faith groups as regards the state-individual relations. The policy of the state for the pluralistic recognition on one hand forces the state to treat everyone equally in the society and on the other hand, does not allow the state to embrace any religion or ideology in an official way. Pluralism is only possible when everyone takes part in the social and political life through his/her own identity and as himself/herself. Pluralism cannot be mentioned in a place where the differences and those, who are different, are not recognized and protected against the threats. In a pluralistic society, the state shall be obliged to ensure that individuals live as required by their own world views and faiths. The state does not have the authority to accept one of the views or life styles present in the society as "wrong". In this context, unless the reasons for limitation stipulated in the Constitution are present, making the differences exist together is a requirement of pluralism although the majority or the minority does not like it. The third understanding that protects the freedom of religion and conscience is the impartiality arising out of secularism which is the guarantee of the protection of the freedom of religion and conscience of individuals in an equal way (Tuğba Arslan, § 54). 

47.  The freedom of religion and conscience, whose meaning and scope are defined by Article 24 of the Constitution and Article 9 of the Convention, guarantee that everyone “has the freedom of manifesting his/her religion or belief”, “has the freedom of changing his/her religion and belief”, that individuals have the belief and conviction that they desire and that they do not have any belief and conviction (See: AYM, E.1997/62, K.1998/52, K.T.16/9/1998).  In other words, just as the individuals cannot be forced to manifest their religious or conscientious convictions and worship in any fashion, to practice religion and to participate in rituals, they cannot also be condemned and blamed due to their worship and religious practices (Tuğba Arslan,§ 55) and the religious faiths and convictions that they have manifested.

48.  The ECtHR also by stating that "Regardless of the conscientious extent of the freedom of religion, this is at the same time and along with other things, also predicates a person's freedom to reveal his/her religion. Testimony through words and deeds are in connection with the existence of religious beliefs;"  (Kokkinakis v. Greece, § 31) indicates that Article 9 of the Convention safeguards two areas concerning the freedom of religion and conscience. The first of these is the internal area where everyone has the absolute freedom of thought, religion and conscience, the second one is the external area, which occurs as a result of manifestation of this right and is limited.

49.  In parallel to Article 9 of the Convention, Article 24 of the Constitution recognizes and protects the internal area of the freedom of religion and conscience by guaranteeing that the individual has or does not have any belief, that s/he can freely change his/her belief, that s/he cannot be forced to manifest his/her belief, that s/he cannot be condemned and be coerced due to such beliefs and similarly recognizes and protects the external area of the freedom of religion and conscience through the right of manifesting one's religion or belief by teaching, practice and by praying and performing a ritual either alone or in community with others (Tuğba Arslan,  § 57).

50.  The internal area of the freedom of religion and conscience that defines the right of an individual to choose his/her religion and the fact that s/he cannot be forced to manifest or change his/her religion, that s/he cannot be condemned, be coerced due to such religions and beliefs, and that the state cannot impose a certain religion or belief on the individuals is outside all types of influence of the lawmaker in a democratic, secular state of law. This matter has been explained in the reasoning of Article 24 through the phrase "...the freedom of religious faith and conviction shall not be subjected to any limitation due to its quality. This matter has been clearly stipulated in Article 15". In fact, in Article 15 of the Constitution, it is clearly stated that no one can be forced to manifest his/her religion, conscience, thoughts and convictions and blamed due to such religions, consciences, thoughts and convictions even in times of war, mobilization, martial law or states of emergency Tuğba Arslan, 25/6/2014, § 58).

51.  Article 24 of the Constitution does not protect any behavior arising out of or inspired by a religion or belief and does not guarantee the right to behave in a way required by a belief in the public space in any case. The freedom of manifesting one's religion and belief may only be limited due to the reasons specified in Article 24 (5) of the Constitution and under the conditions in Article 13 of the Constitution (Tuğba Arslan, 25/6/2014, § 59).

