CASE OF ÇÖLGEÇEN AND OTHERS v. TURKEY

SECOND SECTION

CASE OF ÇÖLGEÇEN AND OTHERS v. TURKEY

(Applications nos. 50124/07, 53082/07, 53865/07, 399/08,

776/08, 1931/08, 2213/08 and 2953/08)

JUDGMENT

STRASBOURG

12 December 2017

FINAL

28/05/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Çölgeçen and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Julia Laffranque, President,
Işıl Karakaş,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 30 August 2016 and on 14 November 2017,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in eight applications (nos. 50124/07, 53082/07, 53865/07, 399/08, 776/08, 1931/08, 2213/08 and 2953/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eight Turkish nationals, Mr Mehmet Halit Çölgeçen, Mr Mürsel Bek, Mr Übeyt Salim, Mr Yavuz Uçak, Mr Mustafa Çalışkan, Mr Münür Ay, Ms Ruken Buket Işık and Mr Ali Turğay (“the applicants”), on 7 November 2007 (the first applicant), 23 November 2007 (the second and third applicants), 25 December 2007 (the fourth, fifth, sixth and eighth applicants) and 26 December 2007 (the seventh applicant).

2. The applicants were represented by Mr Okan Yıldız and Mr Fırat Aydınkaya, lawyers practising in Istanbul, except for Mr Mürsel Bek, Mr Yavuz Uçak and Mr Mustafa Çalışkan, who were represented only by Mr Okan Yıldız. The Turkish Government (“the Government”) were represented by their Agent.

3. On 25 January 2011 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1977, 1978, 1977, 1981, 1981, 1980, 1982 and 1980 respectively. They lived in Hakkari (the first applicant), Bingöl (the second applicant), Istanbul (the third, fourth, fifth and eighth applicants), Diyarbakır (the sixth applicant) and Muş (the seventh applicant) at the time their applications were lodged with the Court.

5. The applicants, who are of Kurdish ethnic origin, were students at various faculties attached to Istanbul University (“the University”) at the time of the events. In November 2001 they petitioned the University Rector’s office requesting that Kurdish language classes be introduced as an optional module.

6. Around the same time similar petitions were submitted by students studying at various universities in Turkey.

7. Upon receipt of these petitions a disciplinary investigation was initiated by the University into the applicants’ actions.

8. On 14 February 2002, relying either on regulation 9(d) or on regulation 10(e) of the Disciplinary Regulations of Higher Education Institutions, the Administrative Board of Istanbul University, after having heard defence submissions from some of the applicants, either suspended them from the University for a period of two semesters (Mr Çölgeçen and Mr Salim) or expelled them from the University (Mr Bek, Mr Çalışkan, Ms Işık, Mr Ay, Mr Uçak and Mr Turğay).

9. The applicants claim that following this disciplinary sanction they were denied access to the University facilities, they were branded as terrorists by the University authorities, their names were put on notice boards and they were shunned by their friends and other students. Some of the applicants also alleged that they were subject to criminal investigations.

10. The applicants, upon notification of the disciplinary sanctions in question, lodged separate actions with the Istanbul Administrative Court, requesting a stay of execution of the disciplinary decisions, with a view to their subsequent annulment.

11. On 9 May 2002 and on 27 June 2002 (in respect of the fifth applicant) the Istanbul Administrative Court suspended the execution of the applicants’ disciplinary sanctions on the grounds that, inter alia, the sanctions in question were unlawful and that, therefore, their application would cause irreparable damage to the applicants. It appears that the objections of the University to some of these decisions were also dismissed by the court on 4 July 2002.

12. On 25 June 2002, following the notification of the aforementioned decisions to the University, the applicants, save for Mr Çalışkan, were all re-enrolled in their respective faculties. As a result they were allowed to take part in the repeat exams held on 1-12 July 2002. Mr Çalışkan was re‑enrolled on 23 July 2002 and he was allowed to sit his exams, upon his request, in the 2002-2003 spring midterm period.

13. On 12 and 19 December 2002 the Istanbul Administrative Court examined the merits of the cases and annulled the disciplinary sanctions against the applicants on the ground that they were unlawful. In its decisions, the court noted, inter alia, that there was nothing in the content of the petitions or in the manner in which they were submitted to warrant disciplinary sanctions.

