Last Updated on November 1, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 29601/05
Celal KILIÇ
against Turkey
The European Court of Human Rights (Second Section), sitting on 5 March 2019 as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
IşılKarakaş,
Julia Laffranque,
Stéphanie Mourou-Vikström,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 3 August 2005,
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
1. The applicant, MrCelalKılıç, is a Turkish national, who was born in 1975 and lives in Kayseri.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1993, the applicant graduated from a vocational high school specialised in meteorology. The same year, after taking the national university entrance examination, he was admitted to the Horticulture Department of the Faculty of Agriculture at the YüzüncüYıl University. The applicant graduated from that university in 1997.
5. In 1994 and 1997 the applicant took the university entrance exams again, but he did not succeed.
6. In 1999 the Higher Education Council issued a new circular based on Law no. 2547 and introduced a new system amending the rules on admission to university. The system reverted to one single exam instead of a twofold procedure, and opted to take into account the student’s average school marks together with the mark he obtained in the university entrance exam. Accordingly, if a student selected a university department that corresponded to his field of studies at high school, his average school mark was multiplied by 0.5 and added to the result of the university exam. If a student preferred to study in a different field, his average school mark was multiplied by 0.2 and added to his exam result.
7. The applicant took the university entrance exam once more in 1999, and submitted his list of preferences as Ankara University Faculty of Pharmacy, Atatürk University Faculty of Pharmacy, Çukurova University Faculty of Dentistry, Ankara University Faculty of Political Sciences Department of Labour Economics and Industrial Relations, Selçuk University Faculty of Dentistry and YüzüncüYılÇukurova University Faculty of Medicine. In the exam, the applicant obtained the following results: Bachelor of Arts score: 163.855 (within his field of studies) and 144.111 (outside his field of studies); Science Score: 176.722 (within his field of studies) and 156.154 (outside his field of studies); Mixed score: 173.064 (within his field of studies); 152.908 (outside his field of studies). The applicant consequently did not succeed in obtaining the requisite marks to be admitted to one of the schools indicated on his list.
8. In 2000, the applicant entered the university entrance exam once again and he was entitled to be admitted to the Department of Computer Programming in Niğde University.
9. In 2004 and 2006, respectively, the applicant took further university entrance exams but as he failed to submit his preferences for graduate schools, he was not admitted to any university establishment.
10. In 2011 the applicant succeeded in the university entrance exam, and he was admitted to the Open Education Faculty at Anadolu University. When the applicant graduated from this school, he took a further exam and was entitled to enrol at the Erciyes University Faculty of Law. The applicant graduated from the Law Faculty in 2016 and is currently a graduate student at the same university.
11. Following the results of the exam that he had taken in 1999, the applicant initiated administrative proceedings before the Supreme Administrative Court for the annulment of the refusal of the Higher Education Council to rectify his exam results. He alleged before the domestic courts that the use of different weighing methods depending on different fields of study had been discriminatory and unfair.
12. On 12 February 2001 the Supreme Administrative Court dismissed the applicant’s case. In its judgment, the court firstly gave a detailed description of the changes that had been introduced in 1999 and indicated that the amendment had been required to meet the needs of the financial and social progress of the country. The system provided an opportunity to those students who had been successful throughout their entire education and ensured that those who would be benefitting from graduate studies had an equal level. It therefore held that the change in the university entrance exam conditions had been necessary to provide a more efficient university education and that the applicant’s rights had not been prejudiced.
13. On 20 November 2003 the General Assembly of Administrative Chambers at the Supreme Administrative Court endorsed the arguments set out in the judgment of 12 February 2001 and dismissed the applicant’s appeal.
14. On 20 July 2005 the applicant’s rectification request was dismissed.
B. Relevant domestic law and practice and international materials
1. Domestic Law
15. Article 42 of the Constitution provides that no one may be deprived of the right to education.
16. Section 10 of the 1981 Higher Education Act (Law no. 2547) states that the Student Selection and Placement Centre (ÖSYM) is a body which, under the principles set out by the Higher Education Council and for the purposes of selecting applicants for higher education courses, prepares tests, carries them out, assesses their results and, depending on the preferences expressed by successful candidates, ensures the latter’s admission to universities and other institutions of higher education.
