The article deals with the right to higher education of detainees and convicts and analyses the place of this right in constitutional, national and international law and the problems in practice.

The right to education is a fundamental human right for the development of the individual and his/her participation in society, and is of vital importance for the sustainability of democratic societies. National and international regulations ensure the individual’s access to information by guaranteeing the right to education and determine the obligations of states on this right. Education is recognised not only as a means of acquiring knowledge but also as a social right with a critical role in the process of individual emancipation. Higher education is an integral part of the right to education and is regulated in both national and international conventions and is considered as an element that supports the academic and professional development of the individual.

The right to education is a fundamental human right constitutionally guaranteed under Turkish Law and is regulated by Article 42 of the 1982 Constitution. The State has the obligation to extend education services and make them accessible to all. Constitutional provisions such as equality before the law, freedom of religion and conscience, freedom of science and art are other fundamental rights and freedoms related to the right to education.

Although the right to education is not directly enshrined in the European Convention on Human Rights, it is guaranteed by Article 2 of Additional Protocol No. 1. This right guarantees the individual’s access to the education system. The European Court of Human Rights has clarified the scope of the right to education and the obligations of states in various cases. The right to education is seen not only as a right to information but also as one of the cornerstones of a democratic society.

The right to education of detainees and convicts is a fundamental human right in terms of the personal development of individuals and their integration into society. Modern criminal law recognises that punishment is not merely a sanction but a process aimed at the rehabilitation and reintegration of the individual into society. The Lima Declaration and international conventions aim to guarantee the right of prisoners to education within the framework of academic freedom and living standards consistent with human dignity. Education is recognised as an essential element for social cohesion and economic development and States are expected to ensure this right effectively.

Article 42 of the Constitution guarantees the right to education and training and states that the scope of the right to education shall be determined by law. Law No. 5275 on the Execution of Sentences and Security Measures regulates the right to education of detainees and convicts, and Article 76 restricts access to formal education in closed penal execution institutions. The Constitutional Court has ruled that the state’s obligation to provide formal education is limited. In penitentiary institutions, exams are taken online or face-to-face under supervision, but it is not possible for prisoners to take exams outside. Article 17 of the Law allows for the postponement of prison sentences for some prisoners, thus allowing them to participate in formal education. The development of internet technologies has increased the possibilities of distance education for prisoners and detainees.

Article 67 of Law No. 5275 states that convicts may benefit from internet access under supervision within the scope of education and rehabilitation programmes, while the use of computers is subject to the permission of the Ministry of Justice. It is possible to limit these rights for convicts who are in a dangerous situation or members of an organisation. Article 62 guarantees access to educational materials and in practice individual applications to the Constitutional Court have revealed cases of violation of the right to education.

Recommendations of the Committee of Ministers of the Council of Europe, although non-binding, are a reference in international law. Recommendation 81(17) states that adult education ensures the effective fulfilment of social roles and protects democratic values. The 1989 Recommendation emphasises that education in prisons should be comprehensive and accessible and proposes principles to support prisoners’ right to education. The European Prison Rules, while aiming to guarantee prisoners’ access to educational programmes, state that human rights cannot be limited by lack of resources. The principles of normalisation and responsibility aim to ensure that living conditions in prisons facilitate integration into society. Prisoners are encouraged to establish contact with the outside world and to enjoy educational and social rights.

The right to education of detainees and convicts is the subject of individual applications. The ECtHR has stated that states are not obliged to establish new educational facilities, but that existing educational opportunities should be provided to prisoners effectively. In the ECtHR judgements, it is stated that short-term exclusion from the education process does not constitute a violation, that restrictions may be legitimate as long as the essence of the detainees’ right to education is not touched, but that the complete prevention of access to educational opportunities constitutes a violation.

The right to education is a fundamental right that ensures the individual’s development and integration into society. For detainees and prisoners, higher education plays a critical role in their personal development and reintegration. While distance learning opportunities offer a solution to facilitate prisoners’ access to university education, the majority of applications for violations of the right to education relate to the lack of access to online education. While the European Court of Human Rights emphasises that restrictions on the right to education must be legitimate and proportionate, the Constitutional Court adopts a security-oriented perspective. The limited availability of face-to-face education in closed prisons makes it difficult to receive education, particularly in technical and health fields. The State’s positive obligations in relation to the right to education should be expanded and access to education should be assessed on the basis of individual circumstances rather than on the basis of offence types.