Individual Application

The Facts

The applicant, a university student, was subject to warning, as a disciplinary sanction, by the university administration as he had hanged a banner without permission. The disciplinary sanction challenged by the applicant was initially annulled by the administrative court. However, upon appeal by the university, the regional administrative court revoked the administrative court’s decision and rejected, with final effect, the applicant’s case.

The Applicant’s Allegations

The applicant claimed that his freedom of expression had been violated due to imposition of a disciplinary sanction for hanging a banner on the university campus without permission.

The Court’s Assessment

It is laid down in Article 5 of the Higher Education Institutions Student Discipline Regulation that the act of hanging banners without permission inside a higher education institution shall be subject to disciplinary sanction. A constitutional assessment should be made in the examination of the legal situation arising out of the application of the said provision. In other words, it is obvious that a review of an interference with the freedom of expression in accordance with the provisions of the regulation will not amount to a constitutionality review, on the contrary, it will mean an appellate review that is limited to the examination of whether the provisions of the regulation are applied properly. In this regard, the impugned provision of the Regulation introduced relying on the Higher Education Law no. 2547 should be evaluated taking into consideration the legitimate purpose pursued.

In the present case, in consideration of the investigation report and the decisions of inferior courts, it was observed that they included no assessment as to the extent to which the banner disrupted the order at the university or posed such risk. However, in the present case, the relevant administration and inferior courts confined their examination to the ascertainment of whether the impugned act had been performed by the applicant. Moreover, neither the administration nor the courts concluded that the banner caused visual or environmental pollution, but they only mentioned the temporary use of the university wall to announce the commemoration in question. The punishment of the students at universities merely on the ground that their conducts in contravention of certain statutory provisions may pose an abstract threat entails a risk of exerting pressure on several constitutional rights and freedoms notably the freedom of expression. Therefore, in imposing a sanction due to an expression of thought at a university, it should be demonstrated that the impugned expression has caused, to a certain extent, risk or damage under the particular circumstances of the given case.

Besides, the banner was hanged on a university campus. Disciplinary rules may be applied in order to maintain institutional order. However, it is also essential to create an environment of freedom of expression on the university campus, which is considered one of the centres of scientific production. Despite their being public institutions, in universities, interference with freedom of expression should be exceptional, since they are not of a nature of penitentiary institutions, police stations or places of formal education. In this context, in the academy, which is seen as the cradle of free thought and critical mind, more tolerance should be shown to university students who have different opinions and whose ways of expressing their opinions may be sharp. Freedom of expression necessitates that everyone, including university students, are able to freely express, communicate and disseminate their views and opinions. University students should therefore enjoy the strict protection of freedom of expression, even if those views and opinions are controversial or unsupported.

The investigation procedures of the university administration and the decisions of the inferior courts included no evaluation as to the content of the banner hanged without permission. Given its content, the said banner was aimed at commemorating Ali İsmail Korkmaz, who studied at the same department of the same university as the applicant and who lost his life during the Gezi Park protests, on his birthday. It was not claimed that the said banner contained insult, incitement to violence, hate speech or incitement to riot given its content and form. Therefore, considering as a whole the identity of the person who made the statement, as well as the time and content of the statement, it has been observed that the statement had been made in a context.

In view of above, no sufficient and relevant justification was provided to demonstrate that the imposition of a disciplinary sanction met a pressing social need. Therefore, the impugned interference was found to be incompatible with the requirements of a democratic society.

Consequently, the Court has found a violation of the freedom of expression.