SECOND SECTION
\nCASE OF ENVER \u015eAHIN v. TURKEY
\n(Application no. 23065\/12)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n30 January 2018<\/p>\n
FINAL
\n02\/07\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Enver \u015eahin v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 19 December,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 23065\/12) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Turkish national, Mr Enver \u015eahin (\u201cthe applicant\u201d), on 14 March 2012.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr S. Elban, Mr H.K. Elban and Mr F. Erbek, lawyers practising in Antalya. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant alleged that he had been the victim of discriminatoryinterference with his right to respect of private life (Article 8 of the Convention read in conjunction with Article 14), and complained of a discriminatoryinfringement of his right to education (Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention).<\/p>\n 4.\u00a0\u00a0On 5 March 2014 notice of the application was given to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1988 and lives in Diyarbak\u0131r.<\/p>\n 6.\u00a0\u00a0In 2005, while he was a first-year mechanics student in the technical faculty ofF\u0131rat University (\u201cthe faculty\u201d), the applicant was seriously injured in an accident which left his lower limbs paralysed. He had to suspend his studies until he had recovered sufficiently to return to university.<\/p>\n 1.\u00a0\u00a0On 17 March 2007theapplicant requested the facultyto adapt the university premises in order to enable him to resume his studiesfor the 2007\u20112008 academic year.<\/p>\n 2.\u00a0\u00a0The facultyreplied to that request byletter of 25 May 2007. It pointed out that the facultybuilding had been designed and built with several floors in order to accommodate 3,000 studentsand that its architecture could not be adapted. It stated that the administration had been asked for leave to conduct redevelopment work on the doors to the building, but that that work could not be carried out in the short term. It added that the mechanics course required the applicant to participate inpractical workshops, considering that as things stood such participation would cause problems. The faculty concluded that if the applicant wished to continue his studies it would help him as far as possible.<\/p>\n 3.\u00a0\u00a0On 16 August 2007theapplicant sent, through anotary, formal notice to the administrationof F\u0131rat University and the facultydeaninviting them to carry out the redevelopment work requested. Relying on Article 42 of the Constitution, section 15 of Law no. 5378 on personswith disabilities and Article 2 ofProtocolNo. 1 to the Convention, he affirmed that it was the State\u2019s duty to guarantee thecitizens\u2019 right to education, in line with theprincipleof equal opportunities. He furtheralleged that thefaculty\u2019s reply to his request (see paragraph 8 above) had been intended solely to induce him to abandon hisstudies.<\/p>\n 4.\u00a0\u00a0The administration replied to that formal notice by letterof 10\u00a0September 2007. The latter stated that the redevelopment works mentioned should be considered in the light of compliance with the regulations on public property, which could take some time. Furthermore, any problemsencountered by the applicant inattending thetheoretical classes administered in a three-storey building could be resolved with the help of a companion.<\/p>\n The Administration pointed out that thepractical workshops were held on the ground floor of the building and posed no problems with regard toaccess, and that the applicant would consequently have no difficulty in attending the courses administered in the framework of those workshops. It explained that the only reason why the applicant\u2019s participation in thepractical workshops had previously been described asproblematic (see paragraph 8 above) was that such workshops necessitated a considerable physical effort and that his particular situation required some thought regarding the type of assistance with which he could be provided. Furthermore, all the parties involved were anxious to help studentsindifficulty, and there wasno question of deterring the applicant from continuing his studies. Finally, the Administration pointed out that since, in its view, the budget allocated by the State was limited, the redevelopment work necessitated by the applicant\u2019s situation was subject to unavoidable budgetary and timeconstraints.<\/p>\n 5.