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SECOND
SECTION
CASE OF
EMİNE ARAÇ v.
TURKEY
(Application
no. 9907/02)
JUDGMENT
STRASBOURG
23
September 2008
FINAL
23/12/2008
This
judgment may be subject to editorial revision.
In the case of Emine Araç v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Antonella
Mularoni,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and
Sally Dollé, Section
Registrar,
Having
deliberated in private on 2 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9907/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Ms Emine Araç (“the
applicant”), on 22 October 2001.
- The
applicant was represented by Mr M. Muller and Mr T. Otty, lawyers
practising in London, and by Mr H. Tuna in Istanbul. The Turkish
Government (“the Government”) were represented by their
Agent.
- The
applicant alleged that the facts of the case disclosed a breach by
the respondent State of its obligations under Article 6 § 1 of
the Convention.
- On
19 September 2006 the Court declared the application partly
inadmissible and decided to give notice to the Government of the
complaint under Article 6 § 1 of the Convention. In accordance
with Article 29 § 3 of the Convention, it also decided to
examine the admissibility and merits of the case at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1973 and lives in Istanbul.
- On
24 September 1998 the applicant, a student in the Faculty of Theology
of İnönü University in Malatya, sought to enrol in the
Faculty of Theology of Marmara University. For that purpose she
provided, among other materials, an identity photograph which showed
her wearing a headscarf.
- On
1 October 1998 the Faculty of Theology of Marmara University replied
to the applicant, informing her that the identity photograph she had
supplied did not comply with the regulations in force and that where
this was the case, the person concerned could not be enrolled.
- On
an unspecified date the applicant lodged an application for judicial
review with the Istanbul Administrative Court. She requested, in
particular, that the refusal of the administrative authorities be set
aside as being in breach of her rights.
- In
a judgment of 23 September 1999 the Administrative Court rejected the
application, finding that the authorities’ refusal had been in
accordance with the regulations in force. The court considered, in
particular, that the applicant had submitted an identity photograph
which did not conform to the regulations, which stipulated that
“photographs must show the subject facing forward and be less
than six months old, so that the person concerned is readily
identifiable; the head and neck must also be uncovered”
(Article 4 § 1 (f) of the Guide for University Applicants
adopted by the Higher Education Board on 17 April 1998).
- Following
an appeal by the applicant on points of law, the Supreme
Administrative Court upheld the judgment of 23 September 1999,
finding it to have been in accordance with the law and the procedural
rules. The relevant parts of the Supreme Administrative Court
judgment read as follows:
“Summary of the request: ...
Opinion of Mrs Serpil K. Erdoğan, investigating
judge of the Supreme Administrative Court: the judge is of the
opinion that the appeal should be dismissed and the first-instance
judgment upheld.
Opinion of Mr H. Hüseyin Tok, State Counsel
(savcı) at the Supreme Administrative Court: the
grounds of appeal set out in the statement of grounds do not
correspond to those enumerated in Article 49 § 1 of the Code of
Administrative Procedure. In view of the juridical and legal
arguments on which the first-instance judgment was based, these
grounds cannot be said to require the quashing of the impugned
judgment...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
42 of the Constitution reads as follows:
“No one may be deprived of the right to
instruction and education.
The scope of the right to education shall be defined and
regulated by law.
Instruction and teaching shall be provided under the
supervision and control of the State in accordance with the
principles and reforms of Atatürk and contemporary scientific
and educational methods. No educational or teaching institution may
be set up that does not follow these rules.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant submitted that the proceedings before the Supreme
Administrative Court had been unfair. She relied on Article 6 §
1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The
Government argued, as their main submission, that Article 6 § 1
was inapplicable in the instant case, as the case brought before the
administrative courts had not related to civil rights and
obligations. The applicant had brought an action seeking the
setting-aside of public-law regulations adopted by the university
authorities. The Government further pointed out that in its decision
in André Simpson v. the United Kingdom (no. 14688/89,
Commission decision of 4 December 1989, Decisions and Reports (DR)
64, p. 196), the Commission had held that Article 6 was inapplicable
to proceedings concerning the laws on education. In particular, it
had found that “the right not to be denied elementary
education” fell within the domain of public law, since it had
no private law analogy and no repercussions on private rights or
obligations.
- The
applicant submitted that Article 6 was applicable in the instant
case.
