Selçuk Taşdemir, Application No: 2013/7860, 3 March 2016

A) Facts

The Applicant was a 4th year student in the Department of Labor Economics and Industrial Relations at the Faculty of Economics and Administrative Sciences of Sivas Cumhuriyet University. On 24 April 2006, Sivas Provincial Security Directorate sent a letter to the Presidency of the University, stating that the applicant has joined the Newroz demonstrations and he has been active in the PKK’s youth organization, the Patriotic Free Youth Movement. Thereupon, the applicant was given a disciplinary penalty of expulsion from the higher education institution on 1 November 2006. The applicant applied to the Administrative Court of Sivas against this decision. The Administrative Court rejected the case on the ground of the conviction given against the applicant by the 2nd High Criminal Court of Erzurum on the charge of being a member of terrorist organization. The abovementioned conviction for the membership of terrorist organization and the praise of guilt and guilty became final after being upheld by the Court of Appeal on 2 May 2011. The decision was finalized.

B) Judgment and Reasoning of the Court

Article 42 of the Constitution, while imposing a negative obligation on the public authorities not to deprive any person of the right to receive education and training, does not bring a positive obligation to provide education and training for all individuals other than primary school level. Right to education and training ensures access to educational institutions available at a given time (§ 66). The restriction on right to education must be foreseeable, pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the legitimate aims pursued by the interference (§ 67).

According to the Court, in Article 10(e) (Disciplinary actions resulted in expulsion from higher education institution) of the abrogated Higher Education Institutions Student Disciplinary Regulations, published in the Official Gazette dated 13 January 1985 and numbered 18634, disciplinary penalties were provided in a foreseeable and accessible manner against the acts of “becoming a member of illegal organizations, being active in or helping on behalf of these organizations”. Therefore, the concrete intervention has a statutory basis (§ 74).

The Court noted that the right to education does not preclude resorting to disciplinary penalties, including the suspension and expulsion of a student from educational institutions (§ 85). The Court then reminded that the regulation preventing the possibility of continuing education in another higher education institution by providing that “students who have been expelled from a higher education institution for disciplinary reasons are not eligible for admission to any higher education institution” in paragraph (g) of Article 54 of the Law no. 2547 has been annulled by the Constitutional Court on the ground of breaching the essence of the right (§ 93, see CC, Reg. 2009/59, Judg. 2011/69, 28 April 2011).

The Court recognized that the applicant could not apply to a higher education institution until the annulment judgement of the Court in 2011. However, according to the Court, there remained no legal obstacle for the him to enroll to another higher education institution after that judgement (§ 96). The Court concluded that, in the concrete circumstances, his deprivation of the right to education between the years of 2006 and 2011 should be considered as reasonable and proportionate (§ 97). Accordingly, there has been no violation of Article 42 of the Constitution (§ 98).

The dissenting opinions pointed out that the inability of the applicant to enroll to another higher education institution for five years constituted a highly severe intervention in the right to education and training of the applicant and therefore should not be regarded as proportionate and necessary in a democratic society (Dissenting Opinion, § 14).

C) Significance of the Judgment

This was the first case examined by the Constitutional Court General Assembly on the right to education. It is also essential in being the first judgement reviewing the effect of disciplinary penalties on the right to education. The majority found it reasonable and proportionate for the applicant not being able to enroll to another higher education institution for five years until the annulment of Article 54 (g) of the Law no. 2457 by the Constitutional Court. Earlier, the ECtHR held that an expulsion penalty from higher education including the prevention from enrolling to another educational institution has violated the right to education; which means that the judgment of the Constitutional Court reflects a departure from the ECtHR jurisprudence in Yanaşık case.