REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

ÖZCAN ÖZSOY

(Application no. 2014/5881)

15 February 2017

THE FACTS

[8-28] The applicant, 35 years old, is a lawyer practising in İstanbul.

In March 2002, many students in various universities simultaneously submitted petitions to the university administration requesting that the Kurdish language lesson be included in the elective courses. The applicant submitted a similar petition to the administration of the Faculty of Law of the Istanbul University.

The Istanbul University Rectorate initiated an investigation against many students who had submitted such petition. According to the university administration, the said petitions had been submitted within the scope of a campaign organized by the PKK terrorist organization.

The applicant stated that he had no concern with the alleged terrorist campaign and that he individually supported the content of the petition. On 7 March 2002, the Deanship of the Faculty of Law of the Istanbul University dismissed the applicant as a disciplinary punishment.

The applicant’s request for the stay of execution was also rejected. However, on 31 December 2004, the Istanbul Administrative Court annulled the disciplinary sanction imposed on the applicant, finding it unlawful. The applicant could attend the university only after this date.

The applicant claimed both pecuniary and non-pecuniary compensation from the University, stating that he had been deprived of his right to education for approximately three years. Upon the rejection of his request, on 29 May 2008 he brought an action for compensation before the administrative court.

On 20 March 2009 the Istanbul Administrative Court dismissed the case. The applicant’s subsequent appeal was also rejected by the Council of State on 4 December 2012. The final judgment was served on the applicant on 7 March 2014.

On 7 April 2014, the applicant lodged an individual application with the Court.

V. EXAMINATION AND GROUNDS

29. The Constitutional Court, at its session of 15 February 2017, examined the application and decided as follows.

A. Alleged Violation of the Right to Education

1. The Applicant’s Allegations and the Ministry’s Observations

30. The applicant complained that a disciplinary punishment had been imposed on him due to his application for taking the Kurdish lesson into the scope of elective courses and that the action which he had subsequently brought for the redress of his pecuniary and non-pecuniary damages was dismissed. In this regard, he maintained that his freedom of expression had been violated and that his act could not be regarded as a crime. The applicant claimed that he had been deprived of his right to education due to the rejection by the domestic courts of his requests for the stay of execution of the disciplinary decisions, which was in breach of Articles 5, 14, 15 and 42 of the Constitution.

31. The Ministry, referring to the ECHR’s judgments in its observations, specified that the right to education might be subject to certain restrictions, on the condition that such restrictions did not impair the essence of the right, as well as did not hinder its effectiveness. According to the Ministry, the restrictions on the right to education must not contradict with the other rights enshrined in the Constitution.

32. The applicant, in his counter statements, reiterated the facts stated in his application letter.

2. The Court’s Assessment

33. Relevant part of Article 42 of the Constitution, titled “Right and duty of education”, provides as follows:

“No one shall be deprived of the right of education.

The scope of the right to education shall be defined and regulated by law…

The freedom of education does not relieve the individual from loyalty to the Constitution...”

34. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The applicant’s complaints must be examined within the scope of the alleged violation of his right to education (see Selçuk Taşdemir [Plenary], no. 2013/7860, 3 March 2016, § 47).

a. Admissibility

35. The alleged violation of the right to education must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

b. Merits

i. Existence of Interference

36. The applicant was admitted to the university to study at the department he had preferred according to the results he had obtained from the university entrance exam. As the applicant was imposed a disciplinary punishment of being dismissed from the higher education institution, he would not be admitted to another university. Regard being had to the fact that the right to education ensures the access to the educational institutions available at a certain time (see Mehmet Reşit Arslan and Others, no. 2013/583, 10 December 2014, § 68), the applicant’s inability to attend the school for approximately three years constituted an interference with his right to education

ii. Whether the Interference Constituted a Violation

37. Relevant part of Article 13 of the Constitution provides as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution ... These restrictions shall not be contrary to … the requirements of the democratic order of the society … and the principle of proportionality.”

38. The above mentioned interference will constitute a violation of Article 42 of the Constitution, unless it fulfils the conditions specified in Article 13 of the Constitution.

39. Therefore, it must be determined whether the interference was prescribed by the relevant laws specified in Article 13 of the Constitution, whether it was based on the reasons set out in the relevant article of the Constitution, whether it complied with the requirements of the democratic order of the society, and whether it was proportionate.

(1) Lawfulness

40. The applicant alleged that there had been a violation of the requirement that any interference must be prescribed by law, which was stipulated in Article 13 and Article 42 § 2 of the Constitution. The applicant claimed that he had been deprived of his right to education on the sole ground of the relevant provision of the Regulation. The Ministry did not submit any observations in this respect.

