ÖZEL FEZA EĞİTİM ÖĞRETİM YURT VE KANTİN İŞLETMECİLİĞİ TİCARET ANONİM ŞİRKETİ v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković
1. The applicant, Özel Feza Eğitim Öğretim Yurt ve Kantin İşletmeciliği Ticaret Anonim Şirketi, is a joint stock company registered in Turkey that operated a private tutoring centre (dershane) in Kütahya for students preparing for secondary school and university entrance examinations at the time of the events giving rise to the present application. The applicant company was represented before the Court by Mr M. Kasap, a lawyer practising in Ankara. 3. Law no. 5580 on Private Education Institutions was enacted on 8 February 2007 to govern the authorisation, operation, management and supervision of private education institutions. According to former section 2 (b) of Law no. 5580, the term “institution” included, for the purposes of that Law, private institutions engaging in pre-school, elementary and secondary school education, schools for special education and various training courses, distance learning institutions, private tutoring centres, driving schools, inservice training centres, student study centres, special education and rehabilitation centres, and other similar private education institutions. 4. According to former section 2 (f) of Law no. 5580, a “private tutoring centre” was defined as a private education institution that prepared students for, inter alia, examinations held for admittance to secondary education or higher education (hereinafter referred to as “entrance examinations”). 5. On 1 March 2014 Law no. 6528 was enacted to amend various laws, including Law no. 5580. Amongst other changes, Law no. 6528 removed “private tutoring centres” from the list of private education institutions that were authorised to operate within the scope of Law no. 5580, and made certain arrangements for the transformation of private tutoring centres in operation to other education institutions. It also amended the definition of “various training courses” mentioned in section 2 (b) of Law no. 5580 to specify that such training courses could not engage in preparing students for entrance examinations, and further added that “student study centres” referred to in the same paragraph could only offer services to students who were aged twelve or below. According to the preparatory works to Law no. 6528, such amendments were considered necessary mainly to tackle the dichotomy and inequality of opportunity caused by private tutoring centres within the education system, which had over the years begun to be perceived as an alternative to compulsory education institutions. 6. On 13 July 2015, following an action brought by a group of Members of Parliament, the Constitutional Court decided to annul those provisions of Law no. 6528 that concerned private tutoring centres, as well as the amendments made to the definitions of “various training centres” and “student study centres”. The annulment became effective on 24 July 2015, the date of publication of the Constitutional Court’s decision. The Constitutional Court stressed in its decision that private tutoring centres had been set up to prepare students for entrance examinations, and thus served a specific need which was not always met by regular schools. Instead of taking more targeted measures to deal with the problems posed by those tutoring centres, however, the legislator had opted for their complete abolition, which was not a proportionate response in the circumstances, considering in particular that no alternatives were on offer to meet the specific needs of students preparing for entrance examinations. The Constitutional Court noted in this connection the amendment of the definitions of “various training courses” and “student study centres” to prevent them from replacing private tutoring centres. 7. On 8 August 2015 the Regulation on Private Education Institutions was amended. The amendments concerned, inter alia, details regarding the “transformation programme” that had to be followed by private tutoring centres and the various education institutions that they could transfer into. 8. On 12 August 2015 the Ministry of Education issued a circular (no. 2015/23) regarding, inter alia, the situation of private tutoring centres. The circular stated that following the Constitutional Court decision, private tutoring centres currently in operation had to transform themselves into other private education institutions in order to be able to continue to operate. According to section 1 of this circular, any private tutoring centres which had not applied for the “transformation programme” by 1 September 2015 would have their operating licences revoked. 9. Following an action brought by an education workers’ trade union, on 15 September 2015 the Supreme Administrative Court ordered a stay of execution of circular no. 2015/23. The Supreme Administrative Court stated that by virtue of Article 153 of the Constitution decisions delivered by the Constitutional Court did not have retroactive effect, which meant that while the relevant provisions of Law no. 6528 abolishing private tutoring centres had been annulled, the former provisions of Law no. 5580 governing those centres had not been reinstated. This, the Supreme Administrative Court explained, created a gap in the law in respect of the legal status of private tutoring centres which were currently in operation; this gap had to be filled by the legislator. In the absence of such action by the legislative body, any measures taken by the administration to close down private tutoring centres or limit their activities would be ultra vires. For this reason, the Supreme Administrative Court found that circular no. 2015/23 issued by the Ministry of Education had been ultra vires and had contravened the Constitutional Court decision by virtue of its provisions providing for the closure of private tutoring centres. Two of the members of the Supreme Administrative Court, including the president, delivered a dissenting opinion stating that circular no. 2015/23 was lawful and in compliance with the Constitutional Court decision. It appears that the Supreme Administrative Court has not yet delivered a decision on the merits of this case. 10. On 18 September 2015 the Ministry of Education issued another circular (no. 2015/25) on the subject. According to section 1 of this circular, no administrative action would be taken by governors’ offices against private tutoring centres which were operating lawfully at the time of the enactment of Law no. 6528. However, legal action would be taken against those private tutoring centres which continued to operate without transforming themselves into one of the other private education institutions defined in Law no. 5580. 