Faculty of Law and Criminology Academic Year 2018-2019 Exam Session 1
Academic Freedom: Lessons from Strasbourg
LL.M. Paper Joseph Finnerty Student number : 01803851
Promoter: Prof. Dr. Eva Brems Co-reader: Dr. Laurens Lavrysen
‘The trailblazers in human, academic, scientific and religious freedom have always been nonconformists.’
Martin Luther King, A Gift of Love: Sermons from Strength to Love and Other Preachings (Boston, Beacon Press 2012), p. 35
i Abstract
The Global Forum on Academic Freedom, Institutional Autonomy, and the Future of Democracy will convene in Strasbourg on 20 June 2019. It shall bring together over 100 actors in the field of higher education to discuss the growing importance of the principles of academic freedom and institutional autonomy, in the proper functioning of a democratic society. This work constitutes a critical examination of the current level of protection for academic freedom, as a human right, within the Council of Europe Member States. More specifically, it shall delineate and critically assess the extent to which the principle is protected, and determine whether such protection is sufficient in ensuring the practical and effective enjoyment of academic freedom. It commences by offering a working definition of academic freedom, before identifying the theoretical and legal basis, underpinning the concept. It moves on to examine the jurisprudential element of the protection framework, analysing how the European Court of Human Rights has approached cases concerning the safeguarding of academic freedom. Then, it applies its findings to two case studies, which each evidence clear attacks on academic freedom, to further facilitate its conclusions – that more express and extensive protection of the principle is required in European human rights law moving forward.
ii Acknowledgements
My sincerest thanks must go out to Professor Eva Brems for her guidance and constructive criticism. I would also like to express my gratitude to Doctor Laurens Lavrysen for his supervision in the legal clinic, which inspired the basis of this work.
I must also give a special thanks to Findlay for sharing his extensive knowledge, particularly regarding the events in Hungary. Further, my mother deserves the utmost appreciation for her unwavering support throughout my studies, ever in hope that this may at last be the final year.
This work is dedicated to my late father, Christopher James Bernard Finnerty, his enthusiasm for all things legal continues to constitute the foundation of my motivation.
iii Table of Contents
Table of Abbreviations ...... vi
I. Introduction ...... 1
A. Research Objective ...... 2
B. Working Definition ...... 2
C. State of the Art ...... 5
D. Research Questions ...... 5
E. Methodology, Scope and Structure ...... 6
II. A Syllabus for Protection: Making the Case for Academic Freedom ...... 8
A. Legal Theory Justifying Academic Freedom ...... 8
B. Discovering the Legal Basis for Academic Freedom Within the Council of Europe ...... 10
1. Legally Binding Authority for Academic Freedom ...... 11
2. Authority for Academic Freedom from Other Auspices of the Council of Europe ...... 16
3. Academic Freedom Under Other International Instruments ...... 20
C. Conclusions on the Basis for Protection of Academic Freedom ...... 25
III. Lessons So Far: An Examination of Jurisprudence of the European Court of Human Rights ...... 26
A. First Lessons: Towards Recognition of Academic Freedom as a Human Right ...... 27
B. Building Upon the Foundations: The Protection of Academic Freedom in More Recent Jurisprudence ...... 32
C. A Critique of the Recent Shortfalls in the Jurisprudence ...... 38
D. Conclusions on the Relevant Jurisprudence Under the Framework ...... 42
iv
IV. Textbook Violations of Academic Freedom: The Cases of Turkey and Hungary ...... 43
A. Case Study of Turkey: Systematic Violations of (Academic) Freedom ...... 43
1. An Unprecedented Attack on Academic Freedom ...... 44
2. Exhaustion of Domestic Remedies and the Safeguarding of Academic Freedom in Turkey 45
3. Applying the Protection Framework to the Peace Petition Signatories ...... 47
B. Case Study of Hungary: In Defence of the Central European University ...... 53
1. ‘Lex CEU’ ...... 53
2. An Additional Hurdle: Exhaustion of Domestic Remedies and the Proceedings Before the CJEU ...... 54
3. Reviving CEU’s Presence in Hungary Through the Protection Framework ...... 56
C. Conclusions on the Present Challenges in Turkey and Hungary ...... 58
V. General Conclusions ...... 60
Bibliography ...... 64
v Table of Abbreviations
AComHPR African Commission on Human and Peoples’ Rights
AAUP American Association of University Professors
CESCR UN Committee on Economic, Social and Cultural Rights
CFR EU Charter of Fundamental Rights
CJEU Court of Justice of European Union
COM Committee of Ministers of the Council of Europe
Comm. Communication
CoE Council of Europe
ECHR Convention for the Protection of Human Rights and Fundamental Freedoms
EComHR European Commission of Human Rights
ECtHR European Court of Human Rights
EEA European Economic Area
EHEA European Higher Education Area
ESC European Social Charter
EU European Union
FETÖ Fethullahist Terrorist Organisation
HRC UN Human Rights Committee
HRFT Human Rights Foundation of Turkey
IACtHR Inter-American Court of Human Rights
ICJ International Court of Justice
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
Inquiry Commission Turkish State of Emergency Inquiry Commission no. number
vi PACE Parliamentary Assembly of the Council of Europe p./pp. page/pages para./paras. paragraph/paragraphs
TCC Turkish Constitutional Court
U.K. United Kingdom
UNESCO United Nations Educational, Scientific and Cultural Organisation
U.S. United States
Venice Commission European Commission for Democracy through Law
vii I. Introduction
In the 12th century, Emperor Fredrick I Barbarossa of Germany and the Holy Roman Empire introduced decrees for scholars, ensuring them safe travel between European cities (Authentica Habita).1 600 years later, the European Enlightenment ensured academic independence from the church, consolidating the view of the need for institutional autonomy and academic freedom with regard to scholarly research.2 This independence transgressed from societal expectations into law, one of the earliest examples of which is the German recognition of the principles of Lernfreiheit (freedom to learn) and Lehrfreiheit (freedom to teach) in national legislation.3 Despite these deep historical roots, President Erdoğan of the Republic of Turkey ordered the closure of 15 universities in July 2016.4 This recent example, and condensed history lesson, serve to highlight the risk in overlooking academic freedom in European human rights law, namely a regression of the right.
In addition to the closure of Turkish universities, due regard must be had to the mass dismissals of academics in Turkey, amounting to over 6,000 academics in the public sector alone.5 Such an assault on academic freedom is not isolated to Turkey. It is further evinced in the unjustified infringement upon institutional autonomy in Hungary, resulting in the predominant closure of the Central European University (“CEU”) within its territory.6 Moreover, a recent U.K. study has indicated that 35.5% of academics fear self-censorship, as a result of negative repercussions, such as loss of privileges; demotion; or physical harm.7 Such challenges have arguably led to growing awareness in respect of academic freedom, as evidenced by the organisation of the Global Forum, under the supervision of the Council of Europe (“CoE”), due to take place on 20 June 2019.8
1 Matthew Hertzog, Protections of Tenure and Academic Freedom in the United States (Palgrave Macmillan, 2017), p. 24. 2 Charles Haskins, The Rise of Universities (Ithaca, Cornell University Press 1957), p. 63. 3 Johan Östling, Humboldt and the Modern German University, trans. by Lena Olsson (Lund, Lund University Press 2018), p. 154. 4 Decree-Law No. 687 on Measures to be Taken Under State of Emergency (22 July 2016). 5 Amnesty International, Purged Beyond Return? No Remedy for Turkey’s Dismissed Public Sector Workers (2018), p. 11. 6 CEU, ‘CEU Forced Out of Budapest: To Launch U.S. Degree Programs in Vienna in September 2019’ (Press Release, 3 December 2018)
1 Notwithstanding this growing recognition, and considering the important role of academics in the functioning of a democratic society,9 the apparent lack of effective protection for academic freedom in European human rights law is disconcerting.
A. Research Objective
In response to this issue, the research objective of this work is twofold: first, to delineate and critically assess the extent to which academic freedom is protected within the CoE and its Member States; and second, to determine whether such protection is sufficient in ensuring the practical and effective enjoyment of academic freedom.
B. Working Definition
Prior to delving any deeper, it is prudent to offer a working definition of academic freedom, and highlight the interrelated concept of institutional autonomy. Altbach has observed that ‘[a]cademic freedom seems a simple concept, and in essence it is, but it is also difficult to define.’10 That essence may be formulated as ‘the freedom to teach and conduct research without fear or concern of retribution’.11 However, the delineation of a comprehensive definition of academic freedom has been the subject of a great deal of academic debate.12 The only consensuses among the respective academics is in respect of its importance,13 and that ambiguity may undermine its effective protection.14
The first notable definitions of academic freedom and institutional autonomy are found within the Lima Declaration on Academic Freedom and Autonomy of Institutions of Higher Education (“Lima Declaration”). The Lima Declaration was adopted by the World University Service, an NGO primarily working on the protection of the human right to education, on 10 September 1988. The
9 Michael Lynch, ‘Academic Freedom and the Politics of Truth’ in Jennifer Lackey (ed.), Academic Freedom (Oxford, OUP 2018), p. 32. 10 Peter Altbach, ‘Academic Freedom: International Realities and Challenges’ (2001) 41:1/2 Higher Education, 206. 11 William Tierney and Michael Lanford, ‘The Question of Academic Freedom: Universal Right or Relative Term’ (2014) 9:1 Frontiers of Education in China 4, p. 4 12 Terence Karran, ‘Academic Freedom in Europe: Time for a Magna Charta?’ (2009) 22 Higher Education Policy 163, pp. 164-168. 13 See the extensive list of academic authority compiled in Janet Sinder, ‘Academic freedom: A bibliography’ (1990) 53:5 Law and Contemporary Problems 381. 14 See for example, Susan Jasper, ‘Britain’s education reform act: A lesson in academic freedom and tenure’ (1990) 16:3 Journal of College and University Law 449, p. 45 and Larry Gerber ‘“Inextricably linked”: Shared governance and academic freedom’ (2001) 87:3 Academe 22, p. 23.
2 document importantly acknowledges that neither academic freedom, nor institutional autonomy, are absolute rights, accepting that both may be subject to prescribed limitations.15 Notwithstanding its recent endorsement from the EU Parliament’s Recommendation on Defence of academic freedom in the EU’s external action,16 the Lima Declaration lacks direct recognition from any CoE Member State.
In contrast to the Lima Declaration, sits the more authoritative but similar definitions, contained within the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel (“UNESCO Recommendation”). It defines academic freedom and institutional autonomy, respectively, as:
The right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies.
That degree of self-governance necessary for effective decision making by institutions of higher education regarding their academic work, standards, management and related activities consistent with systems of public accountability, especially in respect of funding provided by the state, and respect for academic freedom and human rights.17
This definition of academic freedom ‘reflects a measure of international consensus’ with regard to the nature and scope of the concept as it was adopted unanimously by the UNESCO Member States.18 Both the Lima Declaration and UNESCO Recommendation serve to highlight the interdependency between academic freedom and institutional autonomy, identifying the latter as a precondition for the
15 Lima Declaration on Academic Freedom and Autonomy of Institutions of Higher Education (10 September 1988), Article 2.
16 EU Parliament, ‘Recommendation of 29 November 2018 to the Council, the Commission and the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy on Defence of academic freedom in the EU’s external action’ (2018/2117(INI)), Recitals.
17 UNESCO, Recommendation concerning the Status of Higher-Education Teaching Personnel, adopted on 11 November 1997, para. 27 and para. 17, respectively. 18 Debbie Sayers, ‘Article 13 – Freedom of Arts and Sciences’ in Steve Peers et al (eds.), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing 2014), p. 387.
3 enjoyment of the former.19 Wolff succinctly draws the distinction between the two, pinpointing academic freedom as the right of the individual, and institutional autonomy as the right of the institution.20 The UNESCO definition of institutional autonomy is fully endorsed by this work.
However, Karran correctly argues that the UNESCO Recommendation’s academic freedom definition has limited value ‘in determining the day-to-day applicability or repudiation of academic freedom.’21 Instead, he proposes a definition encompassing four elements: the freedom to teach; the freedom to research; self-governance (individual autonomy vis-à-vis the university management); and tenure (job security).22
In addition to Karran’s four practical elements, this work argues in favour of the open definition adopted by First Global Colloquium of University Presidents, following a request from the late Kofi Annan, in his capacity as U.N. Secretary-General.23 Its Academic Freedom Statement defines the concept as: ‘the freedom to conduct research, teach, speak, and publish, subject to the norms and standards of scholarly inquiry, without interference or penalty, wherever the search for truth and understanding may lead.’24 This definition hints at the importance of freedom of expression; however, it does not restrict the application of other rights in the context of academic freedom. Although such a definition is similar to that which is contained in the UNESCO Recommendation, it incorporates the broader language of speech, in favour of discussion, and supplements its whole definition with ‘wherever the search for truth and understanding may lead.’ This proviso is critical to enabling a living definition of academic freedom, capable of ensuring its practical and effective protection.
Accordingly, a comprehensive working definition of academic freedom, drawing from the aforementioned sources, would read as: the freedom to conduct research, teach, speak, and publish, subject to the norms and standards of scholarly inquiry; without interference, penalty, or intimidation; wherever the search for truth and understanding may lead; and the right to benefit from self- governance and secure tenure.
19 UNESCO Recommendation (n. 17), para. 18. 20 Klaus Wolff, ‘Academic Freedom and University Autonomy’ in Guy Neave (ed.) The Universities’ Responsibilities to Society: International Perspectives (Oxford, Elsevier Science 2000), p. 198. 21 Karran, ‘Academic Freedom in Europe: Time for a Magna Charta?’ (n. 12), p. 168. 22 Karran and Mallinson (n. 7), p.7. 23 Secretary-General’s remarks at Plenary Session of the Global Colloquium of University Presidents (19 January 2005), available at:
4 C. State of the Art
There is no express right to academic freedom under the European Convention on Human Rights (“ECHR”).25 Only from 2007 did the issue of academic freedom start to gain real traction within the CoE, most notably through a Parliamentary Assembly (“PACE”) Recommendation.26 Moreover, the European Court of Human Rights (“ECtHR”) failed to expressly recognise the existence of academic freedom until as late as 2009.27 Even after such recognition, the Court has continued to observe that ‘[t]he meaning, rationale and scope of academic freedom are not obvious, as the legal concept of that freedom is not settled.’28
The protection of academic freedom under the ECHR has attracted little attention from legal scholars.29 Instead, the European debate has been driven by researches in higher education, most notably Karran.30 It is submitted that the legal value of the relevant instruments, and the weight afforded to them by the ECtHR, has not yet been comprehensively assessed in light of the more recent developments. This work seeks to fill this gap in the research, by offering an informative and critical analysis of the current academic freedom protection framework.
D. Research Questions
In pursuit of its research objective, this work shall seek to address three research questions. The first question asks: what is the basis for academic freedom? This requires the case to be made for academic freedom, combining both theoretical and legal justifications for its protection.
The second question, which engages both research objective elements, is: to what extent has the ECtHR recognised academic freedom under the ECHR? This research question triggers an extensive examination of the relevant ECtHR case law, and a comparative analysis with regard to the authority identified in support of the right. The yardstick of ‘progressive’ shall also be employed, in order to
25 Formally, the Convention for the Protection of Human Rights and Fundamental Freedoms (1950). 26 PACE, Recommendation 1762 (2006) on ‘Academic freedom and university autonomy’, adopted on 30 June 2006. 27 Sorguç v. Turkey, App. no. 17089/03 (ECHR, 23 June 2009). 28 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 4, Mustafa Erdoğan and Others v. Turkey, App. nos. 346/04 and 39779/04 (ECHR, 27 May 2014). 29 For one of the few examples see, Jogchum Vrielink, Paul Lemmens and Stephan Parmentier, ‘Academic Freedom as a Fundamental Right’ (2011) 13 Procedia Social and Behavioral Sciences 117. 30 See Karran and Mallinson (n. 7); Karran, ‘Academic Freedom in Europe: Time for a Magna Charta?’ (n. 12); Terence Karran, ‘Academic Freedom in Europe: Reviewing UNESCO’s Recommendation’ (2009) 57:1 British Journal of Educational Studies 191.
5 assess whether such recognition, and subsequent protection, is developing. For the purposes of this work, progressive is to be understood as the advancement of substantive and procedural protection, which ensures the practical and effective enjoyment of academic freedom under the Convention. This assessment shall be further strengthened through the analysis of the chilling effect,31 and the utmost societal ‘watchdog’ protection afforded to journalists and NGOs under Article 10, ECHR.32
The third question, which shifts its focus to the second research objective element, is: whether the present state of protection for academic freedom under the ECHR is sufficient to address the violations of academic freedom in Turkey and Hungary? This question raises two specific instances of attacks on academic freedom from each case study, and applies the protection framework, encompassing the case law and legal authority identified in respect of the preceding questions, to assess whether such protection is sufficient in ensuring the practical and effective protection of academic freedom.
