The Constitutional Court made evaluations regarding the freedom of expression of students with its latest decision (“Decision”) on the right to education. Within the scope of the Decision, the Constitutional Court evaluated that as the education level of the students increase, the restrictions on the freedom of expression must be limited proportionally. Furthermore, the Constitutional Court set out that restrictions on actions and expressions of students that are pursued outside of educational institution premises must only apply if the institutional order is seriously affected.
The Constitutional Court’s new decision, no. 2018/20182 (“Application“) dated 14 September 2021, regarding the violation of a student’s (“Applicant“) right to education was published in the Official Gazette on 24 November 2021. (The Decision is available in Turkish here.)
The Applicant is a state university student who was subjected to an investigation by the university administration due to a social media account post of a news article regarding the university. Further to the investigation, the Applicant received a disciplinary punishment of suspension on the grounds that they “engaged in acts inside or outside the institution that harm the honor and dignity of the personnel of the institution.” The Applicant appealed the university administration’s decision. The court of first instance approved the Applicant’s objection, but the regional administrative court found the university administration’s decision to be lawful. The applicant applied to the Constitutional Court claiming that their freedom of expression, rights to education and fair trial were violated.
What does the decision cover?
The Constitutional Court evaluated the allegations as a whole within the scope of right to education and stated that the restrictions of rights and freedoms must (i) have lawful basis, (ii) rely on legitimate causes under the Constitution and (iii) comply with the needs of a democratic society and the principle of proportionality, according to Article 13 of the Constitution.
The Constitutional Court decided that interference with the right to education must have a legal basis for being based on Article 54 of Law No. 2547 and rely on legitimate cause as part of the measures to maintain the discipline and order of the educational institution. However, while evaluating compliance with the needs of a democratic society, the Constitutional Court stated that the restrictions on fundamental rights must correspond to a compulsory social need and be the last resort. In addition, the Constitutional Court pointed out that the restriction on the right to education should also be evaluated whether it has an impact on the fundamental rights and freedoms protected by the Constitution, such as freedom of expression, freedom of religion and belief, and the right to respect for private life. The Constitutional Court evaluated that interferences affecting the use of these rights would be in violation of Article 13 of the Constitution.
The Constitutional Court further evaluated that the Applicant’s expression was the cause of the punishment and accordingly, the interference with the Applicant’s right to education was related to the freedom of expression. The Constitutional Court evaluated that while maintaining the discipline and order of the educational institution constitutes a legitimate aim, an intervention that would eliminate the individual’s freedom of expression or make it difficult to exercise in order to achieve this aim cannot be accepted.
The Constitutional Court indicated that the scope of intervention for disciplinary purposes on actions and expressions of students pursued outside of institutions’ premises is rather narrow. Therefore, sanctions against the actions and expressions that take place outside the institution can only apply if such actions seriously affect the order of the institution. Furthermore, the Constitutional Court indicated that the Applicant shared the news article subject to the complaint without providing any comments. Regardless of the accuracy of the content of the news, merely sharing a newspaper article on social media accounts must not automatically result in a sanction. This will prevent free and open discussion on matters of public concern. The Constitutional Court considered that accepting otherwise would make the existence of freedom of expression questionable.
Finally, the Constitutional Court emphasized that the interventions to the freedom of expression of students must be related to the level of education. As the level of education increases, the interventions to the freedom of expression must decrease. Accordingly, different opinions must be tolerated in universities and must benefit from protection of freedom of expression. In light of these, the Constitutional Court decided that the Applicant’s right to education was violated, as the regional administrative court was not able to indicate a compulsory social need for the disciplinary punishment and could not provide relevant and sufficient grounds.
This Decision of the Constitutional Court is especially important as it contains detailed assessments of students’ freedom of expression. In this context, it is explained in detail that freedom of expression should have a broad application in universities. Pursuant to the Decision, interventions to the freedom of expression must not eliminate or aggravate the exercise of the right even if the intervention pursues a legitimate aim. Furthermore, it is evaluated that the field of intervention to expressions and actions outside of educational institutions are rather narrow. Finally, sharing news on social media accounts without providing any comments, regardless of the accuracy of the news, should be considered within the scope of freedom of expression.