CASE OF KULA v. TURKEY

1. The case originated in an application (no. 20233/06) 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, Mr Onur Bilge Kula (“the applicant”), on 24 April 2006.
2. The applicant was represented by Mr F. Sarıaslan, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant complained, in particular, of a breach of his right to freedom of expression on account of the disciplinary sanction imposed on him for taking part in a television programme outside his city of residence.
4. On 21 October 2009 the Government were given notice of the application.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1954 and lives in Ankara. At the relevant time he was a professor of translation in the Faculty of Science and Literature of the University of Mersin (“the faculty ”). He specialised in the German language.
6. On an unspecified date the applicant was invited to Istanbul to take part in a television programme that was due to be broadcast live on a public channel on Saturday 31 March 2001. The programme consisted of a debate on the topic of “The cultural structure of the European Union and the traditional structure of Turkey – Comparing identities and modes of behaviour – Likely problems and suggested solutions”.
7. On 27 March 2001 the applicant informed the director of the translation course that he had been invited to take part in the above-mentioned programme.
8. On the same day the course director wrote to the dean of the faculty informing him that the applicant had been invited to take part in a television programme. In his letter he also expressed doubts as to whether there was a link between the applicant ’ s specialist field and the subject of the programme and whether the applicant ’ s invitation to take part in a personal capacity was in keeping with the university ’ s principles.
9. On 30 March 2001 the dean of the faculty informed the director of the translation course that it had been decided that the applicant ’ s participation in the programme in question was not appropriate. The applicant was informed of the dean ’ s decision the same day.
10. On 31 March 2001 the applicant nevertheless took part in the programme in Istanbul.
11. In letters dated 2 and 5 April 2001 to the dean of the faculty, the applicant asked why his participation in the broadcast of 31 March 2001 had not been considered appropriate in spite of his past work on the subject covered by the programme. He added that it would have harmed his professional standing and reputation for reliability if he had withdrawn from the programme at short notice when he had already agreed to take part. He also maintained that he had been entitled to take part in the event, citing his academic freedom in that regard.
12. In a letter to the applicant dated 9 April 2001 the dean of the faculty replied that the applicant had not been entitled to take part in the event without the authorities ’ permission. He added that the director of the translation course had expressed misgivings as to whether the applicant was sufficiently familiar with the topic of the programme of 31 March 2001, and that the view of the course director had been taken into account in the decision to refuse authorisation.
13. On Saturday 14 April 2001 the applicant took part in another programme in the same series, following an international conference held in Istanbul from 11 to 13 April 2001 which the dean of the faculty had authorised him to attend.
14. On 27 April 2001 a disciplinary inquiry was opened concerning the applicant on the grounds that he had twice taken part in the programme in Istanbul without the university ’ s authorisation.
15. On 26 June 2001 the commission of inquiry published its report. It noted at the outset that the applicant had been authorised to take part in events outside his city of residence on twelve occasions during the 2000/01 academic year, but that his request for authorisation concerning the programme of 31 March 2001 had been refused in view of the opinion of the course director, who considered that the topic of the programme was not directly linked to the applicant ’ s specialist field. As to the applicant ’ s participation in the broadcast of 14 April 2001, the commission noted that the dean of the faculty had authorised the applicant to attend an academic gathering to be held from 11 to 13 April 2001 in Istanbul, and that this authorisation had not covered 14 April 2001. The commission considered in that regard that not even research professors should take part in programmes of this type without supervision or authorisation, and that universities had to uphold academic ethics. It went on to find that the applicant ’ s participation in two television programmes in Istanbul on 31 March and 14 April 2001, without authorisation from his university, amounted to leaving his city of residence without authorisation, an offence punishable under regulation 8 ( g ) of the disciplinary regulations for managers, lecturers and officials in higher education institutions (“the disciplinary regulations ”). It therefore proposed, by way of a penalty, that the applicant ’ s salary be reduced by one- eighth, under regulation 4 ( d ) of the above-mentioned regulations.
16. On 2 July 2001 the dean of the faculty decided to reduce the applicant ’ s salary by one -eighth for leaving his city of residence without authorisation, an offence punishable under regulation 8 ( g ) of the disciplinary regulations.
17. On 20 July 2001 the applicant applied to the University Vice ‑ Chancellor for reconsideration of that decision and requested that the sanction be lifted.
