Strasbourg Observers

A doctoral programme protected by the right to education in Telek and Others v. Türkiye? More careful research required

June 23, 2023

By Dylan Couck

On 21 March 2023, the European Court of Human Rights (‘the Court’) found that Türkiye had violated the right to respect for private life under Article 8 on the one hand, and the right to education under Article 2 of the First Protocol on the other. Türkiye had expelled Alphan Telek, Edgar Şar, and Zeynep Kıvılcım, the applicants, from their status as civil servants and revoked their passports under the emergency laws adopted after the attempted coup in 2016. These sanctions were imposed because the applicants had signed a petition condemning the violence used by the Turkish government during actions against the PKK, the Kurdistan Workers’ Party. The latter measure was challenged by the petitioners before the Court in Strasbourg. In this blogpost, I argue that the Court’s reasoning that this measure limited Mr Telek’s and Mr Şar’s right to education and consequently, its decision to broaden the scope of Article 2 of the First Protocol to include doctoral programmes, is deficient.[i]

Facts and summary of the judgment

Mr Telek was a research assistant at Yıldız Teknik University in Istanbul and was enrolled in a doctoral programme at Sciences Po in Paris (Institut d’études politiques de Paris). Mr Şar worked for the same Turkish university as a research assistant and was pursuing doctoral studies at the European University Institute in Florence. On suspicion of having links with a terrorist organisation, based on their signing the above-mentioned petition, both applicants were dismissed from their jobs at their Turkish university and pursuant to this, had their passports revoked. Ms Kıvılcım was a researcher at Istanbul University. The said sanctions were imposed onto her on the same grounds as well. She was residing in Berlin at that moment.

The applicants were given new passports between December 2019 and September 2020 following an amendment to the emergency laws. Their domestic proceedings against the removal from office were ongoing at the time of the European Court’s ruling.

Concerning the right to respect for private life, the applicants argued that the cancellation of their passports had hindered them from pursuing their doctoral studies and research activities at foreign universities. Ms Kıvılcım added that in the absence of a valid passport, she had encountered serious obstacles, including administrative ones, during her stay in Germany. They argued that the measures taken under the Turkish Emergency Laws were not sufficiently clearly formulated to serve as a legal basis for sanctions. Formulations such as ‘links – membership, affiliation or association – with a terrorist organisation’ and ‘persons whose departure from the country is inconvenient for general security’ were, according to the applicants, too broad and vague. Accordingly, they claimed that their rights protected by the ECHR had been violated.

The Court followed this line of argument. By withholding the applicants’ passports and not reissuing them for a considerable period of time, Türkiye curtailed the right to respect for private life. Indeed, as the Court has stated in Pişkin and Kotiy, Article 8 of the Convention also covers the right to travel internationally so that individuals can pursue professional activities and maintain contacts with acquaintances abroad. According to the ECtHR, this is all the more important for academics as participation in international scientific conferences, and the opportunity to share and discuss ideas and research with other scholars is essential to their profession. Measures involving a travel ban or restricting the ability to travel inherently hamper the professional activities of researchers. While a limitation of this right could be justified, the decisions of the Turkish authorities to revoke the passports were too imprecise, did not specify the modalities nor the duration of the revocation, and there was no justification for the application of the sanction specifically to these applicants. Adequate and effective judicial review was therefore not possible, which led the Court to conclude that the principle of legality under Article 8 ECHR had been violated.

In addition, applicants Telek and Şar also claimed a violation of their right to education. They argued that, by preventing them from pursuing their doctoral studies abroad for the period during which they did not have their passports, the Turkish authorities would have unjustifiably curtailed this right. With regard to this complaint, the Court found a violation of Article 2 of the First Protocol as well due to the defective legal basis for the measures.

The Court used a twofold but concise reasoning to establish that the right to education enshrined in Article 2 of the First Protocol to the ECHR also covers doctoral programmes. Firstly, it argued that it saw no reasons why a doctoral programme should not be covered by the right to education. Indeed, according to the Court’s previous case-law, the content of the right to education is variable and changes over time and space, in accordance with social and economic conditions. In the 2005 Leyla Şahin case, the Court had already declared Article 2 Protocol 1 applicable to university studies, and in several subsequent judgments the Court (e.g. Mürsel Eren and İrfan Temel et al.) confirmed that the right to education inherently implies a right of access to existing higher education institutions. The Court seems to imply that, although it does not explicitly postulate so, a doctoral degree must be treated as any other university degree as far as the applicability of Article 2 of Protocol No. 1 is concerned. Moreover, the importance of doctoral studies and research for scientific progress justifies their inclusion under the right to education in the eyes of the Court.

Given the importance of cooperation and exchanges between countries in the field of higher education and research, the Court secondly held that the obligations incumbent on the Turkish authorities were not limited to safeguarding access to doctoral courses in Türkiye itself. Student and research mobility are part of the essence of higher education within the Council of Europe. For instance, the Lisbon Convention on the Recognition of Qualifications concerning Higher Education in the European Region – which was also ratified by Türkiye – aims to facilitate mutual recognition of study qualifications. Article VI.3 of that Convention provides that the holder of a higher education degree should have access to subsequent higher education studies, including doctoral studies, in a State that recognised the degree on the same basis as holders of a degree from that State. The ECtHR inferred from this that Türkiye had a duty to refrain from interfering with the possibility for its citizens to have their degree recognised abroad and thus gain access to doctoral studies there.

