TAŞDEMİR v. TÜRKİYE

SECOND SECTION

DECISION

Application no. 79549/16
Selçuk TAŞDEMİR
against Türkiye

The European Court of Human Rights (Second Section), sitting on 25 March 2025 as a Chamber composed of:

 Arnfinn Bårdsen, President,
 Saadet Yüksel,
 Jovan Ilievski,
 Péter Paczolay,
 Gediminas Sagatys,
 Stéphane Pisani,
 Juha Lavapuro, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to the above application lodged on 18 November 2016,

Having regard to the decision to give notice of the application to the Turkish Government (“the Government”),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

INTRODUCTION

1.  The case concerns the applicant’s complaint under Article 2 of Protocol No. 1 to the Convention about his expulsion from university and his inability, under the domestic law in force at the material time, to enrol at another higher education institution.

THE FACTS

2.  The applicant was born in 1985 and lives in Belgium. He was represented by Ms B. Molu and Mr R. Demir, lawyers practising in Istanbul.

3.  The Government were represented by their Agent at the time, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye.

4.  The facts of the case may be summarised as follows.

5.  At the material time the applicant was a fourth-year undergraduate student at the Sivas Cumhuriyet University (“the University”).

6.  On 24 April 2006 the Sivas Security Directorate sent an official letter to the Rectorate of the University. The letter stated that six students from the University, including the applicant, who had participated in the Newroz celebrations (the arrival of spring and new year in Kurdish culture) held in Sivas on 19 March 2006, had been arrested and detained following an operation conducted against students involved in the activities of the YÖGEH (Yurtsever Özgür Gençlik Hareketi), the youth wing of the terrorist organisation PKK/Kongra-Gel (“the PKK”).

7.  On 15 May 2006 the Rectorate of the University initiated disciplinary proceedings against the students named in the letter, including the applicant.

8.  On 25 September 2006 two investigators appointed by the Rectorate of the University submitted their report. The report stated that the Erzurum public prosecutor had filed a bill of indictment against the students in question, accusing them of membership of a terrorist organisation, namely the YÖGEH, the youth branch of the PKK, and of participating in its organisational activities. The report listed the evidence referred to in the bill of indictment, including video footage and photographs of the Newroz celebrations held on 19 March 2006, all of which had been considered as concrete evidence by the investigators. As regards the applicant, the report stated that during the Newroz celebrations on 19 March 2006, he had sung the song “Forward” (Her Nepeş – İleri), known as the anthem of the PKK, together with other participants. He had thus committed the act of “engaging in actions on behalf of or aiding an illegal organisation” within the meaning of Article 10(e) of the Disciplinary Regulations of Higher Education Institutions (“the Disciplinary Regulations”), which were in force at the material time. The investigators noted that the applicant had been subjected to two previous disciplinary sanctions and proposed that he be expelled from the University in accordance with this provision.

9.  In a report of 13 October 2006, a rapporteur, appointed by the Disciplinary Board of the University (“the Disciplinary Board”), referred, at the outset, to the investigation report of 25 September 2006 (see paragraph 8 above). He stated that the bill of indictment showed, based on the footage of the Newroz celebrations and the evidence collected during searches of their homes, that the students in question had participated in the YÖGEH’s activities. The rapporteur considered that the students in question had carried out the acts set out in Article 10(e) of the Disciplinary Regulations, which entailed the sanction of expulsion from the University. He further referred to the students’ prior disciplinary sanctions and Article30(a) of the Disciplinary Regulations (see paragraph 32 below). Consequently, he agreed with the sanction proposed by the investigators.

10.  On 1 November 2006 the Disciplinary Board decided to expel the applicant from the University. It noted that the investigators and the rapporteur had recommended the expulsion of the students in question from the University pursuant to Article 10(e) of the Disciplinary Regulations for “being a member of illegal organisations, engaging in actions on behalf of or aiding such organisations”. Having regard to the case file and the rapporteur’s report, the Disciplinary Board considered the proposed sanction to be appropriate.

11.  The applicant brought an action in the Sivas Administrative Court (“the Administrative Court”) seeking the annulment of the decision to expel him from the University and an award of compensation.

12.  On 26 March 2008 the Administrative Court stayed the proceedings until the Erzurum Assize Court had delivered its judgment on the criminal charges brought against the applicant (see paragraphs 22-25 below), considering that the case before it was linked to the outcome of those proceedings.