18. On 8 August 2001 the Vice-Chancellor decided to lift the sanction of a reduction in salary and to impose a less severe penalty on the applicant, in the form of a reprimand under regulation 16 of the disciplinary regulations.
19. On 25 October 2001 the applicant applied for judicial review of that decision. He referred to his academic freedom, which he claimed was provided for in the Constitution, as justification for his participation in the television programme in question, pointing out that the programme had been broadcast on a public-service channel. He also argued that regulation 8 ( g ) of the disciplinary regulations was liable to be wrongfully applied by managers and that the perimeter of a city no longer had the same significance in view of modern means of transport and communication. Lastly, he argued that the programme of 14 April 2001 had been a follow-up to the conference of 11 to 13 April 2001, which he had been authorised to attend, and that the people invited to appear on the programme had been participants in the conference.
20. On 29 May 2002 the Adana Administrative Court (“the Administrative Court”) dismissed the applicant ’ s application, finding that the decision to penalise him had not been unlawful. The court noted in that regard that it was beyond dispute that, on 31 March 2001, the applicant had left his city of residence despite the refusal of his request to take part in the television programme in question. The court considered that the applicant ’ s remaining arguments gave no reason to suppose that the decision to impose a sanction had been defective.
21. On 8 August 2002 the applicant lodged an appeal on points of law. He complained, in particular, that the Administrative Court ’ s examination of his claims had been inadequate.
22. On 31 October 2005 the Supreme Administrative Court dismissed the appeal and upheld the Administrative Court ’ s judgment. It found that the reasoning of the decision had been in conformity with the procedure and the law and that there were no grounds for quashing the decision.
II. RELEVANT DOMESTIC LAW AND RECOMMENDATION OF THE PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPE
A. Additional section 20 of the Civil Servants Act (Law no. 657)
23. Additional section 20 of the Civil Servants Act (Law no. 657 of 14 July 1965), entitled “Residence requirement” read as follows, prior to its repeal by Law no. 6111 of 13 February 2011:
Civil servants may not leave the perimeter of their town or city of residence on non-working days without the authorisation of their supervisors .”
B. Section 7 of the Administrative Dispute Proceedings Act (Law no. 2577)
24. Section 7 of the Administrative Dispute Proceedings Act ( Law no. 2577 of 6 January 1982 ), entitled “Time-limits for bringing actions ”, reads as follows :
4. ... Where a [regulatory] act is applied, the persons concerned may lodge an appeal against the regulatory act, the individual decision taken, or both. The fact that the regulatory act is not set aside shall not prevent the setting-aside of the individual decision [adopted on the basis of that act].”
C. Regulation 4 of the disciplinary regulations for managers, lecturers and officials in higher education institutions
25. Regulation 4 of the disciplinary regulations for managers, lecturers and officials in higher education institutions, published in the Official Gazette on 21 August 1982, reads as follows:
Regulation 4. The following disciplinary sanctions shall apply :
( b) Reprimand : written notification of professional or personal misconduct;
( d) Reduction in salary : reduction in gross salary of between one-thirtieth and one-eighth;
26. Regulation 8 ( g ) of the same regulations, prior to its repeal on 29 January 2014, read as follows :
Regulation 8. The following acts and situations shall give rise to a reduction in salary:
(g) leaving the perimeter of one ’ s city or town of residence without authorisation.”
27. Regulation 16 reads as follows :
“ [ Where it is decided to ] impose a sanction on a manager, lecturer or official ... who [has provided good] service and had a good or very good [appraisal] in the past, a less severe sanction may be applied.”
D. Recommendation 1762 (2006) of the Parliamentary Assembly of the Council of Europe : “Academic freedom and university autonomy”
28. The relevant parts of Recommendation 1762 (2006) of the Parliamentary Assembly of the Council of Europe on protecting academic freedom of expression read as follows:
4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:
4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;
4.2. the institutional autonomy of universities should be a manifestation of an independent commitment to the traditional and still essential cultural and social mission of the university, in terms of intellectually beneficial policy, good governance and efficient management;
4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation;
6. With the advent of the knowledge society, it has become obvious that a new contract has to be reached between university and society to reflect and recognise new developments. In such an understanding, the social and cultural responsibility and accountability of universities to the public and to their mission are to be considered as the unavoidable other side of academic liberties.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
29. Relying on Articles 9 and 10 of the Convention, the applicant alleged that the reprimand issued to him for taking part in a television programme outside his city of residence infringed his freedom of thought and expression and, in particular, his academic freedom. Without relying on any Article of the Convention, the applicant further submitted that the sanction in question had breached the principle of respect for his private life, since a large number of his relationships with the outside world were formed in a professional context.
