SECOND SECTION

DECISION

Application no . 16318/16 ÖZEL FEZA EĞİTİM ÖĞRETİM YURT VE KANTİN İŞLETMECİLİĞİ TİCARET ANONİM ŞİRKETİ against Turkey

The European Court of Human Rights (Second Section), sitting on 27 September 2016 as a Chamber composed of:

Julia Laffranque, President, Işıl Karakaş, Nebojša Vučinić, Valeriu Griţco, Ksenija Turković, Jon Fridrik Kjølbro, Georges Ravarani, judges,

and Hasan Bak ı rc ı , Deputy Section Registrar ,

Having regard to the above application lodged on 22 March 2016,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Özel Feza Eğitim Öğretim Yurt ve Kantin İşletmeciliği Ticaret Anonim Şirketi, is a joint stock company registered in Turkey that operated a private tutoring centre ( dershane ) in Kütahya for students preparing for secondary school and university entrance examinations at the time of the events giving rise to the present application. The applicant company was represented before the Court by Mr M. Kasap, a lawyer practising in Ankara.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant company, may be summarised as follows.

1. Background to the case

3. Law no. 5580 on Private Education Institutions was enacted on 8 February 2007 to govern the authorisation, operation, management and supervision of private education institutions. According to former section 2 (b) of Law no. 5580, the term “institution” included, for the purposes of that Law, private institutions engaging in pre-school, elementary and secondary school education, schools for special education and various training courses, distance learning institutions, private tutoring centres, driving schools, in ‑ service training centres, student study centres, special education and rehabilitation centres, and other similar private education institutions.

4. According to former section 2 (f) of Law no. 5580, a “private tutoring centre” was defined as a private education institution that prepared students for, inter alia , examinations held for admittance to secondary education or higher education (hereinafter referred to as “entrance examinations”).

5. On 1 March 2014 Law no. 6528 was enacted to amend various laws, including Law no. 5580. Amongst other changes, Law no. 6528 removed “private tutoring centres” from the list of private education institutions that were authorised to operate within the scope of Law no. 5580, and made certain arrangements for the transformation of private tutoring centres in operation to other education institutions. It also amended the definition of “various training courses” mentioned in section 2 (b) of Law no. 5580 to specify that such training courses could not engage in preparing students for entrance examinations, and further added that “student study centres” referred to in the same paragraph could only offer services to students who were aged twelve or below. According to the preparatory works to Law no. 6528, such amendments were considered necessary mainly to tackle the dichotomy and inequality of opportunity caused by private tutoring centres within the education system, which had over the years begun to be perceived as an alternative to compulsory education institutions.

6. On 13 July 2015, following an action brought by a group of Members of Parliament, the Constitutional Court decided to annul those provisions of Law no. 6528 that concerned private tutoring centres, as well as the amendments made to the definitions of “various training centres” and “student study centres”. The annulment became effective on 24 July 2015, the date of publication of the Constitutional Court ’ s decision. The Constitutional Court stressed in its decision that private tutoring centres had been set up to prepare students for entrance examinations, and thus served a specific need which was not always met by regular schools. Instead of taking more targeted measures to deal with the problems posed by those tutoring centres, however, the legislator had opted for their complete abolition, which was not a proportionate response in the circumstances, considering in particular that no alternatives were on offer to meet the specific needs of students preparing for entrance examinations. The Constitutional Court noted in this connection the amendment of the definitions of “various training courses” and “student study centres” to prevent them from replacing private tutoring centres.

7. On 8 August 2015 the Regulation on Private Education Institutions was amended. The amendments concerned, inter alia , details regarding the “transformation programme” that had to be followed by private tutoring centres and the various education institutions that they could transfer into.

8. On 12 August 2015 the Ministry of Education issued a circular (no. 2015/23) regarding, inter alia , the situation of private tutoring centres. The circular stated that following the Constitutional Court decision, private tutoring centres currently in operation had to transform themselves into other private education institutions in order to be able to continue to operate. According to section 1 of this circular, any private tutoring centres which had not applied for the “transformation programme” by 1 September 2015 would have their operating licences revoked.