14. The University unsuccessfully challenged these decisions before the Supreme Administrative Court.

15. In 2004 the applicants each lodged an action for compensation with the Istanbul Administrative Court pursuant to Article 13 of the Administrative Procedure Act (Law no. 2577). In their petitions they maintained that they had sustained psychological damage as a result of the disciplinary punishment imposed on them for having used their democratic right of petition, and requested non‑pecuniary damages.

16. Between September 2004 and January 2005 the Istanbul Administrative Court awarded compensation to the applicants on the grounds that they had been denied their right to education and that their honour and dignity had been adversely affected by the accusations against them.

17. Between March 2007 and March 2008 the Istanbul District Administrative Court quashed the judgments of the first-instance court and dismissed the actions. In its decisions the court held, inter alia, that following the stay of execution of the disciplinary sanctions the University administration had permitted the students to take repeat exams in July, compensating for the exams which they had been unable to sit in the spring semester and that therefore the conditions for awarding non-pecuniary damage had not been met.

18. By a letter dated 25 March 2011 the office of the Dean of the Faculty of Literature of Istanbul University submitted the following information to the Government for the purposes of the present proceedings:

– Mr Mehmet Halit Çölgeçen, who was studying to become a librarian, graduated on 14 July 2006;

– Mr Übeyt Salim, who was studying Russian language and literature, graduated on 11 October 2004;

– Mr Mürsel Bek, who was studying to become a teacher of Turkish language, graduated on 13 June 2003;

– Mr Yavuz Uçak, who was studying to become a primary school teacher, graduated on 4 June 2003;

– Mr Mustafa Çalışkan, who was studying to become a primary school mathematics teacher, graduated on 11 July 2006;

– Mr Münür Ay, who was studying geography, failed to finish his studies within the required time-limit and he was removed from the University register on 18 February 2008;

– Ms Ruken Buket Işık, who was studying English language and literature, graduated on 9 February 2007;

– Mr Ali Turğay, who was studying Turkish language and literature, graduated on 27 July 2006.

According to the Dean of the Faculty of Literature of Istanbul University, Mr Bek and Mr Uçak graduated from the University within the minimum time allowed (4 years).

II. DOMESTIC LAW AND PRACTICE

A. Constitution

19. Article 42 of the Turkish Constitution provides that no one shall be denied the right to education or to instruction. Its last paragraph reads: “No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law. The provisions of international treaties are reserved”.

20. Article 74 of the Turkish Constitution reads, in so far as relevant, as follows:

“Citizens and foreigners resident in Turkey, with the condition of observing the principle of reciprocity, have the right to apply in writing to the competent authorities and to the Grand National Assembly of Turkey with regard to requests and complaints concerning themselves or the public ...”

B. Disciplinary Regulations of Higher Education Institutions

21. At the material time, regulation 9(d) of the Disciplinary Regulations of Higher Education Institutions provided that a person who engaged in activities which gave rise to polarisation on the basis of language, race, religion or denomination was to be suspended from the institution in question for either half or a whole semester.

22. At the material time, regulation 10(e) provided that a person who was a member of an illegal organisation, who engaged in actions on behalf of or who helped such an organisation, would be expelled from the higher education institution.

C. Administrative Procedure Act

23. Persons who have sustained damage as a result of an administrative act may also lodge an application with the superior authority of the relevant administrative body and request the annulment, withdrawal or alteration of the impugned act (section 11 of the Administrative Procedure Act). The administrative authorities’ failure to reply within sixty days is considered to be a tacit refusal of that request (section 10 of the Administrative Procedure Act). The persons concerned may then bring an action before the administrative courts requesting the annulment of the administrative act and compensation for the damage they have sustained (section 12 of the Administrative Procedure Act).

24. Under Section 13 of the Administrative Procedure Act (Law no. 2577 of 6 January 1982), those who have suffered damage on account of a wrongful act by the administration may bring compensation proceedings against the latter within a year from the date on which they learned of the impugned act and, in any event, within five years from the commission of that act. The proceedings before the administrative courts are in writing.

25. Article 27 § 2 of the Administrative Procedure Act stipulates that the Supreme Administrative Court or a lower administrative court may decide to stay the execution of an administrative act if its implementation would result in damage which would be difficult or impossible to compensate, and if this act is clearly unlawful.

