European Court of Human Rights rules on Academics for Peace
CENGIZ ANIL BOLUKBAS- In its first ruling the case of the Academics for Peace, the European Court of Human Rights (ECHR) decided that Article 8 of the European Convention on Human Rights on the “right to respect for private life” had been violated. Attorney Mert Elekci, who noted that the ruling was the first decision saying that rights had been violated in the case of the Academics for Peace, said, “Although the decision does not seem to be directly related to the dismissals themselves, when one looks at the content of the decision, one sees that the court has identified problems in terms of the predictability and legal nature of the emergency decrees.”
The ECHR found Turkey to be in the wrong in the case of academics Alphan Telek, Edgar Sar, and Zeynep Kivilcim whose employment had been terminated after they signed the “We will not be a party to this crime.” In its decision, the Court also stated that since the applicants were academics who wanted to participate in academic activities and research abroad, their right to education based on Article 2 of Protocol No. 1 had also been violated as the applicants were unable to obtain a passport for a long time.
In the decision regarding the application made by attorneys Benan Molu and Mert Elekci, the Court also said that the State of Emergency Decrees No. 675 and 686 did not have the nature of law. The Court sentenced Turkey to pay 12,000 euros each to Alphan Telek and Edgar Sar, and 9,750 euros to Zeynep Kivilcim as material and moral compensation. Turkish judge Saadet Yuksel, who did not agree with the court's decision, dissented.
“THE DECISION IDENTIFIES PROBLEMS IN THE LEGAL NATURE OF THE DECREE-LAWS”
Evaluating the decision for Arti Gercek, Attorney Mert Elekci said that though the decision was delayed, it was still a normal length of time by the ECHR’s standards. Noting that the State of Emergency Commission did not have the opportunity to take the dismissals to the Supreme Court or the ECHR, as this would further extend the process, Elekci said the following about the significance of the Court’s decision: “The ruling is the first rights violation decision given by the ECHR regarding the Academics for Peace. Although the decision does not seem to be directly related to the dismissals themselves, when one looks at the content of the decision, one sees that the court has identified problems in terms of the predictability and legal nature of the emergency decrees. This analysis, in my opinion, is related to the dismissals from employment. On the other hand, the ECHR considered a post-graduate education within the scope of the right to education for the first time. In this respect, it was a progressive decision in terms of the Court's own jurisprudence. While my clients were struggling against a problem that happened to them in the middle of their education, they got accepted to doctorate program abroad and were offered significant scholarships. This was why they faced problems. The application to the Court was a way to resolve this issue. However, the resolution of the issue is complicated by the fact that the ruling was delayed.”
“WE WILL SEE HOW THE DECISION AFFECTS OTHER ACADEMICS”
Expressing that in the coming process, we will witness how the interpretation of the decision will affect other academics, Elekci said, “We will see how the Administrative Courts will interpret this. We will see what the Supreme Court decides regarding the emergency decrees and the dismissals of the Academics for Peace. In reality, from a legal standpoint, a rights violation decision should be given and they should all be reinstated in their positions because the Supreme Court had decided as such before, even though it was not related to the dismissal of the Academics for Peace after they had signed the petition. Really, we know what the result will be, they just elongated the process with the State of Emergency Commission. We just found a shortcut by going to the ECHR, unlike others.”
“I HOPE TO SEE A STATE OF LAW BASED ON HUMAN RIGHTS ESTABLISHED”
Stating that the case was filed with the ECHR since all domestic legal pathways had been closed in practice after the academics were dismissed from employment by the decree-laws in 2017, academic Edgar Sar said that the Administrative Court of First Instance, the Council of State, and the Supreme Court could not intervene in the process because they were dismissed from employment by the emergency decree-laws. Emphasizing that the courts also did not deal with passport confiscations as separate cases as a result of this, Sar said: “This allowed us to develop a creative approach in terms of law and go to the ECHR claiming that various rights were violated with regard to the passports, even if not for our dismissals. The ECHR found our case acceptable in this process and this was a success in itself. At the end of six years, the ECHR expanded its jurisprudence on the right to education and convicted the administration in Turkey by deciding that our passport bans violated both our right to respect for private life and our right to education.”
Stating that these developments are important even though all the violations they have experienced have not come to an end, Sar said, “After such decisions, my biggest wish is to see, to live, and to witness the establishment of a state of law based on human rights where rights and freedoms are guaranteed without the need for a supranational institution or court decision.”
“THE SUPREME COURT HAD PREVIOUSLY DECIDED THAT RIGHTS HAD BEEN VIOLATED”
Previously, another ruling of violation of rights had been given by the Supreme Court. Onur Can Tastan was dismissed by emergency decree in 2016 while he was a research assistant at Ankara University’s Faculty of Economics and Administrative Sciences and his visa-exempt green passport was revoked. Tastan filed a lawsuit in March 2017 with the Ankara 10th Administrative Court for the annulment of the decision. Emphasizing that he had to attend conferences and classes abroad, Tastan argued that his freedom of movement and constitutional rights had been restricted.
After the court rejected his case, Tastan applied to the Court of Appeal with an employment contract sent to him from a university in Germany. Tastan filed a complaint with the Supreme Court on October 31, 2018, after the Court of Appeal also rejected his claim.
Upon Tastan's application, the Supreme Court decided that the rejection of his passport request was a violation of the "right to respect for private life.” The Supreme Court also ruled that Tastan be paid 13,500 liras for non-pecuniary damage. The Supreme Court’s decision stated that although it was acceptable that the entry and exit of individuals to the country would be restricted for some time under the State of Emergency, this practice should not acquire an indefinite length. It was emphasized that not giving a passport to Tastan was not imperative and proportionate.