52.  The ECtHR has explained that the only reason for placing limitations on the freedom of manifesting one's religion and belief in accordance with Article 9 of the Convention is to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected in democratic societies, in which several religions coexist within one and the same population (Kokkinakis v. Greece, § 33).

53.  Following these general explanations, first of all, it should be determined whether the applicant has a right protected by Article 24 of the Constitution or not and, if yes, whether there is an intervention in this right of hers or not. In the event that the existence of an intervention in a right of the applicant protected by Article 24 of the Constitution is determined, it should be evaluated whether this invention meets the conditions of being prescribed by law within Article 13 of the Constitution, being directed towards a legitimate aim and being necessary in a democratic society or not.

a. Existence of the Intervention

54.  The difficulty of defining the notions of "conscience", "religious faith"" and "conviction" stipulated in Article 24 (1) of the Constitution is clear. Due to this difficulty, rather than making an extensive definition, it should be evaluated whether a behavior is within the field of protection of Article 24 of the Constitution or not depending on the circumstances of the case at hand.

55.  While evaluating the scope of the right to manifest religion or faith, the references made to the states of manifestation in Article 24 of the Constitution and international conventions should also be taken into account. As a matter of fact, in accordance with Article 24 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights (ICCPR) and Article 9 of the Convention, manifestation is generally accepted as "practices, prayers, teaching and rituals" of "a religion or faith". As can be understood from these terms, the texts of the Convention that define manifestation mostly focus on religion-based manifestations such as "prayer" and "ritual". However, as the term "exercise of the faith" is much more inclusive than other types of manifestation, it requires the handling thereof to be more detailed. As a result of this requirement, for example, the Human Rights Committee of the United Nations, in the General Comment No. 22 on Article 18 of the ICCPR, gave a list of various types of behaviors that evaluate the content of the terms "teaching, practice, prayer and ritual" in a broader manner. According to the Committee:

"The notion of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, the participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications."

56.  However, it cannot be said that international conventions have put forth which types of faith may be manifested in a complete manner. The first difficulty that emerges in the determination of the scope of the manifestation of a "faith" occurs in determining whether the said "faith" really exists or not and of what status it is. The second difficulty is the problem of proving that the manifestation occurs in accordance with the principles of the said religion or faith (Tuğba Arslan, § 64).

57.  Since preventing an individual from acting in accordance with his/her religion or faith will result in the weakening of the faith itself and the violation of the freedom of religion and faith of the individual, while evaluating the manifestation of the faith of the individual, it becomes important to determine whether the manifested behaviors are the "practice" of the faith or not. Should the "practice" be perceived only as the behaviors that are similar to prayer or should all the behaviors, orders and teachings that are important for the religion or faith be evaluated within this context? For the solution of this problem, in some of its judgments, the ECtHR embraced an approach as to the fact that there needs to be a relation between the behavior that defines the manifestation and the religion or the faith (Arrowsmith v. United Kingdom), App. No. 7050/75, 12/10/1978, §§ 3-4; X v. Austria, App. No. 8652/79, 15/10/1981). The ECtHR has mostly used this "criterion of requirement" for determining whether the behaviors, which are encouraged or allowed by a religion or faith, but which are not compulsory for the manifestation of the said religion or faith are covered by Article 9 (for an exemplary judgment, see: Khan v. United Kingdom, App. No. 11579/85, 7/7/1986).   As a rule, in this test of requirement, the applicant needs to demonstrate that a behavior or activity of his/hers limited by the public power is a practice arising out of his/her faith. Therefore, the matter to be questioned is the relevance of the limitation against the applicant with his/her religious faiths; that is, in other words, the relation of the behavior that the applicant is forced to or abstains from engaging in with his/her faiths (Tuğba Arslan,  § 66). 

58.   In order to overcome the difficulties encountered in completely revealing whether a behavior constitutes an aspect of any religion or faith that may be manifested, whether there is a structural or theoretical connection between the religion and faith and the revealed behavior, the time and place of occurrence of the behavior and whether the individual asserts the faith as the reason for his/her behavior are the important points to be taken into account while making this determination (Tuğba Arslan, § 67).  