11. On 18 December 2015 the Ministry of Education revoked the licence of the applicant company to operate a private tutoring centre, on the ground that it had continued to operate without being transformed into one of the other private education institutions listed in Law no. 5580, contrary to circular no. 2015/25. As a result of this decision, on 24 December 2015 the applicant company was banned from operating a private education institution for five years. 12. Prior to its amendment by Law no. 6528 (see below paragraphs 13-14), section 2 of Law no. 5580 provided as follows: “The definitions Section 2- The [terms] mentioned in this Law [are defined as follows] ... (b) Institution: private institutions engaging in pre-school, elementary and secondary school education, schools for special education and various training courses, institutions of distance learning, private tutoring centres, driving schools, inservice training centres, student study centres, special education and rehabilitation centres, and other similar private education institutions ... (f) Private tutoring centre: private education institutions that prepare students for examinations held for admittance to secondary education or higher education, to train [students] in their desired subjects and to enhance their level of knowledge. (g) Various training courses: private education institutions that operate for the purpose of enhancing individuals’ knowledge, skills, linguistic [skills], abilities and experiences in social, artistic, sportive, cultural and vocational spheres, [and] to [enable them to] make use of their free time according to their wishes ... (j) Student study centre: private education institutions established to assist students to study their lessons [and] to complete their assignments and projects; [and] to conduct social, artistic, sporting and cultural activities in accordance with [the students’] interests, wishes and abilities ...” 13. Among other changes, Law no. 6528 removed “private tutoring centres” from the list of institutions defined in section 2 (b) of Law no. 5580 and abolished section 2 (f) accordingly. It also amended section 2 (g) and (j) as follows: “(g) Various training courses: private education institutions that operate for the purpose of enhancing individuals’ knowledge, skills, linguistic [skills], abilities and experiences in social, artistic, sporting, cultural and vocational spheres, [and] to [enable them to] make use of their free time according to their wishes, on the condition that they do not engage in preparing students for examinations for entrance to secondary education and higher education ... (j) Student study centre: private education institutions established to assist students of twelve years of age and below to study their lessons [and] to complete their assignments and projects; [and] to conduct social, artistic, sporting and cultural activities in accordance with [the students’] interests, wishes and abilities.” 14. Law no. 6528 also added a provisional section 5 to Law no. 5580. According to paragraph 1 of this provisional section, private tutoring centres which had not transformed themselves into another private education institution could only operate until 1 September 2015. 15. The decision of the Constitutional Court of 13 July 2015 has been outlined in paragraph 6 above. 16. The relevant information regarding the circular no. 2015/23 issued by the Ministry of Education on 12 August 2015 and the decision of the Supreme Administrative Court dated 15 September 2015 ordering the stay of execution of that circular may be found in paragraphs 8-9 above. 17. The relevant information regarding circular no. 2015/25 issued by the Ministry of Education on 18 September 2015 may be found in paragraph 10 above. 18. According to information obtained proprio motu by the Court, on an unspecified date an action was brought by an education workers’ trade union seeking the annulment and stay of execution of circular no. 2015/25. On 11 December 2015 the Supreme Administrative Court dismissed the request for a stay of execution. It held that the repeal of the relevant provisions of Law no. 6528 by the Constitutional Court had created a legal lacuna concerning the legal status of private tutoring centres. The circular at issue had sought to fill that lacuna by providing for the operation of such private tutoring centres after transformation into other private education institutions, which was also in conformity with the Constitutional Court decision in this respect. Two members of the Supreme Administrative Court delivered a dissenting opinion against the decision of the majority, following the reasoning of the previous Supreme Administrative Court decision concerning circular no. 2015/23 (see paragraph 9 above). It appears that the Supreme Administrative Court has not yet delivered a decision on the merits of this case. 19. According to Article 125 of the Turkish Constitution, all acts and decisions of the administration are subject to judicial review. 20. Section 2 of Law no. 2577 (Administrative Procedure Act) provides that anyone whose personal rights have been violated as a result of an allegedly unlawful administrative act or decision can bring an action for annulment of that act or decision. 21. A description of the relevant domestic law and practice regarding the right of individual application to the Turkish Constitutional Court, as well as a review of the mechanism for individual application, may be found in Hasan Uzun v. Turkey (dec.), no. 10755/13, §§ 7-27 and §§ 52-71, 30 April 2013).