Educational institutions maintain a body of rules that students are expected to observe; those who act contrary to those rules may face disciplinary sanctions. The principal justification for attaching sanctions to conduct outside the rules is deterrence. The knowledge that a breach of a rule will have consequences forestalls conduct of that kind. A further effect expected of the penalties imposed is that, by setting an example for other students, they prevent similar acts from being repeated. Yet although the aim is to secure compliance with the rules, breaches of the rules and errors are frequently encountered in the disciplinary investigation itself.
The disciplinary sanctions to be applied to students are governed by the disciplinary regulations drawn up by the educational institution concerned. Various legal remedies may be pursued against penalties established contrary to the legislation. For a disciplinary penalty to be regarded as lawful, it must bear no defect in terms of the elements of subject matter, cause, purpose, competence and form; and the authorities conducting the investigation must determine a sanction proportionate to the nature of the act. Otherwise it is beyond dispute that penalties which exceed due measure or are applied entirely unjustly will be unlawful, and it is possible for them to be set aside by way of objection or an action for annulment.
In this briefing note we examine the legal framework of the disciplinary regime applicable to students in higher education, the types of penalty, the limitation periods, the investigation procedure, the right of defence, the authorities competent to impose a penalty, and the legal remedies available against the decision.
Legal Framework of Disciplinary Penalties
The principal instrument governing disciplinary penalties to be imposed on students at higher education institutions is the Regulation on Student Discipline at Higher Education Institutions. Under Article 1 of the Regulation, the instrument covers all students at higher education institutions. The types of penalty and the procedure and principles of the investigation are also laid down in the same instrument. Universities may nevertheless make provision through regulations issued within their own structures, provided these do not conflict with the Regulation. Students studying at the higher education institution concerned must therefore act in conformity with both instruments.
Types of Penalty and the Disciplinary Offences Requiring Them
The Regulation on Student Discipline at Higher Education Institutions sets out in detail which forms of conduct are prohibited, which sanction each prohibited act attracts, and the level of penalty to be applied in the event of repetition. Viewed through the situations most frequently encountered in practice, the picture may be summarised as follows:
- A warning is applied mostly on account of acts such as posting notices outside the places designated by the officials of the higher education institution.
- A reprimand arises in situations such as an attempt to cheat in an examination, distributing leaflets within the institution without permission, or putting up posters and banners.
- Suspension from the institution for one week to one month is imposed where alcohol is consumed within the institution or where meetings are held in the institution’s open and enclosed areas without permission from the officials.
- Suspension from the institution for one semester is applied on account of cheating in an examination or enabling another to cheat, physically assaulting the institution’s staff or students, committing theft at the institution, and resorting to plagiarism in seminars, theses or publications.
- Suspension from the institution for two semesters arises in cases such as preventing the performance of a duty by using force and violence against officials, or committing acts defined as offences in the Turkish Penal Code. A decision of suspension for two semesters may also be taken in respect of a student where narcotic or stimulant substances are used, carried or held within the institution, where cheating occurs by means of threats, and where sexual harassment is committed within the institution.
- Expulsion from the higher education institution is the response to acts such as selling, purchasing, supplying to others or trading in narcotic or stimulant substances within the institution. The sanction for violating persons’ sexual inviolability by engaging in sexual conduct upon their bodies is likewise expulsion.
The acts requiring a disciplinary penalty are not confined to those given as examples above. Beyond the acts requiring suspension and expulsion, conduct resembling in nature and gravity the acts requiring a warning or a reprimand may also be displayed. The Regulation expressly states that penalties of the same kind will be applied to those who engage in such acts.
It is further accepted that, where an act already penalised is repeated, a penalty one degree more severe will be applied, but that expulsion from the higher education institution may not be ordered by that route.
Limitation Periods for Investigation and Penalty
Action is taken immediately upon learning of the incident in respect of students who commit acts defined as disciplinary offences in the Regulation. In every case, if the investigation is not commenced within the following periods from the date on which the superiors competent to open an investigation learned that the act had been committed, the power to impose a disciplinary penalty becomes time-barred.