E. Methodology, Scope and Structure
With regard to the methodology, Chapters II and III adopt a doctrinal approach,33 which seeks clarify the legal framework concerning the protection of academic freedom within CoE Member States. In contrast, Chapter IV employs an applied research approach, in an effort to identify a possible solution to practical problems,34 namely the violations of academic freedom in the case studies. The latter approach has been adopted to highlight any practical obstacles to academic freedom protection, which shall not necessarily be addressed in the delineation of the framework.
The scope of this work shall be limited to instruments applicable to the CoE Member States, concerning academic freedom. The related concept of institutional autonomy shall be discussed at various points in this work; however, the primary focus is academic freedom as an individual right due to the individualistic application of the Convention.35
31 See the recent example, Kula v. Turkey, App. no. 20233/06 (ECHR, 19 June 2018), para. 39. 32 See for example, Axel Springer AG v. Germany [GC], App. no. 39954/08 (ECHR, 7 February 2012), para. 166. 33 Mike McConville and Wing Hong Chui, ‘Introduction and Overview’ in Mike McConville and Wing Hong Chui (eds.), Research Methods for Law (Edinburgh, Edinburgh University Press 2007), p. 4. 34 Anne Brodsky and Elena Welsh, ‘Applied Research’ in Lisa Given (ed.), The SAGE Encyclopedia of Qualitative Research Methods (California, SAGE Publications 2008), p. 17. 35 Article 34, ECHR.
6 It follows, that the ECHR shall constitute the central focus, primarily supported by the relevant ECtHR judgments. Beyond that, extensive reference shall be made to other sources of legal authority, relevant to academic freedom protection. The work of the principle CoE organs and institutions, which play a complimentary role to the ECtHR in the further realisation of human rights,36 shall also be discussed. Moreover, other international instruments, applicable to CoE Member States, shall be considered, in order to ensure a comprehensive examination of all relevant authority. Finally, the use of secondary literature is utilised to clarify the aforementioned sources, and strengthen any derivative argumentation.
In addition to its Introduction and Conclusion, this work is divided into three substantive Chapters, each corresponding to the aforementioned research questions. Chapter II sets out the legal landscape in respect of academic freedom, identifying its theoretical underpinnings and summarising the plethora of legal authority. (II). Chapter III then draws from the preceding legal analysis, examining the respective application by the ECtHR, through a chronological assessment of the relevant case law (III). Chapter IV shall address the present challenges posed to academic freedom in Turkey and Hungary, applying the framework, mapped out by the two preceding Chapters, and mitigating any practical limitations (IV). Considered cumulatively, these Chapters shall highlight the need for a stronger framework, with regard to the protection for academic freedom, underlining its present shortcomings, but also identifying extensive potential.
36 Kanstantsin Dzehtsiarou, ‘What is Law for the European Court of Human Rights?’ (2018) 49:1 Georgetown Journal of International Law 89, p. 106.
7 II. A Syllabus for Protection: Making the Case for Academic Freedom
This Chapter seeks to establish a comprehensive case for the protection of academic freedom under the ECHR. The first section draws from free speech legal theory to establish the, more narrow, theoretical justifications for academic freedom (A). The second section assesses the extensive legal basis for academic freedom, with regard to both binding and non-binding instruments (B). The final section draws some conclusions in respect of the current legal framework for the protection of academic freedom and its development (C).
A. Legal Theory Justifying Academic Freedom
The theoretical justifications for academic freedom are premised on the same reasoning supporting freedom of expression.37 John Stuart Mill’s On Liberty continues to constitute the leading authority regarding the rationale behind freedom of expression.38 In its essence, On Liberty argues that all freedom of expression promotes truth within society, irrespective of the legitimacy of an individual statement. Mill maintains that ‘we can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.’39 He advocates four principle points to support this conclusion. First, Mill asserts that any opinion subject to silence may in fact be true.40 Second, he argues that a supressed view may be considered false; however, it is probable it holds some truth, which may in turn further benefit the overall pursuit for truth.41 Third, he maintains that the truth must be subject to vigorous scrutiny in order for it to be recognised and respected as the legitimate truth.42 Fourth, he insists that any limitation risks undermining the value of freedom of expression, preventing ‘any real and heartfelt conviction’.43
37 Jennifer Lackey, Academic Freedom (Oxford, OUP 2018), p. 3. 38 Eric Barendt, Freedom of Speech (Oxforf, OUP 2005), p. 7. 39 John S. Mill, On Liberty (1859) (Ontario, Batoche Books 2001), p. 19. 40 Ibid, p. 50. 41 Ibid. 42 Ibid. 43 Ibid.
8 In supplement to Mill’s conclusions, sits John Dewey’s rationale for academic freedom. Dewey argues that the objective of the university and academic freedom is:
To investigate truth; critically to verify fact; to reach conclusions by means of the best methods at command, untrammeled by external fear or favor, to communicate this truth to the student, to interpret to him its bearing on questions he will have to face in life—that is precisely the aim and object of the university. To aim a blow at one of these operations is to deal a vital wound to the university itself. The university function is the truth-function.44
Following similar reasoning argued by Mill, Dewey identifies a link between academic freedom and the democratic society, advocating respect for the former, in order to enhance the latter.45 He considered that ‘since freedom of mind and freedom of expression are the root of all freedom, to deny freedom in education is a crime against democracy.’46 Moreover, Dewey criticised the universities of his time which aimed to ‘inculcate a fixed set of ideas or facts’, representing the status quo, arguing that such institutions sought ‘to disciple rather than to discipline.’47
Dewey’s argumentation is not limited to the philosophical justifications underpinning academic freedom. During his tenure as President of the American Association of University Professors (“AAUP”), he oversaw the development of the 1915 Declaration of Principles on Academic Freedom and Academic Tenure (“1915 Declaration”). The 1915 Declaration provides further evidence that the theoretical basis for academic freedom mirrors that of freedom of expression, advocating the primary justifications of the progression of knowledge, and pursuit of truth.48 This reasoning is further mirrored in the respective European instruments.49
44 John Dewey, ‘Academic Freedom’ (1902) Educational Review 1, p. 3. 45 Louis Fischer, ‘Academic Freedom and John Dewey’ (1977) 60:8 The High School Journal 379, p. 380, citing John Dewey, ‘Democracy in Education’ (1903) 12:4 The Elementary School Teacher 193. 46 John Dewey, ‘The Social Significance of Academic Freedom’ in John Dewey (ed. Jo Boydston), The Later Works, 1925-1953, Volume II: 1935-1937 (Carbondale, SIU Press, 1987), p. 378. 47 Robert Post, ‘Academic Freedom and Legal Scholarship’, (2015) 64:4 Journal of Legal Education 530, p. 535, citing John Dewey, ‘Academic Freedom’ (1902) 23 Educational Review 1. 48 AAUP, 1915 Declaration of Principles on Academic Freedom and Academic Tenure, pp. 4-5. 49 See for example: COM, Recommendation CM/Rec (2012)7 of the Committee of Ministers to member States on the responsibility of public authorities for academic freedom and institutional autonomy, adopted on 20 June 2012 at the 1146th meeting of the Ministers’ Deputies, Appendix 1, para. 5; PACE Recommendation 1762 (n. 26), para. 4.1.
9 In summary, academic freedom is largely premised on the same theoretical justifications as freedom of expression. Accordingly, academic freedom is justified by its facilitation of the pursuit of truth, which is an essential value of the university, and acts as an invaluable safeguard to the functioning of the democratic society.
B. Discovering the Legal Basis for Academic Freedom Within the Council of Europe
In addition to its affirmation of the theoretical justifications behind academic freedom, the 1915 Declaration also constitutes an attempt to codify the respective rights. Byrne argues that the 1915 Declaration constitutes the ‘single most important document on academic freedom in the United States’.50 Recalling the Lernfreiheit and Lehrfreiheit principles, the 1915 Declaration recognises the right to: ‘freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extramural utterance and action’.51 These principles were subsequently endorsed by the U.S. Supreme Court.52 It is true that Byrne’s recognition concerns the development of academic freedom in the U.S.; however, the development of academic freedom across the Atlantic is largely due to such scholarly efforts.53 Moreover, the relevance of such declarations is evidenced by the robust model of U.S. protection.54
In contrast to U.S., it is submitted that the CoE offers a less developed model of protection. This section shall assess the development of the legal instruments, which provide a legal basis for academic freedom and institutional autonomy, across CoE Member States. It first assesses the binding instruments applicable to CoE Member States, including treaties and national constitutions (1). The second sub-section will examine the relevant CoE legal sources, which complement the role of the ECtHR, including recommendations from the Committee of Ministers (“COM”); PACE; and opinions from the European Commission for Democracy through Law (“Venice Commission”) (2). The final sub-section shall analyse the international non-binding instruments, relevant to academic freedom, for example those emanating from the Bologna Process (3).
50 Jason Peter Byrne, ‘The Social Value of Academic Freedom Defended’, (2015) 91 Indiana Law Journal 5, pp. 5-6. 51 AAUP, 1915 Declaration (n. 48), p. 1. 52 See, Keyishian v. Board of Regents, 385 U.S. 589 (1967), where the U.S. Supreme Court held that the U.S. ‘Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.’ (per Justice Brennan, p. 603). 53 David Randall, Charting Academic Freedom: 103 Years of Debate (National Association of Scholars, January 2018), p. 2. 54 See for example, Keyishian (n. 52).
10 1. Legally Binding Authority for Academic Freedom
Various international instruments, both binding and non-binding, offer a legal basis for academic freedom. Prior to examining the international legal landscape, it is important to recall the cross-cutting nature of academic freedom. The jurisprudence of the ECtHR has often identified Article 10, specifically freedom of expression, as the lex specialis in cases concerning academic freedom.55 This tendency, of the Court, is evidenced by the case law analysis in the following Chapter. However, the infringements and violations of academic freedom may also manifest themselves as violations of other human rights.56 Thus, the potential engagement of other rights must be noted. For example, an academic may have his passport seized for criticising the state authorities, which in turn prohibits him from pursuing a research position at a foreign university. The seizure of the passport arguably constitutes a violation of his freedom of expression, as it punishes him for expressing his opinion and deters him, and his peers, from expressing similar criticism. This, in turn, constitutes a chilling effect on the exercise of academic expression.57 However, the seizure may also amount to a violation of his freedom of movement, or the right to education that he is seeking to pursue abroad. Thus, the right to freedom of expression is necessary for the enjoyment of academic freedom; however, it is not in itself always sufficient in addressing different types of infringements of academic freedom.58 Therefore, academic freedom should be considered as a composite human right, rather than a specific one.59
The cross-cutting nature of academic freedom results in the engagement of multiple treaty provisions. The ECtHR has recognised that ‘the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part. This applies equally to Article 1 as to the other articles of the Convention [citations omitted].’60 Thus, all other international law applicable to CoE Member States is relevant in assessing the current protection framework for academic freedom.
55 Venice Commission, Opinion no. 891/2017, Hungary - Opinion on Article XXV of 4 April 2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education, endorsed by the Venice Commission at its 112th Plenary Session (Venice, 6-7 October 2017), para. 42. 56 Robert Quinn and Jessie Levine, ‘Intellectual-Human Rights Defenders and Claims for Academic Freedom under Human Rights Law’ (2017) 3 International Human Rights Law Review 209, p. 211. 57 See Chapter III(A). 58 Karran and Mallinson (n. 7), p. 25. 59 Margherita Rendel, ‘Human Rights and Academic Freedom’ in Malcolm Tight (ed.), In Academic Freedom and Responsibility (London, Open University Press 1988), p. 78. 60 Hassan v the United Kingdom [GC], App. no. 29750/09 (ECHR, 16 September 2014), para. 77.
11 All CoE Member States have signed and ratified both the International Covenant on Civil and Political Rights (“ICCPR”) and International Covenant on Economic, Social and Cultural Rights (“ICESCR”), and are therefore bound by the respective provisions. Article 19(2) of the ICCPR, provides that: ‘[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’
In interpreting the ICCPR, the UN Human Rights Committee (“HRC”) has affirmed that the right to impart information extends to the teaching profession;61 however, it has also recognised that academic freedom remains subject to limitations.62 The HRC’s general comments, and views on individual complaints, constitute another relevant consideration, as the ECtHR consistently refers to the former’s reasoning in its judgments, pertaining to freedom of expression under the ECHR.63 Moreover, the authority of UN treaty bodies has been explicitly affirmed by the International Court of Justice,64 which further adds to their legal value within international law.
Article 15(3) of the ICESCR requires State parties to ‘respect the freedom indispensable for scientific research and creative activity’ under the right to culture. This provision has been interpreted by the UN Committee on Economic, Social and Cultural Rights (“CESCR”) to provide for an ‘indispensable freedom’, imposing a positive obligation on the states to encourage ‘scientists, artists and others to take part in international scientific and cultural research activities, such as symposiums, conferences, seminars and workshops’.65 Moreover, Article 13 of the ICESCR provides for the right to education. The CESCR has observed that such a right ‘can only be enjoyed if accompanied by the academic freedom of staff and students.’66
More critically, Article 2(1) of the ICESCR imposes an inherent positive obligation upon State parties ‘to take steps (…) to the maximum of its available resources, with a view to achieving progressively
61 Ross v. Canada, Comm. No. 736/97, U.N. Doc. CCPR/C/70/D/736/1997 (HRC, 18 October 2000), para. 11.1. 62 Faurisson v. France, Comm. No. 550/1993 , U.N. Doc. CCPR/C/58/D/550/1993 (HRC, 8 November 1996), para. 7.10 (concerning holocaust denial and the recognition of the legitimate aim of the rights and freedoms of others). 63 See for example: Baka v. Hungary [GC] App. no. 20261/12 (ECHR, 23 June 2016), paras. 73-76; Magyar Helsinki Bizottság v. Hungary [GC] App. no. 18030/11 (ECHR, 8 November 2016), paras. 38-41. 64 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, para. 66. 65 CESCR, ‘General Comment no. 21: Right of everyone to take part in cultural life (Article 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights’ (21 December 2009), para. 52(e). 66 CESCR, ‘General Comment no. 13: The Right to Education (Article 13)’ (8 December 1999), para. 38.
12 the full realization’ of the rights recognised within the Covenant, including academic freedom.67 The ECtHR has also considered the findings of the CESCR, in the context of academic freedom.68 Accordingly, both the ICCPR and ICESCR, and the interpretations from the respective treaty bodies, should be considered to further the protection of academic freedom within CoE Member States.
With regard to the ECHR, academic freedom engages multiple rights including, but not limited to: freedom of expression;69 freedom of assembly and association;70 freedom of movement;71 the right to education;72 right to privacy;73 and non-discrimination.74 Therefore, protection for academic freedom as a human right may be derived from multiple provisions under the Convention,75 and the applicability of the relevant Convention provision(s) shall depend largely on circumstances of the case.
In addition to the Convention, the European Social Charter (“ESC”) also provides for indirect protection of academic freedom. The ESC, either in its original or revised form, has been ratified by 43 CoE Member States.76 The ESC provides for protection against the wrongful termination of employment,77 and the right of individuals to leave their ‘country to engage in a gainful occupation in the territories of the other Parties.’78 However, the monitoring body of ESC, the European Committee of Social Rights, has not yet considered such protections in the context of academic freedom. In any event, the potential for further protection under the ESC remains unrebutted.
In contrast to the treaties discussed in the preceding paragraphs, the EU Charter of Fundamental Rights (“CFR”) includes express recognition of academic freedom as a human right. The CFR is
67 CESCR, ‘General Comment no. 13’ (n. 66), para. 38. 68 Partly Dissenting Opinion of Judge Pinto De Albuquerque, Tarantino and Others v. Italy, App. nos. 25851/09, 29284/09 and 64090/09 (ECHR, 2 April 2013). 69 ECHR, Article 10; Kula (n. 31). 70 ECHR, Article 11; Tuskia and Others v. Georgia, App. no. 14237/07 (ECHR, 11 October 2018). 71 ECHR, Article 2 of Protocol no. 1; Tarantino (n. 68). 72 ECHR, Article 2 of Protocol no. 4. 73 ECHR, Article 8; Kaboğlu and Oran v. Turkey, App. nos. 1759/08, 50766/10 and 50782/10 (ECHR, 30 October 2018). 74 ECHR, Article 14. 75 Venice Commission, Opinion no. 891/2017 (n. 55), para. 42. 76 Liechtenstein, Monaco, San Marino and Switzerland have not yet ratified the ESC (1961) or the ESC (Revised) (1996). 77 ESC (Revised) (1996), Article 24. 78 Ibid, Article 18; ESC (1961), Article 18.
