PROCEDURE

The case originated in eight applications (nos. 50124/07, 53082/07, 53865/07, 399/08, 776/08, 1931/08, 2213/08 and 2953/08) 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 eight Turkish nationals, Mr Mehmet Halit Çölgeçen, Mr Mürsel Bek, Mr Übeyt Salim, Mr Yavuz Uçak, Mr Mustafa Çalışkan, Mr Münür Ay, Ms Ruken Buket Işık and Mr Ali Turğay (“the applicants”), on 7 November 2007 (the first applicant), 23 November 2007 (the second and third applicants), 25 December 2007 (the fourth, fifth, sixth and eighth applicants) and 26 December 2007 (the seventh applicant).

The applicants were represented by Mr Okan Yıldız and Mr Fırat Aydınkaya, lawyers practising in Istanbul, except for Mr Mürsel Bek, Mr Yavuz Uçak and Mr Mustafa Çalışkan, who were represented only by Mr Okan Yıldız. The Turkish Government (“the Government”) were represented by their Agent.

On 25 January 2011 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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.

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.

Around the same time similar petitions were submitted by students studying at various universities in Turkey.

Upon receipt of these petitions a disciplinary investigation was initiated by the University into the applicants’ actions.

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).

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.

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.

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.

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 re‑enrolled on 23 July 2002 and he was allowed to sit his exams, upon his request, in the 2002-2003 spring midterm period.

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.

The University unsuccessfully challenged these decisions before the Supreme Administrative Court.

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 non‑pecuniary damages.

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.

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.

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).

II. DOMESTIC LAW AND PRACTICE

A. Constitution

Article 42 of the Turkish Constitution provides that no one shall be denied the right to education or to instruction. Its last paragraph reads: “No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law. The provisions of international treaties are reserved”.

Article 74 of the Turkish Constitution reads, in so far as relevant, as follows: “Citizens and foreigners resident in Turkey, with the condition of observing the principle of reciprocity, have the right to apply in writing to the competent authorities and to the Grand National Assembly of Turkey with regard to requests and complaints concerning themselves or the public ...”

B. Disciplinary Regulations of Higher Education Institutions

At the material time, regulation 9(d) of the Disciplinary Regulations of Higher Education Institutions provided that a person who engaged in activities which gave rise to polarisation on the basis of language, race, religion or denomination was to be suspended from the institution in question for either half or a whole semester.

At the material time, regulation 10(e) provided that a person who was a member of an illegal organisation, who engaged in actions on behalf of or who helped such an organisation, would be expelled from the higher education institution.

C. Administrative Procedure Act

Persons who have sustained damage as a result of an administrative act may also lodge an application with the superior authority of the relevant administrative body and request the annulment, withdrawal or alteration of the impugned act (section 11 of the Administrative Procedure Act). The administrative authorities’ failure to reply within sixty days is considered to be a tacit refusal of that request (section 10 of the Administrative Procedure Act). The persons concerned may then bring an action before the administrative courts requesting the annulment of the administrative act and compensation for the damage they have sustained (section 12 of the Administrative Procedure Act).

Under Section 13 of the Administrative Procedure Act (Law no. 2577 of 6 January 1982), those who have suffered damage on account of a wrongful act by the administration may bring compensation proceedings against the latter within a year from the date on which they learned of the impugned act and, in any event, within five years from the commission of that act. The proceedings before the administrative courts are in writing.

Article 27 § 2 of the Administrative Procedure Act stipulates that the Supreme Administrative Court or a lower administrative court may decide to stay the execution of an administrative act if its implementation would result in damage which would be difficult or impossible to compensate, and if this act is clearly unlawful.

D. Teaching of Kurdish language

At the time of the events in question domestic law did not provide for the teaching of the Kurdish language at any levels of education in public or private institutions. On 2 August 2002 the Law on Foreign Language Education and Teaching (Law no. 2923 of 14 October 1983) was amended by Law no. 4771 with a view to regulating the principles of education and training of citizens of Turkey in the different languages and dialects traditionally used in daily life. The title of the law in question was changed to “The Law on Foreign Language Education and Teaching and the Learning of Turkish Citizens’ Different Languages and Dialects”.

On 30 July 2003 an amendment was made to the second sentence of section 2 (a) of Law no. 2923 with a view to enabling the opening of private courses for the teaching of the different languages and dialects used by citizens of Turkey. This provision was further amended on 2 March 2014 by Law no. 6529 with a view to facilitating the opening of private schools to provide for education and training in a language or dialect traditionally used in daily life by citizens of Turkey.

By decisions dated 25 June 2012, 7 September 2012 and 23 January 2014, the Board of Education and Training of the Ministry of Education added “living languages and dialects (Kurdish language)” to the weekly timetable of primary and secondary schools as an elective course.

On 5 July 2014 the Regulation on Foreign Language Education and Training issued by the Ministry of Education was amended so as to provide for the possibility of education and training in a language or dialect that is traditionally used by citizens of Turkey in their daily lives in private schools.

According to the information provided by the Government, graduate and postgraduate education in the field of Kurdish language and literature is available at tertiary level in six Universities, namely Batman University, Bingol University, Mardin Artuklu University, Muş Alpaslan University, Siirt University and 100. Yıl University.