- For acts requiring a warning, a reprimand or suspension for one week to one month, the investigation must be commenced within one month.
- For acts requiring suspension for one or two semesters or expulsion from the higher education institution, that period is three months.
In addition, if a penalty has not been imposed within two years at the latest from the date on which the act requiring a disciplinary penalty was committed, the power to impose a penalty likewise becomes time-barred.
Procedure in the Disciplinary Investigation
According to the unit to which the student belongs, the superiors competent to open an investigation are determined as follows:
- For disciplinary offences committed by faculty students, the competence belongs to the dean.
- In respect of institute students, the investigation is opened by the director of the institute.
- For students of colleges and vocational colleges, the competent superior is the director.
- Where conservatory students are concerned, the competence belongs to the director of the conservatory.
The competent superiors may conduct the investigation in person, or may have it conducted by appointing one or more investigators. Where they consider it necessary, they may also request the appointment of an investigator from another higher education institution.
Confidentiality is essential in the investigation. Where the investigator considers it necessary, they may hear witnesses, carry out an on-site examination and have recourse to a court-appointed expert. The investigative steps are recorded in minutes, and minutes must be drawn up for every step the investigator takes. The institution’s other staff are obliged to supply the documents the investigator requests.
The Student’s Right of Defence
One of the most critical stages of the investigation is affording the student against whom proceedings are conducted the opportunity to present a defence. What the act attributed to the student consists of must be notified in writing at least seven days before the date on which the defence is to be presented. In that letter the student is asked to attend on the day, at the hour and at the place indicated in order to present their defence. The summons sent must also state that, if the student fails to comply with the summons without a valid excuse or does not notify their excuse in good time, they will be deemed to have waived their defence and a decision will be taken according to the other evidence in the file. If the person attending to present a defence wishes to submit it in writing, a period of not less than three days may be granted to them. In every case the investigation must be conducted in a manner that enables the student to defend themselves properly.
The Investigation Report
The report drawn up upon completion of the investigation summarises the investigation authorisation, the date the investigation began, the identity of the person under investigation, the acts attributed, the stages of the investigation, the evidence and the defence taken. The report discusses whether the allegation is established and proposes the disciplinary penalty considered appropriate. The originals or copies of the documents relating to the investigation are attached to the report bound in a schedule. The report is delivered together with the file to the authority that opened the investigation.
The Authority Competent to Impose the Penalty
Once the investigation is complete, the authority to rule on the penalty varies according to the gravity of the sanction.
Warnings, reprimands and suspension for one week to one month are imposed by the dean of the faculty concerned or by the director of the institute, conservatory, college or vocational college.
In respect of disciplinary offences committed in areas of common use, the power to impose a warning, a reprimand or suspension for up to one month belongs to the rector.
The more severe sanctions of suspension for one or two semesters and expulsion from the higher education institution are decided by the competent disciplinary board. In investigations conducted by a faculty, institute, conservatory, college or vocational college, the executive boards of those units act as the disciplinary board; in investigations conducted by the rectorate, the university executive board does so.
In determining the penalty, regard must be had to the gravity of the act, whether the student has previously received a disciplinary penalty, their general attitude and conduct, and whether they feel remorse on account of the act committed.
Objection and Action for Annulment
An objection may be lodged with the university executive board within fifteen days against penalties imposed on a student by disciplinary superiors and boards. The university executive board, as the authority hearing the objection, concludes the application definitively within fifteen days. The executive board examines the file and either accepts the penalty imposed as it stands or rejects it. In the event of rejection, the disciplinary board or the competent disciplinary superior decides the objection having regard to the grounds of rejection. Against the definitive decision the executive board gives on the objection, an action may be brought before the administrative court within 60 days of notification of the decision seeking annulment of the disciplinary penalty.