13 legally binding upon EU Member States.79 It, therefore, binds 28 CoE Member States. Article 13 provides that the ‘arts and scientific research shall be free of constraint. Academic freedom shall be respected.’ The interpretive guidance to the provision is limited, and only provides that the right ‘is deduced primarily from the right to freedom of thought and expression. It is to be exercised having regard to Article 1 and may be subject to the limitations authorised by Article 10 of the ECHR.’80
In interpreting this guidance, the CFR Commentary suggests that the provision ‘is not intended to go beyond the (…) ECtHR jurisprudence relating to those [respective] freedoms.’81 Thus, the CFR advocates academic freedom primarily through freedom of expression and acknowledges that it is not an absolute right. As previously discussed,82 this may limit the scope of the right contained within Article 13 and risks overlooking the cross-cutting nature of academic freedom. Although focussing on freedom of expression may serve to attribute greater weight, and protection, to academic speech in contrast to ‘run of the mill’ expression’,83 it risks weakening other fundamental aspects of academic freedom protection.
Unfortunately, Article 13 is yet to be applied by the CJEU, therefore the CFR’s understanding of academic freedom and the scope of its respective protection remains ambiguous.84 The difference in wording within the provision, namely that ‘arts and scientific research shall be free from constraint’ while ‘[a]cademic freedom shall be respected’, also questions the requisite specificity and justiciability in respect of academic freedom.85 However, the ongoing infringement proceedings against Hungary,86 include a reference to Article 13, CFR. Detailed reasoning from the CJEU may alleviate the present ambiguity, and could give more teeth to the provision.
At the domestic level, multiple CoE Member States provide for the express protection of academic freedom. One of the clearest examples is the Spanish Constitution, which provides ‘[t]he following
79 TEU, Article 6(1). 80 Explanations Relating to the Charter of Fundamental Rights (14 December 2007) 2007/C 303/02, Article 13. 81 Sayers (n. 18), p. 380. 82 See Chapter I(B). 83 Sayers (n. 18), p. 395. See also, Chapter III(B). 84 Vrielink et al (n. 29), para. 14. 85 David Bentley and Eric Barendt, ‘Academic Freedom and the Law’ (Summary of the International Law Discussion Group meeting held at Chatham House) (8 December 2010), p. 7. 86 See Chapter IV(B)(2).
14 rights are recognised and protected: (…) c) the right to academic freedom.’87 Similar protection may also be found in the constitutional framework of: Albania;88 Austria;89 Finland;90 Germany;91 Greece;92 Italy;93 Portugal;94 and Turkey.95 Moreover, all CoE Member States provide for some of the substantive rights, for example freedom of expression, from which protection for academic freedom may be derived.96 This derivative protection is evidenced by the French Constitutional Council decision, which recognised the protection of academic freedom, specifically academic independence from the state, as a ‘fundamental principle’.97 Thus, there is a growing, legally binding, basis for academic freedom within the CoE Member States. However, it remains to be seen whether such domestic constitutional recognition could further the protection offered under the Convention. It may be argued that the European consensus reasoning of the ECtHR, in its interpretation of the ECHR, may give rise to universal protection for academic freedom. The meaning and effect of the European consensus is best explained by the Court, which clarified that:
Since the Convention is first and foremost a system for the protection of human rights, the Court must, however, have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved. One of the relevant factors in determining the scope of the margin of appreciation left to the authorities may be the existence or non-existence of common ground between the laws of the Contracting States.98
Thus, more robust and explicit protection of academic freedom at the domestic level, in a clear majority of CoE Member States, would undoubtedly push the Court to narrow the margin of appreciation and impose stricter scrutiny in respect of any infringements of academic freedom.
87 Constitución Española (1978), Article 20(1). 88 Kushtetuta e Shqipërisë (1998), Article 57. 89 Österreichische Bundesverfassung (1945), Article 17. 90 Suomen perustuslaki (1911), Article 16. 91 Grundgesetz für die Bundesrepublik Deutschland (1949), Article 5(3). 92 Σύνταγµα Sýntagma (1975), Article 16(1). 93 Costituzione della Repubblica Italiana (1947), Article 33. 94 Constituição Política da República Portuguesa (1976), Article 43. 95 Türkiye Cumhuriyeti Anayasası (1982), Article 27. 96 For a more detailed constitutional analysis, limited to EU Member State, see: Karran and Mallinson (n. 7), pp. 9-11. 97 French Constitutional Council Decision no. 83-165 DC (20 January 1984), para. 19 [translated from French]. 98 Glor v. Switzerland, App. no. 13444/04 (ECHR, 30 April 2009), para. 75.
15 However, the express constitutional protection for academic freedom has not yet found a majority within the CoE Member States. Therefore, a consensus is yet to be reached on the issue. Nevertheless, were more states to explicitly recognise the importance of academic freedom, in the same vein as the French Constitutional Council decision or through constitutional amendments, the European consensus reasoning may lend itself as a vehicle for more elaborate protection under the Convention.
2. Authority for Academic Freedom from Other Auspices of the Council of Europe
The express recognition of academic freedom at the domestic level, discussed at the end of the previous sub-section, is strongly advocated by the PACE, which has proclaimed that academic freedom and institutional autonomy should ‘be reaffirmed and guaranteed by law, preferably in the constitution.’99 In addition to encouraging domestic protection for academic freedom and institutional autonomy, Recommendation 1762 also provides that ‘the CoE should act to the effect of reaffirming the vital importance of academic freedom and university autonomy’.100
It is worth noting here that, in a similar manner to the ECtHR, the PACE works towards the promotion of human rights,101 including academic freedom.102 It consists of 324 representatives, proportionate to the populations of CoE Member States and utilises various specialised committees. In short, the body debates and votes on the adoption of recommendations (addressed to the COM); resolutions (expressions of its own views); and opinions (responses to questions from the COM).103 The relevance of Recommendation 1762 is repeatedly evidenced in Chapter III, with the ECtHR identifying it as the CoE’s ‘declaration for the protection of academic freedom of expression’.104 Before analysing the impact of the PACE Recommendation 1762 further, it is important to briefly note the contribution from the COM to the relevant soft law.
In contrast to the PACE, the COM is the CoE’s decision-making body. It consists of one representative per Member State,105 and is supported by the Bureau of the Ministers’ Deputies and multiple specialised subsidiary groups. Its decisions may take the form of conventions, which are
99 Recommendation 1762 (n. 26), para. 7. 100 Ibid, para. 12. 101 Statute of the Council of Europe (1949), Article 1. 102 See for example, Recommendation 1762 (n. 26). 103 See Statute of the Council of Europe (1949), Chapter V. 104 Sorguç (n. 27), para 21. 105 Statute of the Council of Europe (1949), Article 14.
16 binding on CoE Member States;106 recommendations;107 declarations or resolutions.108 The COM also oversees the enforcement of ECtHR judgments.109
The COM Recommendation R (2000)8 underlined the importance of academic freedom in respect of academic research.110 It affirmed its commitment to these principles in its Reply to the PACE Recommendation 1762.111 In Recommendation CM/Rec (2007)6, the COM imposed a responsibility on public authorities to ‘promote autonomy for higher education and research institutions as well as academic freedom for individual members of the academic community.’112 However, the COM launched its most compelling defence of academic freedom and institutional autonomy, following the PACE Recommendation 1762, with Recommendation CM/Rec (2012)7, which provides:
Academic freedom should guarantee the right of both institutions and individuals to be protected against undue outside interference, by public authorities or others. It is an essential condition for the search for truth, by both academic staff and students, and should be applied throughout Europe. University staff and/or students should be free to teach, learn and research without the fear of disciplinary action, dismissal or any other form of retribution.113
Recommendation CM/Rec (2012)7 also encourages CoE Member States to establish a domestic framework, which safeguards the implementation of academic freedom and institutional autonomy.114 The intention of the COM recommendations, to protect academic freedom and institutional autonomy, is evidenced clearly by the wording of the cited provisions; however, neither PACE or COM recommendations are binding upon CoE Member States.
106 Statute of the Council of Europe (1949), Article 15(a). 107 Ibid, Article 15(b). 108 Ibid, Article 20. 109 ECHR, Article 46(2). 110 COM, Recommendation R (2000)8 on ‘the research mission of universities’, adopted on 30 March 2000; Vrielink et al (n. 29), para. 15. 111 COM, Recommendation 1762 (2006) on ‘Academic freedom and university autonomy’ (Reply), adopted 26 September 2007, para. 7. 112 COM, Recommendation CM/Rec (2007)6 of the Committee of Ministers to member states on the public responsibility for higher education and research, adopted on 16 May 2007, Appendix, para. 3. 113 Recommendation CM/Rec (2012)7 (n. 49), Appendix, para. 5. 114 Ibid, Appendix, para. 7.
17 However, the non-binding nature should not be considered to wholly undermine the legal value of recommendations. Bartsch has concluded that, notwithstanding the absence of a legally binding effect, recommendations are authoritative.115 Benoît-Rohmer and Klebes go further, arguing that ‘a good recommendation does more to produce the rule of law than a bad convention’.116 The legal value of recommendations may be argued on five grounds.
First, recommendations represent a common standard between CoE Member States. In most cases recommendations must be unanimously adopted by the COM.117 However, the expansion of CoE membership has resulted in the practical possibility of the adoption of a recommendation with a two- third majority.118 In any event, the clear majority still evidences a consensus,119 which serves to legitimise the authority of recommendations. This results in their authority benefiting from ‘particular moral and political weight’.120
Second, recommendations may act as ‘precursors’ to conventions.121 It is true that no CoE convention concerning academic freedom exists at the time of writing. However, Rendel has argued that such a development is necessary to ensure the adequate protection of academic freedom.122 The growing number of recommendations and attention from the CoE suggests that the establishment of such a convention is not entirely implausible.123 Such an elevation would serve to give the preceding recommendations binding legal effect, provided their provisions were incorporated into the respective
115 Hans-Jürgen Bartsch, ‘The Acceptance of Recommendations and Conventions within the Council of Europe’ in Le rôle de la volonté dans les actes juridiques. Études à la mémoire du Professeur Alfred Rieg (Brussels, Bruylant 2000), p. 94. 116 Florence Benoît-Rohmer and Heinrich Klebes, Council of Europe Law—Towards a Pan-European Legal Area (Strasbourg, CoE 2005), p. 107. 117 Statute of the Council of Europe (1949), Article 20. 118 Marten Breuer, ‘Establishing Common Standards and Securing the Rule of Law’ in Stefanie Schmahl and Marten Breuer, The Council of Europe: Its Law and Policies (Oxford, OUP 2017), p. 657. 119 Benoît-Rohmer and Klebes (n. 116), p. 107. 120 Breuer, ‘Establishing Common Standards and Securing the Rule of Law’ (n. 118), p. 657. 121 Kerstin Odendahl, ‘Securing and Enhancing the Common Cultural Heritage’ in Stefanie Schmahl and Marten Breuer, The Council of Europe: Its Law and Policies (Oxford, OUP 2017), p. 763, citing Convention for the Protection of the Architectural Heritage of Europe (adopted 3 October 1985). 122 Rendel (n. 59), p. 86. 123 In addition to the recommendations discussed in this sub-section see Academic Freedom Global Forum (n. 8).
18 convention. Alternatively, recommendations may benefit from a legally binding effect, where other international treaties incorporate them, and require compliance, in their own provisions.124
Third, the Venice Commission has interpreted the relevant recommendations, discussed above, to impose a duty on CoE Member States to protect ‘academic freedom and related requirements and principles (…) under their domestic legislation, in accordance with international standards.’125 The Venice Commission is a CoE advisory body, specialising in constitutional law. The body’s works are consistently referred to by the ECtHR in its judgments,126 which sometimes adopts the verbatim language of the former’s reports.127 Such an endorsement from the Venice Commission further evidences the legal value of recommendations concerning academic freedom.
Fourth, the legal value of recommendations may be evidenced through their direct incorporation into ECtHR judgments. However, Dzehtsiarou correctly notes that although it is easy to locate the citations to recommendations within the Court’s case law, ‘it is much more difficult to determine what role these sources played in the reasoning of the ECtHR and how impactful they are on the outcome of the respective case.’128 For instance, the judgment concerning Sorguç v. Turkey, which shall be argued to have cemented the foundations for the recognition of academic freedom as a human right from the ECtHR in the next Chapter,129 only cites an extract from Recommendation 1762,130 failing to expand on its impact in the reasoning of the case. Thus, the extent to which Recommendation 1762 led the Court to expressly recognise the importance of academic freedom, and its impact in respect of the advancement of protection for academic freedom, remained unclear. However, the importance of Recommendation 1762,131 and Recommendation CM/Rec (2012)7,132 became more prevalent in the latter cases concerning academic freedom, where the Court appears to ascribe them greater weight, explicitly applying them within its reasoning. The final judgments of the
124 See for example: Article 117(1), Convention implementing the Schengen Agreement (1985), requiring compliance with COM, Recommendation No. R (87) regulating the use of personal data in the police sector adopted on 17 September 1987. 125 Venice Commission, Opinion no. 891/2017 (n. 55), para. 61. 126 See the recent example, Baka (n. 63), paras. 146 and 148. 127 See Christoph Grabenwarte, ‘Constitutional Standard-setting and Strengthening of New Democracies’ in Stefanie Schmahl and Marten Breuer, The Council of Europe: Its Law and Policies (Oxford, OUP 2017), p. 743. 128 Dzehtsiarou (n. 36) p. 101. 129 See Chapter III(A). 130 Sorguç (n. 27), para 21. 131 Mustafa Erdoğan (n. 28), para. 40; Kula (n. 31), para. 38. 132 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 4, Mustafa Erdoğan (n. 28).
19 ECtHR are binding upon CoE Member States.133 Thus, the Court’s interpretation and application of recommendations become binding upon the Contracting Party concerned and sets a binding precedent for subsequent cases.
Fourth, and more generally, recommendations pursue the same objective of the Convention, namely the full realisation of human rights for all CoE Member States, and derive from the same international order.134 Therefore, recommendations may be regarded as ‘internal legal sources of the Strasbourg Court.’135 Accordingly, the respective recommendations must be recognised as adding to the recognition and protection of academic freedom; irrespective of the absence of any direct legally binding obligation.
3. Academic Freedom Under Other International Instruments
Recommendation 1762 also transposes the principles contained in the Magna Charta Universitatum,136 affirming that:
[A]cademic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction; [and that]
the institutional autonomy of universities should be a manifestation of an independent commitment to the traditional and still essential cultural and social mission of the university, in terms of intellectually beneficial policy, good governance and efficient management.137
These affirmations serve to link the principles outlined in the Magna Charta Universitatum (“Charta”) to the ECHR. The Charta is a document which attempts to codify the values of universities, including the principles of academic freedom and institutional autonomy. At the time of writing, it has been signed by 889 Universities from 88 Countries, including every CoE Member State except for Luxembourg, evidencing its authority. The Charta has been subject to compliance monitoring from the Magna Charta Universitatum Observatory since 2000, offering criticism against
133 ECHR, Article 46(1). 134 Dzehtsiarou (n. 36) p. 106. 135 Ibid. 136 Magna Charta Universitatum (adopted 18 September 1988). 137 Recommendation 1762 (n. 26), paras. 4.1 and 4.2.
20 the erosion of academic freedom and university autonomy in Turkey,138 and Hungary,139 both of which shall be discussed in Chapter IV. However, the Charta is non-binding; it was signed by university, not state, representatives; and may only be considered an internal source of law before the ECtHR to the extent that it was transposed as such under Recommendation 1762.140 Notwithstanding such limitations, the Charta must be recognised as a precursor to the Bologna Process, which partially operationalises and legitimises the principles advocated in the Charta.141
The Bologna Process consists of 48 States,142 and benefits from the support of various international organisations, including the CoE. It principally concerns the reform of European education and was originally intended to: clarify the compatibility of university programmes; increase student mobility; improve Europe’s international education profile; and harmonise the ‘two-tier’ structure of higher education.143 Together, these objectives all work towards the establishment of the European Higher Education Area (“EHEA”) and are reflected in the Bologna Declaration, which was signed by the founding 29 states on 19 June 1999. Although they are not legally binding, the Bologna Declaration and subsequent Communiqués must be considered to carry more legal weight than the Magna Charta as the signatories were State, rather than university, representatives.144
Notwithstanding the importance of academic freedom and institutional autonomy in the pursuit of the objectives of the Bologna Process, the State Ministers responsible neglected to recognise the importance of the principles in the Bologna Declaration; Prague Communiqué;145 Berlin
138 Magna Charta Universitatum Observatory, Letter to President Recep Tayyip Erdoğan, (21 January 2016),
21 Communiqué;146 and Bergen Communiqué.147 It was not until 2007, through the London Communiqué, that the Process explicitly provided such recognition:
Building on our rich and diverse European cultural heritage, we are developing an EHEA based on institutional autonomy, academic freedom, equal opportunities and democratic principles that will facilitate mobility, increase employability and strengthen Europe’s attractiveness and competitiveness.148
Such recognition was reaffirmed and strengthened in all subsequent Communiqués,149 identifying the principles as a priority for the Process,150 and the ‘backbone’ of the EHEA.151 In addition to its growing recognition of academic freedom, the Bologna Process is also contributing to the practical protection and advancement of academic freedom and university autonomy. The recent ascension of Belarus to the Bologna Process evidences this point. After joining the EHEA in 2015, Belarus agreed on the of ‘Strategic Action Plan on Implementation of the Major Objectives of the Education System Development in Line with the EHEA Principles and Tools’.152 The Action Plan provides for the protection of academic freedom and institutional autonomy, including the domestic incorporation of the standards provided for in the Magna Charta Universitatum and Recommendation CM/Rec (2012)7.153 Therefore, despite its non-binding nature, the Bologna Process is evidently advancing the protection of academic freedom and university autonomy, even beyond the membership of the CoE.