D. Teaching of Kurdish language

26. At the time of the events in question domestic law did not provide for the teaching of the Kurdish language at any levels of education in public or private institutions. On 2 August 2002 the Law on Foreign Language Education and Teaching (Law no. 2923 of 14 October 1983) was amended by Law no. 4771 with a view to regulating the principles of education and training of citizens of Turkey in the different languages and dialects traditionally used in daily life. The title of the law in question was changed to “The Law on Foreign Language Education and Teaching and the Learning of Turkish Citizens’ Different Languages and Dialects”.

27. On 30 July 2003 an amendment was made to the second sentence of section 2 (a) of Law no. 2923 with a view to enabling the opening of private courses for the teaching of the different languages and dialects used by citizens of Turkey. This provision was further amended on 2 March 2014 by Law no. 6529 with a view to facilitating the opening of private schools to provide for education and training in a language or dialect traditionally used in daily life by citizens of Turkey.

28. By decisions dated 25 June 2012, 7 September 2012 and 23 January 2014, the Board of Education and Training of the Ministry of Education added “living languages and dialects (Kurdish language)” to the weekly timetable of primary and secondary schools as an elective course.

29. On 5 July 2014 the Regulation on Foreign Language Education and Training issued by the Ministry of Education was amended so as to provide for the possibility of education and training in a language or dialect that is traditionally used by citizens of Turkey in their daily lives in private schools.

30. According to the information provided by the Government, graduate and postgraduate education in the field of Kurdish language and literature is available at tertiary level in six Universities, namely Batman University, Bingol University, Mardin Artuklu University, Muş Alpaslan University, Siirt University and 100. Yıl University.

THE LAW

I. JOINDER OF THE APPLICATIONS

31. The Court notes that all the applicants complained of the alleged denial by the authorities of their right to education and the interference with their freedom of expression on account of the disciplinary sanctions imposed on them for having petitioned the relevant authorities to provide optional Kurdish language courses in their universities. Accordingly, in view of the similarity between the applications in terms of the facts and the substantive issues they raise, it decides to join them and to examine them together in a single judgment in accordance with Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 READ IN THE LIGHT OF ARTICLE 10 OF THE CONVENTION ON ACCOUNT OF THE IMPOSITION OF A DISCIPLINARY SANCTION

32. The applicants complained that the imposition of a disciplinary sanction for having petitioned the university authorities to provide optional Kurdish language courses had infringed their freedom of expression under Article 10 of the Convention and had denied them their right to education in breach of Article 2 of Protocol No. 1.

33. The Court considers that the aforementioned complaint need only be examined under Article 2 of Protocol No. 1, read in the light of Article 10 of the Convention (see İrfan Temel and Others v. Turkey, no. 36458/02, § 28, 3 March 2009). The relevant part of Article 2 of Protocol No. 1 reads:

“No person shall be denied the right to education.”

A. Admissibility

34. The Government argued that the applicants were not victims within the meaning of Article 34 of the Convention. They pointed out that the disciplinary sanctions imposed on the applicants by the University had been annulled by the domestic courts and that following the first-instance courts’ decisions to stay the execution of the impugned sanctions the applicants had been able to effectively attend their courses and sit their exams. In this connection, they considered that the applicants had abused the right of petition because they had failed to mention the latter fact in their application forms.

35. The applicants rejected the Governments arguments. In particular, they submitted that following their petitions the applicants had been exposed in the university environment as members of an illegal organization and that their social relationships with their families and friends had deteriorated, as they were regarded as terrorists. They further maintained that when they returned to the University a few months later, other students had advanced, and that since the administration had not enabled them to take the classes they had missed, they had had to graduate a year later than others.

36. As regards the first limb of the Government’s objections, the Court reiterates that the word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). In this connection, it reiterates further that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 (extracts)). The redress afforded at national level must be appropriate and sufficient. The Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see, for instance, Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).

37. In the instant case, the Court considers that the decisions of 12 and 19 December 2002 of the Istanbul Administrative Court can be regarded as a sufficiently clear acknowledgement in substance that there had been an unjustified interference with the applicants’ right to education.

38. It remains to be decided whether the domestic authorities afforded the applicants redress for the imposition of the disciplinary sanctions in question and, if so, whether the redress can be considered sufficient in view of the rejection of the applicants’ subsequent claims for compensation.