59.  Nevertheless, except for the state of meeting an urgent social need, it may be decided by the members of the said religion or faith how a religion or faith may be manifested in the best way or whether a behavior is a requirement of a religion or faith that the applicant has put forth. In other words, the understanding of the applicant as regards the exercise of his/her religion or faith and his/her explanations arising out of this understanding need to be taken into account as long as they are not clearly baseless or unreasonable (for more detailed explanations, see: Tuğba Arslan,  § 68-70). 

60.  While evaluating whether a behavior is a requirement of a religion or faith that the applicant has put forth or not, it is necessary to avoid acting in a way such as making a decision on what a member of a religion or faith can do without his/her faith being violated; in other words, on what an individual needs to believe in and how s/he needs to behave. Similarly, questioning the comments of the applicants as regards their own religions and what "the common religious practices" are, is outside the relevance of the judicial bodies. A contrary approach will mean that the courts or the bodies which exercise the public power will determine what the applicants believe in about the practices of the religion or faith is "legitimate" by replacing the conscientious evaluation thereof with their own value judgments. As the Supreme Court of the United States of America states in one of its rulings, courts or other organs which use the public power should not dare to decide on the credibility of a religious claim (see: the Supreme Court of the United States of America, Employment Division, Department of Human Resources of Oregon/Smith, 494 U.S. 872, 6/11/1989). However, if one must reiterate, such an approach will not mean that Article 24 of the Constitution will protect every behavior arising out of or inspired by a religion or belief and guarantee the right to behave in a way required by a belief in the public space in every case (Tuğba Arslan,  § 71-72). 

61.  The applicant advocated that her dress style was one of the rules of the religion of Islam to which she belonged, which must be absolutely executed, and that for this reason, being asked by the private security staff at the public entrance gate of the Bakırköy Courthouse during security check to remove her topcoat was an explicit intervention in her right to freely manifest her religion. The applicant, in addition, alleged that the conduct to wear a topcoat as well as to refuse removing it during a security check is a practice that needs to be done in terms of the Islamic faith.

62.  Hence, one has to agree that women's wearing of topcoats and similar attires believing that this is an edict of the religion of Islam is a subject which may be considered within the ordinary meaning of Article 24 of the Constitution. From this perspective, acts and actions of the public power imposing restrictions on clothing worn as a requirement of religious beliefs constitute an intervention in the individuals' right to manifest their religion (Tuğba Arslan, § 76).

63.  In the present case, the applicant believes that she has to cover certain parts of her body due to her faith; and by requesting that she remove her dress, the security forces have forced her to act against this belief. As a result, there is a direct religious link between the applicant being forced to remove her attire and her refraining from compliance therewith. For this reason, it has to be agreed that the applicant's freedom of religion and conscious has been intervened in.

b. Whether the Intervention Constitutes a Violation

64.  The said intervention has to be compliant with the constitutional prohibitions which have been prescribed in Article 24 (2) and (4) of the Constitution. Furthermore, this intervention shall also constitute a violation of Articles 13 and 24 of the Constitution as long as it does not meet other conditions specified in Article 13 of the Constitution.

65.  Article 13 of the Constitution states "Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence.  These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality." The criteria of guarantee stipulated in this article of the Constitution are valid for all the limitations prescribed by law on the rights and freedoms and form the limit of limitation.