- According
to the Court’s settled case-law, the phrase “determination
of ... civil rights and obligations” covers all proceedings the
result of which is decisive for [such] rights and obligations (see
Ringeisen v. Austria, 16 July 1971, §
94, Series A no. 13). A tenuous connection or remote consequences do
not suffice for Article 6 § 1: civil rights and obligations must
be the object – or one of the objects – of the
“contestation” (dispute) and the result of the
proceedings must be directly decisive for such a right (see Le
Compte, Van Leuven and De Meyere v. Belgium, 23
June 1981, § 47, Series A no. 43).
- In
the instant case it seems clear that a “dispute” arose
following the decision taken by the Faculty of Theology of Marmara
University on 1 October 1998 not to enrol the applicant, who had
supplied an identity photograph which did not comply with the
regulations in force (see paragraph 7 above). This dispute, which was
genuine and serious, related to the actual existence of the right
asserted by the applicant to continue the university studies she had
begun at the Faculty of Theology of İnönü University.
The outcome of the proceedings in question was capable of leading to
the setting-aside of the impugned decision, namely the refusal to
enrol the applicant; it was thus directly decisive for the right at
issue.
Consequently,
the Court must simply ascertain whether Ms Araç’s right
to continue her theology studies was a civil right within the meaning
of Article 6 § 1.
- The
Court reiterates that, although it has found the concept of “civil
rights and obligations” to be autonomous, it has also held
that, in this context, the legislation of the State concerned is not
without importance (see König v. Germany, 28 June 1978, §
89, Series A no. 27). Whether or not a right is to be regarded as
civil within the meaning of that term in the Convention must be
determined by reference not only to its legal classification but also
to its substantive content and effects under the domestic law of the
State concerned. Moreover, the Court, in the exercise of its
supervisory function, must also take account of the object and
purpose of the Convention (see Perez v. France [GC], no.
47287/99, § 57, ECHR 2004 I).
- The
Court observes at the outset that, in view of the wording of
Article 42 of the Turkish Constitution (see paragraph 11 above),
the applicant, who was a student in the Faculty of Theology of İnönü
University, could make an arguable claim that Turkish law conferred
on her the right to enrol in the Faculty of Theology of Marmara
University provided she satisfied the statutory conditions. She was
refused enrolment not because she failed to satisfy one of these
conditions, but because of her failure to comply with a formal
requirement laid down by the regulations in question.
- According
to the Government, the regulation of enrolment in higher education
establishments was a matter falling within the sphere of public law.
In the Court’s view, however, this public-law aspect does not
suffice to exclude the right in question from the category of civil
rights within the meaning of Article 6 § 1. It further points
out that in several cases (see, in particular, König and
Le Compte, Van Leuven and De Meyere, both cited above; Benthem
v. the Netherlands, 23 October 1985, Series A no. 97; and
Feldbrugge v. the Netherlands, 29 May 1986, Series A no. 99),
State intervention by means of a statute or delegated legislation has
not prevented the Court from finding the right in issue to have a
private, and hence civil, character. Proceedings which fall within
the sphere of “public law” in the domestic legal order
may come within the scope of Article 6 § 1 where their outcome
is decisive for civil rights and obligations.
- In
addition, in the Kök v. Turkey judgment (no. 1855/02, §
36, 19 October 2006), the Court found Article 6 to be applicable
to a dispute concerning the setting-aside of the authorities’
refusal to authorise the applicant to practise a medical
specialisation. It also found that, where a State confers rights
which can be enforced by means of a judicial remedy, these can, in
principle, be regarded as civil rights within the meaning of Article
6 § 1 (see, along the same lines, Tinnelly & Sons Ltd and
Others and McElduff and Others v. the United Kingdom, 10 July
1998, § 61, Reports of Judgments and Decisions 1998 IV).
- It
is important also to emphasise that Ms Araç was not affected
in her relations with the public authorities as such, acting in the
exercise of discretionary powers, but simply in her personal capacity
as the user of a public service. Hence, she was challenging the
regulations in force, which she considered prejudicial to her right
to continue her studies in a higher education establishment.
- Furthermore,
in its recent case-law the Court, leaving the door open for the
application of Article 6 to the right to education, has consistently
examined whether proceedings concerning the regulations on higher
education conform to the requirements of Article 6 § 1 (see, by
way of example, Mürsel Eren v. Turkey (dec.), no.