39. The Court observes that the applicants had available a procedure for claiming compensation provided for in domestic legislation, but their claim was rejected by the Istanbul District Administrative Court because it considered that, since the University administration, upon the notification of the stay of execution decisions, had permitted the students to take repeat exams in July, this had compensated for the exams which they had been unable to sit in the spring semester. However, the Istanbul District Administrative Court, in contrast to the Istanbul Administrative Court (see paragraph 16 above) failed to take into account how these accusations might have adversely affected the applicants. In this respect, the Court notes that while the matter was resolved fairly speedily, the applicants nonetheless had their ties with the University severed for a whole semester and they were unable to participate in their courses and to benefit from the educational and recreational facilities within the campus. In this connection, the Court considers it regrettable that the Istanbul Administrative Court’s decision to suspend the execution of the applicants’ disciplinary sanctions was not adopted and notified to the relevant authorities much sooner. For the Court the applicants were clearly put in a disadvantageous position when compared to other students as a result of the disciplinary sanction, as they were deprived of the possibility of benefitting from the University environment in general and, more specifically, of attending the lectures. In view of the above, the Court considers that the possibility of sitting the repeat exams is not in itself sufficient to deprive the applicants of victim status.

40. The Court, in this connection, attaches decisive importance to the particular circumstances in which the disciplinary measures were applied to the applicants, namely, for merely exercising their freedom of expression without having recourse to any reprehensible acts (see paragraph 54 below). In this respect, the Court emphasizes that the granting of compensation in some circumstances may constitute an adequate remedy, in particular where it is likely to be the only possible or practical means whereby redress can be given to the individual for the wrong he or she has suffered (see Hoffman Karlskov v. Denmark (dec.), no. 62560/00, 20 March 2003). Having regard to the very specific circumstances mentioned above, the Court considers that the appropriate and adequate redress in the present case would have been to award the applicants compensation. Thus, the Court considers that the applicants can still claim to be victims of the alleged violations. Accordingly, the Government’s objection must be dismissed.

41. As to the second limb of the Government’s objections, the Court reiterates that under this provision an application may be rejected as an abuse of the right of individual petition if, among other reasons, it was knowingly based on untrue facts (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006, and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (ibid).

42. It is true that in their application forms the applicants do not specifically mention the first-instance court’s decisions to stay the execution of the impugned sanctions. However, having regard to the content of the application forms and the documents submitted by the applications together with the application, notably the Istanbul Administrative Court decisions (see paragraph 11 above), the Court cannot discern any intention on the applicants’ part to mislead it.

43. The Court, therefore, is of the view that it cannot be said that the manner in which the applicants presented their case amounts to an abuse of the right of petition. Accordingly, the Government’s objection must be dismissed.

44. It considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ observations

45. The applicants maintained that the imposition of a disciplinary sanction for petitioning for the introduction of an optional Kurdish language course – a legitimate and democratic request – had been an exaggerated and disproportionate response on the part of the authorities.

46. The Government maintained that there had been no violation of Article 2 of Protocol No. 1 in the present cases because the domestic courts had ordered a stay of execution, examined the applicants’ allegations in accordance with the relevant Turkish legislation and subsequently annulled the disciplinary sanctions and their legal consequences.

2. The Court’s assessment

(a) General principles

47. The Court reiterates that the guarantees of Article 2 of Protocol No. 1 apply to existing institutions of higher education within the member States of the Council of Europe and that access to any institution of higher education existing at a given time is an inherent part of the right set out in the first sentence of Article 2 of Protocol No. 1 (see Tarantino and Others v. Italy, nos. 25851/09, 29284/09 and 64090/09, § 43, ECHR 2013 (extracts)).

48. In spite of its importance, this right is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State” (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 41, Series A no. 48). Admittedly, the regulation of educational institutions may vary in time and in place according to, inter alia, the needs and resources of the community and the distinctive features of different levels of education. Consequently, the Contracting States enjoy a certain margin of appreciation in this sphere, although the final decision as to the observance of the Convention’s requirements rests with the Court (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 154, ECHR 2005‑XI).

49. In order to ensure that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim. However, unlike the position with respect to Articles 8 to 11 of the Convention, it is not bound by an exhaustive list of “legitimate aims” under Article 2 of Protocol No. 1 (ibid., § 154).

50. The Court underlines that the right to education does not in principle exclude recourse to disciplinary measures such as suspension or expulsion from an educational institution in order to ensure compliance with its internal rules. The imposition of disciplinary penalties is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils (see, in particular, Ali v. the United Kingdom, no. 40385/06, § 54, 11 January 2011 and the cases cited therein).

