Events
The applicant, a university student, was sentenced to a warning disciplinary penalty by the university administration for putting up posters without permission. In the lawsuit filed by the applicant against the disciplinary penalty, the administrative court ruled for the cancellation of the action. The university filed an appeal against the court’s decision, and the regional administrative court accepted the university’s appeal, cancelled the court’s decision and dismissed the case with finality.
Allegations
The applicant claimed that the imposition of a warning penalty for hanging unauthorised posters on the university campus violated his freedom of expression.
The Court’s Assessment
Article 5 of the Regulation on Student Discipline of Higher Education Institutions (Regulation) stipulates that the act of hanging posters without permission inside the higher education institution shall be punished with disciplinary penalty. While analysing the legal situation arising as a result of the application of the said rule, it is necessary to evaluate it in the context of the Constitution. Namely, it is clear that an audit of the interference with the freedom of expression within the framework of the provisions of the regulation will not constitute a constitutionality audit, on the contrary, it will mean a remedy review limited to whether the provisions of the regulation are applied correctly. In this context, in the concrete case, the provision of the Regulation issued based on the authorisation granted by the Higher Education Law No. 2547 must be considered together with the legitimate aim pursued.
In the case subject to the application, when the investigation report and the decisions of the courts of first instance are considered, it has been observed that no assessment has been made as to the extent to which the banner concretely affects, disrupts or threatens to disrupt the order at the university. On the other hand, it is understood that both the investigation report and the decisions of the courts of first instance are limited to an examination limited to whether the act subject to punishment was carried out by the applicant.
Moreover, neither the administration nor the courts of first instance made any determination that the banner caused visual or environmental pollution, except for the temporary use of the university wall to publicise the commemoration in question. The punishment of students’ behaviour in a university environment, which conflicts with some legislative provisions, on the grounds that it may cause an abstract danger, has the potential to put pressure on many constitutional rights and freedoms, especially freedom of expression. For this reason, in order to punish an expression of thought in a university environment, it would be appropriate to show that it causes a certain amount of danger or damage under the concrete conditions of the incident.
On the other hand, the poster was hung in a university campus. It is possible to foresee and apply disciplinary rules in order to maintain the order of the institution. However, it is also essential to create an environment of freedom of expression in the university campus, which is accepted as one of the centres of scientific production. Although it is a public institution, it is essential that interference with freedom of expression in universities, which are not penal institutions, police stations or places of formal education, should be exceptional.
In this context, in the academy, which is seen as the cradle of free thought and critical reason, more tolerance should be shown to university students who have different opinions and whose ways of expressing their statements may be sharp. Freedom of expression means that everyone, including university students, should have the opportunity 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 unpopular.
In the investigation procedures of the university administration and the decisions of the courts of first instance, there was no evaluation of the content of the unauthorised poster. When the content of the poster is analysed, it is seen that it aims to commemorate 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 poster in question contained insult, incitement to violence, hate speech or incitement to riot in terms of content and form. Therefore, it has been assessed that the statement made through the poster has a context when the identity of the person who made the statement, the time of the statement and all the expressions in the statement are considered as a whole.
As a result, no relevant and sufficient justification has been put forward that the disciplinary penalty imposed on the applicant in relation to the poster meets a compelling social need. Therefore, it was concluded that the intervention was not in accordance with the requirements of a democratic society.
The Constitutional Court decided that the freedom of expression was violated for the reasons explained.
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