JOINT PARTLY DISSENTING OPINION OF JUDGES KARAKAÅž AND LEMMENS

1. The majority find that the complaint relating to the imposition of a disciplinary sanction needs to be examined under Article 2 of Protocol No. 1, read in the light of Article 10 of the Convention. They then declare this complaint admissible and well-founded.

On these points, we regretfully dissent.

Characterisation of the complaint

2. The applicants complained that the imposition of a disciplinary sanction for having petitioned the university authorities had infringed their freedom of expression under Article 10 of the Convention and denied them their right to education under Article 2 of Protocol No. 1 (see paragraph 32 of the judgment).

The majority, following the precedent of İrfan Temel and Others v. Turkey (no. 36458/02, § 28, 3 March 2009), have decided to examine the complaint under Article 2 of Protocol No. 1 only, albeit “read in the light of” Article 10 of the Convention (see paragraph 33 of the judgment).

3. In our opinion, the disciplinary sanctions were imposed first and foremost because of the opinion expressed in the applicants ’ petition (see paragraph 40 of the judgment: “for merely exercising their freedom of expression”). Having regard to the nature of the conduct that was punished, these sanctions constituted interferences with the applicants ’ right to freedom of expression. As in other cases involving sanctions imposed on individuals who used their constitutional right to file an objection, we consider therefore that this complaint falls to be examined under Article 10 of the Convention (see Döner and Others v. Turkey , no. 29994/02, § 79, 7 March 2017; see also the separate opinion of Judge Cabral Barreto in İrfan Temel and Others , cited above).

It is true that, since the sanctions consisted in temporary suspension, or expulsion, from the university (see paragraph 8 of the judgment), the applicants were for some time unable to continue their education there. The repercussions on the applicants ’ right to education are, however, of an indirect nature, compared to the direct nature of the interference with their right to freedom of expression. We therefore do not think that these repercussions are sufficient to consider that this complaint must be examined under Article 2 of Protocol No. 1.

Admissibility of the complaint

4. The majority reject the Government ’ s objection based on the applicants ’ loss of victim status. They admit that the Istanbul District Administrative Court acknowledged that there had been an unjustified interference with the applicants ’ right to education (see paragraph 37 of the judgment). They consider, however, that the annulment of the disciplinary sanctions was not sufficient to deprive the applicants of their victim status, and that without compensation they can still claim to be victims of the alleged violations (see paragraphs 38-40 of the judgment).

5. In our opinion, the majority thus underestimate the importance of the annulment of the measures complained of. When an individual complains about a disciplinary sanction that has been imposed on him or her, and where that sanction has been completely removed from the legal order, it seems to us that this individual has in principle obtained complete redress.

Exceptionally, the disciplinary sanction may have produced effects which constitute damage for the individual concerned. Full redress may then imply reparation of that damage.

6. This is what the applicants argued when they brought an action for compensation against the university. More specifically, they argued that they had sustained “psychological damage” as a result of the disciplinary punishment imposed on them (see paragraph 15 of the judgment). However, the Istanbul District Administrative Court dismissed the claims. The court referred, among other things, to the fact that after the stay of execution of the impugned penalties, the applicants had been authorised by the university to take repeat exams in July 2002 (for one of the applicants the re-enrolment came too late, and he took his exams in the 2003 spring midterm period – see paragraph 12 of the judgment). It thus dismissed the claims in the absence of any damage giving rise to compensation (see paragraph 17 of the judgment).

It is normally for the domestic courts to assess the evidence and to decide matters of domestic law. We therefore believe that there should be strong reasons before our Court can substitute its opinion for that of the Istanbul District Administrative Court when it comes to examining whether or not the applicants have sustained damage which has not been sufficiently redressed by the annulment of the impugned measures.

7. In holding that the applicants suffered damage which has not been compensated for, the majority refer to the fact that “the applicants ... had their ties with the university severed for a whole semester and (that) they were unable to participate in their courses and to benefit from the educational and recreational facilities within the campus”. They were thus “deprived of the possibility of benefiting from the university environment in general and, more specifically, of attending the lectures” (see paragraph 39 of the judgment).

In our opinion, deprivation of the benefits from the university environment and of the possibility of attending lectures was not the kind of damage for which the applicants were claiming compensation before the domestic courts. It is also not the kind of damage they focused on while arguing before our Court that they still had victim status. Before the Court, they argued firstly that they had been unable to graduate in time, unlike their classmates; this argument can be refuted on the basis of the information received from the university (see paragraph 18 of the judgment). They further argued that they had had problems in their school and family environment, because they had been exposed as if they were terrorists; this damage is in our opinion sufficiently redressed by the moral satisfaction resulting from the finding that the disciplinary measures were wholly unfounded. Lastly, they argued that their education had been interrupted; this damage has in our opinion been redressed by the fact that, after the stay of execution of the disciplinary measures, they were able to catch up with their degree courses and to finish them on time.

8. On the basis of the foregoing, we see no reason to depart from the findings of the domestic courts: following the reaction by the university to the stay of execution of the disciplinary measures, there was no more damage which required compensation. Accordingly, we consider that the applicants have lost their victim status. We therefore voted against declaring admissible the complaint relating to the imposition of a disciplinary sanction.

For that reason, we also voted against finding a violation of Article 2 of Protocol No. 1 and awarding just satisfaction.