It should be emphasised that recourse to the objection route is not compulsory. If the student so wishes, they may skip the objection stage and bring an action for annulment directly before the administrative court.
On the other hand, disciplinary penalties may also be applied to civil servants and public officials subject to the Civil Servants Act No. 657. Where there is a defect in the elements those penalties must bear in order to be regarded as lawful, legal remedies may be pursued just as with university disciplinary penalties.
Frequently Asked Questions
Is representation by a lawyer compulsory before the administrative court?
Under Turkish law the parties may defend and represent themselves in person before the court; save for limited exceptions, there is no obligation of representation by a lawyer. Nor is there any such obligation so far as the administrative courts are concerned. That said, the complex structure of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act mean that conducting the process without a lawyer may lead to errors of both procedure and substance that are difficult to remedy. For that reason it is prudent to obtain legal support before taking any step in administrative proceedings governed by detailed rules.
Is a disciplinary penalty entered on the student’s record?
Disciplinary penalties received by students at higher education institutions during their studies are entered on their records.
Can a disciplinary penalty be erased from the record?
Our legislation contains no provision for the erasure of disciplinary penalties from the record. For that reason the record of a student who has received a penalty can be cleared only through the enactment of an act granting amnesty for disciplinary offences.
Does a disciplinary penalty affect the security clearance investigation?
The Civil Servants Act No. 657 provides that a security clearance investigation is to be carried out upon entry into the civil service. That Act enumerates exhaustively the offences constituting an obstacle to employment as a civil servant, and it is possible for the security clearance investigation to conclude unfavourably in respect of a student who has received a disciplinary penalty on account of one of those offences.
To which authorities is a disciplinary penalty notified?
The penalty is first notified to the student themselves; it is also notified to the organisations providing the student with a scholarship or loan and to the Higher Education Institution. Where the sanction is expulsion, the range of notification widens: in that case the decision is also forwarded to all higher education institutions, to the Student Selection and Placement Centre (ÖSYM), to the police authorities, to the Council of Higher Education and to the relevant military recruitment office.
In which cases is a disciplinary investigation opened?
An investigation is conducted where a student commits the acts listed in the second chapter of the Regulation on Student Discipline at Higher Education Institutions under the heading “Disciplinary Penalties and the Disciplinary Offences Requiring Disciplinary Penalties”.
Can every disciplinary penalty be made the subject of an action?
The student to whom the penalty is addressed has the right to bring an action for annulment before the administrative court against every disciplinary penalty imposed. The action must be brought within 60 days following notification of the penalty to the student. By a decision of annulment, a penalty established contrary to the law is set aside with retroactive effect.
Independent Legal Assessment
In student disciplinary disputes, a significant proportion of the grounds producing annulment arise not from the substance of the act but from the manner in which the investigation was conducted. A summons to present a defence issued without observing the seven-day period, a failure to particularise the allegation, imposition of the penalty by an authority lacking competence, or an oversight as to the limitation periods are defects capable of rendering the act unlawful in themselves.
The second heading is proportionality. The sanction must be proportionate to the gravity of the act, and the student’s history and attitude must be taken into account; in files where that assessment has not been made, the purpose and subject-matter elements of the penalty become contestable. In a concrete file, the following matters in particular should be given priority:
- Whether the seven-day interval between the date of notification of the summons to present a defence and the day of the defence was preserved
- Reviewing the date on which the investigation was commenced against the one-month and three-month limitation periods
- Whether the two-year period for imposing a penalty, running from the date the act was committed, has expired
- Whether the penalty was imposed, according to its type, by the competent superior or the competent disciplinary board
- Observance, in files where repetition has been applied, of the rule that expulsion may not be resorted to
- Making the choice between bringing an action directly and first objecting to the executive board in a way that creates no loss of time
Independent Legal provides legal advisory services in disciplinary investigations conducted at higher education institutions, from the defence stage to the conduct of the action for annulment to be brought before the administrative court.