66.  For this reason, it is necessary to determine whether the intervention in a fundamental right and freedom is in line with the conditions of not infringing upon the essence prescribed under Article 13 of the Constitution, of being indicated in the relevant article of the Constitution, of being prescribed by laws, of not being contrary to the letter and spirit of the Constitution, the requirements of the democratic societal order and of the secular Republic and to the principle of proportionality or not. During this review, first, whether the intervention fulfills the condition of lawfulness or not shall be examined. Then a review must be carried out as to the effect whether the intervention was made for the reason prescribed in the Constitution and in terms of other criteria.

i. Legality

67.   The applicant has made no claims concerning the existence of any contradiction with the condition that the intervention prescribed in Article 13 of the Constitution has to be done with the 'law.' As a result of evaluations which have been made, it was concluded that Articles 25, 27 and 28 of the Regulation on Judicial and Preventive Searches of 1/6/2005 which was prepared on the basis of provisions of Articles 116 to 121 in Chapter Four entitled 'search and seizure' of the Law No. 5271 fulfill the criterion of 'legality.'

ii. Legitimate Purpose

68.   Although in the decision of the Chief Public Prosecutor's Office of Bakırköy ruling on no grounds for prosecution the purpose of the intervention has not been specified, it is obvious that the intervention made at the entrance of the Courthouse is carried out for public safety and so as to prevent crime and protect the rights and freedoms of others.

69.  Article 24 (2) of the Constitution which reads 'Acts of worship, religious rites and ceremonies shall be conducted freely, as long as they do not violate the provisions of Article 14.' and the final paragraph thereof which reads 'No one shall be allowed to exploit or abuse religion or religious feelings, or things held sacred by religion, in any manner whatsoever, for the purpose of personal or political interest or influence, or for even partially basing the fundamental, social, economic, political, and legal order of the State on religious tenets.' establish the basis of the regime of restriction on the freedom of religion and conscience in the Constitution. It is seen that with such expressions the boundaries of the normal confines of the freedom of religion and of conscience in the Constitution are defined and constitutional prohibitions are prescribed.

70.  On the other hand, Article 14 (2) of the Constitution which reads  'No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution.' to which Article 24 (2) makes a reference to introduces a very important rule of interpretation concerning the handling of fundamental rights within the integrity of the Constitution. The expression 'fundamental rights and freedoms...restricting them more extensively than stated in the Constitution.' gives rise to the obligation which requires that all fundamental rights and freedoms including the freedom of religion and conscience are interpreted together and together also with other constitutional principles and reasoned within the relation of restriction.

71.  Such reasoning indicates to a conclusion whereby it is as if rights are restricted by rights. As a matter of fact, in its previous judgments the Constitutional Court indicated that all articles of the Constitution are of the same effect and value and that there is no hierarchy between them, that in practice, it is not possible to prioritize one over the other and that sometimes one of the two Constitutional rules which are applied together by necessity can constitute the border of the other (See: AYM, E.2011/134, K.2012/83, K.T. 24/5/2012). In other words, even though no reason for restriction is included in the article that regulates the right, it can be possible to restrict these rights by relying on rules that are covered under other articles of the Constitution (See: AYM, E.2010/83, K.2012/169, K.T. 1/11/2012).

72.  As a matter of fact, the fact that no restrictions have been prescribed for the freedom of religion and conscience with the exception of the restriction prescribed in the final paragraph of Article 24 shall not mean that this is a right which is impossible to restrict outside the scope of the said restriction. The borders of the freedom of religion and conscience which has been guaranteed in Article 24 of the Constitution are embedded in the rights of other individuals constituting the society.

73.  In the present case, when the applicant is forced to remove her topcoat which she wore as a result of her religious belief for purposes of a security scan, it is obvious that this is a part of the efforts to ensure public safety as well as to prevent crimes. As such, the right to life and the right to protect corporeal and spiritual being which have been regulated in Article 17 of the Constitution compose the natural borders of the freedom of religion and conscience. 

74.  As a matter of fact, the ECtHR has agreed that in cases where the expression of any religious belief establishes the basis of a different treatment, this can only be accepted as legitimate when such expression of religion is directed towards 'the protection of others' rights and freedoms' and 'so as to ensure public order' (for criteria employed within the context of Article 9 of the Convention, see: Leyla Şahin v. Turkey, App. No. 44774/98, 29/6/2004, § 108).

