CASE OF ÇAM v. TURKEY
Violation of Article 14+P1-2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 of Protocol No. 1 - Right to education-{general};Right to education);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1989 and lives in Istanbul. 6. On 15 June 2004 she applied to take part in the entrance competition for the Turkish National Music Academy attached to İstanbul Technical University (“the Music Academy”) for the 2004-2005 academic year. 7. On 21 and 31 August 2004 she took the practical selection tests performing on the bağlama. 8. On 7 September 2004 the music section of the Academy administration published a list of successful candidates in the entrance examination, which included the applicant. 9. The applicant immediately applied to a medical board at Büyükçekmece Public Hospital for a medical report certifying her fitness to study at the Music Academy. 10. On 9 September 2004 that medical board drew up a report stating that the applicant had been diagnosed with hypermetropia with nystagmus and severe bilateral amblyopia. The Board concluded that the applicant should be referred to a higher medical authority. 11. On 16 September 2004 a medical board at the Bakɪrköy Research and Training Hospital (“Bakɪrköy Hospital”) prepared a medical report finding that the applicant could receive education and instruction in the sections of the Music Academy where eyesight was unecessary. 12. On the same day the Director of the Music Academy sent a letter to the applicant stating the following: “As we have explained on several occasions to your mother, your father and yourself, since you have failed to provide a report from a fully equipped public hospital (tam teşekküllü devlet hastanesi) confirming that you can study at the Music Academy ... we have been unable to enrol you ... We look forward to receiving your report from a public hospital mentioning your admission to the Music Academy as a student as soon as possible ...” 13. On 20 September 2004 the applicant’s father wrote to the Director of the Music Academy to inform him that the medical report had been forwarded to the Music Academy that same day, as requested. 14. Also on the same day, the Director of the Music Academy wrote to the Chief Medical Officer of Bakɪrköy Hospital. Referring to the report issued by that hospital’s Medical Board on 16 September 2004, he informed the Chief Medical Officer that none of the seven sections of the Music Academy could be deemed not to require eyesight. The letter stated that in order to be able to be educated in any section of the Academy, a student had to submit a medical report stating that he or she was fit for the task. The Director of the Music Academy asked the Chief Medical Officer to prepare a fresh medical report taking account of the fact that no section of the Music Academy could be considered as not necessitating eyesight, and accordingly to specify whether or not the applicant was capable of being educated in the Music Academy. 15. On an unspecified date the Music Academy rejected the applicant’s request for enrolment. 16. On 24 September 2004 the applicant’s parents, acting in her name and on her behalf, lodged with Istanbul Administrative Court (“the Administrative Court”) an action against the administration of Istanbul Technical University to set aside the Music Academy’s decision not to enrol their daughter. That action was accompanied by a request for a stay of execution of the impugned decision. In his pleadings, counsel for the applicant argued that his client had passed the entrance examination to the Music Academy on 21 August 2004, appearing before a panel of eight teachers, and that on 31 August 2004 she had passed the final entrance competition with full marks, appearing before a panel of twenty teachers. Quoting the criteria for admission to the Music Academy, that is to say being under the age of fifteen, holding a certificate of primary education, having the requisite physical abilities for playing the chosen instrument in respect of which enrolment has been requested, not having a physical disability such as to prevent her from receiving an education in the chosen section, and passing the talent and technical standard competition. Counsel for the applicant submitted that she had satisfied all those criteria. Her enrolment in the Music Academy had been refused on the sole ground that she was blind, which was contrary to law and the equality principle. In support of her application, counsel for the applicant relied on Article 42 of the Constitution, Articles 4, 7, 8 and 27 of Basic Law No. 1739 on national education (“Act No. 1739”) and Article 9 of Legislative Decree No. 573 on specialised education. He also cited the names of former blind students who had graduated from the same Music Academy. 17. In a statement of defence of 12 October 2004 the administration of Istanbul Technical University submitted that when filing her application for enrolment the applicant’s father had provided no document referring to her blindness. It contended that he had concealed that fact, had behaved as if his child were disability-free and had therefore attempted to deceive the enrolment office. It stated that Article 4 of the principles governing admissions and enrolment in the Music Academy set out the “no disability” criterion. Furthermore, the applicant had failed to provide a medical report certifying that she could study at the Music Academy, which requirement applied to all applicants for admission. The statement therefore affirmed that the refusal to enrol the applicant had not been due to her blindness but stemmed from her failure to submit all the requisite documents for her enrolment, within the stipulated time-limit. It added that even though the medical report submitted by the applicant had stated that she could study in the sections of the Academy where eyesight was unnecessary, there were in fact no such sections. Finally, it pointed out that in the absence of appropriate facilities and teaching staff with the requisite expertise, the Music Academy was not in a position to provide education for blind students, or indeed for persons with any kind of disability. In that connection it explained that in 1976, when it had opened, the Music Academy had hoped to introduce facilities for teaching blind students, but the lack of teachers with a command of braille had forced it to abandon those efforts. 