CEDH · CASELAW;CLIN;ENG — 21 mars 2023

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Türkiye - 66763/17, 66767/17 and 15891/18 Judgment 21.3.2023 [Section II] Article 8 Article 8-1 Respect for private life Academics’ work and personal lives abroad significantly impacted by unlawful and potentially arbitrary cancellation of passports for considerable period under decrees enacted during state of emergency: violation Article 2 of Protocol No. 1 Right to education Academics admitted to foreign universities unable to pursue doctoral studies there after unlawful and potentially arbitrary cancellation of passports for considerable period under decrees enacted during state of emergency: violation Facts – At the relevant time the three applicants were academics in the field of international relations at Turkish universities. In the course of their doctoral studies, the first applicant was also enrolled at the Paris Institute of Political Studies and the second applicant at the European University Institute in Florence. Pursuant to legislative decrees adopted in the context of the state of emergency following the attempted coup of 15 July 2016, the applicants were dismissed from the civil service on the ground that they were considered to have links with a terrorist organisation or to have engaged in activities detrimental to national security. Their passports were subsequently cancelled for approximately two years and eight months in the case of the first two applicants and three years and ten months in the case of the third applicant. The authorities placed a restriction endorsement on the passports, authorising the maintaining of the cancellation measure and the rejection of any subsequent applications for new passports, in accordance with the Passports Act. The first two applicants were deprived of the opportunity to pursue their doctoral studies and research at the above-mentioned institutes. The third applicant, who had started living and working in Germany after being dismissed from the civil service, had remained without a valid passport, even though it was the main identity document in a foreign country. It was only when an additional section of the Passports Act came into force in October 2019, permitting, under certain conditions, the issue of a passport to persons who had been dismissed from the civil service, that the applicants were able to obtain a new passport. Law – Article 8: (a) Whether there was an interference – The Court had previously held that a measure of confiscation and non-restitution of an applicant’s passport for several years by the administrative authorities, depriving an applicant of the possibility of returning to the country where he had lived for a long time and where his family lived, amounted to an interference with the exercise of his right to respect for his private life. Reiterating that at the present time freedom of movement, and in particular freedom of cross-border movement, was essential for the development of private life, the Court added that the fact of depriving individuals of their passport, thereby hindering their normal professional activities and their relationship with their usual circle, might have negative repercussions on their private life and interfere with their right to respect for their private life It was crucial for an academic to participate in international meetings and conferences, to share and discuss his or her ideas, research and conclusions with counterparts around the world, and to maintain continuous contact with the academic community. In that sense, restrictive measures imposed on the freedom of movement of academics were, in essence, capable of hindering their professional activities and the development of their relations in the academic field. In this connection, the applicants clearly needed to follow and participate in academic activities abroad, and also had the intention of pursuing studies and conducting research in foreign universities or living in a foreign country. They thus had close professional and private ties with the countries where they wished to stay for a visit or to reside. Accordingly, the fact that they had been deprived of a valid passport for a considerable period of time, pursuant to measures taken in the context of the state of emergency, undoubtedly had a significant impact on their professional and private lives. Having regard to the foregoing, the measure complained of amounted to an interference with the applicants’ right to respect for their private life. (b) Whether the interference was justified – Neither the legislative decrees in question, nor any authority or court which ruled on the applicants’ appeals against the impugned measure, had provided any details as to the organisation with which the applicants were supposed to have links, or as to the acts they were supposed to have committed which would have prompted such a conclusion. Nor were the reasons and factual elements underlying the measure taken against the applicants set out, clarified or examined in the administrative acts in question or in the decisions given in the context of various domestic proceedings. In particular, the applicants had not been accused of any involvement in the attempted coup of 15 July 2016 or of any link with the groups and organisations which had organised and perpetrated that attempted coup , which had led to the state of emergency being declared. The national authorities had not therefore provided any detailed evidence capable of justifying the adoption of the measure at issue against the applicants. The Constitutional Court had made similar findings in a similar case. The Passports Act had allowed the authorities to refuse to issue a passport to a person whose departure from the country was considered “objectionable” for the purposes of general security. The Court had previously found in cases concerning prisoners’ correspondence that regulations containing the term “objectionable”, without providing any clarification as to its scope or defining what was to be understood by it, did not indicate with sufficient clarity the scope and manner of the authorities’ discretion in the matter. Furthermore, neither the additional section of the Passports Act, nor the decrees in question, nor any other legal provision relied on by the authorities, h ad specified the manner and duration of the measure of passport cancellation and the conditions that had to be satisfied before it could be terminated. Moreover, the Constitutional Court had struck down the additional section of the Passports Act on the ground that that provision, which afforded some discretion to the authorities in issuing passports, even when the conditions set out in the Act were satisfied, was unconstitutional, as the Constitution required that such a