30. The Court considers that, in view of the manner in which the applicant ’ s complaints are framed, the main issue which they raise is the interference with his right as an academic to freedom of expression. Since it is master of the characterisation to be given in law to the facts of the case, it therefore considers that the applicant ’ s complaints should be examined from the standpoint of Article 10 of the Convention alone. Article 10 provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
32. The applicant contended that the sanction imposed on him had infringed his academic freedom, which in his view was inseparable from his freedom of expression.
33. The Government submitted that in the instant case the authorities had given the applicant permission on twelve occasions to take part in events outside his city of residence. The applicant ’ s request for authorisation concerning the broadcast of 31 March 2001 had been refused owing to the lack of a link between his specialist field and the subject of the broadcast. A disciplinary inquiry had been instituted concerning the applicant following his participation in a second programme in the series on 14 April 2001, for which he had not even sought authorisation.
34. The Government alleged that the disciplinary sanction had been imposed on the applicant because he had left his city of residence without the authorities ’ permission. The sanction was not connected to the applicant ’ s views or any remarks he might have made during the programme in question, or to his freedom of expression. The applicant could have conveyed the opinions which he had expressed during the programme through an article or a statement.
35. The Government further contended that the requirement for civil servants to obtain authorisation from their supervisors before leaving their city of residence was designed to ensure the smooth functioning of the public service; in practice, it was a purely formal requirement. Civil servants had duties and responsibilities and the applicant, on entering the public service, had accepted the statutory provisions concerning civil servants.
( a) Whether there was interference
36. The Court notes that in the instant case a disciplinary sanction, in the form of a reprimand, was imposed on the applicant for leaving the perimeter of his city of residence without the authorisation of his supervisors. It observes that he left his city of residence in order to take part in a television programme to which he had been invited. He requested authorisation from his supervisors to participate in the programme of 31 March 2001, and the dean of the faculty refused his request after receiving the opinion of the director of the translation course, according to which the subject of the programme did not correspond to the applicant ’ s specialist field (see paragraphs 8, 9 and 12 above). The Court notes that, with regard to his participation in the programme of 14 April 2001, the applicant alleged that the programme in question had been a follow-up to an academic gathering held in Istanbul from 11 to 13 April 2001, which he had attended with his supervisors ’ approval (see paragraph 19 above). It also notes that the report of the commission in charge of the disciplinary inquiry concerning the applicant, in addressing the issue of the refusal of the applicant ’ s request for authorisation regarding the broadcast of 31 March 2001, referred to the opinion of the course director and also stressed the need to supervise the participation of research lecturers in programmes of that type (see paragraph 15 above).
37. In view of the foregoing considerations the Court observes that, although the authorities imposed a sanction on the applicant for leaving his city of residence without his mangers ’ authorisation, the sanction in question actually stemmed from his participation in a television programme that had not been approved by his supervisors. It is clear from the decisions of the university authorities that the sanction imposed arose essentially from the original refusal by the dean of the faculty of the applicant ’ s request for authorisation to take part in the programme of 31 March 2001. The request which the applicant submitted to his supervisors did not concern authorisation to leave his city of residence, but rather authorisation to take part in the television programme, which was taking place in a different city. Furthermore, the authorities considered the applicant ’ s request for authorisation from the angle of his participation in the broadcast in question rather than the angle of his leaving his city of residence. The Court notes in that connection that the applicant ’ s request for authorisation to participate in the programme of 31 March 2001 was refused because his supervisors considered his participation to be inappropriate. It also observes that, in the context of the disciplinary inquiry against the applicant, the authorities appear to have considered whether his participation in the broadcasts of 31 March and 14 April 2001 had been appropriate.
38. Reiterating that Article 10 of the Convention also protects the form in which ideas are conveyed ( see Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III), the Court considers that the present application relates essentially to the exercise by the applicant of his right to freely express his views as an academic during a television programme organised outside his city of residence. In the Court ’ s view, this issue unquestionably concerns his academic freedom, which should guarantee freedom of expression and of action, freedom to disseminate information and freedom to “conduct research and distribute knowledge and truth without restriction” ( see Sorguç v. Turkey, no. 17089/03, § 35, 23 June 2009, and Lombardi Vallauri v. Italy, no. 39128/05, § 43, 20 October 2009; see also Recommendation 1762 (2006) of the Parliamentary Assembly of the Council of Europe (paragraph 28 above ).