\u00a0\u00a0On 15 November 2007 the applicant filed with the Elaz\u0131\u011f Administrative Court an action for annulment of the university\u2019s replies of 25 May and 10 September 2007 and to providecompensation forthe pecuniary and non-pecuniary damage which heclaimed he had sustained. He complained that the authorities had not removed the physical obstacles preventing him from exercising his right to education. He claimed 25,000\u00a0Turkishliras (TRY) in respect of non-pecuniary damage and TRY 30,000 in respect of pecuniary damage.<\/p>\n 6.\u00a0\u00a0The Administration of F\u0131rat Universityreplied in a defencememorial of 24 March 2008. That document stated that theuniversityhad not been responsible for theapplicant\u2019s accident. It criticised the applicant for having opted forjudicial channels, and alleged that he was acting in bad faith, adding, in that connection, that he had been informed that he would be provided with support should hedecide to return to university. Furthermore, the relevant agencies had been contacted with a view to redeveloping the facultybuilding and a proposal had been made to include the works in an investmentprogramme complying with the relevant regulations governing public property. The Administration further argued that it had offered the applicant the services of an assistant, but that he had not submitted any request for such help. The office added thataccessto the workshops posed no problemsfor persons with disabilities, but that the courses administered at the workshops demanded aphysical effort from participants. Lastly, it pointed out that the applicant had never been barred from any course.<\/p>\n 7.\u00a0\u00a0The applicant replied, refuting the arguments put forward by the Administration. He submitted that his right to education was guaranteed by domestic law and by Article 2 of Protocol No. 1 to the Convention, and that it was incumbent on the domestic authorities to take steps to enable him to exercise that right, with respect for the principle of equal opportunities. Moreover, he argued that the redevelopment work requested was such as should already have been conducted in any case, in line with the requirements of section 1bisof Law no. 3194 on urban planning (see paragraph\u00a023 above). Furthermore, he considered that the authorities\u2019offerof an assistantillustrated their ignorance of hispersonalsituation and the implications of that situation. He added that it would be degrading for him to be placed in a situation ofdependenceon a third person because of his disability, citing theexampleof how the constant presenceand assistance of a third person would invade his privacy. He also pointed out that the fact of being carried upstairs by another individual comprised a definiterisk of his falling.<\/p>\n 8.\u00a0\u00a0On 13 October 2008 thefacultyterminated its contracts with a number of students, including the applicant, on the grounds that they had not re-registered at the start of two successiveacademic years.<\/p>\n 9.\u00a0\u00a02 November 2009 saw the enactment of Legislative Decree no. 2009\/15546, published in theOfficialGazette(\u201ctheOG\u201d) on 13 November 2009, closing down certain categoriesof institutionsof higher education, including technical faculties, one of which was the technicalfacultyof F\u0131rat University, which wasreplaced by a newfacultyoftechnology. Under the legislativedecreestudentswho were already registered could continue their studiesin the newfaculties.<\/p>\n 10.\u00a0\u00a0On 9 April 2010 the Elaz\u0131\u011fAdministrative Court dismissed the applicant\u2019s appeal. In the reasoning of its judgment it stated, in particular, that the buildings in question had been erected inaccordance with the regulationsinforcein 1988. The court took the view that although it was incumbent on the authorities toapply thetechnical guidelines set out in thelegislationsubsequently enacted for persons with disabilities,it could not be contended that the respondent authority had not followed those guidelines during the construction of a building erected in 1988, before the guidelines had come into force. Lastly, thejudgment mentioned that the authorities had informed the complainantthat architectural measures would beadopted, depending on the available budget,and that a person would be appointed to assist him in attending the courses.<\/p>\n 11.\u00a0\u00a0The applicant lodged an appeal on points of law with the Supreme Administrative Court against that judgment.<\/p>\n 12.\u00a0\u00a0On 18 January 2011 the Supreme Administrative Court delivered a judgmentdismissing that appeal on points of law and upholding the first-instancejudgment as being in conformity with the procedure and laws.<\/p>\n 13.