9. Following an action brought by an education workers ’ trade union, on 15 September 2015 the Supreme Administrative Court ordered a stay of execution of circular no. 2015/23. The Supreme Administrative Court stated that by virtue of Article 153 of the Constitution decisions delivered by the Constitutional Court did not have retroactive effect, which meant that while the relevant provisions of Law no. 6528 abolishing private tutoring centres had been annulled, the former provisions of Law no. 5580 governing those centres had not been reinstated. This, the Supreme Administrative Court explained, created a gap in the law in respect of the legal status of private tutoring centres which were currently in operation; this gap had to be filled by the legislator. In the absence of such action by the legislative body, any measures taken by the administration to close down private tutoring centres or limit their activities would be ultra vires . For this reason, the Supreme Administrative Court found that circular no. 2015/23 issued by the Ministry of Education had been ultra vires and had contravened the Constitutional Court decision by virtue of its provisions providing for the closure of private tutoring centres. Two of the members of the Supreme Administrative Court, including the president, delivered a dissenting opinion stating that circular no. 2015/23 was lawful and in compliance with the Constitutional Court decision. It appears that the Supreme Administrative Court has not yet delivered a decision on the merits of this case.

10. On 18 September 2015 the Ministry of Education issued another circular (no. 2015/25) on the subject. According to section 1 of this circular, no administrative action would be taken by governors ’ offices against private tutoring centres which were operating lawfully at the time of the enactment of Law no. 6528. However, legal action would be taken against those private tutoring centres which continued to operate without transforming themselves into one of the other private education institutions defined in Law no. 5580.

2. Revocation of the applicant company ’ s operating licence

11. On 18 December 2015 the Ministry of Education revoked the licence of the applicant company to operate a private tutoring centre, on the ground that it had continued to operate without being transformed into one of the other private education institutions listed in Law no. 5580, contrary to circular no. 2015/25. As a result of this decision, on 24 December 2015 the applicant company was banned from operating a private education institution for five years.

B. Relevant domestic law and practice

1. Law no. 5580 on Private Education Institutions (date of entry into force: 14 February 2007)

12. Prior to its amendment by Law no. 6528 (see below paragraphs 13-14), section 2 of Law no. 5580 provided as follows:

“The definitions

Section 2- The [terms] mentioned in this Law [are defined as follows] ...

(b) Institution: private institutions engaging in pre-school, elementary and secondary school education, schools for special education and various training courses, institutions of distance learning, private tutoring centres, driving schools, in ‑ service training centres, student study centres, special education and rehabilitation centres, and other similar private education institutions ...

(f) Private tutoring centre: private education institutions that prepare students for examinations held for admittance to secondary education or higher education, to train [students] in their desired subjects and to enhance their level of knowledge.

(g) Various training courses: private education institutions that operate for the purpose of enhancing individuals ’ knowledge, skills, linguistic [skills], abilities and experiences in social, artistic, sportive, cultural and vocational spheres, [and] to [enable them to] make use of their free time according to their wishes ...

(j) Student study centre: private education institutions established to assist students to study their lessons [and] to complete their assignments and projects; [and] to conduct social, artistic, sporting and cultural activities in accordance with [the students ’ ] interests, wishes and abilities ...”

2. Law no. 6528 (date of entry into force: 14 March 2014)

13. Among other changes, Law no. 6528 removed “private tutoring centres” from the list of institutions defined in section 2 (b) of Law no. 5580 and abolished section 2 (f) accordingly. It also amended section 2 (g) and (j) as follows:

“(g) Various training courses: private education institutions that operate for the purpose of enhancing individuals ’ knowledge, skills, linguistic [skills], abilities and experiences in social, artistic, sporting, cultural and vocational spheres, [and] to [enable them to] make use of their free time according to their wishes, on the condition that they do not engage in preparing students for examinations for entrance to secondary education and higher education ...

(j) Student study centre: private education institutions established to assist students of twelve years of age and below to study their lessons [and] to complete their assignments and projects; [and] to conduct social, artistic, sporting and cultural activities in accordance with [the students ’ ] interests, wishes and abilities.”

14. Law no. 6528 also added a provisional section 5 to Law no. 5580. According to paragraph 1 of this provisional section, private tutoring centres which had not transformed themselves into another private education institution could only operate until 1 September 2015.

3. Decision of the Constitutional Court of 13 July 2015

15. The decision of the Constitutional Court of 13 July 2015 has been outlined in paragraph 6 above.

4. Circular no. 2015/23 of the Ministry of Education (dated 12 August 2015) and the objection made to the Supreme Administrative Court seeking its annulment and stay of execution

16. The relevant information regarding the circular no. 2015/23 issued by the Ministry of Education on 12 August 2015 and the decision of the Supreme Administrative Court dated 15 September 2015 ordering the stay of execution of that circular may be found in paragraphs 8-9 above.