75.  As a result, it was concluded that the intervention in the freedom of religion and conscience in the case at hand bears the legitimate aims concerning the protection of the life and corporeal and spiritual life of individuals within the scope of Article 17 (1) of the Constitution which regulates the inviolability of the individual and the protection of corporeal and spiritual being thereof.

iii. Necessity in a Democratic Society and Proportionality

76.  Finally, the issue whether or not the intervention which is the subject of the application is 'necessary in a democratic society' has to be reviewed. Organs and judicial offices exercising the public power have a certain margin of discretion in the assessment of the existence of the necessity and proportionality of an intervention. Yet, as with all other freedoms, such margin of discretion shall be subject to the review of the Constitutional Court in a way to cover the legal circumstance and the decisions concerning the application of rules of law in such a way as to ensure that the freedom of religion and conscience go beyond some shiny rhetoric (for evaluations on the margin of discretion of the states within the context of Article 9 of the Convention, see: Kokkinakis v. Greece, § 47).

77.  Another guarantee which will come into question in all kinds of limitations to be introduced to rights and freedoms is the ''principle of proportionality'' expressed in Article 13 of the Constitution. Although the requirements of a democratic societal order and the principle of proportionality are regulated as two separate criteria under Article 13 of the Constitution, there is an inseparable bond between these two criteria. As a matter of fact, the Constitutional Court examines whether there is a reasonable relation and balance between the aim and the means (Tuğba Arslan, § 96); in other words whether the reasonings resorted to justify the acts and actions of the public power seem appropriate and sufficient and whether or not they are proportionate with the legitimate aim pursued.

78.  According to the judgments of the Constitutional Court, proportionality reflects the relationship between the objectives and means of limiting fundamental rights and freedoms. Review of proportionality is the examination of the means preferred for reaching the aim on the basis of such aim one aspires to achieve (Sebahat Tuncel, B. No: 2012/1051, 20/2/2014, § 84; Tuğba Arslan, § 97).  For this reason, in interventions made in the freedom of religion and conscience, it has to be assessed whether or not the intervention preferred so as to achieve the aspired aim is appropriate, necessary and proportionate. In order to be able to make a decision regarding this last issue, while the necessities to protect the rights and freedoms of others in a democratic society and the intervention in the freedom of religion and belief of the applicant are being assessed, the acts and actions of the public power and the decisions of judicial bodies have to be assessed as a whole together with the background of the incident.  

79.  The ECtHR, starting from its first rulings on the matter, has clarified what the notion 'necessary' in Articles 9, 10 and 11 of the Convention stands for. According to the ECtHR, the notion 'necessary' implies a "pressing social need" (Handyside v. United Kingdom, App. No: 5493/72, 7/12/1976, § 48).  Therefore, in the event that it is acknowledged that the balance between the freedom of religion and belief which has been intervened in when the applicant was forced to remove the topcoat she says she wears as a requirement of her religious belief and the public good which is aspired for is proportionate, it can be deduced that the grounds concerning such intervention are credible, in other words, relevant and sufficient.     

80.  First of all, the intervention which is the subject of the case has to be examined in the light of the entirety of the events. In line with the decision concerning no grounds for prosecution of 8/5/2013 of the Chief Public Prosecutor's Office of Bakırköy, before the applicant passed through the public entrance gate of the Bakırköy Courthouse, she was warned by the private security officer to place her metal belongings in the basket and to remove her topcoat and the applicant insisted on not removing her topcoat. According to the Chief Public Prosecutor's Office, the treatment that the applicant was subjected to arose from security reasons, and the applicant, despite the warnings of the security officers, wanted to enter the courthouse in a way which is contradictory with the instructions of the Chief Prosecutor's Office (§ 12).  Secondly, in order to resolve the application, the issue arising from the present case has to be focused on to the greatest extent possible. In addition, the legal provisions also have to be reviewed. That is because the act of public power of which the applicant complains has originated from the implementation of the legislation.