51. However, such regulations must not injure the substance of the right or conflict with other rights enshrined in the Convention or its Protocols (see İrfan Temel and Others, cited above, § 45).

(b) Application of the above principles to the applicants’ case

52. In the instant case the Court observes that the Administrative Board of Istanbul University’s decision to suspend or expel the applicants from the University on 14 February 2002 constituted a restriction on their right to education, notwithstanding the fact that they had been admitted to the university to read the subjects of their choice in accordance with the results they had achieved in the university entrance examination (see İrfan Temel and Others, cited above, § 40).

53. The Court accepts that there was a legal basis for the restriction, specifically regulations 9(d) or 10(e) of the Disciplinary Regulations of Higher Education Institutions, and that it was accessible. However, the Court has serious doubts as to whether the application of this regulation in the present case was foreseeable or that it served any legitimate aim in Convention terms, particularly, since the domestic courts found the measure in question to be unlawful. Nevertheless, the Court does not deem it necessary to determine that question because, in any event, the key issue to be examined is that of proportionality, that is to say whether a fair balance was struck between the means employed and the aim sought to be achieved (see İrfan Temel and Others, cited above, § 42).

54. As regards the principle of proportionality, the Court observes that the applicants were subject to a disciplinary sanction merely for submitting petitions which conveyed their views on the need for Kurdish language education and requested that Kurdish language classes be introduced as an optional module, without committing any reprehensible acts. In this connection, the Court finds that, in view of the information contained in the case file, the applicants did not resort to violence or breach or attempt to breach the peace or order in the University.

55. The Court finds therefore that the applicants were sanctioned purely because of the views expressed in their petitions. In this connection, the Court agrees with the Istanbul Administrative Court’s view that neither the views expressed therein nor the form in which they were conveyed would warrant disciplinary sanctions (see paragraph 13 above). The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10 of the Convention, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 88, ECHR 2015 (extracts), and Baka v. Hungary [GC], no. 20261/12, § 158, ECHR 2016).

56. In the particular circumstances of the case and for the reasons stated above, the Court considers that the imposition of such a disciplinary sanction cannot be considered as reasonable or proportionate. Although these sanctions were subsequently annulled by the administrative courts on grounds of unlawfulness, the outcome of those domestic proceedings, regrettably, failed to redress the applicants’ grievances under this head (see paragraph 40 above).

57. It follows that there has been a violation of Article 2 of Protocol No. 1.

III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 ON ACCOUNT OF THE FAILURE OF THE AUTHORITIES TO PROVIDE FOR EDUCATION OF THEIR MOTHER TONGUE

58. The applicants further complained that the authorities’ refusal to provide them with the opportunity to learn their mother tongue is a denial of education in breach of Article 2 of Protocol No. 1 of the Convention.

59. The Government maintained that Article 2 of Protocol No. 1 did not require the States to provide education in any language in the form of elective courses as part of the national education system. Referring to the changes in the domestic law regarding the teaching of the Kurdish language, they further considered that the applicants’ allegations under this head were unfounded.

60. The Court has repeatedly held that the six-month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion, even if the Government have not raised that objection (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012).

61. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to first use the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged; there is no obligation to have recourse to remedies which are inadequate or ineffective (see X and Y v. Croatia, no. 5193/09, § 63, 3 November 2011 and the cases referred to therein).

62. The six-month rule stipulated in Article 35 § 1 is intended to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Lastly, it ensures that, insofar as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Chakkas and Others v. Cyprus (dec.), nos. 43331/09, 27877/10 and 36144/11, § 19, 20 October 2015).

63. In assessing whether an applicant has complied with Article 35 § 1, it is important to recall that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Williams v. the United Kingdom (dec.) no. 32567/06, 17 February 2009).

64. Thus, where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures about which he or she complains, or after the date of knowledge of that act or its effect or prejudice on the applicant. However, special considerations might apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware of the circumstances which make that remedy ineffective. In such a situation, the six-month period might be calculated from the time when the applicant becomes aware of these circumstances (see Aydın v. Turkey (dec.), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000-III (extracts)).

65. The Court notes that, at the material time, the relevant domestic law provisions did not provide for the possibility of teaching Kurdish in higher education institutions. It observes that, sometime in November 2001, the applicants petitioned the University Rector’s office requesting that Kurdish language classes be introduced as an optional module. They have never received a formal reply with regard to this request. Instead, disciplinary investigations were initiated against them. Pursuant to Section 10 of the Administrative Procedure Act, the failure of the University Rector’s office to reply to the applicants within sixty days is a tacit refusal of that request. Following this tacit refusal the applicants could have brought administrative proceedings with a view to airing this particular complaint before the national authorities (see, for example, İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 12, ECHR 2016). Even assuming that this remedy offered only a remote prospect of success, it would not have been a futile step and would have had the effect at least of postponing the beginning of the six-month period (see, in particular, Ünal Tekeli v. Turkey, no. 29865/96, § 38, ECHR 2004‑X (extracts)). However, they did not do so. Therefore, in order to comply with the six‑month rule, the applicants should have lodged their complaints with this Court within six months after the tacit refusal of their request, that is to say, in 2001, since neither the administrative proceedings concerning annulment of the disciplinary sanctions nor the subsequent compensation proceedings could have offered effective redress for the complaint in issue under this head. Therefore, the Court finds that the applicants have failed to comply with the six-month rule.

66. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

67. The applicants further complained that the refusal of their petitions was a degrading treatment in itself, that they were treated like criminals following the submission of their petitions, and that they were subjected to pressure and disciplinary punishment, in breach of Article 3 of the Convention. They further maintained that the refusal of the authorities to provide them with the opportunity to learn their mother tongue interfered with their private and family life, protected under Article 8 of the Convention, and deprived them of the possibility to learn about their parents’ beliefs and culture, in breach of Article 2 of Protocol No. 1. Lastly, the applicants alleged, under Article 14 of the Convention, that they were discriminated against on account of their Kurdish ethnic origin and because of the fact that they wanted to learn Kurdish.

68. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

69. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

70. The applicants each claimed 19,268 Turkish Liras (TRY) (approximately 7,500 euros (EUR)) in respect of pecuniary damage, which corresponded to their loss of earnings due to the fact that they ended up graduating later. The applicants further claimed TRY 80,000 (approximately EUR 31,000) each in respect of non‑pecuniary damage.

71. The Government contested the above amounts.

72. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims.

73. It finds, however, that the applicants must have suffered pain and distress which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found, the Court awards each applicant EUR 1,500 in respect of non‑pecuniary damage.

B. Costs and expenses

74. The applicants also claimed TRY 45,460 (approximately EUR 17,660) each for the costs and expenses incurred before the domestic courts and the Court.

75. The Government contested the aforementioned amount.

76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the fact that the applicants have failed to submit any relevant and coherent documentary evidence with a view to supporting their claims under this heading, the Court finds that they have not substantiated their claims. Accordingly, the Court dismisses these claims.

C. Default interest

77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1. Decides, unanimously, to join the applications;

2. Declares, by a majority, the complaints concerning alleged denial by the authorities of the applicants’ right to education on account of the disciplinary sanctions imposed on them admissible;

3. Declares, unanimously, the remainder of the applications inadmissible;

4. Holds, by five votes to two, that there has been a violation of Article 2 of Protocol No. 1 to the Convention;

5. Holds, by five votes to two,

(a) that the respondent State is to pay the applicants EUR 1,500 (one thousand five hundred euros) each, plus any tax that may be chargeable, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.”

Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithJulia Laffranque
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Karakaş and Lemmens is annexed to this judgment.

J.L.
S.H.N.

JOINT PARTLY DISSENTING OPINION OF JUDGES KARAKAŞ AND LEMMENS

1. The majority find that the complaint relating to the imposition of a disciplinary sanction needs to be examined under Article 2 of Protocol No. 1, read in the light of Article 10 of the Convention. They then declare this complaint admissible and well-founded.

On these points, we regretfully dissent.

Characterisation of the complaint

2. The applicants complained that the imposition of a disciplinary sanction for having petitioned the university authorities had infringed their freedom of expression under Article 10 of the Convention and denied them their right to education under Article 2 of Protocol No. 1 (see paragraph 32 of the judgment).

The majority, following the precedent of İrfan Temel and Others v. Turkey (no. 36458/02, § 28, 3 March 2009), have decided to examine the complaint under Article 2 of Protocol No. 1 only, albeit “read in the light of” Article 10 of the Convention (see paragraph 33 of the judgment).

3. In our opinion, the disciplinary sanctions were imposed first and foremost because of the opinion expressed in the applicants’ petition (see paragraph 40 of the judgment: “for merely exercising their freedom of expression”). Having regard to the nature of the conduct that was punished, these sanctions constituted interferences with the applicants’ right to freedom of expression. As in other cases involving sanctions imposed on individuals who used their constitutional right to file an objection, we consider therefore that this complaint falls to be examined under Article 10 of the Convention (see Döner and Others v. Turkey, no. 29994/02, § 79, 7 March 2017; see also the separate opinion of Judge Cabral Barreto in İrfan Temel and Others, cited above).

It is true that, since the sanctions consisted in temporary suspension, or expulsion, from the university (see paragraph 8 of the judgment), the applicants were for some time unable to continue their education there. The repercussions on the applicants’ right to education are, however, of an indirect nature, compared to the direct nature of the interference with their right to freedom of expression. We therefore do not think that these repercussions are sufficient to consider that this complaint must be examined under Article 2 of Protocol No. 1.

Admissibility of the complaint

4. The majority reject the Government’s objection based on the applicants’ loss of victim status. They admit that the Istanbul District Administrative Court acknowledged that there had been an unjustified interference with the applicants’ right to education (see paragraph 37 of the judgment). They consider, however, that the annulment of the disciplinary sanctions was not sufficient to deprive the applicants of their victim status, and that without compensation they can still claim to be victims of the alleged violations (see paragraphs 38-40 of the judgment).

5. In our opinion, the majority thus underestimate the importance of the annulment of the measures complained of. When an individual complains about a disciplinary sanction that has been imposed on him or her, and where that sanction has been completely removed from the legal order, it seems to us that this individual has in principle obtained complete redress.

Exceptionally, the disciplinary sanction may have produced effects which constitute damage for the individual concerned. Full redress may then imply reparation of that damage.

6. This is what the applicants argued when they brought an action for compensation against the university. More specifically, they argued that they had sustained “psychological damage” as a result of the disciplinary punishment imposed on them (see paragraph 15 of the judgment). However, the Istanbul District Administrative Court dismissed the claims. The court referred, among other things, to the fact that after the stay of execution of the impugned penalties, the applicants had been authorised by the university to take repeat exams in July 2002 (for one of the applicants the re-enrolment came too late, and he took his exams in the 2003 spring midterm period – see paragraph 12 of the judgment). It thus dismissed the claims in the absence of any damage giving rise to compensation (see paragraph 17 of the judgment).

It is normally for the domestic courts to assess the evidence and to decide matters of domestic law. We therefore believe that there should be strong reasons before our Court can substitute its opinion for that of the Istanbul District Administrative Court when it comes to examining whether or not the applicants have sustained damage which has not been sufficiently redressed by the annulment of the impugned measures.

7. In holding that the applicants suffered damage which has not been compensated for, the majority refer to the fact that “the applicants ... had their ties with the university severed for a whole semester and (that) they were unable to participate in their courses and to benefit from the educational and recreational facilities within the campus”. They were thus “deprived of the possibility of benefiting from the university environment in general and, more specifically, of attending the lectures” (see paragraph 39 of the judgment).

In our opinion, deprivation of the benefits from the university environment and of the possibility of attending lectures was not the kind of damage for which the applicants were claiming compensation before the domestic courts. It is also not the kind of damage they focused on while arguing before our Court that they still had victim status. Before the Court, they argued firstly that they had been unable to graduate in time, unlike their classmates; this argument can be refuted on the basis of the information received from the university (see paragraph 18 of the judgment). They further argued that they had had problems in their school and family environment, because they had been exposed as if they were terrorists; this damage is in our opinion sufficiently redressed by the moral satisfaction resulting from the finding that the disciplinary measures were wholly unfounded. Lastly, they argued that their education had been interrupted; this damage has in our opinion been redressed by the fact that, after the stay of execution of the disciplinary measures, they were able to catch up with their degree courses and to finish them on time.

8. On the basis of the foregoing, we see no reason to depart from the findings of the domestic courts: following the reaction by the university to the stay of execution of the disciplinary measures, there was no more damage which required compensation. Accordingly, we consider that the applicants have lost their victim status. We therefore voted against declaring admissible the complaint relating to the imposition of a disciplinary sanction.

For that reason, we also voted against finding a violation of Article 2 of Protocol No. 1 and awarding just satisfaction.

 

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