60856/00, 6 June 2002; D.H. and Others v. the Czech Republic
(dec.), no. 57325/00, 1 March 2005; and Tig v. Turkey (dec.),
no. 8165/03, 24 May 2005).
- Accordingly,
given the importance of the applicant’s right to continue her
higher education (as regards the key role and importance of the right
of access to higher education, see Leyla Şahin v. Turkey
[GC], no. 44774/98, § 136, ECHR 2005 XI), the
Court does not doubt that the limitation in question, imposed by the
regulations in issue, fell within the scope of the applicant’s
personal rights and was therefore civil in character.
- In
the light of the foregoing, and given that the lawfulness of
proceedings concerning a civil right was capable of being challenged
by means of a judicial remedy, of which the applicant made use, the
Court considers that a dispute (“contestation”)
concerning a “civil right” arose in the instant case and
was determined by the administrative court.
Article
6 § 1 is therefore applicable in the present case.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. The remainder
of the application must therefore be declared admissible.
B. Merits
- The
Court points out that it has previously considered a complaint
similar to that made by the applicant and found a violation of
Article 6 § 1 of the Convention because the applicant’s
right to adversarial proceedings before the Supreme Administrative
Court had been infringed, in view of the nature of the observations
of Principal State Counsel at the Supreme Administrative Court and
the inability of the applicant to respond to them in writing (see,
mutatis mutandis, Göç v. Turkey [GC], no.
36590/97, § 58, ECHR 2002 V; see also Meral v. Turkey,
no. 33446/02, §§ 32-39, 27 November 2007). Having
examined the present case it considers that the Government have not
adduced any convincing fact or argument capable of justifying a
different conclusion on this occasion.
- Accordingly,
there has been a violation of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 32,500 euros (EUR) for the pecuniary damage she had
allegedly sustained. She claimed to have sustained non-pecuniary
damage, but left the amount of compensation to the Court’s
discretion.
- The
Government contested the applicant’s claims.
- The
Court fails to discern any causal link between the violation found
and the non-pecuniary damage alleged; it therefore rejects this
claim. However, it considers that the applicant must have sustained
some non pecuniary damage, which has been sufficiently
compensated by the finding of a violation (see Meral, cited
above, § 58).
B. Costs and expenses
- The
applicant claimed a total of 4,426.60 pounds sterling (GBP) and
6,710.40 new Turkish liras (TRY) for fees and costs incurred in the
course of her application. Her claim comprised:
–
the fees of the lawyers from the Kurdish Human Rights Project:
K. Yıldız – GBP 712.50 (4 hours and 15 minutes’
work); L. Claridge – GBP 2,437.50 (16 hours and 45
minutes’ work) and H. Tuna – TRY 5,940 (13 hours and 30
minutes’ work);
–
translation costs: TRY 625.40 and GBP 1,228.60;
–
miscellaneous expenditure: GBP 48 and TRY 145.
- The
applicant furnished proof of payment in respect of the translation
costs and certain costs incurred in the proceedings before the
domestic courts. Her lawyers requested that the sums awarded under
that head be paid into their bank account in the United Kingdom.
- The
Government disputed the claim made by the applicant’s
representatives, which it considered excessive. They pointed out that
only expenses actually incurred could be reimbursed; the applicant or
her representatives must produce documents supporting any claim for
costs and expenses. Furthermore, lists or overall figures could not
be accepted as relevant or constitute proof of the alleged
expenditure, which had to be reasonable in amount and have been
necessary. All claims for expenses had to be supported by invoices
and each item of expenditure had to be substantiated by supporting
documents.
- The
Court reiterates that in order for costs to be included in an award
under Article 41 of the Convention, it must be established that they
were actually and necessarily incurred and reasonable as to quantum
(see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR
1999 II).
- In
the instant case, in view of the details supplied by the applicant,
the Court is not convinced that all the costs claimed by the lawyers
of the Kurdish Human Rights Project were necessarily incurred,
especially since no proof of payment of their fees was submitted.
Accordingly, taking into account the awards made previously in
comparable cases (see Meral, cited above, § 61) and the
work carried out in the proceedings before it, the Court awards the
applicant EUR 1,500.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of costs and expenses, to be
converted into Turkish liras at the rate applicable at the date of
settlement, plus any tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in French, and notified in writing on 23 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