It is true that the Bologna Process is admittedly less influential, than the internal sources of soft law discussed in the previous sub-section,154 in advancing academic freedom protection under the ECHR. However, its respective Declaration and subsequent Communiqués constitute soft law from an external source,155 and impose an obligation on States to safeguard academic freedom. Thus, the
146 Berlin Communiqué (adopted 19 April 2003). 147 Bergen Communiqué (adopted 19 May 2005). 148 London Communiqué (adopted 18 May 2007), para. 1.3. 149 Leuven/Louvain-la-Neuve Communiqué (adopted 29 April 2009), para. 4; Budapest / Vienna Communiqué (adopted 12 March 2010), para. 8; Bucharest Communiqué (adopted 27 April 2012), 2; Yerevan Communiqué (adopted 15 May 2015), 2; Paris Communiqué (adopted 25 May 2018), p. 1. 150 Yerevan Communiqué (adopted 15 May 2015), p. 2. 151 Paris Communiqué (adopted 25 May 2018), p. 1. 152 Ibid, Appendix II. 153 Ibid, Appendix II, para. 7. 154 See Chapter II(B)(2). 155 Grahame Lock, ‘The Universities: A New Legal Grammar’ (2010) 2:3 Amsterdam Law Forum 71, p. 73.
22 Bologna Process must be recognised to further the protection of academic freedom within CoE Member States.
In addition to the CoE, the Bologna Process also engages participation from the EU. The importance of Article 13 of the CFR, with regard to the protection of academic freedom in CoE Member States, was discussed in the first sub-section.156 However, the recent adoption of the Recommendation on the Defence of academic freedom in the EU’s external action, by the EU Parliament, also merits some discussion. The role of the EU, in the protection of academic freedom, is complementary to the CoE.157 It should be noted here that, as with the recommendations from the CoE, EU recommendations are not legally binding.158 Moreover, the EU Recommendation is addressed to other EU institutions, namely the EU Council and EU Commission, not to any EU Member States.
Nevertheless, the High Representative of the Union for Foreign Affairs and Security Policy, who is responsible for the oversight of EU external action, must ‘ensure that the views of the European Parliament are duly taken into consideration.’159 Thus, its substance still strengthens the authority justifying academic freedom with regard to CoE Member States outside the EU, such as Turkey: affirming the value of academic freedom to democratic society;160 encouraging further recognition that academic freedom exists under existing human rights law;161 and insisting on the inclusion of the protection of academic freedom and institutional autonomy in the Copenhagen criteria for EU accession.162 Thus, the EU Recommendation may prove to be a valuable addition to the protection of academic freedom, further developing its recognition and protection as a human right.
The aforementioned recommendations, authored by the CoE or EU, have advocated protection for academic freedom and institutional autonomy to varying degrees. However, the most comprehensive and detailed legal source, providing for the respective principles is the UNESCO Recommendation.163 It fostered strong support from the CoE Member States of France and Norway and, as previously
156 See Chapter II(B)(1). 157 EU Parliamentary Academic Freedom Recommendation (n. 16), para. 1(k). 158 TFEU, Article 288. 159 TEU, Article 36. 160 EU Parliamentary Academic Freedom Recommendation (n. 16), para. 1(a). 161 Ibid, para. 1(b). 162 Ibid, para. 1(i). 163 Terence Karran, ‘Academic Freedom in Europe: Reviewing UNESCO’s Recommendation’ (n. 30), p. 193.
23 mentioned,164 passed unanimously.165 In addition to providing definitions of the relevant principles,166 drawing its basis from the right to education,167 the UNESCO Recommendation provides an authoritative legal basis for academic freedom. It advocates for institutional autonomy;168 procedural safeguards against the arbitrary dismissals of academics;169 and extensive recognition of individual freedoms in respect of expression, teaching and research.170
With regard to the legal weight of its authority, the former Director General of UNESCO, Koïchiro Matsuura has observed that ‘although recommendations are not binding on Member States, in the same way as conventions that have been ratified by them, it is the underlying idea of common solutions to common problems that usually lead to the incorporation of their principles and precepts into national legislation’.171 However, such an observation relies on the political will of CoE Member States to incorporate the respective standards of protection into domestic frameworks. Thus, the value of the UNESCO Recommendation, with regard to the advancement of academic freedom, is better argued through the idea of ‘mutual influence’.172 The CoE was partly inspired by the work of UNESCO in the drafting of its own recommendations, as evidenced in the recitals.173 Accordingly, any further development of UNESCO authority concerning academic freedom may further inspire greater protection under the auspices of the CoE.
164 See Chapter I(B). 165 Donald Savage and Patricia Finn, ‘UNESCO and the Universities’ (1999) 85:4 Academe 40, p. 43. 166 See Chapter II(A); UNESCO Recommendation (n. 17), paras. 17 and 27. 167 UNESCO Recommendation (n. 17), Preamble, citing Article 26, Universal Declaration of Human Rights and Article 13(1)(c), ICESCR. 168 Ibid, paras. 17-19. 169 Ibid, paras. 48-51. 170 Ibid, para. 27. 171 Koïchiro Matsuura, Foreword in Abdulqawi Yusu (ed.), Standard-setting in UNESCO Vol I: Normative Action in Education, Science and Culture Essays in Commemoration of the Sixtieth Anniversary of UNESCO (Paris, UNESCO 2007), p. 12. 172 Odendahl (n. 121), p. 756. 173 See for example, Recommendation CM/Rec (2012)7 (n. 49).
24 C. Conclusions on the Basis for Protection of Academic Freedom
In summary, the democratic value, and plethora of legal authority establish an unrebuttable case for the recognition of academic freedom as a composite human right. The previous section has outlined the legal authority, relevant to the CoE, which supplements the theoretical justifications underpinning academic freedom,174 as defined in the Introduction.175 Notwithstanding the absence of a specific convention right on academic freedom, this Chapter has identified an authoritative basis, from which protection for academic freedom may be derived.
Furthermore, the cross-cutting nature of academic freedom, resulting in the engagement of multiple rights under the ECHR, must be acknowledged. The risks attached to ‘pigeon holing’ academic freedom as freedom of expression were highlighted in the discussions pertaining to the seizure of an academic’s passport.176 Following this reasoning, the framework must continue to be sufficiently flexible to permit the application of all relevant human rights to cases which fall within the open definition of academic freedom, in order to ensure its effective protection. The following Chapter turns to the relevant ECtHR jurisprudence, assessing in detail what it adds to the academic freedom protection framework, in light of its growing recognition of the concept.
174 See Chapter II(A). 175 See Chapter I(B). 176 See Chapter II(B)(1).
25 III. Lessons So Far: An Examination of Jurisprudence of the European Court of Human Rights
The previous Chapter outlined the importance of academic freedom, with particular reference to its role in the proper functioning of a democratic society. In its case law, the ECtHR has started to follow similar reasoning, recognising the value of academic freedom to democracy.177 The Court has also applied the wide interpretation of freedom of expression, encompassing the right to ‘offend, shock or disturb’,178 in the context of academic freedom.179 The Joint Concurring Opinion, in Mustafa Erdoğan and Others v. Turkey, from Judges Sajo, Vucinic and Kuris explicitly recognised that ‘there can be no democratic society without free science and free scholars.’180 The Joint Concurring Opinion may act as a precursor for more express recognition under the specific heading of academic freedom, rather than ‘run of the mill’ freedom of expression.
Notwithstanding such protection, it is submitted that the current jurisprudence falls short of the required standard. Considering the recognition of academic freedom’s critical role in the functioning of a democratic society,181 it is submitted that academic freedom requires the utmost protection under the Convention. Such a standard should impose a higher level of scrutiny in respect of any interference, in line with the ECtHR’s treatment of other ‘societal watchdogs’, most notably journalists,182 in respect of Article 10.
The following analysis suggests that the Court has adopted a piecemeal approach to developing protection for academic freedom, and continues to cloak such recognition under the broader right to freedom of expression;183 despite the existence of an authoritative basis for academic freedom, outlined in the previous Chapter. This Chapter seeks to assess the ECtHR case law relevant to academic freedom, establishing to what extent the Court has recognised academic freedom as a human right under the ECHR, and measure such an assessment against the required standard.
177 Mustafa Erdoğan (n. 28), para. 41. 178 Handyside v. the United Kingdom, App. no. 5493/72 (ECHR, 7 December 1976), para. 49. 179 Lombardi Vallauri v Italy, App. no. 39128/05 (ECHR, 20 October 2009), para. 44. 180 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 10, Mustafa Erdoğan (n. 28). 181 Recommendation 1762 (n. 26), para. 7. See also the argumentation in Chapter II(B). 182 Satakunnan Markkinapörssi Oy And Satamedia Oy v. Finland [GC], App. no. 931/13 (ECHR, 27 June 2017), para. 126; Magyar Helsinki Bizottság (n. 63), para. 165. See also, Chapter III(B). 183 See for example: Cox v. Turkey, App. no. 2933/03 (ECHR, 20 May 2010), para. 38; İrfan Temel and Others v. Turkey, App. no. 36458/02 (ECHR, 3 March 2009), para. 44; Karapetyan and Others v. Armenia, App. no. 59001/08 (ECHR, 17 November 2017), para. 44; Wille v. Liechtenstein [GC], App. no. 28396/95 (ECHR, 28 October 1999), para. 61.
26 Prior to engaging in the detailed analysis, it is important to note that the case law, emanating from the ECtHR, concerning academic freedom is still evolving.184 This is likely explained by the fact that the issue of academic freedom was only implicitly addressed by the Court from the late 1990s.185 This Chapter shall clarify whether the respective protection is being advanced by the Court and, if so, how progressive such an advancement can be argued to be. As previously stated,186 progressive in this work is to be understood as the development of substantive and procedural protection, which ensures the practical and effective enjoyment of academic freedom under the Convention.
The first section of this Chapter shall examine the founding authorities, leading to the establishment of academic freedom under the ECHR (A). The second section shall go on to assess the various ways in which the Court has expanded upon those foundations, in its more recent jurisprudence (B). The third section will offer a critique of the recent shortfalls in selected ECtHR jurisprudence (C). The final section draws some conclusions on the current jurisprudence, in respect of its protection of academic freedom (D).
A. First Lessons: Towards Recognition of Academic Freedom as a Human Right
Commentators have identified various cases as the starting point for academic freedom jurisprudence before the ECtHR. The common consensus points to the case of Sorguç v. Turkey as the foundational case.187 It is true that Sorguç concerned the first express recognition of academic freedom.188 However, to conclude that it constitutes the first case to offer protection to academic freedom is not entirely accurate. Starting any analysis with Sorguç, overlooks the preceding jurisprudence which is argued to have implicitly recognised academic freedom as a human right under the ECHR. These earlier cases also addressed the issue, which facilitated the express recognition in the Sorguç judgment.
The first significant case to address academic freedom was Hertel v. Switzerland. The case concerned a prohibition on the publication of a study, indicating cancer inducing effects on human health from
184 See the recent judgment of Kula (n. 31). 185 See for example: Hertel v. Switzerland, App. no. 25181/94 (ECHR, 25 August 1998); Wille (n. 183). 186 See Chapter I(D). 187 Klaus Beiter, Terence Karran and Kwadwo Appiagyei-Atua, ‘“Measuring” the erosion of academic freedom as an international human right: a report on the legal protection of academic freedom in Europe’ (2016) 49:3 Vanderbilt Journal of Transnational Law 597, p. 601; Julia Laffranque, ‘A Look at the European Court of Human Rights Case Law on Moral Issues and Academic Freedom’ (2017) 26 Juridica International 34, p. 43. 188 Sorguç (n. 27), para. 35.
27 the consumption of microwaveable food. The Court concluded that there had been a violation of Article 10, finding that the ‘effect of the injunction was thus partly to censor the applicant’s work and substantially to reduce his ability to put forward in public [sic] views which have their place in a public debate whose existence cannot be denied.’189 In its reasoning, the ECtHR narrowed the margin of appreciation of the state considering the general interest of the study,190 namely the right to health, and recognised that ‘it would be particularly unreasonable to restrict freedom of expression only to generally accepted ideas.’191 It also dismissed the State’s argument that any infringement was justified on the grounds that the applicant could continue his research and disseminate it within ‘scientific or academic circles.’192 In light of these considerations, the Court concluded that any such infringement would have been unnecessary in a democratic society.193
It must be noted that the judgment does not make any express reference to academic freedom. Instead, the judgment focused on the public interest element in making its proportionality assessment. This may have been a deliberate decision of the Court, or simply an oversight in the drafting of the judgment. In either case, the failure to recognise the societal importance of academic freedom, weakens the value of the judgment in protecting academic freedom and undermines its recognition as a human right under the Convention. Nevertheless, the facts of the case identify as an infringement of academic freedom, namely the prohibition on the publication of academic work. Accordingly, the judgment must be considered to implicitly offer protection to academic freedom under Article 10, ECHR.
The Grand Chamber judgment of Wille v. Liechtenstein furthered such implicit protection of academic freedom under the Convention. The case concerned statements from the applicant (President of the Liechtenstein Administrative Court), delivered during the course of an academic lecture, regarding the competence of the State’s Constitutional Court in a dispute between the Prince and Parliament. These statements were delivered during a public lecture in respect of the operation of the Constitutional Court. Consequently, the Prince informed the applicant of his disappointment with the comments, notifying him that he would not be reappointed as President of the Administrative Court. The ECtHR concluded there to be a violation of Article 10, considering that the effect of the
189 Hertel (n. 185), para. 50. 190 Ibid, para. 47. 191 Ibid, para. 50. 192 Ibid, para. 44. 193 Ibid, para. 51.
28 decision not to reappoint the applicant was solely based on his views expressed in the course of his lecture.194
The Grand Chamber judgment is important as it recognises an intention not to reappoint an individual, which effectively equated to an undertaking to dismiss the applicant, following the exercise of his academic freedom as an infringement of Article 10.195 The ECtHR recognised the academic nature of the lecture,196 and the chilling effect that the threat of dismissal had on the applicant.197
The application of the chilling effect in the case is of great significance. The principle is yet to be afforded a definition by the Court;198 however, it has been interpreted by Townsend to describe any action which is likely to result in ‘overt [self-]censorship (…) provoking uncertainty and fear’199 among a relevant group. It is interesting to note that the first application of the chilling effect in the field of freedom of expression, originating from U.S. Supreme Court, was in the context of an academic’s membership in communist groups.200 However, as shall be discussed in the penultimate section to this Chapter,201 the ECtHR only recently applied the chilling effect to a case explicitly dealing with academic freedom.202 Prior to such express recognition and application, the Court applied the principle to other fields,203 the most analogous being cases concerning journalistic freedom.204
However, the potential for protection from the application of the chilling effect was implicitly limited in Wille v. Liechtenstein by the continued reluctance of the Court to expressly recognise the
194 Wille (n. 183), para. 70. 195 Dirk Voorhoof and Patrick Humblet, ‘The Right to Freedom of Expression in the Workplace under Article 10 ECHR’ in Filip Dorssemont, Klaus Lörcher, Isabelle Schömann, The European Convention on Human Rights and the Employment Relation (London, Bloomsbury Publishing 2013), p. 258. 196 Wille (n. 183), para. 65. 197 Ibid, para. 50. 198 Trine Baumbach, ‘Chilling Effect as a European Court of Human Rights’ Concept in Media Law Cases’ (2018) 6:1 Bergen Journal of Criminal Law and Criminal Justice 92, p. 110. 199 Judith Townsend, ‘Freedom of Expression and the Chilling Effect’ in Howard Tumber and Silvio Waisbord, The Routledge Companion to Media and Human Rights (London, Routledge 2017), p. 73. 200 Wieman v. Updegraff, [1952] 344 U.S. 183, p. 195. 201 See Chapter III(C). 202 Kula (n. 31), para. 39. 203 For a comprehensive overview of the application of the chilling effect, including the identification of other relevant fields of case law, see Ronan Ó Fathaigh, ‘Article 10 and the Chilling Effect Principle’ (2013) European Human Rights Law Review 304. 204 See for example, Cumpănă and Mazăre v. Romania [GC], App. no. 3348/96 (ECHR, 17 December 2004), para. 114.