\u00a0\u00a0The applicant lodged an application for rectification of that judgment with the Supreme Administrative Court, complaining of an infringement of his right to education and the equalityprinciple.<\/p>\n 14.\u00a0\u00a0On 28 September 2011 the Supreme Administrative Court dismissed the applicant\u2019s application, holding that there were no grounds for rectification.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC AND INTERNATIONAL LAW<\/p>\n A.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 15.\u00a0\u00a0The domestic law relevant to the present case was partly described in thejudgment\u00c7am v. Turkey (no. 51500\/08, \u00a7\u00a7 34-36, 23 February 2016).<\/p>\n 16.\u00a0\u00a0Furthermore, section 3 (f) of Law no. 5378 on persons with disabilities of 1 July 2005 (\u201cLaw no. 5378\u201d), published in the OG on 7\u00a0July 2005, definesaccessibilityas follows:<\/p>\n \u201c(f)\u00a0Accessibility: secure andindependentaccessto and use of buildings, outside areas, transport and information services and information and communication technologies.\u201d[1]<\/p>\n Article\u00a02 (provisional) of that Law as inforce at the material time read as follows:<\/p>\n \u201cExistingofficial buildings belonging to public bodies and institutions, all [existing] roads and highways, pavements, pedestrian crossings, open spaces and parks, sportsareas and othersimilarsocial andculturalinfrastructures, as well as all constructions built by natural or legal persons providing public services shall be made compatible with the accessibilityof\u2018invalids\u2019[2]\u2018within seven years\u2019[3] of the entry into force of [thepresent]law\u201d<\/p>\n 17.\u00a0\u00a0On 30 May 1997 anadditionalsection was added to Law no.\u00a03194 onUrban Planning of 3 May 1985, published in the OG on 9 May 1985. That sectionprovides for an obligation to comply with the standards of the TurkishStandards Institutein urban planning projects, in urban and socialconstruction areas and intechnicalinfrastructures in order to ensure that thephysicalenvironment is accessible and adapted to persons with disabilities.<\/p>\n 18.\u00a0\u00a0Law no. 6111 of 13 February 2011, published in the OG on 25 February 2011, added section 58 (provisional) to Law no. 2547 on Higher Education of 4 November 1981 (the so-called\u201cstudentamnesty law\u201d), published in the OG on 6\u00a0November 1981. That sectionprovides, in particular, that certainstudentswho, before the entry into force of the section, had terminated their relations with their institutionsof higher education can:<\/p>\n \u2013\u00a0\u00a0resume their studiesduring the 2011\u20112012 academic year, subject to applying to do so within five months of the entry into force of the said section;<\/p>\n \u2013\u00a0\u00a0begin attending courses at the spring term of the 2010\u20112011 academic year, subject to applying to do so within ten days of the entry into force of that section and provided that that application isaccepted by theinstitutionin question.<\/p>\n Section 11 of Law no. 6353 of 4 July 2012, published in the OG on 12\u00a0July 2012, added section63 (provisional)to Law no. 2547, providing as follows:<\/p>\n \u201cAnyone who is ineligible under section 58 (provisional) [of Law no. 2547] because he or she has failed to lodge an application within the prescribed time-limit … may, as from the entry into force of that section,begin [a course of study] during the subsequent [academic] year pursuant to theprinciplesset out in section 58 (provisional), by applying to theinstitutionof higher education with which they have broken offrelations.\u201d<\/p>\n B.\u00a0\u00a0International law<\/strong><\/p>\n 19.\u00a0\u00a0The texts of international law relevant to the instant case are described in the \u00c7am judgment (cited above, \u00a7\u00a7 37-38 \u2013 see, additionally, Zehnalov\u00e1 and Zehnal v. the Czech Republic (dec.), no.\u00a038621\/97, ECHR\u00a02002\u2011V; M\u00f3\u0142ka v. Poland (dec.), no56550\/00, ECHR 2006-IV; andFarca\u015f v. Romania(dec.), no. 2596\/04, \u00a7\u00a7 \u00a7\u00a7 68-70, 14 September 2010).<\/p>\n Regard should also be had to the following passages from theUnited Nations Convention on the Rights of People with Disabilities (\u201cCRPD\u201d), adopted on 13 December 2006 by the United Nations GeneralAssemblyand signed on 30 March 2007, and thenratified by Turkeyon 28\u00a0September 2009.<\/p>\n Article\u00a02<\/p>\n \u201cDefinitions<\/p>\n For the purposes of the present Convention:<\/p>\n …<\/p>\n \u2018Discrimination on the basis of disability\u2019 means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;<\/p>\n \u2018Reasonable accommodation\u2019 means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms<\/p>\n …\u201d<\/p>\n Article 3<\/p>\n \u201cGeneral principles<\/p>\n The principles of the present Convention shall be:<\/p>\n (a) Respect for inherent dignity, individual autonomy including the freedom to make one\u2019s own choices, and independence of persons;<\/p>\n …\u201d<\/p>\n Article\u00a09<\/p>\n \u201cAccessibility<\/p>\n 1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:<\/p>\n (a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;<\/p>\n (b) Information, communications and other services, including electronic services and emergency services.<\/p>\n 2. States Parties shall also take appropriate measures:<\/p>\n …<\/p>\n (e) To provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;<\/p>\n (f) To promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;<\/p>\n …\u201d<\/p>\n Article\u00a020<\/p>\n \u201cPersonalmobility<\/p>\n States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:<\/p>\n (a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;<\/p>\n (b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;<\/p>\n (c) Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;<\/p>\n (d) Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.\u201d<\/p>\n Article\u00a024<\/p>\n \u201cEducation<\/p>\n 1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:<\/p>\n (a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;<\/p>\n …<\/p>\n 5. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities<\/p>\n …\u201d<\/p>\n 20.\u00a0\u00a0Referenceshould also be made to Article\u00a013 of the International Covenant on Economic, Social andCulturalRights, adopted by the United Nations on 19\u00a0December 1966 andratified by Turkeyon 23 September 2003. That provision lays down that the States Parties must recognise the right of everyone to educationand, with a view to achieving the full realisation of that right, that higher education must be made equally accessible to all, on the basis of capacity, by every appropriate means.<\/p>\n 21.\u00a0\u00a0Within theCouncilof Europe, Recommendation No. R(98)3 onaccessto higher education, adopted on 17 March 1998 by theCommittee des Ministers, acknowledges that higher education has a key role to play in the promotion of human rights and fundamental freedoms.<\/p>\n Furthermore, in itsRecommendationNo. R(92)6 of 9 April 1992 on acoherent policy for persons with disabilities, theCommittee ofMinisters invited member States to\u201cguarantee the right of people with disabilities to an independent life and full integration into society\u201dand to\u201crecognise society\u2019s duty to make this possible\u201d, inorder to give persons with disabilities proper \u201cequality ofopportunity\u201dwith others. Public authorityaction must be geared, inter alia, to give persons with disabilities\u201cas much mobility as possible, and access to buildings and means of transport\u201d, and to enable them to\u201cplay a full role in society\u201d and \u201ctake part in economic, social, leisure, recreational and cultural activities\u201d.<\/p>\n For its part, theParliamentaryAssembly of theCouncilof Europe dealt with these matters in itsRecommendationNo. 1185 (1992) of 7 May 1992 on rehabilitation policiesfor the disabled. That textemphasised that\u201csociety has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives\u201d. To that end, Governmentsand the competentauthoritieswere called upon to\u201cstrive for and encourage genuine active participation by disabled people in … the community and society\u201dand accordingly, to guarantee \u201cease of access to buildings\u201d.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION AND OF ARTICLE 14 OF THE CONVENTION<\/p>\n A.\u00a0\u00a0Subject matter of the dispute<\/strong><\/p>\n 22.\u00a0\u00a0The applicant complained of a discriminatory infringement of his right to education. He submitted that in order to be able to continue his university studiesat thefaculty,redevelopment work had to be carried out in the faculty building. He alleged that the rejection of his request for works had forced him to abandon his studies. Thus he complained that the State had failed to take thepositive action which he claimed was incumbenton it and would have enabled him to continue his university course.<\/p>\n He relied on Article 2 ofProtocolNo. 1 to the Convention read alone or in conjunction with Article\u00a014 of the Convention, which provide:<\/p>\n Article\u00a02 ofProtocolNo. 1 to the Convention<\/p>\n \u201cNo person shall be denied the right to education. …\u201d<\/p>\n Article\u00a014 of the Convention<\/p>\n \u201cThe enjoyment of the rights and freedoms set for in [this]\u00a0Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinions,nationalorsocialorigin, association with a nationalminority, property, birth or other status.