81.  Regulations concerning human rights, at its very basis, relate to the relations between public bodies and individuals. This is also valid in terms of the Constitutional framework. Most of the rights and freedoms which are present in the Constitution, in effect, aim to protect individuals from the arbitrary actions of public authorities. The principal aim and objective of the Constitution in the field of human rights and freedoms is to guarantee individual rights and freedoms.

82.  In return, Article 24 of the Constitution charges the state not only with negative liabilities such as not violating the freedom of religion but at the same time, with positive liabilities such as ensuring the environment where such freedom can be easily enjoyed.

83.  The question as to whether the freedom of religion and belief charges the state with a liability to perform positive actions concerns the positive aspect of such freedom. Under certain circumstances the responsibility for the state to safeguard the right of members of a religion or a belief to peacefully enjoy the right which has been regulated in Article 24 of the Constitution might arise (for explanations concerning the positive liability of the state within the scope of Article 9 of the Convention, see: Otto Premınger Institute v. Austria, App. No: 13470/87, 20/9/1994, § 47). 

84.  The State's positive liability concerning the freedom of religion and belief originates, as a characteristic of the state of the Republic of Turkey, from the Preamble of the Constitution as well as from Articles 2, 13, 14, 68, 81, 103, 136 and 174 thereof. In the aforementioned articles, secularism is regulated as a political principle that determines the position of the state against religious faiths. Secularism does not confine the religion into the inner world of the individual, but perceives it as an important element of the individual and collective identity and allows for its social visibility. In a secular political system, the individual preferences in religious subjects and the lifestyle that they shape are outside the intervention, but under the protection of the state. In this sense, the principle of secularism is the guarantor of the freedom of religion and conscience. One of the main aims of the democratic and secular state is to establish political orders where the individuals can live together in peace with the faiths they have by protecting the social diversity (see: AYM, E.2012/65, K.2012/128, K.T. 20/9/2012; Tuğba Arslan, § 133-135).     

85.  Those who have different religious faiths or those who do not have any faith are under the protection of the secular state. As a matter of fact, according to the definition made in the reasoning of Article 2 of the Constitution, 'Secularism, which never means disbelief, means that every individual can have the faith, sect of his/her choice, make his/her prayer and not being subjected to a different treatment when compared to other citizens due to his/her religious beliefs.' The state is obliged to take the necessary measures in order to prepare the environment where the freedom of religion and conscience can materialize (See: AYM, E.2012/65, K.2012/128, K.T. 20/9/2012; Tuğba Arslan, § 137).     

86.  In this sense, secularism encumbers the state with negative and positive liabilities. The negative liability requires that the freedom of religion and conscience of individuals are not intervened in unless there are mandatory reasons. The positive liability brings about the duty of the state to remove the barriers in front of the freedom of religion and conscience, to provide an appropriate environment where the individuals can live as they believe and the opportunities required therefore. The source of the positive liability that secularism encumbers on the state is Articles 5 and 24 of the Constitution. According to Article 5 of the Constitution, one of the fundamental aims and duties of the State is " to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence." (Tuğba Arslan, § 138).     

87.  In the societies where the understanding of pluralistic secularism is accepted, there is an opportunity of ensuring peaceful coexistence of people whose faiths, thoughts and lifestyles are in conflict with each other, and of securing a pluralistic environment in the society where all types of faiths can express themselves. This opportunity gives rise to the 'right to respect the religious feelings of the believers' (for explanations on the right to respect for the religious feelings of the believers, see: Otto Preminger Institute v. Austria, § 55). 

88.  In the present case, the question to resolve concerns the scaling of the weights of the contradicting interests arising between the right to respect the freedom of religion and belief of the applicant, and the act of forcing the applicant to remove her attire during the security check for the 'the protection of others' rights and freedoms' and 'ensuring public order'. Taking the effective legislation into consideration, it is seen that some measures have been taken so as to balance these two contradicting interests.

