(Application no. 36458/02)
3 March 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Temel and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Section Deputy Registrar,
Having deliberated in private on 16 December 2008 and on 10 February 2009,
Delivers the following judgment, which was adopted on the latter date:
I. THE CIRCUMSTANCES OF THE CASE
“... When Article 42 of the Constitution concerning the right to instruction and education is considered together with the recent amendment to the Constitution, it must be held to provide a constitutional right to education in the language one knows the best: one's mother tongue...
... Unfortunately, for years, starting with the Kurds, peoples in Turkey were treated as if they did not exist and, owing to fears of secession, they were prevented from developing their languages and cultures...
As a student who believes that I am taking a step to assist the democratisation in Turkey, I request from the Chancellor of our University that Kurdish be taught in our University, under optional courses.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. PRELIMINARY REMARKS
II. ALLEGED VIOLATION OF ARTICLES 7, 9 AND 10 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 1
“No person shall be denied the right to education.”
1. The parties' submissions
2. The Court's assessment
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay each 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), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into new Turkish liras at the rate applicable at the date of settlement;
(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;
Done in English, and notified in writing on 3 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinion is annexed to this judgment:
Separate opinion of Judge Ireneu Cabral Barreto;
SEPARATE OPINION OF JUDGE CABRAL BARRETO
The Chamber decided to examine the applicants' complaints under Article 2 of Protocol No. 1.
I personally had a clear preference for examining the case under Article 10.
The sanctions in question manifestly interfered with the applicants' right to freedom of expression, and although the interference was prescribed by law, it was not at all necessary in a democratic society.
Accordingly, there was a clear violation of Article 10 of the Convention.
The applicants were suspended from university for two terms, except Mr Pulat, who was suspended for one term.
After serving their disciplinary sanctions, all the applicants resumed their studies.
We are a long way from situations where, as a result of disciplinary sanctions, people have been permanently refused access to education.
The case before us was more concerned with a restriction of the right to education (see paragraph 40 of the judgment); in my opinion, the very essence of the right in issue was not impaired.
It is true that, in reaching the finding of a violation, the judgment introduced the idea of proportionality, concluding that the sanctions were not reasonable or proportionate.
Although I could agree with this point in principle, I am not sure that Article 2 of Protocol No. 1 permits such reasoning.
Firstly, the wording of Article 2 of Protocol No. 1 does not contain any reference to restrictions; and, above all, the introduction of the notion of proportionality will, in my view, paradoxically weaken the right in question.
Assessing the proportionality of the sanction will make it possible, on the one hand, to accept a sanction which permanently denies a person access to education and, on the other, to find a violation in the case of a mere one-day suspension which was in itself disproportionate because, for example, the person concerned did not do anything.
Moreover, this approach requires the Court to set criteria in order to be able to speak of a violation based on the lack of proportionality between the individual's conduct and the sanction imposed; while that was not impossible, for the sake of caution I would have preferred the Grand Chamber to intervene.
Appendix to the judgment
List of applicants
İrfan TEMEL, born in 1981, lives in K. Maraş
Adnan ARICA, born in 1980, lives in İzmir
Hasan YILDIRIM, born in 1971, lives in Muğla
Atay ATMACA, born in 1980, lives in Ankara
Beşir AYLAK, born in 1972, lives in Diyarbakır
Hasan RAZİ, born in 1983, lives in K. Maraş
Şahturna AKTÜRK, born in 1980, lives in Tekirdağ
Şehmus ÇİÇEK, born in 1978, lives in Adana
Ercan SAYGIN, born in 1981, lives in Aydın
Nuran DUMAN (ÇELEBİ), born in 1977, lives in Adana
Cihan PÜLAT, born in 1979, lives in İzmir
Mehmet SEVER, born in 1979, lives in Diyarbakır
Hamit ÇİFTÇİ, born in 1982, lives in Istanbul
Mustafa KAYA, born in 1982, lives in Aydın
Yunus GÜNEŞ, born in 1980, lives in Kars
Arafat ERTUNÇ, born in 1979, lives in Hakkari
Mehmet Emin AKKÖPRÜ, born in 1978, lives in Konya
Hasan KARAL, born in 1980, lives in Ş. Urfa
1 Listed in the appendix to this document.
1 The Kurdistan Workers’ Party, an illegal armed organisation.