Information Note on the Court’s case-law No. 111
August-September 2008
Emine Araç v. Turkey - 9907/02
Judgment 23.9.2008 [Section II]
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Civil nature of the right to pursue university studies: violation
Facts: The Turkish Constitution guarantees the right to education and instruction, the content of which is defined and regulated by law. The applicant’s application to enrol in a faculty of theology was rejected because she did not supply an identity photograph of herself not wearing a veil, as required by the Higher Education Board rules in force at the time. Appeals she lodged against this decision were dismissed by the administrative court and ultimately by the Supreme Administrative Court. Her complaint before the Strasbourg Court concerned the alleged unfairness of the proceedings before the Supreme Administrative Court, in particular because the principal public prosecutor had submitted an opinion recommending that her appeal be rejected.
Law – Admissibility: Contesting the civil nature of the rights and obligations at the heart of the dispute submitted to the administrative courts, the Government submitted that Article 6 § 1 was not applicable. The Court noted, having regard to the Turkish Constitution, that the applicant could arguably claim that Turkish law recognised her right to enrol in a faculty of theology if she fulfilled the requisite legal conditions. However, her application had been rejected not because she failed to meet any such condition but because she had not complied with a formality required by the regulations adopted by the Higher Education Board. For the Court, even assuming that the power to regulate admission to higher education establishments fell within the scope of public law, that did not suffice to exclude the right concerned from the category of civil rights within the meaning of Article 6 § 1. According to the applicant what was at issue here was not her relations with the public authorities as such, with their discretionary powers, but her personal life as a simple user of a public service. She was accordingly challenging the regulations in force, which she considered prejudicial to her right to attend a higher education establishment. In its recent case-law the Court had always examined the conformity of proceedings concerning regulations on higher education with reference to the requirements of Article 6 § 1. That being so, in view of the importance of the applicant’s right to pursue higher education, the Court had no doubt that the limitation laid down by the regulations affected the applicant’s personal rights and was therefore of a civil nature. It followed that Article 6 § 1 was applicable.
Merits: The Court had already found a violation of Article 6 § 1 in a similar case for an infringement of the right to adversarial proceedings before the Supreme Administrative Court, bearing in mind the nature of the principal public prosecutor’s observations and the fact that it had not been possible for the applicant to reply in writing. The Government had adduced no convincing argument that might lead to a different finding in the instant case.
Conclusion: violation (unanimously).
Article 41 – The finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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