89.   As a matter of fact, in Article 120 of the Law No. 5237 a prison sentence of three months to one year has been prescribed for a public official who unlawfully searches an individual’s person or belongings. In the provisions of the Law No. 5271 in Articles 116 to 121 under Chapter Four entitled 'search and seizure' provisions concerning judicial and preventive searches have been prescribed. In Article 25 with the side heading 'Circumstances whereby obtaining a decision of preventive search from a judge is not required' of the Regulation on Judicial and Preventive Searches of 1/6/2005 it has been indicated that a separate search warrant or a decision to such effect is not required for circumstances concerning 'searching the body, effects or the vehicles of those entering buildings and facilities which have been appropriated by the state for public use whereby entry and egress to and from such places have been subjected to certain rules.' According, again, to the same Article, 'those who do not agree to be searched cannot enter such places. Controls at such places shall be essentially carried out by private security staff.' In such cases, the modality to perform the body search has been regulated in detail in Article 27 of the same Regulation with the side heading 'Stop and control actions' and Article 28 with the side heading 'Performance of body search and searching of belongings upon a decision or a warrant.' (§ 16-17). 

90.  According to the rules in question, persons can be searched without removing any of their clothing, as with pat-down searches. Pat-down search shall be carried out by an officer of the same sex as the subject. This kind of search shall be conducted in such a way as to least disturb the subject. Furthermore, such control shall be carried out at the first place where the subject is stopped, or nearby and in a way to be away from the sight of others to the extent possible. The search cannot be carried out by taking the subject elsewhere. Nearby closed quarters or the law enforcers' vehicle can be availed of if there is reasonable justification for a more comprehensive search (§ 18). 

91.  If the person has to be body-searched, such search has to be carried out by an officer of the same sex as the person.  During the body search, belongings on the person concerned shall also be scanned with electromagnetic devices if possible and if not, by the five sensory organs. The body search and the search of belongings shall be carried out at the first place where the subject is stopped, or nearby and in such a way as to be away from the sight of others to the extent possible. The search cannot be carried out by taking the subject elsewhere. Nearby closed quarters or the law enforcers' vehicle can be availed of if there is reasonable justification for a more comprehensive search (§ 19). 

92.  In cases where there is reasonable doubt that the person bears something which the laws forbid and where the aim of the search cannot be achieved in any other way, the body search can be carried out by undressing. However, in order to carry out this kind of search, the person concerned shall be informed before the search as to why such search was deemed to be necessary and how it shall proceed.  The search shall be carried out by officers of the same sex as the person searched whereby measures to ensure privacy against others are ensured. The search shall be carried out in such a way as to violate the person's sense of shame at a minimum; firstly, the clothing of the upper body is removed and those of the lower body shall be removed after those of the upper body are put back on. These clothes must be searched. Care so as not to touch the body during the search shall be taken. The search shall be carried out and completed in as short a time frame as possible (§ 20). 

93.  As can be seen, a judge's decision is not required for the body-search and searching of the belongings of persons during entry into public buildings such as courthouses and the search can be carried out roughly in three stages: Pat-down, search and removal of clothing. If electromagnetic devices like in the case at hand have been used whereby the alarm went off, the body-search of the person shall be performed by a same-sex officer. In cases where the person is body-searched with electromagnetic devices or with the five sensory organs but to no avail and where the goal of the search cannot be attained through other means, the body search shall be done by way of undressing.  In this case, the search shall be carried out by officers of the same sex as the person searched whereby measures to ensure privacy against the eye of others are ensured.

94.  In the case at hand, the security officers asked the applicant to remove her topcoat which she wore as a requirement of her religious belief and which she stated she would not take off at the entrance point, and to place it in the electromagnetic device. A pat-down search of the applicant was not carried out although one of the security staff was a woman and despite the applicant's request to this effect. Furthermore, the precautions 'to ensure privacy against the eye of others' as mandated by the Regulation were not taken to facilitate the applicant's removal of her attire, and the applicant was forced to remove her attire at the public entrance gate of the courthouse, in an environment where the possibility to be seen by many people prevailed.