\u201d<\/p>\n 23.\u00a0\u00a0The Government contested that argument.<\/p>\n 24.\u00a0\u00a0TheCourt observes that the applicant\u2019s allegationofdiscriminatorytreatmenton grounds of his locomotor disability is central to the complaint before it. In that connection it reiterates from the outset that Article\u00a014 of the Convention only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to \u201cthe enjoyment of the rights and freedoms\u201d safeguarded by those provisions (regardingthe principles, see, for example, Case \u201crelating to certain aspects of the laws on the use of languages in education in Belgium\u201d(merits), 23 July 1968, \u00a7 9, Series A no. 6;Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731\/01 and 65900\/01, \u00a7\u00a7\u00a039 et\u00a040, ECHR 2005\u2011X; E.B. v. France [GC], no. 43546\/02, \u00a7 48, 22\u00a0January 2008; andSejdi\u0107 and Finci v. Bosnia-Herzegovina[GC], nos. 27996\/06 and\u00a034836\/06, \u00a7 39, ECHR\u00a02009).<\/p>\n 25.\u00a0That being the case, theCourthasalready had occasion to point out thatin a democratic society the right to education is indispensable to the furtherance of human rights and plays a fundamental role(see Velyo Velev v. Bulgaria, no. 16032\/07, \u00a7\u00a033, ECHR\u00a02014 (extracts), and\u00c7am, cited above, \u00a7 52). Article 2 ofProtocolNo. 1 to the Convention applies to higher education and, in thatcontext, require any State which has set up institutions of higher education to ensure thatthey are effectively accessible (see Leyla \u015eahin v. Turkey [GC], no.\u00a044774\/98, \u00a7\u00a7 136 and 137, ECHR 2005 XI). Inother words, access to any institution of higher education existing at a given time is an inherent part of the right set out in the first sentence of Article 2 of Protocol No. 1 (see, inter alia, M\u00fcrsel Eren v. Turkey, no.\u00a060856\/00, \u00a7\u00a041, ECHR 2006\u2011II, and\u0130rfan Temel and Others v. Turkey, no. 36458\/02, \u00a7\u00a039, 3\u00a0March 2009).<\/p>\n Inthe present case, since the applicant\u2019salleged inability to benefit from his right to university educationconcerned anexistingfaculty, which had become inaccessible to the applicant following an accident which had left him with a locomotor disability, it can only beconcluded that the complaintin question falls within the ambit of Article 2 ofProtocolNo. 1 and that therefore Article 14 of the Convention isapplicable.<\/p>\n B.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0The Government\u2019s submissions<\/em><\/p>\n 26.\u00a0\u00a0The Governmentpointed out that Law no. 5378 had imposed an eight-year time-limit (see paragraph 22 above) on rendering public buildings, roads, pavements, pedestrian crossings, open spaces and parks, sports areas and other similar social and cultural infrastructures, as well as all buildings providing public services, accessible to persons with disabilities. They explained that during thisprocedure the authorities in charge of the universityin question had stated that the applicant could continue hisstudies. Ever since 2010 the buildings of thefacultyoftechnologyset up under LegislativeDecree no. 2009\/15546 of 2 November 2009 (see paragraph 15 above), in which the engineering classes were now being held, had beeninconformitywith the provisionson access for studentswith disabilities.<\/p>\n 27.\u00a0\u00a0The Governmentadded that the applicant had neither reregistered at the faculty nor had recourse to the StudentAmnesty Law (see paragraph 24 above) in order toreturn to theuniversityand resume hisstudies. They affirmed that he could have continued his studies if he had taken up the opportunities offered to reregister. The regulations set out in Law no.6353 (ibid.) did notlay down any time-limit, and there was currently no obstacle to the resumption of his studies, provided that he submitted the relevant request. In that regard the Government submitted that the requisite redevelopment work had already been carried out in the new faculty buildings.<\/p>\n 28.\u00a0\u00a0Therefore, the Government took the view that, having regardto the redevelopment work carried out and the opportunitiesoffered by the StudentAmnesty Law, the applicant had lost his victimstatus under Article 34 of the Convention and his application had to berejected.<\/p>\n 2.\u00a0\u00a0The applicant\u2019s submissions<\/em><\/p>\n 29.