13.  On 26 May 2009 the Administrative Court dismissed the applicant’s action. Referring to the Erzurum Assize Court’s judgment of 24 March 2009 (see paragraph 25 below), the Administrative Court noted that the applicant had been convicted under Articles 314 § 2 and 215 of the Criminal Code for the same acts that had led to his expulsion from the University. It further held that, since the applicant had been convicted of membership of a terrorist organisation, his expulsion from the University under Article 10(e) of the Disciplinary Regulations, had been in accordance with the law.

14.  The applicant appealed against the Administrative Court’s decision.

15.  On 18 September 2012 the Supreme Administrative Court dismissed the applicant’s appeal, considering that the Administrative Court’s decision had been in accordance with the law and procedure.

16.  On 14 June 2013 the Supreme Administrative Court rejected the applicant’s request to rectify its decision of 18 September 2012.

17.  On 21 October 2013 the applicant filed an individual application with the Constitutional Court. He complained, inter alia, that he had been expelled from the University for taking part in the Newroz celebrations and that the imposition of this sanction had breached his rights under Articles 10 and 11 of the Convention and Article 2 of Protocol No. 1 to the Convention.

18.  In its judgment of 3 March 2016, the Plenary of the Constitutional Court found that there had been no breach of the applicant’s right to education. It considered that the main issue was the applicant’s expulsion from the University as a result of the statements he had made during the event in question. The Constitutional Court considered, therefore, that the applicant’s grievances fell to be examined under Article 42 of the Constitution (see paragraph 30 below), read in the light of Article 26 thereof (guaranteeing the right to freedom to receive and impart information and ideas). It further held that the interference complained of had had a legal basis and was aimed at maintaining security and discipline within the University.

19.  As regards the proportionality of the measure, the Constitutional Court noted the existence of a graduated system of sanctions under the domestic law. The Disciplinary Board had taken into account the applicant’s disciplinary record and his expulsion from the University for engaging in actions on behalf of or aiding an illegal organisation had been a reasonable measure in order to maintain discipline and ensure the safety of the students. The Constitutional Court emphasised, however, that the disciplinary rules should not completely prevent students from exercising their right to education. Consequently, a crucial aspect of the proportionality of the measure was whether the expelled students had the possibility of enrolling in other educational institutions. In that connection, the Constitutional Court noted that in 2011 it had struck down section 54(g) of Law no. 2547 on Higher Education (Law no. 2547), which had barred expelled students from enrolling in other higher education institutions (see paragraph 33 below). It further observed that the applicant had been unable to enrol in another higher education institution from the date of the disciplinary sanction until 2011. However, there were no legal obstacles preventing the applicant from doing so after 2011, and he had not complained about his inability to pursue higher education after that year.

20.  The Constitutional Court concluded that although the applicant, who had been found guilty of being a member of the PKK, had been deprived of his right to education between 2006 and 2011 as a result of his expulsion from the University, that duration had been reasonable given the circumstances of the case. The interference had, therefore, been proportionate.

21.  The applicant was notified of the Constitutional Court’s judgment on 26 May 2016.

22.  On 13 June 2006 the Erzurum public prosecutor’s office filed a bill of indictment against a number of individuals, including the applicant, charging them with membership of a terrorist organisation under Article 314 § 2 of the Criminal Code.

23.  According to the bill of indictment, the applicant had participated in the Newroz celebrations held on 19 March 2006 in an empty field in Sivas. Along with other participants, he had chanted various slogans and had sung the PKK’s “so-called” anthem entitled “Forward” (Her Nepeş – İleri), which begins with “come on my beloved Kurdish brothers, let’s follow our country” (güzel kürt kardeşlerim gelin ülkemizin ardına gidelim) and ends with “our hearts are turned to steel, now let’s go together for the red flag” (yüreklerimiz çelikleşti artık haydi kızıl bayrak için hep beraber gidelim). The participants had also sung another anthem that begins with “listen enemy, the Kurdish people are still alive, they will never give in to cannon fire and disasters, the Kurdish youth is rising like a lion” (dinle düşman, Kürt halkı hala yaşıyor, top ateşinden ve felaketlerden hiç yılmayacak, Kürt gençliği aslan gibi şahlanıyor) and ends with “the Kurdish youth is always ready to sacrifice, ready to die, ready to die, ready to die” (Kürt gençliği daima kurban vermeye hazır, ölüme hazır, ölüme hazır, ölüme hazır). The celebrations had been attended, in particular, by students from the University who were involved in the YÖGEH. During the event, dances had been performed around burning tires, the “so-called” flags of the PKK had been waved and various slogans had been chanted.