29 importance of academic freedom, notwithstanding relevant arguments put forward by the applicant.205 Nevertheless, it must be noted that the Grand Chamber judgment did further the protection of academic freedom under the Convention, through its abstract recognition of the chilling effect in respect of academic speech.
The ECtHR continued to avoid affording academic freedom any express recognition under the Convention, despite its consideration of multiple cases engaging the issue,206 for the next ten years. The Court moved closer to explicitly addressing the ever-growing elephant in the room in the case of Riolo v. Italy. The case concerned a finding of defamation, and consequent fine, against an academic who publicly criticised an Italian lawyer. Despite the fact that the case concerned freedom of expression exercised by academic, the Court categorised the case as one engaging issues of journalistic freedom,207 consequently finding a violation of Article 10.208 The Court arrived at this conclusion on the grounds that the applicant was acting in a capacity comparable to that of a journalist, publishing his criticisms within a newspaper,209 and the public role of the individual subject to the defaming comments.210 It also noted that the circumstances of the case gave rise to a degree of provocation.211
On its face, Riolo appears to further the protection for academic freedom; however, it is submitted that it limits such protection. In emphasising the exercise of academic freedom within a journalistic source, the judgment impliedly subordinates academic freedom to its journalistic counterpart.212 The reasoning suggests that, but for the publication of the criticism within a newspaper, no additional protection would have been afforded to the applicant under the Convention, potentially depriving the applicant of a finding of a violation. Consequently, undermining the degree of protection afforded to academic freedom independently. Therefore, Riolo v. Italy evidences the need to directly address the
205 Wille (n. 183), para. 66. 206 See for example: Nilsen and Johnsen v. Norway, App. no 23118/93 (ECHR, 25 November 1999); Stambuk v. Germany, App. no. 37928/97 (ECHR, 17 October 2002); Boldea v. Romania, App. no. 19997/02 (ECHR, 15 February 2007). 207 Riolo v. Italy App. no. 42211/07 (ECHR, 17 July 2008), para. 63. 208 Ibid, para. 73. 209 Ibid, para. 63. 210 Ibid, para. 66. 211 Ibid, para. 68. 212 For a concise summary of journalistic freedom, see Dirk Voorhoof, ‘Freedom of journalistic newsgathering, access to information and protection of whistle-blowers under Article 10 ECHR and the standards of the Council of Europe’ in András Koltay (ed.), Comparative Perspectives on the Fundamental Freedom of Expression (Budapest, Wolters Kluwer 2015), Ch. 12.
30 importance of academic freedom, justifying it with its own credentials, rather than limiting any additional protection to academic speech expressed within a journalistic context.
The express, and long awaited, recognition of academic freedom was conferred by the ECtHR in the case of Sorguç v. Turkey, where the Court underlined ‘the importance of academic freedom, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction’.213 It unanimously considered that an order to the applicant to pay damages, following criticism of the examination procedure which determined the employment prospects of assistant professors, constituted a violation of Article 10. In assessing the proportionality of the interference, the Court found that the domestic courts ‘attached greater importance to the reputation of an unnamed person than to the freedom of expression that should normally be enjoyed by an academic in a public debate.’214
It is clear from the judgment that the Court was, at least partly, inspired in its affirmation of the importance of academic freedom by Recommendation 1762 (2006).215 The importance of the Recommendation from the PACE with regard to the development of academic freedom was discussed in the previous Chapter.216 However, it is worth recalling that the reference within the Sorguç judgment highlights two important points. First, it further evidences the value of Recommendation 1762 (2006). Second, it demonstrates the ability of other CoE organs, for instance the PACE, to advance the protection under the Convention.
Moreover, the crucial affirmation of academic freedom in the judgment has consistently been referred to by the ECtHR, in its subsequent judgments.217 Commentators,218 and the Research Division of the ECtHR,219 continue to cite Sorguç as the basis for the recognition of academic freedom, as a human
213 Sorguç (n. 27), para. 35. 214 Ibid, para. 34. 215 Ibid, paras. 21 and 35. 216 See Chapter II(B)(2). 217 See for example: Sapan v. Turkey, App. no 44102/04 (ECHR, 8 June 2010), para. 34; Lombardi Vallauri v Italy (n. 179), para. 43; Mustafa Erdoğan (n. 28), para. 40; Kharlamov v. Russia, App. no. 27447/07 (ECHR, 8 October 2015), para. 27; Kula (n. 31), para. 38. 218 Laffranque (n. 187), p. 42. 219 Research Division, Cultural rights in the case-law of the European Court of Human Rights (Strasbourg, Council of Europe 2011) (updated 17 January 2017), paras. 89-93.
31 right, under the Convention. Accordingly, the significance of the 11 page judgment cannot be overstated in cementing a strong foundation for academic freedom within ECtHR jurisprudence.
B. Building Upon the Foundations: The Protection of Academic Freedom in More Recent Jurisprudence
Following the Sorguç judgment, the ECtHR began to expand its jurisprudence in respect of academic freedom. In the case of Lombardi Vallauri v Italy, recalling Sorguç and Recommendation 1762 (2006), the ECtHR found a violation of Article 10 and Article 6(1), ECHR.220 The case concerned the non-renewal of the applicant’s lectureship at a catholic university, following a 20-year tenure, due to the applicant holding a belief not aligned with the catholic faith. In contrast to the previous findings of Article 10 violations, the ECtHR focussed on the lack of procedural safeguards observed at the domestic level,221 namely the lack of reports,222 and failure to provide the applicant with reasons for the refusal to extend his tenure.223
The case significantly develops the procedural rights in respect of academic freedom. The Court’s Estonian Judge Laffranque, writing in an academic capacity, notes that the case prohibits undercutting the ‘essence of the procedural safeguards.’224 Looking forward, the Lombardi judgment may prove to be critical for the protection of academic freedom, in light of the growing procedural focus of the Court, deriving from the principle of subsidiarity.225 However, notwithstanding the welcomed recognition of required procedural safeguards, it is equally important that academic freedom continues to benefit from substantive protection under the Convention.
Such substantive protection was in fact furthered in the case of Cox v. Turkey, where the Court assessed restrictions on an American lecturer’s ability to travel. The applicant criticised the treatment of the Armenian and Kurdish peoples by the Turkish State before her students.226 In response, the Turkish authorities prohibited the applicant from returning to Turkey through an entry in her
220 Lombardi Vallauri (n. 179), paras. 56 and 72. 221 Ibid, para. 46. 222 Ibid, para. 49. 223 Ibid, para. 54. 224 Laffranque (n. 187), p. 44. 225 For a more detailed discussion on this point, labelled ‘procedural embedding’ see, Robert Spano, ‘The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law’ (2018) 18:3 Human Rights Law Review 473. 226 Cox (n. 183), paras. 12 and 41.
32 passport.227 The Court again found a violation of Article 10,228 recognising that the relevant Convention protection applies ‘regardless of frontiers’,229 and the intent of the ban to ‘stifle the spreading of ideas’230.
At first glance, the decision appears to significantly extend the protection of academic freedom under the Convention, identifying a less severe measure, namely a travel ban, as a violation of Article 10, in contrast to the aforementioned dismissals. However, any such protection is implicit. Notwithstanding its recognition that the travel ban was ‘on account of the contents of [the applicant’s] previous conversations with students and colleagues’,231 the Court neglected to expressly identify the academic nature of the speech. This omission risks undermining the possibility of an additional tier of protection of academic speech, analogous to the protection afforded to journalists and NGOs.232
In contrast to the jurisprudence discussed above, the case of Aksu v. Turkey assessed academic freedom as a state justification for infringing upon the Article 8 rights of the Turkish Roma population. The conjoined applications concerned the state sponsored publication of one book and two dictionaries, containing controversial and derogatory statements in respect of Turkish Roma culture.233 Building upon the express recognition of academic freedom in Sorguç,234 the Court held that it was ‘consistent with the Court’s case law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings.’235 Applying this finding conversely to the infringement upon Roma private life under Article 8 resulting from the publication of academic work, the ECtHR found no violation of applicant’s right to private life under the Convention.236
227 Cox (n. 183), para. 10. 228 Ibid, para. 45. 229 Ibid, para. 31. 230 Ibid, para. 44. 231 Ibid, para. 30. 232 See for example: Barthold v. Germany, App. no. 8734/79 (ECHR, 25 March 1985), para. 58; Lingens v. Austria, App. no. 9815/82 (ECHR, 8 July 1986), para. 44 (concerning journalists); Magyar Helsinki Bizottság (n. 63) (concerning NGOs). 233 Aksu v. Turkey [GC] App. nos. 4149/04 and 41029/04 (ECHR, 15 March 2012), para. 12: ‘There are also some [Roma], albeit few in number, who make a living from pickpocketing, stealing and selling narcotics.’ 234 Sorguç (n. 27), para. 35. 235 Aksu (n. 233), para. 71. 236 Ibid, para. 77.
33 Irrespective of whether the Grand Chamber was correct in its conclusions, the weight that the academic element afforded to the Article 10 argument was evidently critical in outcome of the balancing exercise.237 Thus, Aksu must be recognised to further the protection of academic freedom under the Convention.
Another interesting case addressed by the Court, encompassing academic freedom, is Gillberg v. Sweden. It concerned the suspended sentence and fine of a professor, following the destruction of medical research data, which was subject to a judicial disclosure order. The Court reserved its judgment on whether there had been an interference with the applicant’s private life in the workplace, under Article 8, holding that any such interference would be justified.238 In reaching this conclusion, the Court dismissed the applicant’s complaint that he should be afforded similar protection to a journalist with respect to sources, deferring to the domestic court’s decision.239
Before turning to the Court’s consideration under Article 10, it is important to note that freedom of expression may encompass a negative right to remain silent.240 Following this reasoning,241 the Court expressly recognised that ‘doctors, psychiatrists and researchers may have a similar interest to that of journalists in protecting their sources (…) [and] lawyers in protecting professional secrecy with clients’.242 Notwithstanding these observations, the Court found no interference with Article 10, primarily because the applicant’s conviction was for ‘misuse of office’, rather than withholding evidence.243
The complex mix of issues addressed in the Grand Chamber’s judgment, including freedom of expression; medical data; child confidentiality and public access to academic research, arguably detract from its impact on the advancement of academic freedom as a human right. However, the Court’s recognition of the comparison between academic researchers, journalists and lawyers furthers the argument for extending the ECtHR’s special approach evidenced in journalistic cases to academics.
237 Aksu (n. 233), paras. 69 and 71. 238 Gillberg v. Sweden [GC], App. no. 41723/06 (ECHR, 3 April 2012), para. 105. 239 Ibid, para. 115. 240 K v. Austria, no. 16002/90 (EComHR, 13 October 1992), para. 45; Strohal v. Austria, no. 20871/92, (EComHR, 7 April 1994), para. 2. 241 Gillberg (n. 238), para. 123. 242 Ibid, paras. 122 and 123. 243 Ibid, para. 124.
34 The recent case of Mustafa Erdoğan and Others v. Turkey, specifically the Joint Concurring Opinion of Judges Saj, Vucinic and Kuris, was discussed at the beginning of this Chapter. It concerned an order for the applicants, a professor in constitutional law and publishing company owner, to pay damages to members of the judiciary. This order was the result of the professor’s scathing criticism of the judges’ decision to dissolve a political party. Recalling the PACE Recommendation 1762, Sorguç244 and Aksu245, the Court unanimously found a violation of Article 10.246
It is important to note that the ECtHR’s recognition of the importance of academic freedom was expanded upon within the judgment. The Court held that:
[academic] freedom, however, is not restricted to academic or scientific research, but also extends to the academics’ freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence. This may include an examination of the functioning of public institutions in a given political system, and a criticism thereof.247
In contrast to the Court’s reasoning in Riolo v. Italy discussed in the previous section, where the Court attached greater weight to academic speech due to its publication in a newspaper,248 the Mustafa Erdoğan majority noted ‘that the article in question was published in a quasi-academic quarterly as opposed to a popular newspaper.’249 Thus, the Court appears to be limiting its recognition of protection for academic freedom to academic and quasi-academic journals. It is unclear how much weight this consideration played into the reasoning of the judgment; however, such a limitation risks subverting any further expansion of academic freedom protection under the Convention. The Joint Concurring Opinion, from Judges Sajo, Vucinic and Kuris, correctly identifies this point as ‘misleading’.250 Instead, the concurring Judges acknowledge that ‘where and how (inter alia, in what form of publication or to what audience) the “speech” was given or was otherwise made public is a secondary, auxiliary and often not decisive factor.’251
244 Mustafa Erdoğan (n. 28), para. 40. 245 Ibid, para. 40. 246 Ibid, para. 46. 247 Ibid, para. 40. 248 Riolo (n. 207), paras. 63 and 68. 249 Mustafa Erdoğan (n. 28), para. 45. 250 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 9, Mustafa Erdoğan (n. 28). 251 Ibid, para. 8.
35 Another criticism, highlighted by Tomlinson and Voorhoof, discusses the majority opinion’s implicit requirement that the academic speech contribute to a debate in the public’s general interest.252 They argue that academic speech should not be dependent on such a requirement, citing the concurring Judges argumentation, that such a requirement would be ‘superficial’.253 Such criticisms complement the comprehensive criteria required for expression to qualify as academic speech and, therefore, benefit from the utmost protection under Article 10, as set out in the Concurring Opinion, namely:
(a) whether the person making the speech can be considered an academic; (b) whether that person’s public comments or utterances fall within the sphere of his or her research; and (c) whether that person’s statements amount to conclusions or opinions based on his or her professional expertise and competence.254
This work fully endorses such a criteria, rejecting any general interest requirement and distinguishing it from journalistic freedom.255 It is true that it would deprive certain academic speech of the utmost protection, namely speech which falls outside the academic’s area of research or expertise. However, such a limitation would serve to strengthen the protection of academic freedom under the Convention, legitimising the recognition of academic speech through a transparent legal test. Furthermore, the speech exercised by academics outwith their competence would continue to benefit from the ordinary protection under Article 10.256 However, such instances must not then lead to sanctions within the academic workplace,257 provided they clearly identify that those views are being expressed in a personal capacity.258
More critically, the Concurring Opinion unequivocally incorporates ‘extramural’ speech into the protection presently afforded to academic freedom under Article 10.259 In the context of academic
252 Hugh Tomlinson QC and Dirk Voorhoof, ‘Case Law, Strasbourg: Erdoğan v Turkey, Criticising Judges and the importance of academic freedom’ (Inforrm’s Blog: The International Forum for Responsible Media Blog, 30 May 2014), available at: http://inforrm.wordpress.com/2014/05/30/case-law-strasbourg-erdogan-v-turkeycriticising-judges-and-the- importance-of-academic-freedom-hugh-tomlinson-qc-anddirk-voorhoof/, last accessed 6 April 2019, citing Mustafa Erdoğan (n. 28), para. 41. 253 Ibid, citing the Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 5, Mustafa Erdoğan (n. 28). 254 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 8, Mustafa Erdoğan (n. 28). 255 See for example, Axel Springer (n. 32), para. 90. 256 Vrielink et al (n. 29), para. 57. 257 UNESCO Recommendation (n. 17), para. 26. 258 Vrielink et al (n. 29), para. 58. 259 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 3, Mustafa Erdoğan (n. 28).
36 freedom, extramural speech concerns external ‘interventions by academics in their areas of expertise (e.g. in the media or during debates with the general public)’.260 The Concurring Opinion recognised that ‘academic freedom is not limited to debates in scholarly journals, debates in academic settings and teaching.’261 The Concurring Judges exercised a degree of constraint in delimitating the exact scope of extramural speech;262 however, future interpretation shall be able to utilise the aforementioned criteria to ensure the continued incorporation of extramural speech in the understanding of academic freedom, and afford it the same utmost level of protection. The recognition of such an incorporation is critical to the effective protection of academic freedom, as it rebuts any arbitrary limitation, which may attempt to confine academic freedom to the paper of journals and voices in lecture theatres.
Overall Mustafa Erdoğan must be considered to advance protection for academic freedom as a human right. However, the contrast between the majority and concurring views, expressed in the judgment, further evidences the reluctance of the Court to afford academic freedom a larger degree of protection, which would explicitly incorporate extramural speech within its understanding of the concept. Considering that the Convention provides for the process,263 the value of separate opinions cannot be refuted, as evidenced by their potential to influence future judgments of the Court.264 However, the motivation behind the continued application of a more conservative understanding of academic freedom in the decision of the majority is unclear and disappointing, as it unnecessarily limits scope for protection under the judgment.
The last case to be discussed in this section, and arguably most beneficial for the protection of academic freedom to date, is Kula v. Turkey. The applicant, a professor specialising in German translation, complained to the ECtHR that a reprimand imposed on him for taking part in a television programme, against the instructions of his employer, constituted a violation of his right to freedom of expression. The Court unanimously found a violation of Article 10. The decision was largely based on procedural principles contained within Article 10,265 specifically the failure of the domestic courts to assess the proportionality of the measure and their narrow focus on formal compliance with the
260 Vrielink et al (n. 29), para. 54. 261 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 3, Mustafa Erdoğan (n. 28). 262 Ibid, para. 4. 263 ECHR, Article 45(2). 264 Venice Commission, Opinion no. 932/2018, Report on Separate Opinions of Constitutional Courts, adopted at the 117th Plenary Session (Venice, 14-15 December 2018), para. 156. 265 Kula (n. 31), para. 52.
37 relevant domestic procedures.266 However, the Court also addressed the issue of academic freedom directly, considering that the application related:
essentially to the exercise by the applicant of his right to freely express his views as an academic during a television programme organised outside his city of residence. In the Court’s view, this issue unquestionably concerns his academic freedom, which should guarantee freedom of expression and of action, freedom to disseminate information and freedom to ‘conduct research and distribute knowledge and truth without restriction’.267
In addition to such express recognition regarding the scope of academic freedom, the judgment highlighted the chilling effect that the reprimand was liable to have on the exercise of freedom of expression in the academic context.268 The notion of the chilling effect was discussed in the previous section, with regard to its inclusion in the Grand Chamber’s Wille v. Lichtenstein judgment.269 However, it should be further noted that the Court has consistently placed great weight on the chilling effect when determining the existence of an interference and/or the necessity of such an interference under Article 10.270 Therefore, the explicit recognition of the importance and engagement of academic freedom, in conjunction with the identification of the chilling effect must be considered to significantly advance the protection of academic freedom under the Convention. Accordingly, Kula is a recent, and welcomed addition, to a growing body of case law, which has been evidenced to gradually strengthen the existing recognition of academic freedom as a human right.
C. A Critique of the Recent Shortfalls in the Jurisprudence
The previous section summarised the ECtHR’s advancement of academic freedom protection, exploring the advantages and disadvantages of the relevant case law. In contrast, this section shall examine two recent cases in which the issue of academic freedom was entirely overlooked by the Court; notwithstanding, the aforementioned progress towards greater protection.
The first case to be considered is Tuskia and Others v. Georgia. The applicants, a group of professors, demanded the resignation of the new Rector, appointed by Presidential Decree. Following their
266 Kula (n. 31), paras. 50 and 51. 267 Ibid, para. 38 (citations omitted). 268 Ibid, para. 39. 269 Wille (n. 183), para. 50. 270 See for example: Cumpănă and Mazăre (n. 204), para. 116; Baka (n. 63), para. 160; Axel Springer (n. 32), para. 109.
38 refusal and removal by police, the applicants protested in a lecture theatre, where they alleged the police locked them in overnight. Subsequently, the applicants were subject to an administrative fine of around 45 euros for disobeying a police order and/or committing a minor breach of public order.271 The Court identified Article 11 as the lex specialis of the case, to be read in the light of Article 10.272 Notwithstanding its recognition of an interference under Article 11,273 and that the university reforms constituted an issue within the public interest,274 the Court unanimously concluded that there had been no violation of the Convention, as the interference was justified.275 In its assessment of the necessity of the interference, the Court placed great weight on the duration of the protests;276 the extensive police negotiations;277 the absence of force in removing the applicants;278 and the discontinuation of criminal proceedings.279
The Court failed to sufficiently assess the motivations behind the protests, namely the safeguarding of university autonomy. It has been established that the Court has consistently applied the PACE Recommendation 1762 in its case law.280 However, Tuskia does not refer to the Recommendation once. Such a gap in the Court’s reasoning is concerning as the applicants’ resistance was largely driven by their membership in the Grand Academic Council. Even though the representative body played a critical role in the safeguarding of institutional autonomy and the self-governance element of academic freedom,281 the Grand Academic Council was dissolved by the same Presidential Decree appointing the new Rector.282 Refusing to accept such dissolution, and encroachment upon academic freedom and institutional autonomy, the Council elected the second applicant as the Rector.283 This conflict culminated in the protests considered by the Court.
271 Tuskia (n. 70), paras. 36 and 39. 272 Ibid, para. 73. 273 Ibid, para. 75. 274 Ibid, para. 79. 275 Ibid, para. 87. 276 Ibid, para. 75. 277 Ibid. 278 Ibid. 279 Ibid, para. 86. 280 Sorguç (n. 27), para. 21; Lombardi Vallauri (n. 179), para. 24; Kula (n. 31), para. 28. 281 See Chapter I(B). 282 Tuskia (n. 70), para. 6. 283 Ibid, para. 12.
39 Unfortunately, Georgia is not covered by the European University Association’s University Autonomy Tool,284 thus making a comprehensive assessment of the present state of university autonomy in Georgia impossible in the scope of this work. However, it is surprising that such reforms were enacted in the same year in which Georgia joined the Bologna Process which, inter alia, aims to safeguard the institutional autonomy of higher education institutions.285 In any event, the abolition of the Grand Academic Council constitutes compelling evidence of an erosion of university autonomy, a precondition for the effective enjoyment of academic freedom,286 transferring more authority from the Georgian universities to the government. Therefore, such an encroachment must be considered to violate the autonomy principles advocated by the PACE Recommendation 1762. Irrespective of whether such consideration would have altered the Court’s conclusion, the issue should have been given due weight in its proportionality assessment.
Furthermore, and in contrast to the Kula case discussed at the end of the previous section, the Court neglected to address the chilling effect argumentation put forward by the applicants.287 It is worth noting here that the chilling effect has been applied by the Court in the context of Article 11, in addition to Article 10.288 However, the Court narrows its focus on the absence of criminal prosecutions and arrests in order to justify the interference.289 Moreover, the Court applies the behaviour of the more resistant applicants to the assessment of proportionality of the sixth and ninth applicants, who left the Rector’s office before the arrival of the police.290 Overall, the judgment has the effect of downplaying administrative sanctions imposed against the exercise of academic freedom, which risks contradicting existing jurisprudence and undermining the respective protection under the Convention.
The second recent case to be analysed is that of Kaboğlu and Oran v. Turkey. The applicants, two professors and members of the Turkish Advisory Council on Human Rights, faced scathing criticism from the media, and a public prosecution for inciting public hostility against the State, following the
284 The Tool provides a graded comparison between 26 European Countries, based on organisational; staffing; financial and academic indicators
40 publication of their report on minority and cultural rights. The report advocated for constitutional reform, providing for a multi-identity; multicultural; democratic; liberal and pluralist society.291 Subsequently, the applicants unsuccessfully claimed damages against the relevant newspapers on the grounds of hate speech.292 With regard to the applicants’ complaint under Article 8, the Court identified the appropriate balancing exercise, giving due consideration to: ‘the [speech’s] contribution to a debate of general interest, the notoriety of the person concerned, the subject matter of the report, the prior conduct of the person concerned, the content, form and impact of the publication and, where appropriate, the circumstances of the case’.293 It concluded a violation of the applicants’ rights under Article 8,294 placing particular emphasis on the nature of the comments, which were considered capable of inciting violence against the applicants.295
Additionally, the applicants complained that the State had failed in its positive obligation to guarantee their rights to freedom of expression under Article 10.296 Notwithstanding its recognition of such a positive obligation,297 the Court considered that it was unnecessary to rule separately in respect of Article 10, considering that it had addressed the main legal question under Article 8.298 This is surprising considering the Court’s express consideration of the decision of the Turkish Supreme Court of 18 April 2018.299 The domestic case concerned the same facts as Kaboğlu and Oran but a different member of the Turkish Advisory Council on Human Rights.300 In its summary of that decision, the ECtHR noted that ineffective judicial protection amounted to a chilling effect (‘effet dissuasif’) in respect of the complainant’s freedom of expression.301 Thus, the Turkish Supreme Court appears to have offered more robust protection to academic freedom in the instant case, which is of particular importance, considering the State’s systematic violations of academic freedom.302
291 Kaboğlu (n. 73), para. 9. 292 Ibid, paras. 19; 25 and 35. 293 Ibid, para. 70 [translated from French]. 294 Ibid, para. 90. 295 Ibid, paras. 85-89. 296 Ibid, para. 91. 297 Ibid, para. 71. 298 Ibid, para. 93. 299 Ibid, paras. 44-46. 300 Baskın Oran, Başvurusu Case no. 2014/4645 (Anayasa Mahkemesi, 28 September 2018). 301 Kaboğlu (n. 73), para. 45. 302 See Chapter IV(A).
41 Irrespective of any domestic protection, the failure of the ECtHR to assess the case from the perspective of Article 10 critically limits Kaboğlu And Oran’s value in advancing the protection for academic freedom under the Convention. Such criticism plays into the more general concern that the judgment fails to identify the applicants’ report as a form of academic speech and consider the relevant legal framework, partly enshrined in the PACE Recommendation 1762.
D. Conclusions on the Relevant Jurisprudence Under the Framework
The previous three sections have identified and analysed a wide array of ECtHR case law that, directly or indirectly, concerns academic freedom. The recent case of Kula v. Turkey sits in stark contrast to the preliminary case of Hertel v. Switzerland, with the former offering explicit recognition, and substantially more protection, for academic freedom under the Convention. However, such a promising contrast, evidencing the advancement in respect of the recognition and protection of academic freedom by ECtHR, cannot be deemed conclusive. Due regard must also be payed to the failure of the Court to recognise the importance of institutional autonomy, notwithstanding the clear opportunity in Tuskia and Others v. Georgia. This may derive from the ECtHR’s evident focus on Article 10, ECHR. In any event, the preceding sections of this Chapter have shown the relevant jurisprudence to be inconsistent, and the advancement of academic freedom protection to be turbulent.
This Chapter aimed to establish whether the relevant case law of the ECtHR recognised academic freedom as a human right under the Convention, and whether such recognition met the required standard. It is true that following Sorguç v. Turkey, academic freedom may be considered a composite human right under the ECHR; however, it is disappointing to note that the Court has resisted extending the required ‘watchdog’ standard to cases concerning academic freedom. The question of whether the relevant jurisprudence could be described as progressive in its continued development of the respective protection, ensuring the practical and effective enjoyment of academic freedom under the Convention, was also posed at the start of this Chapter. The short answer is yes. However, such progress continues to be stinted by decisions which overlook, or even ignore, the issue of academic freedom. Therefore, the Court must be more sensitive to the cross-cutting nature of academic freedom in its future deliberations, if it is to ensure the practical and effective protection of academic freedom under the ECHR.
42 IV. Textbook Violations of Academic Freedom: The Cases of Turkey and Hungary
The previous two Chapters have assessed the existing framework, including relevant ECtHR jurisprudence, for the protection of academic freedom and institutional autonomy within CoE Member States. After outlining the severity of the respective attacks on academic freedom, and identifying any additional barriers to the application of the academic freedom protection framework, the sections in this Chapter seek to apply that framework to the selected two case studies. This analysis shall serve to further examine the sufficiency of the framework, and highlight any peripheral elements, which may additionally impact upon its effectiveness.
The first section shall explore the widespread and systematic violations of academic freedom in Turkey, focussing on the case of the ‘Academics: We will not be a Party to This Crime’ (“Peace Petition”) signatories (A). In contrast, the second section shall assess contrasting attacks in Hungary, specifically the State’s concerted effort to close CEU and eliminate gender studies (B). Drawing from both case studies, the final section shall offer some conclusions on the practical limitations, and potential, of the present framework (C).
A. Case Study of Turkey: Systematic Violations of (Academic) Freedom
Prior to focussing in on the pressures on academic freedom in Turkey, it is necessary to emphasise that the systematic violations of human rights have manifested in every aspect of Turkish society, following the state of emergency. The dismissal of over 6,000 academics and 33,500 teachers, represents only a proportion of the 129,612 public sector workers, who have suffered dismissals by emergency decree due to their alleged association with, the supposed perpetrators of the coup attempt, the Fethullahist Terrorist Organisation (“FETÖ”).303 Nevertheless, the focus of this work is academic freedom and its respective protection. Although is true, that the protection of other important societal actors merits equal attention, as demonstrated by the ECtHR’s approach to encroachment upon the national judiciary,304 such an examination falls outwith the scope of this work. Instead, this work considers the growing encroachment upon academic freedom, which importantly commenced prior to the state of emergency, and then escalated in July 2016, with the state of emergency decree powers further facilitating such an encroachment.
303 Amnesty International (n. 5), p. 11. 304 See for example, Baka (n. 63).
43 This section seeks to assess whether the present academic freedom protection framework, being applied by the ECtHR, is sufficient to address the systematic violations of the composite right in Turkey. The first sub-section shall explain why this work has selected this State as a case study, namely an unprecedented assault on academic freedom (1). The second sub-section shall assess the requirement to exhaust domestic remedies and its impact on the application of the framework (2). The final sub-section applies the existing framework to the case of the Peace Petition signatories (3).
1. An Unprecedented Attack on Academic Freedom
On 10 January 2016, an academic group (Academics for Peace) published the Peace Petition, with 1,128 academic signatories.305 The Peace Petition condemned the disproportionate military action against the Kurdish people, alleging State violations of human rights, and encouraged the State to negotiate a peaceful solution in the respective conflict.306 Within 10 days of its publication, 39 universities condemned the Peace Petition and/or commenced disciplinary procedures against the academic signatories under their employ.307 More worryingly, 33 signatories suffered arbitrary detention by State authorities.308 This persecution steadily increased up until the failed coup attempt on 15 July 2016, at which point 37 academic signatories had been dismissed.309
Following the failed coup attempt, Turkey declared a three-month state of emergency, which was repeatedly renewed to a period of two years under its State Constitution.310 It notified the CoE, in accordance with Article 15 of the ECHR, on 21 July 2016.311 The state of emergency facilitated 11 State of Emergency Decrees, which cumulatively resulted in the dismissal of 406 signatories from across 64 institutions.312 The wider effects of the coup, and the respective Decrees, resulted in the dismissal of over 6,000 academics in the public sector alone.313 In addition to dismissals, academic signatories have also faced criminal prosecution, with criminal trials commencing from 5 December
305 Scholars at Risk, Free to Think 2018: Report of the Scholars at Risk Academic Freedom Monitoring Project (October 2018), p. 28. 306 Barış İçin Akademisyenler, Academics: We will not be a Party to This Crime (10 January 2016) [English translation], available at:
44 2017.314 By March 2019, 666 signatories had stood trial,315 predominantly under Article 7(2) of the Anti-Terrorism Law for alleged connections with FETÖ.316 Such prosecutions provoked international criticism, including from the Magna Charta Observatory,317 and the Venice Commission.318 In their recent work, Ruys and Turkut have compared the mass dismissals in Turkey to the lustration, experienced after the fall of the iron curtain,319 further demonstrating the scale of the issue. These widespread violations of academic freedom identify Turkey as a key case study for the sufficiency of the current academic freedom protection framework.
2. Exhaustion of Domestic Remedies and the Safeguarding of Academic Freedom in Turkey
The most significant and substantial barrier to the ECHR system is the admissibility criteria.320 For instance, in 2018, 40,023 applications were deemed to be inadmissible or struck out; whereas, only 2,738 judgments were delivered by the Court.321 The most important and commonly cited requirement, under the admissibility criteria, is the exhaustion of domestic remedies.322 The requirement to exhaust domestic remedies constitutes a significant hurdle for the application of the bulk of the legal framework delineated in the previous two Chapters. Therefore, it is necessary to address the respective impact, of the requirement to exhaust domestic remedies, on the protection of academic freedom.
