CASE OF MÜRSEL EREN v. TURKEY
Violation of P1-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
András Baka;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze
8. The applicant was born in 1972 and lives in Ankara. He graduated from secondary school (lycée) in 1993 and started sitting his university entrance examinations in 1994. 9. At the relevant time, in order to attend a university degree course in Turkey, would-be students were required to pass a two-tier, multiple-choice examination organised by the Higher Education Council's Centre for the Selection and Placement of Students (Yükseköğretim Kurulu Öğrenci Seçme ve Yerleştirme Merkezi – “the ÖSYM”), which was held only once a year. Students who were unsuccessful in the first stage of the examination had the right to re-sit it in subsequent years. 10. The applicant failed to pass the first stage of the university entrance examination in his first three attempts between 1994 and 1996. He was not therefore allowed to proceed to the second and final examination during that time. 11. The applicant attended a private course in Ankara in order to prepare for the 1997 examinations. He submitted that during this course he studied very hard and, on occasion, obtained the highest marks in his class in mock examinations. 12. In the first stage of the examinations in 1997, the applicant obtained 131 points which enabled him to proceed to the second stage, the required minimum being 105 points. After the second examination the applicant believed that he had been successful and that he would obtain sufficient points to qualify for access to one of the university programmes he had selected in his application form. When the exam results were announced, the applicant found that his name was not on the list of successful students who were allowed to enrol at a university. When he contacted the ÖSYM he was informed that he had obtained 493 points in his second examination. 13. By a letter of 11 August 1997, the applicant asked the ÖSYM why he had not been selected for a university place of his choice, given his good results. 14. The ÖSYM, in its reply of 12 August 1997, informed the applicant that he had obtained one of the highest results among the students who had sat the second examination, but that his exam results had been annulled on the advice of an academic council, consisting of three professors, which had found that, given his poor results in the previous years, his excellent achievement could not be explained. The letter of the ÖSYM contained no indication that it suspected the applicant of any impropriety. 15. On 27 August 1997 the applicant, through the assistance of a lawyer, applied to the Supreme Administrative Court (Danıştay) and requested that “the decision of the ÖSYM, which had no precedent”, be suspended and annulled, otherwise “his right to university education would be breached”. He argued that the fact that his previous exam results were not good did not mean that he would never succeed in passing subsequent examinations. 16. According to the judge rapporteur of the Supreme Administrative Court appointed in the case, the decision of the ÖSYM was based on pure supposition and should be annulled as it was devoid of any legal basis. However, on 10 October 1997, the Eighth Division of the Supreme Administrative Court, by a majority of three to two, rejected the application to annul the decision of the ÖSYM, finding that it was inexplicable for a student who had obtained very poor results in his previous exams to be so successful in subsequent examinations. The minority argued in their dissenting opinion that the authorities had a duty to organise the examinations properly and that it was their responsibility to prove, with adequate evidence, any impropriety such as cheating. 17. The applicant's appeal, lodged on 30 October 1997, was dismissed by a majority of ten to five on 28 November 1997 by the Supreme Administrative Court's General Council of Administrative Divisions (Danıştay İdari Dava Daireleri Genel Kurulu). 18. On an unspecified date the applicant asked, in a further application submitted to the Eighth Division of the Supreme Administrative Court, for the decision of the ÖSYM to be annulled. On 5 November 1998 the request was rejected by the same court after it had examined the case on its merits, by a majority of four to one. 19. On 30 December 1998 the applicant appealed and sought an injunction suspending the decision of the ÖSYM while the appeal was being examined. 20. On 29 January 1999 the Supreme Administrative Court's General Council of Administrative Divisions began examining the applicant's request for an injunction but decided to postpone the matter until after the conclusion of the appeal. 21. The appeal against the decision of 5 November 1998 was dismissed on 15 March 1999 by the Supreme Administrative Court's General Council of Administrative Divisions, by a majority of eight to seven. The majority concluded that the applicant had not achieved the result through his own knowledge and ability. The minority argued in their dissenting opinion that the ÖSYM had a duty to take measures in order to ensure that university entrance examinations and the subsequent steps leading to selection for a university place were conducted properly. The ÖSYM had the obligation and power to punish candidates who breached the laws and regulations, if so established on the basis of adequate evidence. According to the minority, the ÖSYM could not hold the applicant responsible for the consequences of its own failures. It could only review its procedures and take measures to prevent the repetition of such situations. 22. On 8 June 1999 the applicant asked for a rectification of the decision of 5 November 1998, which is the final remedy in Turkish law in administrative matters. 23. On 19 November 1999 the application for the rectification of the decision was rejected by the Supreme Administrative Court's General Council of Administrative Divisions. This decision was taken by a majority of eight to seven and was served on the applicant on 30 December 1999. 24. Article 42 of the Turkish Constitution provides that no one shall be denied the right to education or to instruction. 25. According to section 10 of the Higher Education Act of 1981 (Law no. 2547), the ÖSYM – the Higher Education Council's Centre for the Selection and Placement of Students – is an organisation which, in the context of principles established by the Higher Education Council, and in order to select students for admission to institutions of higher education, prepares tests, administers them, evaluates the results and, having regard to the preferences expressed by the successful candidate, effects their placement at universities and other higher educational institutions. 26. The relevant part of section 45 of Law no. 2547 provides as follows: “Students are placed at higher education institutions by passing an examination, the principles of which are determined by the Higher Education Council. The evaluation of the exam results takes into account the student's secondary school grade average ...”