CEDH, Cour (Deuxième Section Comité), BÜYÜKŞAHİN v. TURKEY, 15 mai 2018, 52490/08

SECOND SECTION DECISION Application no. 52490/08 Hacer BÜYÜKŞAHİN against Turkey The European Court of Human Rights (Second Section), sitting on 15 May 2018 as a Committee composed of: Ledi Bianku, President, Nebojša Vučinić, Jon Fridrik Kjølbro, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above application lodged on 26 September 2008, Having regard to the declaration submitted by the respondent Government on 22 January 2018 requesting the Court to strike the application out of the list of cases, Having deliberated, decides as follows: FACTS 1. The applicant, Ms Hacer Büyükşahin, is a Turkish national, who was born in 1980 and lives in Antalya. She was represented before the Court by Mr Y. Şamlı, a lawyer practising in Istanbul. 2. The Turkish Government ("the Government") were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1996, the applicant started studying at the Physics Department of the Istanbul University. In her third year, namely in 1999, she requested to be transferred to the Electrical and Electronic Engineering Department of the Eastern Mediterranean University in the Turkish Republic of Northern Cyprus ("TRNC"). In 2003, she graduated from the Eastern Mediterranean University. Subsequently, on 25 August 2003 the applicant requested the Turkish Council of Higher Education (Yüksek Öğretim Kurulu) to recognise her diploma that was delivered in the "TRNC". Her request was rejected. 5. The applicant initiated proceedings before the Ankara Administrative Court, requesting the annulment of that decision. 6. On 30 June 2005 the Ankara Administrative Court found in line with the applicant's request. 7. During the appeal proceedings, the Chief Public Prosecutor at the Supreme Administrative Court delivered her opinion on the merits of the case. This opinion was not communicated to the applicant. 8. On 10 April 2006 the Supreme Administrative Court quashed the Ankara Administrative Court's judgment. The appeal court held that the applicant's transfer to the Eastern Mediterranean University had not met the conditions set out in the regulation which stipulates the conditions of student transfers between Turkish universities and the "TRNC" universities. In particular, the court held that the applicant should have succeeded in all her exams during her third year at the Istanbul University before her transfer to the Eastern Mediterranean University; however it was established that the applicant had not complied with this condition. 9. On 8 October 2010 the Supreme Administrative Court rejected the applicant's rectification request. 10. Based on the Supreme Administrative Court's decision, on 22 January 2008 the Ankara Administrative Court dismissed the applicant's case. COMPLAINTS 11. The applicant complained under Article 6 of the Convention that the non-communication of the Chief Public Prosecutor's written opinion in the appeal proceedings before the Supreme Administrative Court had violated her right to an adversarial and fair hearing. Under the same article, she further alleged that the administrative proceedings had not been fair. 12. The applicant further alleged under Article 1 of Protocol No. 1 to the Convention that, as a result of the unfair decisions of the domestic courts, her right to peaceful enjoyment of her possessions had been breached as she was deprived of her future earnings. 13. Invoking Article 2 of Protocol 1 to the Convention, the applicant also complained about the refusal of the domestic authorities to recognise her university degree that she had obtained in the "TRNC". 14. The applicant finally alleged a breach of Article 14 of the Convention.

THE LAW

A. Complaint concerning non-communication of the Public Prosecutor's written opinion 15. The applicant complained that the non-communication of the Chief Public Prosecutor's written opinion submitted to the Supreme Administrative Court during the proceedings had violated her right to an adversarial and fair hearing. In this respect, she relied on Article 6 § 1 of the Convention. 16. After the failure of attempts to reach a friendly settlement, by a letter of 22 January 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration provided as follows: "I declare that the Government of Turkey offer to pay the applicant Hacer Büyükşahin, EUR 400 (four hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned case pending before the European Court of Human Rights. This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case. The Government consider that the absence of communication to the applicant of the public prosecutor's observation submitted to the Supreme Administrative Court breached her right to a fair trial in the light of the well-established case-law of the Court (Meral v. Turkey, no. 33446/02, 27 November 2007). They respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention." 17. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if: "for any other reason established by the Court, it is no longer justified to continue the examination of the application". 18. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. 19. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007). 20. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about non-communication of the public prosecutor's written opinion during proceedings to applicants (see, for example, Meral v. Turkey no. 33446/02, §§ 32-39, 27 November 2007). 21. Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed - which is consistent with the amounts awarded in similar cases - the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). 22. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine). 23. The Court considers that this amount should be converted into currency of respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court's decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points. 24. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008). 25. In view of the above, it is appropriate to strike this complaint out of the list. B. Remaining complaints 26. The applicant raised further complaints under Articles 6 and 14, and Articles 1 and 2 of Protocol No. 1 to the Convention. 27. In so far as the applicant complains under Article 2 of Protocol No. 1 to the Convention about the refusal of the domestic authorities to recognise her university diploma which she had obtained in the "TRNC", the Court notes that in 1996, the applicant had started studying in the Physics Department of the Istanbul University. In her third year she had requested to be transferred to the Electrical and Electronic Engineering Department of the Eastern Mediterranean University in the "TRNC". Following her graduation from the Eastern Mediterranean University, her request to have her diploma recognised in Turkey was rejected. Subsequent to the court proceedings, it was established that the applicant had failed to comply with the conditions set out in the regulation concerning the conditions of student transfers between Turkish universities and the "TRNC" universities. The Court notes that this regulation clearly states that for a transfer between different faculties to be valid, students have to succeed in their last year before their transfer to the new department. In the light of the foregoing, the Court finds no arbitrariness in the proceedings. The domestic court decisions were detailed and contained sufficient reasoning. In the light of the foregoing, the Court concludes that this part of the application is unsubstantiated. As to the complaints raised under Articles 6 and 14, and Article 1 of Protocol No. 1 to the Convention, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons

, the Court, unanimously, Takes note of the terms of the respondent Government's declaration under Article 6 § 1of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein; Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention. Declares the remainder of the application inadmissible. Done in English and notified in writing on 7 June 2018. Hasan Bakırcı Ledi Bianku Deputy Registrar President