39. The Court thus considers that, however minimal the sanction (a reprimand) imposed on the applicant for taking part in a television programme outside his city of residence without the authorisation of his supervisors, it was liable to have an impact on the exercise of his freedom of expression and even to have a chilling effect in that regard.
40. Consequently, it considers that the impugned measure amounted to interference with the applicant ’ s right to freedom of expression.
( b) Whether the interference was justified
41. Such interference will constitute a violation of Article 10 of the Convention unless it is “ prescribed by law ”, pursues one or more legitimate aims for the purposes of Article 10 § 2 and can be regarded as “ necessary in a democratic society ”.
42. The Court observes that it is common ground between the parties that the interference complained of was prescribed by law, namely by regulations 8 ( g ) and 16 of the disciplinary regulations for managers, lecturers and officials in higher education institutions (see paragraphs 26 and 27 above).
43. The Court notes that the Government did not specify the legitimate aim pursued by the impugned measure. It considers that a regulatory provision concerning unauthorised travel by civil servants outside the perimeter of their city of residence could pursue the legitimate aim of preventing disorder. Nevertheless, in view of its conclusion as to the necessity of the interference (see paragraph 52 below), the Court considers it unnecessary to address this issue.
( iii) “Necessary in a democratic society”
44. The Court refers to the principles arising out of its case-law on freedom of expression as summarised, in particular, in its judgment in Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016).
45. It reiterates in particular that its task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “ proportionate to the legitimate aim pursued ” and whether the reasons adduced by the national authorities to justify it are “ relevant and sufficient ”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ( see Bédat, cited above, § 48).
46. The Court further reiterates that the fairness of proceedings and the procedural guarantees afforded to the applicant are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10 ( see Baka v. Hungary [GC], no. 20261/12, § 161, 23 June 2016, and the case-law cited therein ). The Court has already found that the absence of an effective judicial review may support the finding of a violation of Article 10 (see, in particular, Lombardi Vallauri, cited above, §§ 45 ‑ 56; see also, with regard to academic freedom, Mustafa Erdoğan and Others v. Turkey, nos. 346/04 and 39779/04, § 40, 2 7 May 2014 ). As it has found previously in the context of Article 10, “the quality of the ... judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation” ( see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)).
( β) Application of these principles in the present case
47. The Court observes that the present case concerns not only an ex post facto disciplinary sanction imposed on the applicant for unauthorised participation in a television programme outside his city of residence, but also a prior restriction in the form of a refusal of authorisation to take part in the programme of 31 March 2001, which gave rise to that sanction. It reiterates that, in the sphere of freedom of expression, the Contracting States ’ margin of appreciation goes hand in hand with European supervision, which must be particularly strict because of the importance – frequently stressed by the Court – of the freedom in question. The necessity for any restriction must therefore be convincingly established ( see Informationsverein Lentia and Others v. Austria, 24 November 1993, § 35, Series A no. 276; Radio ABC v. Austria, 20 October 1997, § 30, Reports of Judgments and Decisions 1997-VI; Lombardi Vallauri, cited above, § 45; and Nur Radyo ve Televizyon Yayıncılığı A.Ş. v. Turkey ( no. 2), no. 42284/05, § 48, 12 October 2010 ).
48. The Court observes that in the present case the authorities, in refusing the applicant ’ s request to take part in the programme of 31 March 2001, did not explain to him with sufficient clarity why his participation in the programme was considered inappropriate. Furthermore, no reason was given for the decision to impose a penalty beyond a mere reference to the relevant statutory provision. The Court notes in that regard that the decision taken by the dean of the faculty on 30 March 2001 refusing the applicant permission to take part in the programme of 31 March 2001 did not give any reasons (see paragraph 9 above), and that the dean ’ s letter to the applicant dated 9 April 2001 merely cited, as a reason for the refusal, the doubts expressed by the director of the translation course as to whether the applicant was sufficiently familiar with the subject of the programme (see paragraph 12 above). It also notes that the dean ’ s decision of 2 July 2001 imposing a disciplinary sanction on the applicant for leaving the perimeter of his city of residence without authorisation was based solely on regulation 8 ( g ) of the disciplinary regulations and gave no further details as to the reasons for the sanction (see paragraph 16 above). In these decisions, it was not claimed, for instance, that the applicant ’ s unauthorised departure had disrupted the continuity of the public service in the university, or that he had neglected his duties in order to take part in the television programme in question; likewise, it was not alleged that, in taking part in the programme, he had acted or spoken in a manner detrimental to the university ’ s reputation. The Court reiterates in that regard that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention ( see Golder v. the United Kingdom, 21 February 1975, § 34, Series A no. 18; Amuur v. France, 25 June 1996, § 50, Reports 1996 ‑ III; and Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II). The rule of law implies, inter alia, that there must be a measure of legal protection in domestic law against arbitrary interference by public authorities with the rights safeguarded by the Convention (see, among other authorities, Klass and Others v. Germany, 6 September 1978, § 55, Series A no. 28; Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82; and Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 156, 17 May 2016 ).