Critical for a (rightly) critical dissenting opinion

The Turkish Judge Yüksel wrote a dissenting opinion to the judgment, in which she focused on the applicability of the right to education to doctoral programmes. Her premise – which I agree with – is that the Court’s reasoning for extending the right to education to doctoral programmes is rather poor. More specifically, she disagreed with the majority on three points. First of all, she opined that a mere reference to the Leyla Şahin judgment could hardly suffice to bring doctoral studies within the scope of the right to education. After all, that judgment concerned the continuation of university studies in the home country and not doctoral studies conducted abroad. Secondly, Judge Yüksel considered that it was incorrect to use a reference to the Lisbon Convention, as it is a separate instrument, to broaden the rights provided for in the ECHR. Finally, she argued that the judgment imposed a positive obligation on Member States to provide for effective access to higher education institutions, including those abroad, and this in spite of the negative wording of Art. 2 Protocol 1.

Starting from the outset of the Strasbourg Court’s reasoning and the criticism of the dissenting judge: does a doctoral programme fall within the scope of the right to education as contained in Article 2 of the First Protocol? The Court ruled in the 2005 Leyla Şahin case that the content of the right to education may vary in space and time according to the actual economic and social conditions.  In doing so, the Court had already opened the door to a broader interpretation of the right to education which is not limited to primary and secondary education. Unlike in the Leyla Şahin case, the Court’s reasoning in the annotated judgment for extending the scope of the right to education to doctoral studies is virtually absent. Indeed, when it broadened the scope of Article 2 Protocol 1 to include initial undergraduate and graduate programmes in Leyla Şahin, the Court relied on recommendations by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe in support of this conclusion.

While I endorse the outcome of the present judgment, it is nevertheless insufficiently reasoned to equate doctoral programmes with an initial (under)graduate programme and bring those programmes within the scope of the right to education, solely on account of their importance to science – which I do not contest in itself – without any further substantiation. If a PhD student were to include such a reasoning in their dissertation, they surely would not get away with it. Data from the OECD, for example, could have served as substantiation for this reasoning; an analysis of national legislation could also have possibly shown that doctoral courses are considered higher education by several members of the Council of Europe, as for example in France or the Flemish Community in Belgium. Such analysis, in my view, could have led to the same conclusion but with a rationale that, as befits good research, could have been verified.

As regards the positive obligation to grant individuals access to doctoral training programmes (both domestically as well as abroad) which Judge Yüksel reads in the judgment, I cannot concur with her dissent on this point. In my view, such a positive obligation does not follow from the judgment. First of all, the Court held that because Mr Telek’s and Mr Şar’s qualifications had previously been recognised in France and Italy respectively – this can be implicitly deduced from the finding that they had been able to commence doctoral studies in those countries – and because they had consequently gained access to the doctoral course there, Türkiye should not have prevented them from travelling to attend those programmes. Nevertheless, the Court’s phrasing in the judgement leads to a broader, negative obligation on the part of Member States: they may not prevent nationals from exercising their right to education in a foreign higher education institution. However, the Court stressed that this obligation is distinct from that of providing unconditional access to these institutions – thereby refuting the idea that such a positive obligation can be derived from its judgment. Hence, the obligation which one might infer from this judgment is merely a negative one.

The reasoning of the European Court which leads to this conclusion is, however, succinct. A mere reference to the Lisbon Convention and the intention of the participating States to recognise each other’s higher education qualifications is rather meagre; all the more so when the Court, through Article 2 of the First Protocol, seems to actually intend to secure that students have a right, which corresponds with the Parties’ commitments under the Lisbon Convention, to have their higher education qualifications recognised abroad and to pursue further studies such as doctoral studies there. Such a conclusion would have been understandable if the Court had used the Lisbon Convention in support of other, stand-alone motives. If, on the other hand, it is only able to reach this conclusion with an argument that essentially relies on a legal instrument other than the ECHR itself, then the interpretation of Article 2 Protocol No. 1 as rendered by the Court is remarkably broad. This transcends an ‘interpretation in light of other sources of law’ as the present judgment grants nationals of States Parties to the ECHR a right that actually only exists as an obligation resting on States Parties to the Lisbon Convention.


The foregoing should not suggest that I disagree with the premise of the judgment. It is positive that the Court recognises the right to education of doctoral candidates and clarifies that Member States cannot prevent nationals from exercising this right, either in a national higher education institution or in one abroad. Still, it is regrettable that the Court reaches this conclusion relying on a barely tangible reasoning – or at least one that does not seem clear from the text of the judgment. Moreover, the question arises to what extent this broadened interpretation of the right to education extends to states that are not a party to the Lisbon Convention – i.e. Greece which, as the only member of the Council of Europe, is not a signatory to the Convention.

Regardless, the recognition of doctoral programmes as higher education protected under Article 2 of Protocol No. 1 raises questions about the application of other, related rights and obligations. For example, Article 13.2.c of the 1966 International Covenant on Economic, Social and Cultural Rights requires that “higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education”. Will this commitment on the part of the government also extend to doctoral studies? It is by all means worth further research.

[i] This text is based on a Dutch version of this blog, previously published on EHRC Updates on 16 June 2023.

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