Procedures of authorities to close down “Mehmet Akif Ersoy” Turkish College do not meet the standards of due process, resulting in the issuance of a harsh, hasty, disproportionate measure with harmful consequences

After the complaint by lecturers and students of the Private Pre-University Educational Institution “Mehmet Akif Ersoy” regarding the closing of this school based on Council of Ministers Decision no. 614, dated 22.09.2022, and clarifications provided by the Ministry of Education and Sports for public opinion through the Facebook social network, the Albanian Helsinki Committee (AHC) verified the above request and documentation regarding this issue and reached the following conclusions:

1. In 1996, Tirana Municipality and Gulistan Foundation signed a usufruct contract (the right to use and enjoy) which gave the Foundation the right to use the property where the private educational institution “Mehmet Akif Ersoy” had been located earlier for a 30-year term.
2. The General Director of the Gulistan Foundation, on 10.06.2022, officially requested from the Ministry of Education and Sports the approval for the transfer of the school from the existing building to a building in Kashar. The Ministry of Education and Sports, by letter no. 4030/3, dated 01.07.2022 responded that, based on the report on the building status of the site Local Educational Office (LEO) Tirana, the building where the transfer was intended to take place did not meet the relevant standards. This preliminary response came at a time when representatives of the Foundation communicated electronically to the Ministry that during July, works would take place to improve the aspects that a LEO engineer who had inspected the new building on June 28 had recommended earlier.
3. Tirana Municipality, by decision no. 69, dated 12.07.2022, approved the passage of the usufruct right that the Mehmet Akif Ersoy school possessed to third parties selected by it. After this decision, the school moved for good from the building it was at to the building in Kashar.
4. On 27.07.2022, the school wrote again to the Ministry of Education and Sports, specifically the Directory of Deregulation, Permits, and Licenses, to notify that works to prepare the building had concluded and to request an inspection to check the conditions of the building on site.
5. On 14.09.2022, the General Directory of Pre-University Education establishes a working group to assess the conditions for licensing and exercise of activity of the school. On the same day, the assessment was done, establishing the envisaged criteria and the criteria assessed as not completed, but without setting any deadline for fulfilling them. After the completion of this inspection, one copy of it was delivered physically to the administrator of the school. This document was the only one made available and signed by school representatives while such a practice was not pursued in the two prior visits of the LEO. The school, in the new building, besides completing deficiencies described in the “Assessment Platform” of the engineers (working group), also continued the education process for the new academic year, while awaiting the approval of the new license. Neither the Ministry of Education and Sports nor the Directory of Deregulation, Permits, and Licenses provided any response to the school about the notes (process-verbal) of the assessment team or the request for a license. This is the end of correspondence between the school and the Ministry of Education and Sports and its subordinate institutions.
6. It is also worth stressing that the legal representatives of the Foundation declare that they acted in good faith and did not consider at any moment that moving to a different building would create the risk of shutting their 30-year activity in the country. Moreover, they judged that being a Foundation, it would not be economically affordable to keep two buildings until the request was approved by the MES for the new building, which the request was submitted for 3 months before the new academic year.
7. Later on, by Decision no. 614, dated 22.09.2022, the Council of Ministers, pursuant to articles 42 and 70 of Law no. 69/2012 “On pre-university education system in the Republic of Albania” decided to shut down the activity of the private pre-university educational institution “Mehmet Akif Ersoy,” which conducts classes also in foreign languages.

While becoming familiar with this Council of Ministers’ Decision, it draws the attention that it only mentions the obligations of the private pre-university educational institution and not the concrete reasons or motives or the legal violations that conditioned the approval to shut down this school. This decision does not meet the essential standards of reasoning, as an administrative act with repercussions for the parties, but also for the students and the parents who entrusted the Foundation with their education. According to the standards of jurisprudence of the Constitutional Court, besides formal elements, the administrative act should be clear and contain, besides explaining the factual situation based on which it was taken, also the summarized explanation of the result of the administrative investigation and the evaluation of evidence, the legal basis of the act, an explanation why the legal conditions for its implementation are met in this case (see decisions no. 25, dated 10.05.2021; no. 29, dated 27.06.2013 of the Constitutional Court).

Referring to article 42 of the Law 69/2012, licensing of these institutions is done according to stipulations of Law no. 10081, dated 23.2.2009 “On licenses, authorizations, and permits in the Republic of Albania,” amended. Article 12/3 of the above law envisages: before making the decision of revocation, the competent body, as a rule, orders a re-meeting of criteria or correction of violations of obligations, within a reasonable deadline, without the suspension of the title and/or the suspension of the title, for a reasonable time, until the implementation of the order to re-meet the criteria or correction of violations of obligations.

The contents of the provision mentioned above and the correspondence between the school and the Directory of Deregulation, Permits, and Licenses, there does not appear to have been issued any deadline for the conditions that should have been met nor any decision made to suspend the license until they were met.

According to article 70, paragraph 2 of Law no. 69/2012, the Inspectorate that checked the conditions of the building, when necessary establishes beside the main sanction (warning or fine) also the “ordering of the subject of inspection to correct the encountered violations and to eliminate their consequences, by also establishing a reasonable deadline for this purpose.”

Instruction no. 15, dated 12.07.2013 of the Ministry of Education and Science, paragraph 7.1 of the chapter envisages that in cases when the request of the subject is not approved, the refusing decision should clearly establish the reasons for the refusal, expressed in such a way that the requester understand what measures they should take in order that, after a second application, they may be equipped with the requested license.

The above instruction does not appear to have been implemented; on the contrary, it has moved to the harshest and unmotivated measure of shutting down the school and not issuing a new license.

Considering the above, and the interest of 159 students to normally continue school, AHC considers that the measure to shut down the school is not in keeping with the requirements envisaged in the above legal provisions and represents a hasty, disproportionate measure with harmful consequences.

AHC considers that in the case of closing down this private pre-university educational institution, the standards of due process required by article 42 of the Constitution of the Republic of Albania have not been respected. By decision no. 25, dated 10.05.2021, the Constitutional Court emphasizes that the right to due legal process is not limited only to the legal process, but also incorporates that of an administrative character. Prior familiarization of the person with the facts that assign them responsibility, respect for the right to be heard and to defend oneself, by providing preliminary explanations, as well as during the review of the case, are some of the basic elements that guarantee the constitutional right of anyone to due legal process.

Also, it is worth emphasizing that in the practice of the European Court of Human Rights, the problem of education has been devoted special attention. For instance, one of its cases (Timishev vs. Russia), says that in a democratic society, the right to education plays a fundamental role so that a restricting interpretation would not be in keeping with the purpose of the first sentence of article 2 of Protocol no. 1 of the Convention.

For the above reason, AHC suggests a revision of the Council of Ministers’ Decision in keeping with legal requirements.