measure be ordered by a judge on specific grounds. Secondly, the domestic courts had dismissed the applicants’ appeals against the cancellation of their passports, relying mainly on the ground that the measure had been taken in connection with their dismissal from the civil service pursuant to legislative decrees adopted in the context of the state of emergency, and without carrying out a thorough examination of the measure in question, the repercussions of which on the applicants’ right to respect for their private life were nevertheless significant. National security considerations in the context of a state of emergency did not exclude the need for any measure affecting the fundamental rights of the individual to be subject to some form of adversarial procedure before an independent body competent to examine the reasons for the decision in question and the relevant evidence. This was to ensure that State authorities would not arbitrarily interfere with Convention rights. In those circumstances, the domestic courts had failed in their obligation to verify whether there had been specific reasons for the cancellation of the applicants’ passports. Thus the judicial review of the application of the measure in question had not been adequate or effective. Accordingly, the administrative authorities’ discretion to order the cancellation of the applicants’ passports in accordance with the provisions of domestic law had not been subject to any conditions, the scope of that discretion and the manner of its exercise had not been defined and no other specific safeguards had been provided for in that regard. Consequently, in the circumstances of the present case, the adoption of the impugned measure against the applicants by acts of the executive in the context of the state of emergency had been open to arbitrariness and had not satisfied the requirement of lawfulness. In the light of the foregoing considerations, the interference complained of had not been “in accordance with the law”. Furthermore, the measure complained of could not be regarded as having complied with the strict sense of proportion required by the particular circumstances of the state of emergency. Conclusion: violation (unanimously). Article 2 of Protocol No. 1: (a) Admissibility – The first and second applicants had complained that they were hindered in their access to doctoral studies. Having already considered that higher education institutions, where they existed at a given time, fell within the scope of the first sentence of Article 2 of Protocol No. 1, the Court saw no reason to exclude from that scope doctoral studies conducted in such institutions. In view of their crucial role today in the conduct and progress of scientific research in all fields, specialised studies and advanced research, such as doctoral studies, formed an integral part of the right to education. However, higher education in the form of doctoral studies, which was the subject of the applicants’ complaint, had been provided in the present case by foreign universities and not by higher education institutions in Türkiye. The present case thus raised the question whether Article 2 of Protocol No. 1 imposed an obligation on States not to hinder access to doctoral studies proposed by higher education institutions in a foreign country, in this case in other States parties to the Convention. Access to higher education institutions existing at a given time was inherent in the right protected by the first sentence of Article 2 of Protocol No. 1. In addition, it was of crucial importance that the Convention, a living instrument to be interpreted in the light of present-day conditions, should be interpreted in such a way as to render its safeguards practical and effective, not theoretical and illusory. In this context, the Court emphasised the central role currently played by cooperation and exchanges between countries in the field of education and research, particularly in the form of student and academic staff mobility, as essential components of higher education and academic research within the Council of Europe. It referred in this connection to the Convention on the Recognition of Qualifications concerning Higher Education in the European Region , ratified by Türkiye, which concerned the recognition by Contracting States of studies, certificates, degrees and titles obtained in another country of the European region and which, in Article VI.3, laid down the principle of recognition by a Party of a higher education qualification issued by another Party, entailing as a consequence access to further higher education studies and doctoral preparation. Having regard to the foregoing, the first sentence of Article 2 of Protocol No. 1 imposed an obligation on the member States not to hinder unjustifiably the exercise of the right to education in the form of higher education in institutions of higher education abroad. This obligation differed from the obligation to provide unconditional access to such institutions. In the circumstances of the present case, as a result of the cancellation of their passports for a considerable period of time, the applicants had been deprived of the possibility of travelling abroad in order to pursue, in the exercise of their right to education, their doctoral studies in foreign higher education institutions to which they had been admitted. (b) Merits – Notwithstanding the fact that they had access to Turkish universities to follow a similar doctoral programme and that the cancellation of their passports had lasted two years and eight months, the applicants’ inability, as a result of that measure, to pursue their doctoral studies in the foreign universities to which they had been admitted for such studies constituted a limitation on their right to education. The conclusion reached by the Court under Article 8 applied to the complaint under Article 2 of Protocol No. 1 and, consequently, the limitation of the applicants’ right to education had not been foreseeable for them. Conclusion : violation (six votes to one). Article 41: EUR 12,000 to the first and second applicants each in respect of pecuniary damage and non-pecuniary damage; EUR 9,750 to the third applicant in respect of non-pecuniary damage. (See also Al‑Nashif v.   Bulgaria , 50963/99, 20   June 2002, Legal Summary ; Leyla Şahin v.   Turkey [GC], 44774/98, 10   November 2005, Legal Summary ; İletmiş v.   Turkey , 29871/96, 6   December 2005, Legal Summary ; Ali Koç v.   Turkey , 39862/02, 5   June 2007; Bykov v.   Russia [GC], 4378/02, 10   March 2009, Legal Summary ; Kotiy v.   Ukraine , 28718/09, 5   March 2015, Legal Summary ; Pişkin v.   Turkey , 33399/18, 15   December 2020, Legal Summary ; Vig v.   Hungary , 59648/13, 14   January 2021)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .