CEDH, Cour (Deuxième Section Comité), YILDIZ AND OTHERS v. TURKEY, 22 février 2022, 13510/19, 18612/19, 18643/19, 18650/19, 21222/19, …

SECOND SECTION DECISION Application no. 13510/19 Rıdvan YILDIZ against Turkey and 18 other applications (see appended table) The European Court of Human Rights (Second Section), sitting on 22 February 2022 as a Committee composed of: Egidijus Kūris, President, Pauliine Koskelo, Gilberto Felici, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above applications lodged on the various dates indicated in the appended table, Having deliberated, decides as follows: SUBJECT-MATTER OF THE CASE 1. The applications concern the closure of military secondary and post-secondary schools during a state of emergency and the transfer of students to civilian educational institutions. 2. A list of the applicants is set out in the appendix. At the time of the events giving rise to the present applications, the first applicant was enrolled at a gendarmerie vocational school and the remaining applicants were enrolled at warfare academies. Military vocational schools and warfare academies provided education at a post-secondary level with a view to preparing students for a military career. Under the legislation which was in force when the applicants enrolled to those schools, they were entitled to a military career, provided that they successfully completed their studies. Their education was free of charge; they were given a monthly stipend and their expenses were paid by the State. 3. On 20 July 2016 a state of emergency was declared following the attempted coup of 15 July 2016. During the state of emergency, the Council of Ministers passed several Legislative Decrees under Article 121 of the Constitution. One of those texts, Legislative Decree no. 669, which was later approved by the National Assembly, abolished all warfare academies, vocational military schools and military high schools as such, and provided for the setting-up of a National Military Defence University with a view to restructuring military education. The decree further provided for the transfer of current students who were enrolled in military educational institutions on the date of the publication of the decree to civilian high schools, vocational schools or universities on the basis of those students' relevant past exam scores in secondary school and university entrance exams and commensurate with the subject matter and level of studies they pursued in the military educational institutions. 4. On various dates the applicants applied to the administrative courts, challenging the constitutionality of the Legislative Decree no. 669 with their right to education. In the cases of some applicants, the administrative courts declared the cases inadmissible, noting that in the absence of an administrative measure, they did not have jurisdiction to annul or quash a legislative decree. In others, the administrative courts declared themselves incompetent holding that State of Emergency Commission were competent to review such complaints. That being so, the Commission's jurisdiction did not cover the applicant's cases (see Köksal v. Turkey (dec.), no. 70478/16, § 16, 6 June 2017, for background information on the Commission). 5. As a final resort the applicants made individual appeals before the Constitutional Court, which, on various dates, declared the cases inadmissible by means of a summary inadmissibility decision, holding that the applicants' complaints under Article 6 of the Convention and Article 2 of Protocol No. 1 to the Convention did not disclose of any appearance of a violation. 6. In a decision of 25 July 2019, the Constitutional Court reviewed relevant sections of Legislative Decree no. 669 under the Law no. 6756 in the context of abstract constitutional review proceedings brought by some members of the Parliament. It found the measures concerning the restructuring of the military education, including the closure of military schools and the transfer of students to civilian educational institutions, constitutional and in conformity with principles of lawfulness, legitimate aim and proportionality. In reaching this conclusion it had regard to the factual background of the attempted coup and in particular the role of the military educational institutions in the plot, and considered that the protection of national security interests in the light of the emergency regime justified the fundamental changes in military education brought by the Legislative Decree no. 669. As regards the interference with the legitimate expectations of those students who were already enrolled in military schools at the time of the change in the law and their exclusion from the military service, the Constitutional Court pointed to the necessity of restructuring the military education anew and recruiting new military officers who had not been educated in the old educational system, which had been the reasoning behind the reform. Lastly, it considered that the transitory provisions providing for those students' transfers to appropriate civilian schools on the basis of an objective and foreseeable criteria, that is to say their relevant past exam scores, constituted a proportionate measure. 7. The applicants complained under Article 6 of the Convention that they did not have access to the court to challenge the termination of their military student status on account of the Legislative Decree no. 669. Some applicants further complained that the mass dismissal of military school students without any individualised treatment went contrary to the guarantees under the criminal limb of Article 6, including their right to presumption of innocence. Relying on Article 2 of Protocol No. 1 to the Convention, they further complained that their right to continue a military education and legitimate expectations towards a military career were violated.

THE COURT'S ASSESSMENT

Joinder of the applications 8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. Complaints under Article 6 of the Convention 9. The Court finds that Article 6 does not apply under its criminal head since the measure in issue, originating directly from an act of legislation, entailing the restructuring of the military education, did not concern the determination of a "criminal charge" (see, for example, Pişkin v. Turkey, no. 33399/18, § 108, 15 December 2020). It therefore follows that the criminal limb of Article 6 is inapplicable in the case. 10. As regards the applicability of civil limb of 6 § 1 of the Convention, the Court reiterates that there must be a "dispute" (contestation) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law, whether or not that right is also protected by the Convention. The Court further notes that neither the Convention nor its Protocols guarantee a right of recruitment to the civil service (Vogt v. Germany, 26 September 1995, § 43, Series A no. 323; and Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 57, ECHR 2007-II). 11. In the instant case, the Court is not convinced that the "right" to continue "military studies" and preserve the status of a "military student" can be called "civil". The fact that the measure affected the applicants' education or their prospects of employment within the armed forces cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6 § 1 of the Convention (see also, Slavic University in Bulgaria and Others v. Bulgaria (dec.), no. 60781/00, 18 November 2004). The Court considers in that connection that regulating the military education and laying down conditions to enter into professional military service heavily weigh in favour of the public law aspect of the present dispute and as such they fall outside the civil limb of Article 6 of the Convention. 12. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 13. The Court would further emphasize that although it was not open to the applicants to contest the legislation to close military educational institutions; they had the possibility to bring an administrative law action against the subsequent administrative measure placing them into civilian educational institutions should they disagreed with their specific placement or the choice of educational institutions available to them. Complaints under Article 2 of Protocol No. 1 to the Convention 14. The Court reiterates that the right to education, as set out in the first sentence of Article 2 of Protocol No. 1, guarantees everyone within the jurisdiction of the Contracting States a right of access to educational institutions existing at a given time, and the possibility of drawing, by official recognition of the studies which he has completed, profit from the education received (Oršuš and Others v. Croatia [GC], no. 15766/03, § 146, ECHR 2010). Such right by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals (Leyla Şahin v. Turkey [GC], no. 44774/98, § 154, ECHR 2005-XI). 15. The Court considers that the measures provided for in the Legislative Decree no. 669 constituted an interference with the applicants' right to education. The Court further notes the Constitutional Court, in the abstract review proceedings, found the legislation to be lawful and necessary for restructuring the military education in the aftermath of the attempted coup d'état. The Court has no reason to disagree with these findings. Moreover, according to the materials in its possession the Court notes that the applicants were transferred to high ranking universities and provided with degrees to their level of education which offered career prospects within the private sector. It cannot therefore be said that they were denied the right to continue their education (see, mutatis mutandis, Slavic University in Bulgaria and Others, cited above). Having regard to the foregoing, the Court concludes that the impugned measure did not impose an excessive individual burden on the applicants. 16. The applicants' above complaint must therefore be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. Other alleged violations of the Convention 17. The applicants also raised other complaints under various Convention provisions. 18. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons

, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 17 March 2022. Hasan Bakırcı Egidijus Kūris Deputy Registrar President APPENDIX No. Application no. Case name Lodged on Applicant Date of Birth Place of Residence Represented by 1. 13510/19 Yıldız v. Turkey 01/03/2019 Rıdvan YILDIZ 30/09/1996 Gaziantep İrem ÇİÇEK 2. 18612/19 Ulğaç v. Turkey 28/03/2019 Emre ULĞAÇ 13/06/1995 Istanbul Rahime AYVALI 3. 18643/19 Ünlü v. Turkey 28/03/2019 Mehmet ÜNLÜ 16/09/1995 Istanbul Rahime AYVALI 4. 18650/19 Uzun v. Turkey 28/03/2019 Furkan UZUN 09/09/1995 Istanbul Rahime AYVALI 5. 21222/19 Dirik v. Turkey 13/04/2019 Selamettin DİRİK 29/09/1995 Istanbul Rahime AYVALI 6. 21227/19 Taşkın v. Turkey 13/04/2019 Seyfi TAŞKIN 01/06/1995 Istanbul Rahime AYVALI 7. 21351/19 Yıldırım v. Turkey 12/04/2019 Yavuz YILDIRIM 15/11/1995 Istanbul Rahime AYVALI 8. 23515/19 Dağ v. Turkey 27/04/2019 Muhammed DAĞ 20/05/1995 Istanbul Rahime AYVALI 9. 24679/19 Erol v. Turkey 27/04/2019 Ersegün Ömer EROL 21/06/1996 Ankara Rahime AYVALI 10. 24995/19 Aksoy v. Turkey 27/04/2019 Yusuf AKSOY Istanbul Rahime AYVALI 11. 25011/19 Solak v. Turkey 26/04/2019 Yunus SOLAK 20/02/1995 Aksaray Rahime AYVALI 12. 25016/19 Ertürk v. Turkey 27/04/2019 Yusuf ERTÜRK 14/01/1995 Istanbul Rahime AYVALI 13. 27060/19 Pınar v. Turkey 03/05/2019 Mustafa PINAR 17/05/1995 Istanbul Rahime AYVALI 14. 27074/19 Gültekin v. Turkey 03/05/2019 Ertuğrul Gazi GÜLTEKİN 06/06/1996 Istanbul Rahime AYVALI 15. 27078/19 Yıldız v. Turkey 03/05/2019 Osman YILDIZ 01/01/1995 Manisa Rahime AYVALI 16. 34015/19 Öztürk v. Turkey 22/06/2019 Ömer Rahim ÖZTÜRK 25/05/1995 Ankara Rahime AYVALI 17. 28212/20 Sel v. Turkey 26/06/2020 Hasan SEL 27/06/1995 Ankara Emine Pınar TEKİNŞEN 18. 49557/20 Sönmez v. Turkey 30/10/2020 Recep Enes SÖNMEZ 22/11/1997 Istanbul Orhan SELÇUK 19. 13222/21 Çelik v. Turkey 05/03/2021 Erol Kamil ÇELİK 15/02/1996 Ankara