CASE OF ÇÖLGEÇEN AND OTHERS v. TURKEY
Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
4. The applicants were born in 1977, 1978, 1977, 1981, 1981, 1980, 1982 and 1980 respectively. They lived in Hakkari (the first applicant), Bingöl (the second applicant), Istanbul (the third, fourth, fifth and eighth applicants), Diyarbakır (the sixth applicant) and Muş (the seventh applicant) at the time their applications were lodged with the Court. 5. The applicants, who are of Kurdish ethnic origin, were students at various faculties attached to Istanbul University (“the University”) at the time of the events. In November 2001 they petitioned the University Rector’s office requesting that Kurdish language classes be introduced as an optional module. 6. Around the same time similar petitions were submitted by students studying at various universities in Turkey. 7. Upon receipt of these petitions a disciplinary investigation was initiated by the University into the applicants’ actions. 8. On 14 February 2002, relying either on regulation 9(d) or on regulation 10(e) of the Disciplinary Regulations of Higher Education Institutions, the Administrative Board of Istanbul University, after having heard defence submissions from some of the applicants, either suspended them from the University for a period of two semesters (Mr Çölgeçen and Mr Salim) or expelled them from the University (Mr Bek, Mr Çalışkan, Ms Işık, Mr Ay, Mr Uçak and Mr Turğay). 9. The applicants claim that following this disciplinary sanction they were denied access to the University facilities, they were branded as terrorists by the University authorities, their names were put on notice boards and they were shunned by their friends and other students. Some of the applicants also alleged that they were subject to criminal investigations. 10. The applicants, upon notification of the disciplinary sanctions in question, lodged separate actions with the Istanbul Administrative Court, requesting a stay of execution of the disciplinary decisions, with a view to their subsequent annulment. 11. On 9 May 2002 and on 27 June 2002 (in respect of the fifth applicant) the Istanbul Administrative Court suspended the execution of the applicants’ disciplinary sanctions on the grounds that, inter alia, the sanctions in question were unlawful and that, therefore, their application would cause irreparable damage to the applicants. It appears that the objections of the University to some of these decisions were also dismissed by the court on 4 July 2002. 12. On 25 June 2002, following the notification of the aforementioned decisions to the University, the applicants, save for Mr Çalışkan, were all re-enrolled in their respective faculties. As a result they were allowed to take part in the repeat exams held on 1-12 July 2002. Mr Çalışkan was reenrolled on 23 July 2002 and he was allowed to sit his exams, upon his request, in the 2002-2003 spring midterm period. 13. On 12 and 19 December 2002 the Istanbul Administrative Court examined the merits of the cases and annulled the disciplinary sanctions against the applicants on the ground that they were unlawful. In its decisions, the court noted, inter alia, that there was nothing in the content of the petitions or in the manner in which they were submitted to warrant disciplinary sanctions. 14. The University unsuccessfully challenged these decisions before the Supreme Administrative Court. 15. In 2004 the applicants each lodged an action for compensation with the Istanbul Administrative Court pursuant to Article 13 of the Administrative Procedure Act (Law no. 2577). In their petitions they maintained that they had sustained psychological damage as a result of the disciplinary punishment imposed on them for having used their democratic right of petition, and requested nonpecuniary damages. 16. Between September 2004 and January 2005 the Istanbul Administrative Court awarded compensation to the applicants on the grounds that they had been denied their right to education and that their honour and dignity had been adversely affected by the accusations against them. 17. Between March 2007 and March 2008 the Istanbul District Administrative Court quashed the judgments of the first-instance court and dismissed the actions. In its decisions the court held, inter alia, that following the stay of execution of the disciplinary sanctions the University administration had permitted the students to take repeat exams in July, compensating for the exams which they had been unable to sit in the spring semester and that therefore the conditions for awarding non-pecuniary damage had not been met. 18. By a letter dated 25 March 2011 the office of the Dean of the Faculty of Literature of Istanbul University submitted the following information to the Government for the purposes of the present proceedings: – Mr Mehmet Halit Çölgeçen, who was studying to become a librarian, graduated on 14 July 2006; – Mr Übeyt Salim, who was studying Russian language and literature, graduated on 11 October 2004; – Mr Mürsel Bek, who was studying to become a teacher of Turkish language, graduated on 13 June 2003; – Mr Yavuz Uçak, who was studying to become a primary school teacher, graduated on 4 June 2003; – Mr Mustafa Çalışkan, who was studying to become a primary school mathematics teacher, graduated on 11 July 2006; – Mr Münür Ay, who was studying geography, failed to finish his studies within the required time-limit and he was removed from the University register on 18 February 2008; – Ms Ruken Buket Işık, who was studying English language and literature, graduated on 9 February 2007; – Mr Ali Turğay, who was studying Turkish language and literature, graduated on 27 July 2006. According to the Dean of the Faculty of Literature of Istanbul University, Mr Bek and Mr Uçak graduated from the University within the minimum time allowed (4 years).