\u00a0\u00a0The applicant replied that the university authorities\u2019 dismissal of his request for measures geared to enabling him, as a person with a disability, to continue his studies had amounted to a violation of his right to education, as well as of his right to personal autonomy and self-fulfilment \u2013 which he described as aspects of his private life. He submitted that that violation had, furthermore, persisted until the authorities had taken the requisite action in the institution in question to remove the obstacles to his access to education, that is to say, as contended by the Government, until 2010-2011. The applicant considered, in that connection, that from the 2007-2008 academic year until the 2010\u20112011 academic year he had found it physically impossible to resume hisstudiesbecause he had had no means of accessing the rooms in which the classes were being held.<\/p>\n 30.\u00a0\u00a0In the applicant\u2019s view, even though he could have had recourse to the StudentAmnesty Law in order to reregister with the facultyas from the 2010\u20112011 academic year \u2013 when the physical accessibilityof the classrooms would have been guaranteed\u2013 the damage which he claimed to have suffered during theperiodwhen, in his view, he had been deprived of education had not been redressed, and indeed the respondent Governmenthad made noeffort to redress it. The applicant added that the dismissal of his appeals by the administrative courts was a fact which could not be overlooked. He took the view that, in the final analysis, the national authorities had neither acknowledged nor provided redress for the violations of which he was complaining.<\/p>\n 3.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 31.\u00a0\u00a0Inthe instant case, theCourt observesthat on 17 March 2007 the applicant lodged with the relevant university authorities a request for redevelopment work on their premisesin order to ensure hisaccessto them (see paragraph\u00a07 above). When the authorities replied that such work could not be carried out in the short term, theapplicant applied, in vain, to the administrative courts (see paragraphs 11 to 20 above).<\/p>\n It transpires from the case file and the Government\u2019sobservations (see paragraphs\u00a015 and 33 above) that thefacultyin which the applicant had been registered had been closed and replaced by afacultyof technology, whose buildings are reportedly being tailored to the needs of persons with disabilities. Moreover, according to theGovernment, the applicant is eligible for the provisionsof the StudentAmnesty Law enabling him to request reregistration at the university at any time (seeparagraphs 34 and 35 above), which is not disputed by the applicant (see paragraph 37 above).<\/p>\n 32.\u00a0\u00a0In order todetermine whether the applicant can continue to claim to be thevictimof thealleged violations, account should be taken of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (see T\u0103nase v.\u00a0Moldova [GC], no. 7\/08, \u00a7 105, ECHR 2010). Inthe present case, the redevelopment work carried out to accommodate persons with disabilities, as mentioned by theGovernment, is surely relevant here. However, the fact is that those improvements were not made until 2010 (see paragraph 33 above), apparently owing to budgetary and\/or administrative constraints which had prevailed up to that date (see paragraphs 8 and\u00a010 above).<\/p>\n The applicant can thereforelegitimately claim to be thevictimof adiscriminatory infringement of his right to education during theperiodprior to the said work, as, in the circumstances of the present case, the subsequent setting up of a new faculty accessible to persons with disabilities cannot be interpreted as recognitionof and redress for the allegedviolation vis-\u00e0-vis the 2007-2008, 2008\u20112009 and 2009-2010 academic years (regarding theprinciples, see, forexample, Eckle v. Germany, 15 July 1982, \u00a7\u00a7 69 et seq., Series A no. 51;Dalban v.\u00a0Romania [GC], no. 28114\/95, \u00a7 44, ECHR 1999\u2011VI; and G\u00e4fgen v.Germany[GC], no. 22978\/05, \u00a7\u00a7 115 and 116, ECHR\u00a02010).<\/p>\n The same applies to the university registration facilities offered to the applicant, inasmuch as thematerialconditions prevailing in the building in question remained the same throughout the periodinquestion.<\/p>\n 33.\u00a0\u00a0The Government\u2019spreliminary objection must therefore berejected.<\/p>\n 34.\u00a0\u00a0Noting, moreover, that the applicant\u2019s complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.<\/p>\n C.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The applicant\u2019s submissions<\/em><\/p>\n 35.\u00a0\u00a0Referring to the case-law of the Court (see Leyla \u015eahin, cited above,\u00a7\u00a0137), the applicant submitted that the right to higher education fell within the scope of Article 2 ofProtocol no. 1 to the Convention.