41. Investigation procedures, authorizations and punishments as regards the disciplinary proceedings against the students attending higher education institutions are set out in Article 54 of Law no. 2547. The disciplinary punishment imposed on the applicant, which resulted in his dismissal from the university, is also included in the same article. Article 10 of the Regulation has also been introduced on the basis of this article. No further assessment as to whether the above mentioned provisions were “foreseeable” enough in the circumstance of the present case was deemed necessary. It was concluded that Article 54 (a) of Law no. 2547 and Article 10 of the Regulation fulfilled the criteria of restriction by law.

 (2) Legitimate aim

42. It has been concluded that imposition of a disciplinary punishment on the applicant had been an extension of the objectives and activities set by the State in terms of the fight against the activities of the PKK terrorist organization.

43. According to Article 42 § 4 of the Constitution, which provides that “The freedom of education does not relieve the individual from loyalty to the Constitution”, freedom of education may be restricted for the purpose of safeguarding the fundamental philosophy and principles of the Constitution. There is no doubt that the fundamental philosophy of the Constitution is the democracy where fundamental rights and freedoms are ensured and secured to the greatest extent. It is clear that activities of the terrorist organizations that have adopted violence as a method to achieve their political aims are in contradiction with the democratic constitutional order adopted by the Constitution and therefore not compatible with the loyalty to the Constitution. For this reason, it was concluded that the said interference had pursued a legitimate aim within the meaning of Article 42 § 4 of the Constitution.

 (3) Conformity with the Requirements of the Democratic Order of the Society and Proportionality

44. The administrative court in the first place held that the opinions stated in the applicant’s petition and the manner in which he expressed these opinions could not be regarded as carrying out activities leading to polarization in terms of language, race, religion and sect. The applicant was imposed disciplinary punishment on the ground that he had submitted a petition to the administration of the university indicating that it had been necessary to teach the Kurdish language and there had been an individual and social need in this respect and therefore requesting that the Kurdish language lesson be included in the elective courses. In this regard, neither the university administration nor the inferior courts claimed that the applicant had resorted to violence and thus disturbed the security and order in the university. Therefore, the present applicant must be examined under Article 42 and in the light of Article 26 of the Constitution.

45. Being a requirement of the democratic order of the society order means that a restriction serves the purpose of meeting a pressing social need in a democratic society. Accordingly, if the restrictive measure does not meet a social need or is not the last resort likely to be applied, it cannot be considered as a measure which is compatible with the requirements of the democratic order of the society (in terms of freedom of expression, see Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, § 51; Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 68; and Tansel Çölaşan, no. 2014/6128, 7 July 2015, § 51).

46. It must be examined whether any restriction to the fundamental rights and freedoms -in addition to being necessary in the democratic order of the society- is a proportionate restriction allowing for the least interference with the fundamental rights. Therefore, in terms of the interference with the freedom of expression, it must be assessed whether the means of interference chosen to achieve the aim pursued have been convenient, necessary and proportionate (see the Court’s judgment no. E.2007/4, K.2007/81, 18 October 2007; and Bekir Coşkun §§ 53, 54; for explanations on the principle of proportionality, see also Abdullah Öcalan [Plenary], no. 2013/409, 25 June 2014, §§ 96-98; Sebahat Tuncel, no. 2012/1051, 20 February 2014, § 84; Tansel Çölaşan, §§ 54, 55; and Mehmet Ali Aydın, §§ 70-72).

47. In this context, freedom of expression, safeguarded by Article 26 § 1 of the Constitution, constitutes one of the basic foundations of a democratic society and is a prerequisite for the development of the democratic society and the self-realization of the individuals. Social pluralism can only be achieved in an environment of free discussion where all kinds of ideas can be freely expressed. In this context, social and political pluralism can only be achieved by peaceful and free expression of all kinds of thoughts (see Yaman Akdeniz and Others, no. 2014/3986, 2 April 2014, § 25).

48. The Court, in its many judgments, has made reference to the ECHR’s case-law which states that the freedom of expression applies not only to “information” or ''thoughts'' which are considered to be in favour, harmless or not worthy of attention, but also to those which are against the State or a part of the society or disturbs them. The Court has confirmed that these are the requirements of pluralism, tolerance and open-mindedness which are the fundamental principles of a democratic society (see Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, § 94; Bejdar Ro Amed, no. 2013/7363, 16 April 2015, § 63; and Abdullah Öcalan, § 95).

49. It is also clear that the right to education has an indispensable and fundamental contribution to the consolidation and continuation of human rights in a democratic society (for explanations on the significance of the right to education in a democratic society, see Mehmet Reşit Arslan and Others, § 66). Despite its significance, the right to education is not an absolute and unlimited right and is subject to certain regulations by its very nature. There is no doubt that the rules governing the educational institutions may vary according to the needs and sources of the society and the characteristics of different levels of education. For this reason, it must be accepted that the State is afforded a certain discretion in the regulations and practices to be carried out in this respect (see Ünal Yıldırım, no. 2013/6776, 5 November 2014, § 42; and Savaş Yıldırım, no. 2013/6258, 10 June 2015, § 42). Therefore, the right to education, in essence, does not preclude the application of disciplinary measures, including suspension or dismissal from an educational institution, with a view to ensuring that the rules are obeyed. There is no doubt that the disciplinary punishments are an important part of the means that will ensure the development of students and through which the school will achieve its goals. However, it must be clearly set forth that application of such measures is one of the requirements of the democratic order of the society. In addition, the relevant practice must not contradict with the other rights enshrined in the Constitution.