5. Circular no. 2015/25 of the Ministry of Education (dated 18 September 2015) and the objection made to the Supreme Administrative Court seeking its annulment and stay of execution

17. The relevant information regarding circular no. 2015/25 issued by the Ministry of Education on 18 September 2015 may be found in paragraph 10 above.

18. According to information obtained proprio motu by the Court, on an unspecified date an action was brought by an education workers ’ trade union seeking the annulment and stay of execution of circular no. 2015/25. On 11 December 2015 the Supreme Administrative Court dismissed the request for a stay of execution. It held that the repeal of the relevant provisions of Law no. 6528 by the Constitutional Court had created a legal lacuna concerning the legal status of private tutoring centres. The circular at issue had sought to fill that lacuna by providing for the operation of such private tutoring centres after transformation into other private education institutions, which was also in conformity with the Constitutional Court decision in this respect. Two members of the Supreme Administrative Court delivered a dissenting opinion against the decision of the majority, following the reasoning of the previous Supreme Administrative Court decision concerning circular no. 2015/23 (see paragraph 9 above). It appears that the Supreme Administrative Court has not yet delivered a decision on the merits of this case.

6. Judicial review of administrative acts

19. According to Article 125 of the Turkish Constitution, all acts and decisions of the administration are subject to judicial review.

20. Section 2 of Law no. 2577 (Administrative Procedure Act) provides that anyone whose personal rights have been violated as a result of an allegedly unlawful administrative act or decision can bring an action for annulment of that act or decision.

7. Right of individual application to the Turkish Constitutional Court

21. A description of the relevant domestic law and practice regarding the right of individual application to the Turkish Constitutional Court, as well as a review of the mechanism for individual application, may be found in Hasan Uzun v. Turkey (dec.), no. 10755/13, §§ 7-27 and §§ 52-71, 30 April 2013).

COMPLAINTS

22. The applicant company complained under Articles 1 and 2 of Protocol No. 1 that the revocation of its licence to operate a private tutoring centre had violated its right to protection of property and right to education.

23. The applicant company also complained that the non-enforcement of the Constitutional Court decision, as well as of the decision of the Supreme Administrative Court for the stay of execution of circular no. 2015/23, had violated Article 6 of the Convention.

24. The applicant company lastly claimed a violation of Article 14 of the Convention, taken in conjunction with Articles 1 and 2 of Protocol No. 1 to the Convention and Article 6 of the Convention. It stated in this connection that it had been treated in a discriminatory manner by the State authorities on account of its ties to the so-called G ü len movement.

THE LAW

25. The applicant company complained that its rights under Articles 1 and 2 of Protocol No. 1 to the Convention and Article 6 of the Convention had been violated, alone and in conjunction with Article 14, on account of the revocation of its licence to operate a private tutoring centre despite the decisions of the Constitutional Court and the Supreme Administrative Court to the contrary.

26. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international body to first use the remedies provided by the national legal system. The Court refers in this connection to the general principles developed in its case-law regarding the rule of exhaustion of domestic remedies (see, for instance, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 220-226, ECHR 2014 (extracts); and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 115-116, ECHR 2015)).

27. The Court stresses in this regard that a remedy must offer reasonable prospects of success in order to be considered effective and that there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey , 16 September 1996, § 67, Reports of Judgments and Decisions 1996 ‑ IV, and Vučković and Others , cited above, § 73). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress. In so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, it is that remedy which should be exhausted (see Vučković and Others , cited above, § 75, and Mocanu and Others , cited above, 223).

28. Turning to the facts before it, the Court observes that according to Article 125 of the Constitution and section 2 of Law no. 2577 (Administrative Procedure Act), all acts and decisions of the administration are subject to judicial review; anyone who has been adversely affected by an allegedly unlawful act or decision of the administration may seek a revocation of that act or decision before the administrative courts, which have the authority to declare the relevant act or decision null and void with retrospective effect.

29. The Court further notes that since 23 September 2012, an individual application remedy has been made available before the Turkish Constitutional Court. Having examined the main aspects of the new remedy, the Court has found that the Turkish Parliament had entrusted the Constitutional Court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and held that this was a remedy to be used (see Hasan Uzun v. Turkey (dec.), no. 10755/13, §§ 68-71, 30 April 2013).