18. On 14 October 2004 the Administrative Court dismissed the request for a stay of execution of the decision on the grounds that the conditions set out in section 27 § 2 of Act No. 2577 on Administrative Procedure (“Act No. 2577”) as amended by Act No. 4001 had not been met. 19. On 26 October 2004, acting in her name and on her behalf, the applicant’s parents appealed against that decision to the Istanbul Regional Administrative Court. They argued that pursuant to section 27 § 2 of Act No. 2577, there had been two preconditions for obtaining a stay of execution: the existence of damage which was irreparable or difficult to repair, and the apparent unlawfulness of the administrative Act in question. The parents stated that under the circumstances of the present case it was obvious that the refusal to enrol their daughter in the Music Academy would cause her damage which would be difficult to repair. They also submitted that such refusal was unlawful. Their memorial pointed out that the applicant held a primary school certificate and, apart from her blindness, had all the requisite physical capacities for playing the bağlama. Furthermore, she had passed the entrance examination for the Music Academy, and a medical report had established that she had no disability such as to prevent her from receiving education in the music department. They submitted that the merits of that medical report could not be contested, that other students had provided medical reports from institutions similar to that which had drawn up the applicant’s report, and that the Music Academy had accepted those reports. In their view, the fact that the report had not specifically mentioned that the applicant could study at the Academy could not invalidate it. Moreover, they argued that the respondent administration’s argument that the medical report had not been submitted in time was fallacious, as that report had been submitted to the Music Academy on Monday 20 September 2004, that is to say on the first working day after receipt of the letter from the Academy requesting the report. The parents further affirmed that the applicant had met all the conditions for enrolment and submitted the requested documents within the stipulated time-limits. The only reason for the refusal of enrolment had been her blindness. In reply to the respondent administration’s plea that the Music Academy had no sections where eyesight was not required, the applicant’s parents provided the names of four blind graduates of the Music Academy. Those former students had asserted that blindness was no obstacle to playing a musical instrument, that there were many blind musicians and that the Music Academy’s argument that none of the teachers knew braille was invalid in the light of advanced technology and computer systems capable of converting braille. Finally, the applicant’s parents submitted that the impugned measure was contrary to the constitutional principle of equality and all the relevant international legal instruments. 20. On 28 October 2004 the Istanbul Regional Court Administrative dismissed that appeal on the grounds that the conditions for a stay of execution set out in section 27 § 2 of Act No. 2577 had not been fulfilled since the execution of the impugned decision was not such as to cause damage which was irreparable or difficult to repair and was not unlawful. 21. On 29 November 2004 the Chief Medical Officer of Bakɪrköy Hospital wrote to the administration of the Music Academy to inform it that the medical report du 16 September 2004 had been revised. The original sentence “can receive education and instruction in the sections of the Music Academy where eyesight is unnecessary” had been replaced by: “cannot receive education or instruction”. 22. On 11 March 2005, acting in the applicant’s name and on her behalf, her parents submitted a complaint to the Bakɪrköy State Prosecutor against the Bakɪrköy Research and Training Hospital, its Chief Medical Officer and the other doctors who had amended the medical report of 16 September 2004, accusing them of abuse of office. They argued that the doctors had amended the medical report arbitrarily, without examining their daughter. They affirmed that the purpose of the amendments had been to ensure that the proceedings against the administration of Istanbul University concluded in the latter’s favour. 23. On the same day they applied to the Istanbul Medical Association for an inquiry into the events in question. 24. On 23 May 2005 the Health Department attached to the Istanbul Governor’s Office adopted a decision refusing to authorise the prosecution of the Chief Medical Officer in question. That decision mentioned that the findings of the report had been amended at the request of the administration of the Music Academy and that there had been no wrongdoing or abuse of office. 25. On 4 July 2005 the applicant’s parents, acting in her name and on her behalf, appealed to the Istanbul Regional Administrative Court to set aside that decision and authorise proceedings against the Chief Medical Officer in question. That appeal was unsuccessful. 26. On 18 July 2005 they lodged an appeal with the Istanbul Court Administrative requesting the setting aside of the decision not to enrol the applicant. They relied on section 15 of Act No. 5378 of 1 July 2005 on persons with disabilities (“Act No. 5378”), which had, in their view, put an end to all forms of discrimination in the educational sphere. 27. On 14 October 2005 the Administrative Court dismissed the applicant’s appeal. The relevant sections of the court’s reasoning read as follows: “... The principles governing entrance competitions and enrolments at the Turkish National Music Academy attached to Istanbul University were adopted by the University Senate ... at the request of the section assembly, after having been debated in the Music Academy assembly and deemed lawful by the University’s Educational Board. ... Those principles include the condition that applicants who have passed the competition for enrolment in the Music Academy should not suffer from any physical disability impeding education in the section [to which they have been admitted]. Furthermore, that condition is mentioned on the form distributed to applicants listing the documents required for final enrolment. The submission of a report drawn up by a fully equipped hospital and stating ‘is capable of studying at the Music Academy’ is mandatory. It transpired from the assessment of the application that [the applicant] passed the entrance examination and secured the right to be enrolled. However, whereas the report prepared by Büyükçekmece Public Hospital had concluded that a report should be requested from a higher medical board, she requested a report from an equivalent medical board, namely Bakɪrköy Research and Training Hospital. It transpires from the defence of the respondent administration that in the 1970s, when the Music Academy was set up, it had enrolled a number of blind students on a trial basis, but, in the absence of teaching staff conversant with the braille alphabet and having regard to the various difficulties encountered, that experiment was discontinued. No further blind students were admitted. It has been established that the administration wrote to the Chief Medical Officer of Bakɪrköy Hospital requesting information on the interpretation of the medical report which it had issued and that the conclusions of that report had subsequently been amended. The respondent administration’s decision to refuse to enrol the applicant was not unlawful as she had been unable to provide a report drawn up by a fully equipped public hospital and stating that she was capable of studying at the Music Academy. The applicant’s allegations to the contrary are ill-founded ...” 28. The Administrative Court adopted that decision on a majority vote, contrary to the recommendation of the President of the court, who adopted a dissenting opinion stating, with reference to Article 42 of the Constitution and Act No. 1739, that no one could be deprived of his or her right to education and instruction. In his view, it was beyond doubt that it was incumbent on government departments to put in place an environment conducive to education and instruction and meeting the needs of blind persons. Referring to the defence put forward by the respondent administration, which had attempted to incorporate blind students in 1976, he noted that it had been possible at the time to provide blind persons with musical education. He emphasised that there were many famous blind musicians. To deprive individuals of their right to education was incompatible with a social and democratic State governed by the rule of law. He consequently held that the impugned administrative measure had been unlawful. 29. On 9 November 2005 the Governing Board of the Istanbul Medical Association wrote a letter to the applicant’s father in reply to his request of 11 March 2005 (see paragraph 23 above). The relevant parts of the letter read as follows: “1. The two reports covered by the inquiry are similar in content. 2. However, the hospital administration’s failure to defend the initial report and its decision to make the requested amendments, on the instructions of the administration of the Music Academy ... cannot be considered as an appropriate attitude. 3. The letter of 22.10.2004 (no. 5821) sent by the administration of the Music Academy ... to the Chief Medical Officer of the hospital ... states that ‘inasmuch, moreover, as the teaching administered in those sections is intended for sighted students, we have no suitable educational environment for blind students (in terms of resources, equipment, technical facilities or teachers). For those reasons it is out of the question for sighted and blind students to follow common courses’. ... Having regard to the relevant international agreements and legislative provisions, the course of action expected of the administration was not to force through amendments to a report drawn up by a hospital, thus impeding a blind citizen’s right to education ... In conclusion, the Chief Medical Officer amended the form of the report, [but] its content remained the same, such that he cannot be accused of negligence. The available administrative and judicial remedies should be used to aasert the right in question ...” 30. On 18 April 2006 the applicant’s parents, acting in her name and on her behalf, lodged an appeal on points of law with the Council of State against the 14 October 2005 decision of the Administrative Court (see paragraph 27 above). They submitted that that decision was contrary to the Constitution, to Act No. 1739, to Act No. 5378 and to several international instruments and declarations. They submitted that the respondent administration’s defence plea that eyesight was required in all the sections of the Music Academy was fallacious, citing the names of blind former music students who held diplomas from the Academy. They requested the invalidation of the first-instance decision in accordance with the arguments set out in the opinion of the President of the Administrative Court. 31. On 4 January 2007 the administration of Istanbul Technical University filed its defence. It submitted that the applicant’s medical report had mentioned that she could study in the sections of the Music Academy which did not require eyesight, but that in fact the Academy had no such sections. Lastly, it affirmed that the applicant had not met all the requisite conditions for enrolment. 32. By judgment of 19 February 2008, served on counsel for the applicant on 28 April 2008, the Council of State dismissed the appeal on points of law and upheld the impugned decision, having found that the latter had fallen within the jurisdiction of the administrative court, had not been unlawful and had complied with the procedural rules. Moreover, it transpired from the judgment of the Council of State that the reporting judge had come down in favour of admitting the appeal on points of law. In his opinion on the appeal on points of law, the State Prosecutor with the Council of State, referring to Article 42 of the Constitution and sections 4, 7 and 8 of Act No. 1739, also stated that educational establishments were required to take into account persons who required specialist teaching and to adopt the necessary measures to guarantee their education. In the circumstances of the present case, he considered that the decision not to enrol the applicant – who had passed the entrance examination for the Music Academy and met all the legal conditions – flouted the relevant constitutional and legislative provisions and should therefore be set aside. 33. According to information transmitted to the Court by the applicant, after the rejection of her application to the Music Academy, she continued her education in an ordinary school before joining the Music Department of the Arts Faculty of Marmara University. ...