Following criticisms and recommendations from the Venice Commission,323 Turkey established the State of Emergency Inquiry Commission (“Inquiry Commission”) under Decree-Law No. 685.324 Only 3,750, of its 50,500, applications may be considered to have experienced success, equating to
314 HRFT, ‘Academics for Peace: A Brief History’ (n. 307), p. 20. 315 Ibid, p. 21. 316 Scholars at Risk, Free to Think 2018 (n. 305), p. 31. 317 Magna Charta Universitatum Observatory, Letter to President Recep Tayyip Erdoğan (n. 138). 318 Venice Commission, Opinion no. 865/2016, Turkey – Opinion on Emergency Decree Law Nos. 667 to 676 adopted following the failed coup of 15 July 2016, endorsed at the 109th Plenary Session (Venice, 9-10 December 2016). 319 Tom Ruys and Emre Turkut, ‘Turkey’s Post-Coup ‘Purification Process’: Collective Dismissals of Public Servants under the European Convention on Human Rights’ (2018) 18 Human Rights Law Review 539, p. 546. 320 ECHR, Article 35; Philip Leach, Taking a Case to the European Court of Human Rights (Oxford, OUP 2017), p. 120. 321 Council of Europe, Analysis of statistics 2018 (January 2019), p. 6. 322 ECHR, Article 35(1); Leach (n. 320), p. 142. 323 Venice Commission, Opinion no. 865/2016 (n. 318), para. 228. 324 Decree-Law No. 685 on Establishment of the Commission on Examination of Act Established Under the Sate of Emergency (23 January 2017).
45 just 7.43%.325 However, upon examination from the ECtHR, in a case concerning the dismissal of a teacher, the Inquiry Commission was found to constitute a remedy required to be exhausted in accordance with Article 35(1), ECHR.326 In fact, the Court went one step further, and assessed the remedies available to the applicant at the time of deliberations not the submission date of the application, applying the requirement to exhaust the Inquiry Commission procedure retroactively.327 Notwithstanding the Court’s findings, the Inquiry Commission has attracted extensive criticism, with regard to the requirement to exhaust it as a remedy,328 predominantly on the grounds that it is ‘inadequate or ineffective’.329 As well as substantive human rights criticism in respect of other ECHR provisions, most notably the requirements of effectiveness, under Article 13, and independence and impartiality, under Article 6.330
Irrespective of such criticism, decisions of the Inquiry Commission may be appealed to the Administrative Courts,331 and then presumably on to the Turkish Constitutional Court (“TCC”).332 The Venice Commission has accurately observed that it is unclear what fruit such an appeal would produce, when the Inquiry Commission is incapable of issuing individual decisions, with adequate reasoning supporting its conclusions.333 Despite such criticism, the ECtHR consistently maintains that the TCC constitutes an effective remedy, to be exhausted, under the Convention.334 However, one of the most recent affirmations of such a finding, in the context of a journalist’s detention, came with a clear warning:
The Court would emphasise that the applicant’s continued pre-trial detention, even after the Constitutional Court’s judgment, as a result of the decisions delivered by the Istanbul 13th
325 Olağanüstü Hal Işlemleri Inceleme Komisyonu, Activity Report 2018, p. 26 [translated from Turkish]. 326 Köksal v. Turkey (dec.), App. no. 70478/16 (ECHR, 6 June 2017), para. 29. 327 Ibid, para. 27. 328 See International Commission of Jurists, Justice Suspended: Access to Justice and the State of Emergency in Turkey (2018), pp. 33-34. 329 Aksoy v. Turkey, App. no. 21987/93 (ECHR, 18 December 1996), para. 52. 330 See Ruys and Turkut (n. 319), pp. 557-564. 331 Decree-Law No. 685 (n. 324), Article 11. 332 Türkiye Cumhuriyeti Anayasası (1982), Article 148(3). 333 Venice Commission, Opinion no. 872/2016, Turkey – Opinion on the Measures Provided in the Recent Emergency Decree Laws with Respect to Freedom of the Media, endorsed at the 110th Plenary Session (Venice, 10-11 March 2017), para. 88. 334 See for example, Uzun v. Turkey (dec.), App. no. 10755/13 (ECHR, 30 April 2013) and Koçintar v. Turkey (dec.), App. no. 77429/12, (ECHR, 1 July 2014).
46 Assize Court, raises serious doubts as to the effectiveness of the remedy of an individual application to the Constitutional Court…335
Moreover, the burden of proof with regard to establishing the effectiveness of the TCC,336 and subsequently the Inquiry Commission, in any future challenges to its effectiveness rests on the State. Failure to establish that the remedy holds a reasonable prospect of success shall absolve any applicant of the obligation to exhaust the remedy in question.337
Nevertheless, provided that the right to eventually appeal to the TCC continues to be respected, in law and practice, by the Turkish State, and the lower courts in Turkey heed the ECtHR’s warning regarding compliance, academics shall be required to exhaust the aforementioned domestic remedies, before the ECtHR considers their respective applications. A more comprehensive analysis of the exhaustion of domestic remedies in Turkey falls outwith the scope of this work; however, it should be noted that a strict application of the requirement risks undermining the application of the academic freedom protection framework, and depriving academics of the practical and effective enjoyment of that right.
3. Applying the Protection Framework to the Peace Petition Signatories
Provided that the Peace Petition signatories exhaust domestic remedies, or such remedies are found to hold no reasonable prospect of success, their case would benefit from strong legal authority under the protection framework. Drawing from the jurisprudential element of the framework, most notably the ECtHR’s seminal recognition of the importance of academic freedom in Sorguç,338 such a case would likely identify Article 10 as the lex specialis.339
The framework’s understanding of academic freedom was set out in the Introduction, which defined the concept as the ‘freedom to conduct research, teach, speak (…) without interference, penalty, or intimidation; wherever the search for truth and understanding may lead…’.340 Moreover, the legal
335 Şahin Alpay v. Turkey, App. no. 16538/17 (ECHR, 20 March 2018), para. 121. 336 Mehmet Hasan Altan v. Turkey, App. no. 13237/17 (ECHR, 20 March 2018), para. 142. 337 Sejdovic v. Italy [GC], App. no. 56581/00 (ECHR, 1 March 2006), para. 46. 338 Sorguç (n. 27), para. 35. 339 See for example, Kula (n. 31), para. 47 and Mustafa Erdoğan (n. 28). 340 See Chapter I(B).
47 framework permits the use of international law as an interpretative tool in respect of the ECHR.341 It follows that, when assessing whether the signing of a petition constitutes a form of academic expression or speak, regard may be had to the authority of the HRC,342 and the jurisprudence of the Inter-American Court of Human Rights.343 The former has affirmed that Article 19, ICCPR, ‘protects all forms of expression and the means of their dissemination’.344 The latter has explicitly recognised that ‘the act of signing [a petition, calling for a referendum on the term of office of a head of state] can be considered’ a form of expression under Article 13 of the American Convention on Human Rights.345
The ECtHR jurisprudence within the framework further supports such findings, recognising that ‘[w]here and how (inter alia, in what form of publication or to what audience) the “speech” was given or was otherwise made public is a secondary, auxiliary and often not decisive factor.’346 Furthermore, the framework attaches great weight to the chilling effect that any infringement upon an academic’s freedom of expression may have in establishing an interference.347 The State response, consisting of dismissals and criminal prosecutions, would undoubtedly dissuade the applicants ‘from making statements of that kind in the future’.348 Thus, under the present framework, the ECtHR would likely recognise the petition as a form of academic expression, and the subsequent dismissals, or criminal prosecutions, of signatories as an interference with academic freedom under Article 10, ECHR.
However, the framework does not provide that academic freedom is an absolute right,349 and may, therefore, be subject to restrictions in accordance with the relevant ECHR provision.350 Thus, having established the existence of an infringement, it is necessary to assess whether the Turkish State could argue such an interference to be justified in light of the framework. It follows that any interference
341 See Chapter II(B)(1). 342 Perinçek v. Switzerland [GC], App. no. 27510/08 (ECHR, 15 October 2015), para. 71. 343 Magyar Helsinki Bizottság (n. 63), paras. 61 and 146; Stoll v. Switzerland, App. no. 69698/01 (ECHR, 10 December 2007), para. 111. 344 HRC, ‘General Comment no. 34: Freedoms of opinion and expression (Article 19)’ (12 September 2011), para. 12. 345 San Miguel Sosa and Others v. Venezuela, Series C No. 348 (IACtHR, 8 February 2018), para. 157. 346 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 8, Mustafa Erdoğan (n. 28). 347 Wille (n. 183), para. 50. 348 Ibid. 349 See Chapter I(B) and Chapter II(B)(1). 350 Lima Declaration (n. 15), Article 2.
48 with a qualified right, engaging academic freedom, would need to be in accordance with the law; pursue a legitimate aim; and be necessary in a democratic society.
First, it is questionable whether criminal prosecutions of the Peace Petition signatories conforms with the ‘in accordance with the law’ requirement. In the context of Article 10(2), and supplementary to framework delineated thus far, the ECtHR has interpreted this criterion to require a degree of foreseeability:
A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.351
As previously stated,352 Article 7(2) of the Anti-Terrorism Law is the most commonly cited provision in such prosecutions. It provides that: ‘any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of one to five years ...’. Such wording is too vague in nature to ensure an individual could reasonably foresee that the signing of a petition, encouraging peace efforts, would lead to a period of imprisonment of up to five years.
In addition to Article 7(2) of the Anti-Terrorism Law, many academics have been subject to prosecution under Article 301 of the Turkish Penal Code,353 which prohibits the degrading of the Turkish State. The ECtHR has previously concluded that the provision failed to meet the requisite foreseeability.354 The ambiguity of other related provisions in the Turkish Penal Code and Article 7(2) of the Anti-Terrorism Law have also attracted wider criticism, from the Venice Commission, in terms of their detrimental impact on the enjoyment of rights under Article 10, ECHR.355 In light of the present shortfalls, primarily a lack of foreseeability, the criminal law facilitating the prosecution
351 Gaweda v. Poland, App. no. 26229/95 (ECHR, 14 March 2002), para. 39. 352 See Chapter IV(A)(1). 353 See Front Line Defenders, Judicial Harassment Against the Members of Academics for Peace, available at:
49 of Peace Petition signatories may be argued to fall at the first hurdle of the infringement test, which forms part of the academic freedom protection framework.
In the event that the ECtHR would consider that the relevant provision satisfies the first criterion, following either further legislative reforms or clarifications in the application of such laws from the national courts, the pursuit of a legitimate aim may be challenged. Unfortunately, this requirement is often applied in a relaxed manner, attracting minimal scrutiny from the ECtHR in the context of academic freedom.356 This is likely due to the ECtHR’s broader practice, applying a wide interpretation to many of the categories of legitimate aims.357 Observing this relaxed application, Mendel notes that ‘the Court has decided very few Article 10 cases on the basis of this part of the test, which has arguably not fulfilled its intended role as a means of limiting the scope of permissible restrictions on freedom of expression.’358 However, it must be noted that the protection of the image or honour of the State does not constitute a legitimate aim;359 however, such motivations may be argued under the guise of public order, or the rights and freedoms of others.
Lastly, the ECtHR shall consider whether the interference is necessary in a democratic society, that is to say, whether the means utilised were proportionate to the aim pursued. In practice, the proportionality assessment is determinative in the majority of Article 10 cases before the ECtHR.360 The margin of appreciation has a critical role to play in the assessment of proportionality.361 However, that discretion afforded to states ‘goes hand in hand with European supervision’,362 which empowers the ECtHR with the final ruling on the proportionality of any given interference. It should also be noted that, in considering the broader political context, the Court has implicitly recognised that the state of emergency may not constitute a ‘get out of jail free card’, expressly holding that ‘the existence
356 See for example, Mustafa Erdoğan (n. 28), para. 31 and Kula (n. 31), para. 43. 357 See for example the wide interpretation afforded to public order in Engel and Others v. the Netherlands, App. nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (ECHR, 8 June 1976), para. 98. 358 Toby Mendel, Freedom of Expression: A Guide to the Interpretation and Meaning of Article 10 of the European Convention on Human Rights (Strasbourg, Council of Europe 2013), p. 38. 359 Monica Macovei, A Guide to the Implementation of Article 10 of the European Convention on Human Rights (Strasbourg, Council of Europe 2004), pp. 34-35. 360 Mendel (n. 358), p. 39. 361 Janneke Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights’ (2018) 18 Human Rights Law Review 495, p. 515. 362 Kula (n. 31), para. 47.
50 of a public emergency threatening the life of the nation must not serve as a pretext for limiting freedom of political debate, which is at the very core of the concept of a democratic society.’363
In the context of academic freedom, and within the respective framework, the ECtHR has recognised that academic’s expressing ‘their views and opinions on matters belonging to the area of their research, professional expertise and competence, deserve the highest level of protection under Article 10.’364 In the previous Chapter,365 this work fully endorsed the utmost protection test put forward in the Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, which identified three requisite criteria: first, the applicant must be an academic; second, the public comment(s) must fall within their sphere of research; and, third, the respective statement(s) must amount to conclusions based on their professional competence.366
It follows that under the present framework of protection, scholars who satisfy all such requirements should benefit from the utmost protection with regard to extramural expression,367 encompassing the signing of the Peace Petition. For instance, the case of Professor Şebnem Korur Fincancı, who was sentenced to two years and six months’ imprisonment under Article 7(2) of the Anti-Terrorism Law following her prosecution which was primarily based on her signature to the Peace Petition,368 should be recognised to benefit from the utmost protection under the framework. Notwithstanding her original practice in forensic medicine, she holds the position of chair of the Human Rights Foundation of Turkey (“HRFT”), and has contributed extensively in its respective publications.369 As a professor she must be considered as an academic; human rights form part of her research at the HRFT; and her criticism of Turkey’s violations of human rights contained within the Peace Petition constitute conclusions linked to that professional competence. Accordingly, her case would merit the utmost protection under the legal framework. However, not all academic signatories would necessarily be able to satisfy the relevant research or expertise requirements within that test.370
363 Mehmet Hasan Altan (n. 336), para. 210. 364 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 6, Mustafa Erdoğan (n. 28). 365 See Chapter III(B). 366 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 8, Mustafa Erdoğan (n. 28). 367 Ibid. 368 Scholars at Risk, Report of incident on 19 December 2018 (Academic Freedom Monitoring Project) available at:
51 Nevertheless, the speech exercised by academics outwith their competence would continue to benefit from protection, albeit to a lesser degree, under the current framework.371 The ECtHR has consistently affirmed that ‘freedom of expression constitutes one of the essential foundations of a democratic society’.372 The relevant COM Recommendation provides that academic staff should be free to act ‘without the fear of disciplinary action, dismissal or any other form of retribution.’373 Such safeguards are strengthened by the ECtHR’s express recognition of the chilling effect in respect of any disproportionate interference with academic freedom.374 With regard to the severity of the measures, the recent finding in Kula recognised a reprimand to constitute a disproportionate interference with Article 10.375 Thus, irrespective of whether the ECtHR applies the utmost protection to academics, effectively awarding them the ‘watchdog’ protection comparable to journalists, dismissals and criminal prosecutions, for the signing of a petition, shall likely be recognised to constitute violation of academic freedom under the Article 10 limb of the framework.
Before moving on to the next section, it should be noted that Turkey has also engineered numerous State mechanisms, encroaching upon university autonomy, some of which have resulted in the closure of multiple universities.376 However, the recent work of the Venice Commission highlights the gravity of similar issues in Hungary.377 Moreover, a significant number of academics associated with CEU, have been recently added to a pro-government magazine list, labelling them as enemies of the State.378 The list may prove to act as a pre-cursor for more attacks on academic freedom in Hungary. In order to facilitate a more comprehensive assessment of the protection of academic freedom, this work examines the situation in another CoE Member State, namely Hungary.
371 Vrielink et al (n. 29), para. 57. 372 See for example, Mustafa Erdoğan (n. 28), para. 33; Wille (n. 183), para. 61. 373 Recommendation CM/Rec (2012)7 (n. 49), Appendix, para. 5. 374 Kula (n. 31), para. 39. 375 Ibid, para. 53. 376 See for example, Decree-Law No. 687 (n. 4), which led to the closure 15 private universities in Turkey (see Annex II to that Decree Law). 377 Venice Commission, Opinion no. 891/2017 (n. 55). 378 Griff Witte, ‘Two hundred names appeared on an enemies list in Hungary. Thousands more asked to join.’ (The Washington Post, 15 May 2018), available at: < https://www.washingtonpost.com/news/worldviews/wp/2018/05/15/two- hundred-names-appeared-on-an-enemies-list-in-hungary-thousands-more-asked-to-join/?utm_term=.f662cefb58ae>, last accessed 24 May 2018.
52 B. Case Study of Hungary: In Defence of the Central European University
Corresponding to the previous section, the following analysis considers the applicability of the present protection framework to the encroachment upon academic freedom and university autonomy in Hungary. Mirroring the structure of the Turkish observations, the first sub-section shall identify context relevant to the infringement of academic freedom and institutional autonomy (1). The second sub-section shall briefly address the practical limitations, which may restrict the application of the academic freedom protection framework (2). The third sub-section shall then apply the protection framework to the CEU case (3).
