THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60856/00 
by Mürsel EREN 
against Turkey

The European Court of Human Rights (Third Section), sitting on 6 June 2002 as a Chamber composed of

Mr G. Ress, President
 Mr L. Caflisch
 Mr P. Kūris
 Mr R. Türmen
 Mr J. Hedigan
 Mrs M. Tsatsa-Nikolovska
 Mrs H.S. Greve, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged with the European Court of Human Rights on 26 June 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mürsel Eren, is a Turkish national, born in 1972 and living in Ankara. He is represented before the Court by Mr Tahir Elçi and Mr Sabahattin Acar, lawyers practising in Diyarbakır.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant graduated from Diyarbakır’s Atatürk Lycée (High School) in 1993. The requirement to attend a university degree course in Turkey at the time was to pass a two-tier examination, organised by the Higher Education Council’s Centre for the Selection and Placement of Students (Yükseköğretim Kurulu Öğrenci Seçme ve Yerleştirme Merkezi, hereinafter “ÖSYM”), which is held only once a year.

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.

The applicant attended a private university examination preparation course in Ankara in order to prepare for the 1997 examinations. He submits that during this course he studied very hard and was on occasions able to get the highest marks in his class in mock examinations.

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 was 105 points. After the second examination the applicant believed that he was successful and that he would obtain sufficient points to qualify him 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 in the list of successful students who were allowed to register at a university. When he contacted ÖSYM he was informed that he had obtained 493 points in his second examination. By letter of 11 August 1997 the applicant asked ÖSYM for an explanation as to why he was not allowed to go to university despite the fact that the result he had obtained should have enabled him to go to the university of his choice.

ÖSYM, in its reply of 12 August 1997, informed the applicant that he had obtained one of the highest results amongst 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 ÖSYM contained no indication that it suspected the applicant of foul play.

On 27 August 1997 the applicant, through the assistance of a lawyer, applied to the Supreme Administrative Court and requested that the decision of 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.

According to the judge rapporteur of the Supreme Administrative Court appointed in this case, the decision of ÖSYM was based on pure suppositions and should be annulled as it was devoid of any legal basis. However, on 10 October 1997 the Eight Chamber of the Supreme Administrative Court, by a majority of three to two, rejected the application to annul the decision of ÖSYM, finding that it was unexplainable for a student who had obtained very poor results in his previous exams to be very successful in his subsequent examinations. The minority argued in their dissenting opinion that the authorities had a duty to organise the examinations properly and that it was the authorities’ duty to prove, with adequate evidence, if there had been any impropriety such as cheating.

The applicant’s appeal against the decision which was lodged on 30 October 1997 was rejected by a majority of ten to five on 28 November 1997 by the Supreme Administrative Court’s General Council of the Administrative Chambers.

On an unspecified date the applicant asked, in a further application submitted to the Eight Chamber of the Supreme Administrative Court, for the decision of ÖSYM be annulled. On 5 November 1998 this request was rejected by the same court after it had examined the case on its merits, by a majority of four to one.

On 30 December 1998 the applicant appealed against this decision and sought an injunction suspending the decision of ÖSYM while the appeal was being examined.

On 29 January 1999 the Supreme Administrative Court’s General Council of the Administrative Chambers began examining the applicant’s request for an injunction but decided to postpone its examination until after the appeal was concluded.

The appeal against the decision of 5 November 1998 was rejected on 15 March 1999 by the Supreme Administrative Court’s General Council of the Administrative Chambers, by a majority of eight to seven.

On 8 June 1999 the applicant asked for a rectification of the decision of 5 November 1998, which is a final remedy in Turkish law in administrative matters.

On 19 November 1999 the application for the rectification of the decision was rejected by the Supreme Administrative Court’s General Council of the Administrative Chambers. This decision was taken by a majority of eight to seven and was served on the applicant on 30 December 1999.

The applicant’s applications and appeals which are set out above were all rejected on the very same ground, i.e. that the applicant had not been a very successful student during his high school studies and that in the light of his previous exam results, the success of the applicant in the 1997 examination could only be described as fortuitous.

B.  Relevant domestic law and practice

According to Article 10 of the Higher Education Law of 1981 (Law No. 2547) the 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 who are to be admitted to institutions of higher education, prepares tests, administers them, evaluates the results and, having regard to preferences expressed by candidate students, effects their placement in universities and other higher educational institutions.

Article 45 of the Higher Education Law of 1981 (Law No. 2547) provides, in so far as relevant, as follows:

“Students are placed at higher education institutions by passing an examination of which principles are determined by the Higher Education Council. The evaluation of the exam results take into account the student’s secondary school grade-point average...”

COMPLAINTS

The applicant complains under Article 2 of Protocol No. 1 that his right to education was arbitrarily denied. He further complains under Article 6 § 1 of the Convention, without elaborating in what respect, that his right to a fair hearing was breached because the proceedings before the administrative courts were not conducted fairly. He finally complains under Article 6 § 1 of the Convention that the proceedings before the administrative courts, which lasted 27 months, were not concluded within a reasonable time.

THE LAW

1.  The applicant complains that the decision of the ÖSYM to annul his exam results had no legal basis and arbitrarily denied him his right to education under Article 2 of Protocol No. 1.

Article 2 of the Protocol No. 1 provides as relevant:

“No person shall be denied the right to education. ...”

a) Exhaustion of domestic remedies

The Government argue that the applicant has not exhausted domestic remedies as he failed to raise before the national courts, even in substance, the complaints relating to the alleged violation of article 2 of Protocol No. 1. They submit that neither the applicant nor his legal representatives had alleged at any stage of the proceedings explicitly or implicitly any infringement whatsoever of the rights enshrined in the Convention which they allege that had been violated. In this respect they refer to the Court’s judgment in the case of Ahmet Sadık v. Greece (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V).