24.  The prosecutor’s office also stated that the applicant had participated in activities organised by the YÖGEH in Sivas and had played an active role in the Newroz celebrations. The applicant had also attended the Newroz events of 2005 in Diyarbakır upon the instructions of the PKK leader and posed with posters of him. The prosecutor’s office added that according to the statements of other suspects, the applicant was involved in the hierarchy of the terrorist organisation. The bill of indictment also contained general information about the PKK and the YÖGEH.

25.  On 24 March 2009 the Erzurum Assize Court (“the Assize Court”) convicted the applicant of membership of an armed terrorist organisation under Article 314 § 2 of the Criminal Code and sentenced him to a term of six years and three months’ imprisonment. It found that there had been a hierarchical link, albeit a weak one, between the applicant’s actions and those of other defendants who had been found to be members of that terrorist organisation. It further considered that the applicant, together with other defendants, had acted on behalf of the YÖGEH, the youth wing of the PKK. The Assize Court also convicted the applicant of praising crime and criminals under Article 215 § 1 of the Criminal Code, on account of his actions which had been referred to in the bill of indictment. The execution of the sentence was suspended.

26.  On 2 May 2011 the Court of Cassation dismissed an appeal by the applicant against the Assize Court’s judgment of 24 March 2009.

27.  The Government submitted that on 6 November 2008 the applicant had applied to re-enrol at the University under the provisional section 56 of Law no. 2547, which had entered into force in October 2008 (see paragraph 34 below). His application had been accepted and he had graduated from the University on 25 February 2010. The applicant’s principal representative confirmed this information in the applicant’s observations in response to the Government’s observations (see also paragraph 38 below).

28.  It appears from the information in the case file that, following his conviction by the Assize Court (see paragraph 25 above), the applicant resided in Jordan until his arrest by Interpol and subsequent extradition to Türkiye in 2013. He then remained in prison until 2017.

29.  The Government also submitted that the applicant had enrolled in various university programmes after 2016 but had failed to complete them.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

30.  Article 42 of the Turkish Constitution provides that no one shall be denied the right to education or to instruction.

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

32.  Under Article 30(a) of the Disciplinary Regulations in force at the material time, the disciplinary bodies responsible for imposing disciplinary penalties were required to take into consideration, among other factors, whether the student in question had previously received disciplinary sanctions.

33.  Section 54(g) of Law no. 2547, as in force at the material time, provided that expelled students were prohibited from enrolling at another higher education institution. In 2011 the Constitutional Court struck down that provision, considering, inter alia, that by preventing expelled students from continuing their education at another higher education institution, the provision in question rendered the exercise of the right to higher education impossible and thus impaired the very essence of that right.

34.  Provisional section 56 of Law no. 2547 entered into force on 28 October 2008. According to this provision, students who, between certain dates, had lost their student status at a higher education institution for any reason, including voluntary withdrawal, were entitled to re-enrol in their previous education programmes and complete their studies. Under provisional section 56(2), bringing an action in the administrative courts against a decision to terminate student status or the dismissal of such an action would not prevent students from benefiting from the opportunity provided for by this provision.

COMPLAINT

35.  The applicant complained that his expulsion from the University, coupled with the impossibility of his enrolling at another higher education institution, had breached Article 2 of Protocol No. 1 to the Convention.

THE LAW

36.  The Government argued that the applicant’s conduct constituted an abuse of the right of application. Specifically, they asserted that the applicant had wilfully omitted material information from his application to the Court. The applicant had failed to disclose his re-enrolment at the University under provisional section 56 of Law no. 2547 and his subsequent graduation in 2010. Instead, he had asserted that he had been deprived of his right to education between 2006 and 2011. The Government emphasised that information had also been omitted from the applicant’s individual application lodged before the Constitutional Court.

37.  The Government also pointed out that the applicant had denied disrupting order at the University despite having previously received two disciplinary sanctions: one for academic dishonesty and another for participation in an unauthorised demonstration. The Government concluded that those inconsistencies demonstrated an intent to mislead the Court.

38.  The applicant’s principal representative asserted that information regarding the applicant’s prior disciplinary sanctions, re-enrolment at the University, graduation, and subsequent academic pursuits had only come to her attention following receipt of the Government’s observations. To provide context for that omission, she detailed the applicant’s circumstances, indicating that the applicant had resided abroad from 2010 to 2013, had been extradited to Türkiye in 2013, had remained imprisoned until 2017, and had subsequently relocated to Belgium in March 2020, where he continued to reside. Those circumstances, particularly the period of imprisonment, had severely limited her communication with him during the initial application process with both the Court and the Constitutional Court and that communication had primarily been through the applicant’s wife. Although the applicant had been interviewed prior to the lodging of the application with the Court, those specific details had not been disclosed by him. However, upon receiving the Government’s observations, the applicant had confirmed that information. The representative maintained that there had been no deliberate attempt to conceal information and requested that the Court reject the Government’s objection.