50. In the present case, the applicant was dismissed from the university as he had exercised his freedom of expression. In the light of the circumstances of the case and in view of the reasons above, such a disciplinary sanction cannot be regarded as necessary in the democratic order of the society. As a matter of fact, also the administrative court considered the applicant’s act within the scope of the freedom of expression and found the said sanction unlawful and therefore lifted it.

51. Although the said sanction was lifted by the inferior courts, the applicant had lost six terms until that date. The applicant’s claims for compensation was also rejected by the school administration and the courts on the ground that there had not been a serious legal error or gross fault which would result in the administration’s liability for paying compensation. Accordingly, even though the applicant could subsequently return to his school, pecuniary and non-pecuniary damages sustained by him could not be redressed and therefore his grievances continued. The outcome of the domestic proceedings also failed to redress the applicant’s grievances.

52. Consequently, the Constitutional Court has found a violation of the applicant’s right to education safeguarded by Article 42 of the Constitution, as he had been dismissed from the university due to exercising his freedom of expression that is safeguarded by Article 26 of the Constitution.

B. Alleged Violation of the Right to a Trial within a Reasonable Period

53. The applicant claimed that his right to a trial within a reasonable period was violated.

1. Admissibility

54. The alleged violation of the right to a trial within a reasonable period must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

2. Merits

55. In determination of the length of the administrative proceedings concerning the disputes related to civil rights and obligations, the starting date shall be taken as the date on which the action was brought, while the ending date shall be taken as the date on which the proceedings are concluded (usually covering the execution stage) and, as regads the pending cases, the date of the Constitutional Court’s judgment on the alleged violation of the right to a fair trial (see Selahattin Akyıl, no. 2012/1198, 7 November 2013, §§ 45, 47).

56. In the assessment of whether the length of the administrative proceedings concerning civil rights and obligations was reasonable, the issues such as the complexity of the proceedings, its levels, conducts of the parties and the competent authorities in the course of the proceedings and the applicant’s interest in the speedy conclusion of the proceedings are taken into consideration (see Selahattin Akyıl, § 41).

57. In view of the principles mentioned above and the Constitutional Court’s judgments in similar applications, it has been concluded that the length of the proceedings which lasted 5 years and 8 months was not reasonable.

58. Consequently, the Constitutinal Court has found a violation of the right to a fair trial safeguarded by Article 36 of the Constitution.

C.  Application of Article 50 of Code no. 6216

59. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.   In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…   

(2) If the determined violation arises out of a court decision, 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 favour 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 decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

60. The applicant requested 50,000 Turkish liras (TRY) and TRY 100,000 for respectively pecuniary and non-pecuniary damages.

61. It has been concluded that the applicant’s right to education as well as his right to a trial within a reasonable period have been violated.

62. It has been concluded that in order to redress his non-pecuniary damages that would not be redressed with the sole finding of a violation, the applicant will be awarded, in respect of non-pecuniary damages, TRY 6,000 for the violation of his right to a trial within a reasonable period and TRY 24,000 for the violation of his right to education, which is TRY 30,000 in total.

63. In order for the Constitutional Court to be able to award pecuniary compensation, there must be a causal link between the pecuniary damage alleged to have been sustained by the applicant and the violation found. Since the applicant has failed to submit any document in this respect, his request for pecuniary compensation must be rejected.

64. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI.  JUDGMENT

The Constitutional Court UNANIMOUSLY held on 15 February 2017 that

A. 1. Alleged violation of the right to education be DECLARED ADMISSIBLE;

2. Alleged violation of the right to a trial within a reasonable period be DECLARED ADMISSIBLE;

B. 1. The right to education safeguarded by Article 42 of the Constitution was VIOLATED;

2. The right to a trial within a reasonable period safeguarded by Article 36 of the Constitution was VIOLATED;

C. The applicant be AWARDED, in respect of non-pecuniary damages, TRY 6,000 for the violation of his right to a trial within a reasonable period and TRY 24,000 for the violation of his right to education, which is TRY 30,000 in total; and his other requests for compensation be REJECTED;

D. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be REIMBURSED to the applicant;

E. The payment be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date;

F. A copy of the judgment be SENT to the 6th Chamber of the İstanbul Administrative Court; and

G. A copy of the judgment be SENT to the Ministry of Justice.