DISSENTING OPINION OF JUDGE POPOVIĆ

The majority of judges have found a violation of Article 2 of P rotocol No. 1 in this case. Much to my regret I could not follow the majority for the reasons stated below.

To my mind, the case concerns three different aspects, which might be labelled as the scope of the right to education (1) , the right to be admitted (2) , and the setting and planning within the educational system, together with questions of expediency (3).

1. Scope of the right to education

The rule in the Belgian linguistic case ( Case “ relating to certain aspects of the laws on the use of languages in education in Belgium ” (merits) , 2 3 July 1968, pp. 30-31, § 3, Series A no. 6 ) determines the scope of the right to education within the meaning of the first sentence of Article 2 of Protocol No. 1. It provides to persons subject to the jurisdiction of the Contracting Parties “the right, in principle, to avail themselves of the means of instruction existing at a given time”.

The applicant was admitted to the Turkish system of education. He did not complain about its rules and it is therefore clear that he had to submit himself to the rules applicable within the educational system, as far as admission to universities is concerned.

2. Right to be admitted

The rule in De Moor v. Belgium ( 23 June 1994, § 43 , Series A no. 292 ‑ A) s tates that “where legislation lays down conditions for the admission ... and a candidate for admission satisfies those conditions, he has a right to be admitted”.

The applicant in the present case failed to satisfy conditions for enrolment at a university, because he did not pass the entrance examination. His results achieved in the written test of the second round of examinations were annulled by the academic council , an independent body of three scholars from different universities. The applicant did not contest either the proceedings or impartiality of any member of the academic council . The latter issued a decision based on equity. As the applicant was asked to submit reasons for his extraordinary success in the second round of written examinations, his only submission was that it had been an outcome of his preparations. Such a submission was , however , devoid of value, for the preparations had taken place before the first round of written examinations. The latter had had only a rather poor impact on the applicant ' s result in the first round, but they inexplicably and suddenly became extremely fruitful in the second round. For that reason, the academic council issued a decision on equity and annulled the results of the applicant ' s written test. Admitting the applicant to university in such circumstances might have disturbed the fair placement of candidates at universities in general.

3. Setting and planning within the educational system

The rule in Kjeldsen , Busk Madsen and Pedersen v. Denmark ( 7 December 1976 , § 53 , Series A no. 23 ) prov ides that, according to Article 2 of Protoc ol No. 1 , “the setting and planning of the curriculum fall in principle within the competence of the Contracting States”. It also “involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era”.

In the present case , the questions concerning entrance exams to universities at the national level certainly concern problems of expediency, but they are also to be assumed to be applicable in respect of the curriculum. If a Contracting State is allowed to prescribe university curricula, then it must also be allowed to prescribe conditions under which candidates should be admitted to follow courses offered in the curricula.

On none of the three points raised in the present case could I find a violation of Article 2 of Protocol No . 1 . The applicant was in a fair position to enjoy his right to education, but he failed to fulfil the conditions for admission to university. Furthermore, the margin of appreciation of the respondent State allowed it to act as it did in this case, in order to achieve nationwide a fair placement of candidates at universities.

Finally, I consider that the case is of a “fourth instance” nature. The applicant was able to chall enge twice the decision of the academic council before the administrative courts of Turkey . In both sets of proceedings the domestic courts found against the applicant. T he applicant basically complained of the outcome of those proceedings. This Court should not interfere with the margin of appreciation of the courts at the national level; nor should it control the assessment of facts carried out by national courts.