<\/p>\n 36.\u00a0\u00a0He explained that in the present case the impugned discrimination arose from the failure to take account of his physical disability vis-\u00e0-vis hisaccessto education. He argued that he had been treated in the same way as healthy students. He affirmed that under theCourt\u2019s relevant case-law discrimination couldoriginate from a de facto situation (see Zarb Adami v. Malta, no. 17209\/02, \u00a7\u00a076, ECHR\u00a02006\u2011VIII).<\/p>\n 37.\u00a0\u00a0Citing Article 10 of the Constitution, he submitted that positive discrimination towards persons with disabilities was not contrary to the prohibitionof discrimination. He added that under section 15 of Law no. 5378 the right toeducationof persons with disabilities could not be impededunder any circumstances, and complained that the domestic authoritieshad not acted in conformity with that provision.<\/p>\n 38.\u00a0\u00a0Moreover, theapplicant rejected theGovernment\u2019s argument concerning the time required to carry out the redevelopment work in order to implement the relevant legislativeprovisionsvis-\u00e0-vis the facultybuildings (see paragraph 33 above). He submitted that that argument could not be used tojustify the attitude of which he claimed to have been thevictim. He argued that in that context the legitimate aim pursued was disproportionate to the practical situation.<\/p>\n 39.\u00a0\u00a0As regards the time-limit for complying with the requirement to bring existingbuildings into conformity, he pointed out that that limit had at first been seven years and then, in 2012, had been increased to eight years following a legislative amendment. Lastly, in 2014, following a further legislative amendment, an additional two-year period was granted for institutions which had not yet carried out the requisite work. The applicantsubmitted that in view of the aforementioned changes, he had been unable to rely on the fact that the law was final, especially as the public authorities showed insufficient awareness of the issues involved \u2013\u00a0as allegedly shown by the PrimeMinister\u2019scirculars.<\/p>\n 40.\u00a0\u00a0The applicant added that the only valid argument which theGovernmentcould advance was the margin ofappreciationavailable to States in enabling persons with disabilities tointegrate intosociety, and thatthat meant adapting thephysicalenvironmentwithin thelimitsofsocietal capacities. He submitted that the State\u2019s margin ofappreciationintheeducational spherecould not be interpreted as broadly as the nationalauthoritieshad done in the present case.<\/p>\n 41.\u00a0\u00a0Moreover, the applicant maintained that the redevelopment work which he had requested did not fit into a categoryliableto place an excessive burden on the university\u2019s\u00a0budget: the work involved installing anaccessramp on the ground floor of the building, adopting administrativemeasures to ensure that his courses could be administered on the ground floor or, failing that, installing a lift to the upper floors, and, lastly, installing toilets for persons with disabilities. The applicant estimated the costof that redevelopment work at some TRY 60,000 (approximately 14,620\u00a0euros (EUR)), whichsum he considered eminently affordable for the authorities. He explained that the works would certainly be useful not only for himself but also for other personswith disabilities in the future. He held that the refusal to carry out the work had amounted to an unfair anddisproportionateinterferencewith his right to education.<\/p>\n 2.\u00a0\u00a0The Government\u2019s submissions<\/em><\/p>\n 42.\u00a0\u00a0Referring to their previous submissions (see paragraph 33 above), the Government began by supplying factual information concerning the current situation of the buildings erected in 2009 for the new faculty of technology (see paragraph 15 above). They pointed out that following alterations to the ground floors of the buildings, new classrooms and laboratories had been constructed and new departmentsorganised to enable students with disabilities to attend the courses. In that way any disabled student who was registered for a given course could now attend classes on the ground floor and, where necessary, in the classrooms of the different departments, which were readily accessible to persons with disabilities. Moreover, most of the workshops andlaboratorieswere on the ground floor. The Governmentenclosed with its observations a CD containingphotographs andvideorecordings of ground-floor classrooms and toilets for persons with disabilities, in order to show that the premisesin question were easily accessible to studentswith disabilities.