17. The relevant parts of section 45 of the 1982 Higher Education Reform Act (Law no. 2547) reads as follows:
“Students shall be admitted to institutions of higher education on passing a competitive examination, the rules on which shall be determined by the Higher Education Council. Regard shall be had in assessing the results of the examination to the average marks obtained by the students concerned at high school …”
2. Relevant international materials
18. In an appendix to its Recommendation no. R (98) 3 to member States on access to higher education, the Committee of Ministers of the Council of Europe advised the governments and institutions of higher education as follows:
“2. Aims and objectives
…
2.1. All who are able and willing to participate successfully in higher education should have fair and equal opportunities to do so.
…
4. Admissions
…
4.1. Admissions criteria and procedures should recognise the different starting points and cultural backgrounds of applicants, and seek to include all those with the potential to benefit.
4.2. The range of access routes should be widened by extending admissions criteria to include alternatives to the conventional high school diploma. In particular:
– high-level vocational qualifications should be accepted as appropriate preparation for higher education;
– appropriate credit should be given to experiential learning;
– applicants who are generally well-qualified but suffer from specific educational gaps should have opportunities to follow bridging courses, provided by higher or by further education.”
COMPLAINTS
19. Relying on Article 2 of Protocol No. 1 to the Convention, the applicant complained that due to the new system adopted in 1999, which initiated the method of attributing different weightings to the average high school grades, he had been put at a disadvantage as he had graduated from a vocational high school. The applicant further complained that the administrative courts that had examined his case had been ineffective and erred in the evaluation of the facts of his case. He also complained about the excessive length of the proceedings.
THE LAW
A. Right to education
20. Relying on Article 6 and Article 2 of Protocol No. 1 to the Convention, the applicant, a graduate of a vocational high school, complained that due to the introduction of a new scoring system in the university entrance exam, he had been put at a great disadvantage. He further stated that he had not been able to profit from the transitional measures which had foreseen a transfer of a student from a vocational high school to an ordinary school, as he had already completed his secondary studies in 1993. The applicant also stated that the domestic courts had erred in the evaluation of his case.
21. The Government contested the applicant’s allegations. They contended that the applicant could not be considered a victim of the alleged violation and that the system as introduced in 1999 had not been disproportionate but had aimed to raise the standard of university education. The Court does not find it necessary to consider this preliminary objection in further detail since the case is inadmissible for the reasons set out below.
22. At the outset the Court reiterates that the scope of a case referred to it in the exercise of the right of individual application is determined by the applicant’s complaint. By virtue of the juranovit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (Radomiljaand Others v. Croatia, no. 37685/10, § 126, 28 June 2016). In the particular circumstances of the case, the Court considers it appropriate to examine this complaint solely under Article 2 of Protocol No. 1 to the Convention, which reads as follows:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
23. The Court recalls that access to any institution of higher education existingat any given time is an inherent part of the right set out in the first sentence of Article 2 of Protocol No. 1 (see Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 134‑142, ECHR 2005-XI; Mürsel Eren v. Turkey, no. 60856/00, §§ 40‑41, ECHR 2006‑II; and Altınay v. Turkey, no. 37222/04, § 31, 9 July 2013). Accordingly, this part of the application falls within the scope of Article 2 of Protocol No. 1 to the Convention.
24. However important it might be, the right to education as secured under the first sentence of Article 2 of Protocol No. 1 is not absolute; it can be subject to implicitly accepted restrictions because “by its very nature [it] calls for regulation by the State” (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (merits), 23 July 1968, § 5, Series A no. 6). Of course, rules on educational institutions can vary over time depending on the community’s needs and resources and the specific features of teaching at different levels. Consequently, the national authorities enjoy some margin of appreciation in this sphere, although the final decision as to the observance of the Convention’s requirements rests with the Court (see Leyla Şahin [GC], cited above, § 154, and Ali v. United Kingdom, no. 40385/06, § 53, 11 January 2011).