95.  In a democratic society, in cases of the existence of conflicting interests such as in the present application, interventions for the protection of one of such interests to the detriment of the essence of the other cannot be accepted. One must remember that an unrestricted limitation of a certain practical religious behavior so as to protect others or the prohibition thereof is the same as mauling plurality and tolerance by the hand of the state.

96.  For this reason, in a democratic society, the approaches which forever take the protection of rights as their basis should be embraced, and the questions that might arise from the exercise of a right should be resolved through the measures to ensure the peaceful exercise of the said right instead of the measures which render such right completely non-exercisable. As a matter of fact, the effective legislation has been prepared with an approach which is based on the protection of rights and certain measures have been prescribed so as to ensure the implementation of security measures to the extent and in the way necessitated by the existing conditions, without abolishing entirely the individuals' freedom to practice the requirements of their religions. Yet again, the measures prescribed by the legislation have not been taken in the present case.

97.  Despite the explicit provision of the legislation, the applicant was neither body-searched by the female security officer who was present on the scene, nor the measures to ensure the privacy of the applicant when she removed her attire were taken, had the circumstances mandated so. Furthermore, although a criminal complaint has been filed due to the fact that the applicant was forced to remove her attire and this issue has been regulated in the Law No. 5237 as an offense, no investigation has been carried out regarding such complaint.

98.  Finally, in the present case, the issue as to how security would have been impaired upon the applicant's refusal to remove the topcoat which she wore as a requirement of her religion in a way to cover her entire body was fully clarified neither by the administration nor by judicial authorities. Avoidance of the danger of intervening in rights and freedoms on the basis of probabilities can only be possible through an analysis of the factual circumstance which is based on an evaluation of the circumstances of the present case (Tuğba Arslan, § 130). For this reason, why the requirement for forcing the applicant to remove her topcoat in a way where everyone could see and without ensuring other measures was a pressing public need has not been clarified.

99.  Thus, adequate and sufficient reasoning as to the necessity in a democratic society of the intervention in the applicant's freedom of religion and conscience which has been guaranteed under Article 24 of the Constitution so as to protect public order and others’ liberties has not been provided. As such, it must be ruled that the freedom of religion and conscience has been violated.

3. Article 50 of the Law No. 6216

100. The applicant requested that non-pecuniary damages of TRY 50,000.00 be adjudged.

101. In the opinion of the Ministry of Justice, no opinion was expressed as regards the request of the applicant for compensation.

102. Article 50 (2) of the Law numbered 6216 with the side heading ''Judgments" is as follows:

       "If the determined violation arises out of a court judgment, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed, In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favor of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a judgment based on the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its judgment of violation."

103. Regarding the application concerning the freedom of religion and conscience of the applicant, in return for the non-pecuniary damages of the applicant which cannot be redressed only with the determination of violation, it should be decided that non-pecuniary damages of TRY 3,000.00 be paid to the applicant ex gratia.

104.          It should be decided that the trial expenses of TRY 1,698.35 composed of the fee of TRY 198.35 and the counsel's fee of TRY 1,500.00 which were made by the applicant and determined in accordance with the documents in the file be paid to the applicant.

V.    JUDGMENT

In the light of the reasons explained: it was held UNANIMOUSLY on 20/5/2015 that;

A.   The applicant's;

1.     Claim to the effect that Article 17 of the Constitution has been violated  is INADMISSIBLE due to “non-exhaustion of remedies”,

2.    Claim as to the fact that Article 24 of the Constitution was violated is ADMISSIBLE,

B.  The freedom of religion and conscience guaranteed under Article 24 of the Constitution has been VIOLATED,

C. The applicant be paid a net compensation of TRY 3,000.00 for non-pecuniary DAMAGES and that other requests of the applicant regarding compensation be DISMISSED,

D. That the trial expenses of TRY 1,698.35 in total composed of the fee of TRY 198.35 and the counsel's fee of TRY 1,500.00, which were made by the applicant be PAID TO THE APPLICANT,

E.  That the payments be made within four months as of the date of application by the applicant to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date, on which this period comes to an end, to the date of payment.