<\/p>\n 43.\u00a0\u00a0Furthermore, theGovernmentdenied any infringement of the applicant\u2019s right to education, reiterating that that it was the applicant who had failed to re-register at the university (see paragraph 34 above). They reiterated thefacilitiesprovided by law in that connection (see paragraph\u00a024 above), and emphasised once again that the applicant could have continued his studies, and in fact still could continue them, provided that he applied to do so, which the applicant had so far failed to do.<\/p>\n 44.\u00a0\u00a0The Governmentacknowledged that the ability of persons with disabilities tobenefit from the services of public institutions and bodies on an equal footing with other persons was afundamentalhuman right and that disabled persons should have guaranteed access to public places so that they could live their day-to-day lives without the help of third persons. They submitted that Turkeyhad many laws and statutorytexts, including the Constitution, guaranteeingfull and effective participation insociety for persons with disabilities, on a non-discriminatory basis.<\/p>\n 45.\u00a0\u00a0TheGovernmentfurther stated thataccessibilitywas one of theprinciplesunderpinning the United Nations Convention on the Rights of Persons with Disabilities<\/a>, as ratified by the Turkish GrandNational Assemblyon 3 December 2008, of which theyquoted Article 9 \u00a7\u00a01 (see paragraph\u00a025 above). By the same token, referring to the provisionsof Law\u00a0no.\u00a03194 on Urban Planning (see paragraph 23 above), they affirmed that the institutions and authorities, which had a duty and responsibilityvis-\u00e0-vis thebuilt environment, complied with theaccessibility requirement. Therefore, according to the Government, all institutions and authorities were required to carry out the necessary redevelopment work, in line with the relevant standards of the Turkish Standards Institute, in order to renderbuildings, open spaces (roads, car parks, pedestrian areas, parks and pavements), transport and communications accessible.<\/p>\n 46.\u00a0\u00a0The Governmentfurthercited the provisionsof Law\u00a0no.\u00a05378 (see paragraph 22 above) concerning theaccessibilityof public buildings and spaces for persons with disabilities. They explained that the redevelopment work required forsuch accessibilityhad to be ordered within eight years of the entry into force of the Law, with the possibilityof an additional maximum period of two years. They added that the Law laid down an administrative fine for failure to carry out the requisite redevelopment work within the legal time-limits.<\/p>\n 47.\u00a0\u00a0The Governmentalso pointed out thatregulations on the supervision and inspectionofaccessibility had come into force. In thatcontext, inspections had been carried out and administrative fines imposed onpersonsand entities havingfailed in their obligations.<\/p>\n 48.\u00a0\u00a0Moreover, theGovernmentsubmitted that Turkeyhad been endeavouring, and was continuing to endeavour, to take the requisite action to implement Law no. 5378 in order effectively to ensure the rights of persons with disabilities. They argued that the action to be taken within the time-limits laid down in the Law and the supervision of that actiontook time and entailedsignificantexpenditure.<\/p>\n 49.\u00a0\u00a0Furthermore, in the presentcase the redevelopment work needed on the buildings likely to be used by the applicant incontinuing his studies had been carried out pursuant to domestic law. The Government wereconvinced that thanks to thephysical alterations made by the authorities and the opportunitiesprovided under the Student Amnesty Law there was no longer any obstacle to the applicant\u2019s continuation of hisstudies.<\/p>\n 50.\u00a0\u00a0Finally, theGovernment pointed out that there was nospecific legislation onaccessibility to university premisesfor persons with disabilities. Nor were there any provisionsspecific toF\u0131rat University, because since its premises had the status of public buildings they were governed by Law no. 5378.<\/p>\n 51.\u00a0\u00a0Relying on the legislative provisions relating to persons with disabilities and the redevelopment work which the authorities had performed, theGovernment invited theCourtto find that there had been no violation of Article 14 of the Convention read in conjunction with Article 2 ofProtocol\u00a0No. 1 to the Convention.<\/p>\n
\nJulia Laffranque,
\nI\u015f\u0131l Karaka\u015f,
\nNeboj\u0161a Vu\u010dini\u0107,
\nPaul Lemmens,
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Section Deputy Registrar,<\/p>\n