The applicant argues in reply that the very essence of his applications to the administrative courts concerned his right to education in that he sought to overturn the decision annulling his exam results, which, in the applicant’s opinion, was arbitrary and clearly lacked any legal basis. He further argues that it is sufficient that the essence of his right was brought to the attention of the domestic courts, which it was, and that it did not have to be invoked in a particular form.

The Court reiterates that the purpose of the requirement that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right –normally through the courts– the violations alleged against them before those allegations are submitted to the Court. This means that the complaint which is intended to be brought before the Court must first be raised, either in form or in substance, before the appropriate national courts (see, inter alia, the Akdıvar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-66).

The Court notes in this context that in the first petition submitted to the Supreme Administrative Court on 27 August 1997 the applicant’s legal representative stated that “[the decision to annul his exam results] will deprive him of his right to university education which he deserved in the academic year of 1997-1998”. Although it appears that the applicant did not explicitly refer to Article 2 of Protocol No. 1, the Court considers that the substance of the applicant’s submission to the Supreme Administrative Court did in fact concern the right to education and, therefore, finds that the applicant can be regarded as having raised this complaint in substance in the proceedings before the national courts.

The Court is therefore of the opinion that the applicant has complied with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention.

b) Merits

The Government, referring to the Belgian Linguistics case (judgment of 23 July 1968, Series A no. 6, p. 31, § 4,), confirm that the right to education within the meaning of Article 2 of Protocol No. 1 comprises the right to avail oneself of the means of instruction existing at a given time and this right also refers to all levels of education. According to the Government, the scope of the right to education may vary from one country to another and is subject to developments. If a new branch or a new type of education is introduced, persons in that country have a right of access to it, provided that they satisfy the conditions of entry.

The Government submit that ÖSYM, as empowered to do by legislation, took into account the applicant’s previous academic performance when evaluating his exam results in 1997. They argue that the applicant, who was not a successful student during his secondary school education, failed to pass the university entrance examinations between 1994 and 1996. According to the Government, ÖSYM exercised its discretion to deny the applicant access to university education with the aim of fair placement of students at universities. They conclude that the applicant failed to satisfy the conditions of entry to higher education established by ÖSYM and that therefore he has no right to enter university.

The applicant submits in reply that the decision of ÖSYM, which was based on the recommendation of an academic council consisting of three professors, was devoid of any legal basis. He further argues that he did satisfy the university entrance conditions as he successfully passed the examination without there being any question of foul play but that these issues were not taken into account by the administrative courts.

The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this complaint is not manifestly ill-founded, within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

2.  The applicant further complains under Article 6 § 1 of the Convention that his right to a fair hearing was breached because the proceedings before the administrative courts were not concluded within a reasonable time and that the proceedings before these courts were not conducted fairly.

Article 6 § 1, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ...”

The Government submit that Article 6 § 1 does not apply to these proceedings as they did not involve the determination of the applicant’s civil rights. According to the Government, there were no pecuniary interests at stake in these proceedings. In the alternative, the Government submit that the proceedings were not unfair.

The Government refer to the case of Doorson v. the Netherlands in which the Court held that the admissibility of evidence was primarily a matter for regulation by national law and as a general rule it was for the national courts to assess the evidence before them. The Court’s task under the Convention was not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (judgment of 26 March 1996, Reports 1996-II , p.470, § 67). The Government finally submit that the administrative proceedings were conducted in a fair manner.

The applicant maintains that the decisions of the administrative courts were unjust and lacked any legal basis as these courts based their decisions solely on the academic council’s decision annulling his exam results. These proceedings were not, therefore, fair within the meaning of Article 6 § 1 of the Convention.

Even assuming that Article 6 § 1 applies to the proceedings at issue, the Court notes that the applicant has not elaborated in what respect these proceedings lacked fairness other than stating that the administrative courts based their decisions solely on the academic council’s decision annulling his exam results. The Court observes in this context that the applicant was represented by counsel, who is a professor of law, throughout the domestic proceedings and that he was given adequate opportunity to present his arguments to the domestic courts. These courts gave reasons for their decisions which the applicant was subsequently able to challenge on appeal. The Court finds, therefore, that no issue arises as to the fairness of these proceedings.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Articles 35 § 3 of the Convention.

As to the applicant’s complaint under Article 6 § 1 concerning the length of the administrative proceedings, the Government submit that these proceedings were not unreasonably long. According to the Government, the dispute was handled with as much diligence as possible in view of what was at stake for the applicant.

The Government finally submit that the period during which the applicant’s application for the rectification of the decision was examined, cannot be taken into consideration as this particular avenue of appeal was an extraordinary legal remedy. Therefore, the period to be taken into consideration should be 19 rather than 27 months.

The applicant, for his part, maintains that the proceedings, which were not very complex, lasted for 27 months and that this period was unreasonably long.

Even assuming, once again, that Article 6 applies to the proceedings at issue, the Court does not deem it necessary to examine in detail the exact length of the proceedings since, even if they lasted for 27 months as maintained by the applicant, this complaint is in any event manifestly ill-founded. It observes in this context that during the 27 months the administrative courts examined the case at six instances, four of which were at appeal level. The average period that elapsed between the time of the applicant’s introducing an application or an appeal and the court’s rendering its decision was around six weeks. The Court does not find that this period was unreasonably long.

It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Articles 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the denial of the right to education;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress 
 Registrar President

EREN v. TURKEY DECISION


EREN v. TURKEY DECISION