49. The Court observes in that connection that, in the present case, it was for the national courts to assess whether the reasons advanced by the domestic authorities to justify the disciplinary sanction imposed on the applicant were “relevant and sufficient” in the circumstances of the case. It therefore considers that, in order to assess whether the necessity of the impugned sanction was established convincingly in the present case, it should focus mainly on the reasons given by the national courts in examining the applicant ’ s application for judicial review of the sanction ( see Güzel Erdagöz v. Turkey, no. 37483/02, § 50, 21 October 2008; Sapan v. Turkey, no. 44102/04, § 37, 8 June 2010; Kaos GL v. Turkey, no. 4982/07, § 57, 22 November 2016; and Saygılı and Karataş v. Turkey, no. 6875/05, § 34, 16 January 2018).
50. Having examined the domestic courts ’ decisions in the present case, the Court notes that it is not possible to determine on that basis whether the sanction imposed on the applicant was necessary in order to achieve the legitimate aim pursued by the authorities. In its judgment, the Administrative Court confined itself to ascertaining the facts concerning the applicant ’ s unauthorised departure from his city of residence, and there is nothing to suggest that it took the trouble to examine the necessity of that sanction in the circumstances of the case in the light of the academic freedom on which the applicant expressly relied before it. Both the Administrative Court and the Supreme Administrative Court, which upheld the first-instance judgment, should have conducted a broader assessment going beyond a mere review of formal compliance with regulation 8 ( g ) of the disciplinary regulations, as would have been possible under section 7(4) of Law no. 2577 (see paragraph 24 above).
51. Hence, the decisions given by the domestic courts in the present case did not explain how they fulfilled, on the one hand, their duty to balance the competing interests in the case and, on the other, their obligation to prevent any wrongdoing by the authorities. The same omissions also prevent the Court from effectively exercising its European scrutiny as to whether the domestic authorities implemented the standards established in its case-law on the balancing of competing interests.
52. Accordingly, given their failure to give relevant and sufficient reasons to justify the impugned interference, the Court considers that the domestic courts cannot be said to have applied standards which were in conformity with the procedural principles embodied in Article 10 of the Convention or to have based their decisions on an acceptable assessment of the relevant facts ( see Terentyev v. Russia, no. 25147/09, § 24, 26 January 2017, and the case-law cited therein, and Saygılı and Karataş, cited above, § 43; see also Annen v. Germany, no. 3690/10, § 73, 26 November 2015).
53. These considerations are sufficient for the Court to conclude that, in the circumstances of the present case, there has been a violation of Article 10 of the Convention.
54. Relying on Article 6 of the Convention, the applicant alleged that the sanction imposed on him had breached his civil rights.
55. He also maintained that the sanction had been an arbitrary punishment and hence constituted a violation of Article 7 of the Convention.
56. Relying on Article 13 of the Convention, he complained that the domestic remedies had been ineffective.
57. Under Article 14 of the Convention, he also alleged that he had been discriminated against.
58. The Court notes that the applicant simply made these complaints in general terms and did not adduce any evidence to substantiate them.
59. It follows that, even assuming Articles 6 and 7 to be applicable in the present case, these complaints must be declared inadmissible as being manifestly ill-founded.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. 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.”
61. The applicant claimed 4, 000 euros (EUR) in respect of non ‑ pecuniary damage.
62. The Government submitted that the claim in respect of non ‑ pecuniary damage was unfounded. Furthermore, the applicant had failed to show a causal link between the damage sustained and the alleged violation.
63. The Court considers it appropriate to award the applicant EUR 1,500 in respect of non-pecuniary damage.