25. In order to ensure that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court has to satisfy itself that they are foreseeable to those concerned and pursue a legitimate aim. However, unlike the position with respect to Articles 8 to 11 of the Convention, it is not bound by an exhaustive list of “legitimate aims” under Article 2 of Protocol No. 1. Furthermore, a limitation is only compatible with Article 2 of Protocol No. 1 if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Leyla Şahin [GC],cited above, § 154; Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 140, ECHR 2012 (extracts)).
26. Turning to the facts of the present case, the Court finds that there was a legal basis for the restriction in question in Turkish law, namely the Higher Education Council’s circular based on Law no. 2547 that had been adopted in 1999. Consequently, the complained measures were foreseeable to those concerned.
27. The Court moreover observes that two results were taken into account for the national higher education entrance examination at the material time (the 1998‑1999 academic year): the average marks scored by students in high school and the marks obtained in the examination taken by all candidates without distinction.
28. The Court further observes that the new system applied to the candidates’ average marks at high school a 0.5 weighting for students who had acquired knowledge in the subjects which, according to the circular, corresponded to the subjects taught in the faculties of relevant fields, and a 0.2 weighting for students who had acquired knowledge in subject areas which “did not correspond to” those taught in the faculties. As a graduate from a vocational high school, specialised in meteorology, the applicant’s university scores were calculated depending on his chosen field of studies (see paragraph 7 above).
29. The Court further considers that when regulating access to universities or colleges of higher education, the member States enjoy a wide margin of appreciation concerning the qualities required of candidates in order to select those who are liable to succeed in their higher-level studies. It nevertheless considers that the selection system used must not impair the very essence of the right to education if it is not to infringe Article 2 of Protocol No. 1.
30. In the instant case the Court notes that when the Higher Education Council changed the system governing admission to university, it aimed to improve the standard of university education. The Court also notes that in the instant case the Supreme Administrative Court ruled that the new selection system for access to university took account of the requirements arising from the changes in the country’s economic and social conditions in connection with university students’ qualifications and that the system met the requirement of raising the standard of higher education. In a reasoned judgment, the Supreme Administrative Court decided that the amendment had been necessary and the applicant’s rights had not been prejudiced because of the new system.
31. The Court therefore considers that the selection system attaching greater weight to a student’s field of study pursued the legitimate aim of improving the standard of university studies.
32. As to whether the means employed were proportionate to the aim sought to be achieved, the Court observes that the weighting introduced for the university entrance examination was applied to candidates in accordance with the study pathway which they had chosen on entering upper high school. The Court also notes that holders of vocational high school diplomas take the national entrance examination on an equal footing with candidates from general upper high schools, and that their results are assessed in the same manner. The selection criteria cannot thus be considered as disproportionate. Furthermore, in the applicant’s case, the weighting system applied to graduates of different types of high schools did not have an effect on his admission to a faculty in the exam of 1999, as even if his average school mark had been multiplied by 0.5, his score in the exam would not have been sufficient for admission (see paragraph 7 above).
33. Moreover, the applicant succeeded twice in the university exams and was admitted to the Horticulture Department of the Faculty of Agriculture at the YüzüncüYıl University and then to the Open Education Faculty at Anadolu University respectively. He was further able to take extra exams and to obtain a law degree from Erciyes University. Consequently, in the present circumstances of the case, the Court concludes that the applicant was not deprived of his right of access to higher education.
34. In the light of the foregoing, the Court considers that this part of the application should be declared manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and rejected under Article 35 § 4.
B. Length of proceedings
35. The applicant complained that the length of the administrative proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
36. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that this part of the application should be declared inadmissible for non-exhaustion of domestic remedies as the applicant should apply to the Compensation Commission.
37. The Court observes that a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
38. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.
39. However, taking account of the Government’s preliminary objection with regard to the applicant’s failure to make use of the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above).
40. It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares inadmissible the application.
Done in English and notified in writing on 28 March 2019.
Hasan Bakırcı Robert Spano
Deputy Registrar President
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