30. The Court notes at the outset that the applicant company has resorted to neither of those remedies in relation to the complaints it raised before the Court. It thus remains to be decided whether there were any special circumstances that dispensed the applicant company from the requirement to exhaust the available domestic remedies.

31. The applicant company stated in its application form that none of the remedies provided in the domestic law was effective in the circumstances. It argued in this connection that despite the decision of the Constitutional Court repealing the relevant provisions of Law no. 6528 that abolished private tutoring centres, which decision was binding on all State bodies, the administration had continued issuing circulars (two in total) to achieve the outcome aimed at by Law no. 6528. The administration had similarly ignored a decision by the Supreme Administrative Court staying execution of the first of the aforementioned circulars, which further evidenced the disregard displayed by the State authorities towards court decisions. The applicant company added, without providing any supporting evidence, that a number of private tutoring centres had objected to the revocation of their operating licences; however, decisions delivered by the administrative courts in their favour had remained unenforced.

32. In the applicant company ’ s opinion, these issues were sufficient to prove the existence of an administrative practice of ignoring court decisions that upheld the rights of the owners of private tutoring centres, which rendered any available domestic remedies for their grievances illusory. In support of its arguments, the applicant company referred to some statements made by the President of the respondent State, which allegedly endorsed this administrative practice.

33. In the Court ’ s opinion, the arguments presented by the applicant are not sufficient to absolve it from the obligation to exhaust the available domestic remedies, for the reasons stated below.

34. The Court firstly notes in this regard that neither the decision of the Constitutional Court of 13 July 2015 nor the decision of the Supreme Administrative Court of 15 September 2015 was rendered following an application made by the applicant company. Neither of these decisions was, therefore, directly decisive in respect of the applicant company ’ s private tutoring centre and its activities. In these circumstances, the Court cannot speculate as to the effects of those decisions and of their alleged non ‑ enforcement on the applicant company ’ s individual situation.

35. The Court secondly notes that while the applicant company based its arguments on the alleged non-enforcement of the aforementioned decisions of the Constitutional Court and Supreme Administrative Court, the decision to revoke its licence was based neither on Law no. 6528 nor on circular no. 2015/23, which formed the subject matter of the said court decisions. The applicant company ’ s operations were rather terminated on the basis of the subsequently issued circular no. 2015/25, which remained effective in the absence of any court decisions to the contrary (see paragraph 18 above regarding the Supreme Administrative Court decision dismissing a request for its stay of execution).

36. In these circumstances, any arguments by the applicant company that circular no. 2015/25 and the revocation of its licence on the basis of that circular were unlawful had to be brought before the competent domestic courts. Accordingly, the applicant company should have applied to the administrative courts to challenge the revocation of its operating licence by virtue of circular no. 2015/25 and to raise before those courts any other complaints that it brought to the Court. Moreover, in the event of any adverse decisions by the administrative courts, or if it deemed that it did not have realistic prospects of success before those courts on account of the Supreme Administrative Court ’ s decision of 11 December 2015 regarding circular no. 2015/25, it was still open to the applicant company to bring an individual application before the Constitutional Court. Such an application would give the Constitutional Court the opportunity both to decide on the lawfulness of circular no. 2015/25 in the light of the principles cited in its earlier decision of 13 July 2015, and to rule on the applicant company ’ s individual grievances as noted in paragraphs 22-24 above.

37. The Court moreover notes that while the applicant company claimed that a number of other private tutoring centres which had resorted to the available remedies against the revocation of their licences had not been successful, it has not submitted any evidence of these allegations (see paragraph 31 above).

38. In view of the above, and having regard to the circumstances of the case as a whole, the Court does not find that there were any special reasons for dispensing the applicant company from the requirement to exhaust domestic remedies. In these circumstances, the Court is led to conclude that by failing to bring an action before the administrative courts and/or to lodge an individual application with the Constitutional Court, and thus to pursue its claims concerning alleged violations of the Convention at domestic level, the applicant company failed to exhaust domestic remedies available to it in domestic law.

39. As a result, the Court declares the application inadmissible for non ‑ exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 20 October 2016 .

Hasan Bak ı rc ı Julia Laffranque Deputy Registrar President