39.  The Court reiterates that the concept of “abuse” within the meaning of Article 35 § 3 of the Convention must be understood to mean any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and that impedes the proper functioning of the Court, or the proper conduct of the proceedings before it (see Friedrich and Others v. Poland, nos. 25344/20 and 17 others, § 122, 20 June 2024). An application is likely to be dismissed on this ground if it has been established that (a) it is knowingly based on untrue facts and false declarations or that (b) significant information and documents have been deliberately withheld, either where they were known from the outset or where new significant developments have occurred during the procedure (see Martins Alves v. Portugal (dec.), no. 56297/11, § 8, 21 January 2014, and Marjanović v. Bosnia and Herzegovina (dec.), no. 25101/05, § 18, 3 July 2007 and the cases cited therein). Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Pirtskhalava and Tsaadze v. Georgia, no. 29714/18, § 42, 23 March 2023). However, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Savickis and Others v. Latvia [GC], no. 49270/11, § 149, 9 June 2022).

40.  The Court has also stressed that an applicant’s conduct before the domestic authorities is a relevant factor in determining whether an application constitutes an abuse of the right of individual application. Given that domestic remedies are the primary means of protecting the rights guaranteed by the Convention, the Court’s assessment is ordinarily based on a cumulative analysis of the applicant’s conduct both domestically and before this Court. In particular, a manifest misuse of domestic remedies may render an application inadmissible as an abuse of process (see Ferrara and Others v. Italy (dec.) nos. 2394/22 and 18 others, § 43, 16 May 2023 and the cases cited therein).

41.  Lastly, the Court has found that any actions or omissions attributable to the applicant’s representative may be imputed to the applicant and could lead to the rejection of the application as an abuse of the right of individual application (see Gross v. Switzerland [GC], no. 67810/10, § 33, ECHR 2014).

42.  Turning to the present case, the Court notes that, while the applicant claimed in his application form to have been deprived of his right to education from 2006 to 2011, he failed to disclose his re-enrolment at the University under provisional section 56 of Law no. 2547 (see paragraph 34 above) and subsequent completion of his studies in 2010. It further observes that the applicant also failed to disclose this information in his application to the Constitutional Court on 21 October 2013, leading that court to conduct its assessment on the erroneous premise that the applicant had been deprived of his right to education for a period of five years. In its examination of the applicant’s complaint, the Constitutional Court focused its analysis on the proportionality between the applicant’s expulsion from the University and its consequences and the aim sought to be achieved, namely, maintaining discipline and ensuring the safety of other students. On that point, it took into account section 54(g) of Law no. 2547, which, at the material time, prohibited further enrolment at any higher education institution following expulsion, which was a consequence of the disciplinary sanction imposed on the applicant in 2006. In reaching its conclusion, it placed particular emphasis on the subsequent striking down of the aforementioned provision and the applicant’s ensuing opportunity to re-enrol in higher education (see paragraph 19 and 33 above).

43.  The Court is therefore of the opinion that the actual duration of the applicant’s deprivation of the right to education was a decisive factor in the assessment conducted by the domestic authorities. As a result of the misleading information submitted by the applicant, the domestic authorities’ assessment was necessarily based on an inaccurate factual premise. Furthermore, the same information, which was presented to the Court, concerns the very core of the case (compare, mutatis mutandis, Gevorgyan and Others v. Armenia (dec.), no. 66535/10, §§ 34-39, 14 January 2020, and Safaryan v. Armenia (dec.), no. 16346/10, §§ 27-31, 14 January 2020). While the Court acknowledges the explanations offered by the applicant’s representative, these omissions ultimately remain attributable to the applicant, who deliberately withheld this information from his representative until the later stages of the proceedings, despite having engaged in contact with her prior to the lodging of the application with the Court (see paragraph 38 above and Gross, cited above, §§ 34-37).

44.  Considering the above factors and the significance of the withheld information in determining the present case, the Court finds sufficient elements to establish that the applicant intentionally prevented the Court from having full knowledge of the facts of the case and that such conduct was contrary to the purpose of the right of individual application, as provided for in Article 34 of the Convention.

45.  The application must therefore be rejected as an abuse of that right, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 May 2025.

 Hasan Bakırcı Arnfinn Bårdsen
 Registrar President