1. ‘Lex CEU’
On 3 December 2018, CEU announced the relocation of all its U.S. accredited programmes to Vienna.379 This decision was the result of the Hungarian Act XXV (2017) on the Amendment of Act CCIV on National Tertiary Education (2011). The Hungarian government have alleged that the reforms were the result of discrepancies and irregularities it had identified between Hungarian and foreign universities.380 Notwithstanding multiple procedural irregularities,381 the law was adopted on 4 April 2017.
The Amendment required, inter alia, the establishment of an international agreement between the Hungarian government and the government of the university’s country of seat,382 and work-permits for non-EEA work staff.383 Failure to comply with the new requirements leads to the revocation of operating licences of any higher education institution concerned.384 The Amendment was quickly identified as ‘Lex CEU’,385 due to its profound, and arguably isolated, impact on the Hungarian-U.S. dual identity institution (consisting of CEU New York and Közép-európai Egyetem).386 Despite efforts to comply, including the opening of a campus at Bard College in New York, no requisite
379 CEU (n.6). 380 Venice Commission, Opinion no. 891/2017 (n. 55), para. 12, citing Report for the Government on the operation of foreign institutions of higher education in Hungary (2016). 381 See Tamás Lattmann, ‘Attack on the CEU in Hungary - Attack only on academic freedom?’ (2017) International Law Reflections 2017/6/EN. 382 Act CCIV on National Tertiary Education (2011), Article 76(1)(a). 383 Ibid, Article 104(7). 384 Ibid, Article 115(7). 385 Petra Bárd, ‘To leave or not to leave?: Viktor Orbán’s war against George Soros and the CEU dilemma’ (Reconnect, 14 February 2014), available at:
53 agreement was concluded between Hungary and the U.S..387 Accordingly, CEU ceased teaching the majority of its educational courses, in Budapest, from December 2018.
In addition to Lex CEU, due regard should be had to other Hungarian legislation, infringing academic freedom. On 12 October 2018, the Hungarian government struck gender studies off the list of recognised subjects in the country, issuing a decree rescinding any funding and annulling all respective accreditation.388 Such concerted attacks on academic freedom identify Hungary as an additional case study for analysing the sufficiency of the present protection framework.
2. An Additional Hurdle: Exhaustion of Domestic Remedies and the Proceedings Before the CJEU
As with the Turkish case study,389 an extensive analysis of the admissibility criteria in the Hungarian context sits outwith the focus of this work; however, its importance, and potentially restrictive impact, with regard to the application of the protection framework must be signalled.
In contrast to the recent judgment of Baka v. Hungary, where the applicant did not have any recourse to domestic remedies because the relevant reforms were embedded into the new State Constitution,390 any applicant complaining of a ECHR violation, resulting from Lex CEU, would be required to exhaust domestic remedies.391 Unfortunately, the Hungarian Constitutional Court has delayed the delivery of its judgment, regarding the judicial review of Lex CEU, due to its present ‘constitutional dialogue’ with the CJEU.392 Notwithstanding the potential to challenge this arguably unreasonable
387 Shaun Walker, ‘“Dark day for freedom”: Soros-affiliated university quits Hungary’ (The Guardian, 3 December 2018), available at:
54 delay under the Convention,393 it is probable that any prospective applicant shall be required to exhaust this remedy in accordance with Article 35(1), ECHR. Such a presumption is supported by the State Constitution,394 and the recent affirmation from the ECtHR that the Hungarian Constitutional Court constitutes an effective remedy.395
In addition to the exhaustion of domestic remedies, any prospective applicant may also have to wait until the conclusion of the infringement proceedings, raised by the Commission against Hungary, in respect of Lex CEU.396 Consequently, an application shall likely be argued, by Hungary, to be inadmissible under another admissibility criterion, namely that the Court shall not deal with any individual application that ‘is substantially the same as a matter that has (…) already been submitted to another procedure of international investigation or settlement and contains no relevant new information.’397 However, the ECtHR has previously noted that infringement proceedings are incapable of offering redress directly to the applicant(s).398 It has further considered that a complaint to the EU Commission, to raise infringement proceedings, did not constitute a ‘procedure of international investigation or settlement’ under Article 35(2)(b), ECHR.399 Thus, that admissibility criterion should not be considered as an additional barrier to redress in respect of Lex CEU.
Prior to considering the substantive analysis, it is important to note that an application concerning the forced closure of CEU could emanate from multiple individuals;400 however, the most probable are students or professors, who have been required to relocate to Vienna as a result of Lex CEU.
393 See the applicable analysis of relevant case law in Frédéric Ede, ‘The length of civil and criminal proceedings in the case-law of the European Court of Human Rights’ (Strasbourg, Council of Europe 2007), pp. 33-70. 394 Magyarország Alaptörvény (2011), Article T(3). 395 See Mendrei v. Hungary, App. no. 54927/15 (ECHR, 19 June 2018). 396 European Commission, ‘Commission refers Hungary to the European Court of Justice of the EU over the Higher Education Law’ (Press Release, 7 December 2018)
55 3. Reviving CEU’s Presence in Hungary Through the Protection Framework
In its assessment of Lex CEU, the Venice Commission identifies a number of relevant ECHR provisions, included in the protection framework, namely: Article 10; Article 11; and Article 2 of Protocol no. 1.401 However, this section shall focus solely on the latter, specifically the right to education, in light of the protection framework. Such protection shall be applied to a hypothetical application from a PhD student, researching in the field of gender studies, who would be unable to complete their six-year programme at CEU in Budapest, as a result of the aforementioned domestic measures.402 This focus derives from the Venice Commission’s emphasis on the right to education, in light of the ECtHR’s respective interpretation of Article 2 of Protocol no. 1, in its criticisms of Lex CEU.403 It also serves to further emphasise the cross-cutting nature of academic freedom, affirming the right to education’s place within the protection framework, and highlighting its applicability to students as well as academic staff.
Prior to applying the respective protection, it is important to recall, and further expand on, the role of the right to education within the academic freedom protection framework. First, it is this right from which the UNESCO Recommendation primarily derives its basis for the recognition, and subsequent protection, of academic freedom and institutional autonomy.404 Second, the soft-law instruments, forming an integral part of the framework,405 provide for the protection of the right to education, including the safeguarding of its funding.406 Third, and in addition to the jurisprudence focussing on Article 10, ECHR outlined above,407 the ECtHR has itself recognised that the respective protection extends to private education;408 applies to higher education;409 and encompasses a right of access to,410 and recognition of,411 education. Due to the Article 10 focus of the ECtHR, in cases directly
401 Venice Commission, Opinion no. 891/2017 (n. 55), para. 42. See also Chapter II(B)(1). 402 See Chapter IV(B)(1). 403 Venice Commission, Opinion no. 891/2017 (n. 55), para. 39. 404 UNESCO Recommendation (n. 17), para. 9. 405 See Chapter II(B)(2). 406 Recommendation CM/Rec (2012)7 (n. 49), Appendix, paras. 17-20. 407 See Chapter III. 408 Kjeldsen, Busk Madsen and Pedersen v. Denmark, App. nos. 5095/71, 5920/72 and 5926/72, (ECHR, 7 December 1976), para. 50. 409 Leyla Şahin v. Turkey [GC], App. no. 44774/98 (ECHR, 10 November 2005), para. 137. 410 Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium, App. no. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64 (ECHR, 23 July 1968), p. 31, para. 4. 411 Ibid, p. 28, paras. 3-5.
56 engaging academic freedom,412 this section occasionally draws from the general interpretation of the right to education, in order to clarify its role within the framework.
Article 2 of Protocol no. 1 provides, inter alia, that: ‘no person shall be denied the right to education.’ The consequences of Lex CEU, leading to the revocation of the majority of CEU courses in Hungary, and the refusal to accredit gender studies, jointly and severally constitute an infringement of the applicant’s right to education, specifically their right to access and recognition.
Notwithstanding the absence of a limitations clause in Article 2 of Protocol no. 1, the right to education, in line with other rights within the protection framework,413 may be subject to restrictions.414 However, any such restrictions cannot impair the essence of the right; must pursue a legitimate aim; and be proportionate.415 In contrast, to the qualified rights, including Article 10, the legitimate aim, in respect of any restriction on the right to education, does not have to confirm with an exhaustive list.416
With regard to the proportionality of the interference, and as previously mentioned,417 the academic freedom protection framework permits the consideration of international law. The CESCR, in its interpretation of the right to education under the ICESCR, has recognised that where ‘a State party which closes a university or other educational institution on grounds such as national security or the preservation of public order has the burden of justifying such a serious measure in relation to’ the limitations test set out in Article 4, ICESCR.418 It further identifies the ‘denial of academic freedom and institutional autonomy of staff and students’ as an illustrative violation of the right to education.419 Moreover, Judge Pinto De Albuquerque has observed that the State’s ‘margin of appreciation is wider with regard to the regulation of State schools and narrower with regard to that
412 See Chapter III(D). 413 See Chapter I(B) and Chapter II(B)(2). 414 Leyla Şahin (n. 409), para. 154. 415 Ibid. 416 Ibid. 417 See Chapter II(B)(1) and Chapter IV(A)(3). 418 CESCR, ‘General Comment no. 13’ (n. 66), para. 42. The limitations test within Article 4, ICESCR mirrors the approach of the ECHR to qualified rights. 419 Ibid, para. 59.
57 of private schools. An even narrower margin of appreciation applies a fortiori to higher education, where institutional autonomy plays a pivotal role’.420
It follows that considering Lex CEU resulted in the closure of a private institution, namely CEU New York, that Hungary should be afforded a narrow margin of appreciation in the examination of the proportionality of the interference. This margin is narrowed further by the negative obligation in question,421 with a State ordinance constituting the interference. The existence of alternatives constitutes a further consideration in the assessment of proportionality.422 However, the annulment of accreditation of gender studies in Hungary, and the revocation of CEU U.S. accredited courses, effectively prohibits gender studies within its territory. Thus, the applicant would be left with no alternative but to abandon their education in Hungary, and pursue their studies in Vienna or elsewhere. The absence of any alternatives to the applicant, read in light of the narrow margin of appreciation applicable to the closure of a private university where institutional autonomy plays a pivotal role, points to a denial of the essence of the right to education. Accordingly, such a case should lead to the finding of a violation of Article 2 of Protocol no. 1 under that limb of the academic freedom protection framework.
C. Conclusions on the Present Challenges in Turkey and Hungary
Both the situations in Turkey and Hungary evidence the severity of attacks on academic freedom and institutional autonomy. Notwithstanding the fact that both States offer express protection to academic freedom within their national constitutions,423 these injustices have faced no effective legal challenge at the domestic level.
The Turkish analysis served to highlight the applicability of the current academic freedom protection framework to the Peace Petition signatories, through its Article 10 limb. The Hungarian analysis has highlighted an alternative vehicle for protection under the framework, namely Article 2 of Protocol no. 1. However, contrasting the two case studies, it is evident that the protection of academic freedom through freedom of expression, is far more developed in the jurisprudential element of the framework than other Convention rights. Moreover, both sections have confirmed that the framework does not offer absolute protection to academic freedom, where it engages qualified rights under the ECHR.
420 Partly Dissenting Opinion of Judge Pinto De Albuquerque, Tarantino (n. 68). 421 Dissenting Opinion of Judge Tulkens, para. 16, Leyla Şahin (n. 409). 422 Ibid, para. 17. 423 Türkiye Cumhuriyeti Anayasası (1982), Article 27 and Magyarország Alaptörvény (2011), Article X, respectively.
58 The case studies have demonstrated that, irrespective of the substantive analysis, the protection framework cannot be effectively applied until any prospective applicant exhausts domestic remedies, or the ECtHR re-evaluates the effectiveness the relevant remedies, and determines them to be ineffective in terms of Article 35(1), ECHR. It follows that, provided the admissibility criteria is not so strictly applied by the ECtHR in examining any prospective application, such applications, particularly those concerning the Peace Petition signatories in Turkey, would benefit from strong legal authority in the examination of the merits of their case, as a result of an extensive and concrete legal framework. The framework is, therefore, evidently capable of ensuring the effective protection of academic freedom.
59 V. General Conclusions
Turner’s simple analogous argumentation continues to succinctly encapsulate the value of academic freedom and the need to protect it:
Academic freedom is (…) to the academic profession what judicial independence is to judges, freedom of conscience to the clergy, the protection of sources of information to the journalist, parliamentary privilege to the MP, the exercise of clinical judgement to the doctor, the right of hot pursuit to the policeman.424
Academic freedom is a cross-cutting composite right under the ECHR, and has benefited from protection under recent ECtHR jurisprudence. However, the fact that it is most likely manifested through freedom of expression, must not be considered to preclude protection under other provisions of the Convention. For instance, the final case study, concerning Hungary, highlighted the parallel protection within the right to education. These affirmations derive from the analysis of the first research question, which examined the basis for academic freedom. In addition to highlighting strong theoretical justifications, the respective assessment in Chapter II identified a plethora of legal authority that, considered collectively, established an irrefutable basis for the protection of academic freedom. Moreover, it emphasised the influence of other sources of law both within and outside of Strasbourg. The interplay between the ECtHR and other CoE institutions, most notably through the relevant PACE and COM recommendations;425 as well other international human rights actors, for example the CESCR,426 serves to further strengthen the protection of academic freedom, and solidify its legal basis.
After establishing a strong basis for academic freedom this work sought to examine the relevant ECtHR jurisprudence, enquiring to what extent the ECtHR has recognised academic freedom under the ECHR. This research question was addressed in Chapter III, which yielded conflicting findings. The ECtHR’s recognition of the existence, and relative importance, of academic freedom made a belated debut in the Sorguç judgment.427 The subsequent cases, subject to discussion, gradually built upon such recognition, recently connecting the dots between the effective protection of academic
424 John Turner, ‘The Price of Freedom’ in Malcolm Tight (ed.), In Academic Freedom and Responsibility (London, Open University Press, 1988), p. 107. 425 See for example, Recommendation 1762 (n. 26) and Recommendation CM/Rec (2012)7 (n. 49), respectively. 426 See for example, CESCR, ‘General Comment no. 13’ (n. 66). 427 Sorguç (n. 27), para. 35.
60 freedom and the chilling effect, in the context of freedom of expression.428 However, and more critically, the respective analysis identified the ECtHR’s resistance in extending the required ‘watchdog’ standard to cases concerning academic freedom, despite the commendable formulation of an applicable test in the Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, in Mustafa Erdoğan.429 Notwithstanding the generally progressive nature of the ECtHR case law concerning academic freedom, Chapter III evidenced that the Court continues to produce judgments, which sometimes fall short of ensuring the practical and effective protection of academic freedom.430
In contrast to the other substantive chapters, and lines of enquiry, Chapter IV applied the delineated framework to two case studies to ensure a more compressive assessment of its effectiveness. It assessed whether the present state of protection for academic freedom under the ECHR is sufficient to address the violations of academic freedom in Turkey and Hungary, concluding that the potential protection may well be effective provided it can be applied. This conclusion emphasised the peripheral influence of the admissibility criteria, most notably the requirement to exhaust domestic remedies,431 as a potential bar to the effectiveness of the framework. Despite these concerns, the Hungarian case study further evidenced the cross-cutting nature of the protection framework, and the value in other ECHR rights, which have not necessarily benefited from as much attention from the ECtHR in the academic freedom context.
Although the scope of this work has centred on the current protection framework, focussing on the ECHR, and its respective interpretation from the ECtHR, it has identified alternative avenues for the advancement of academic freedom protection. First, it discussed the establishment of a European consensus, between CoE Member States, through the express domestic protection of academic freedom.432 Under the direction of Recommendation 1762,433 it is not unfeasible that such a consensus may be formed and later recognised by the ECtHR. This would lead to a narrow margin of appreciation being afforded to states encroaching upon academic freedom, consequently furthering its protection. Second, the possibility of a CoE convention on academic freedom was also identified
428 Kula (n. 31), para. 39. 429 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, para. 8, Mustafa Erdoğan (n. 28). 430 See for example, Tuskia (n. 70) and Kaboğlu (n. 73), and the respective criticisms in Chapter III(C). 431 See Köksal (n. 326). 432 See Chapter II(B)(1). 433 Recommendation 1762 (n. 26), para. 7.
61 as potential vehicle for further protection.434 The formulation of such a convention may be facilitated by the extensive body of soft-law, emanating from the auspices of the CoE,435 and the growing attention being conferred on the subject.436
However, as the legal framework presently stands, this work maintains that the ECtHR constitutes the primary driving force in the protection of academic freedom. Notwithstanding the aforementioned criticism, the recent judgments of Mustafa Erdoğan and Kula,437 confirm that the Court continues to play a pivotal role, and the positive conclusions with regard to the progressivity of the relevant jurisprudence suggest that the ECtHR is moving towards offering more robust protection to academic freedom.
In pursuit of its research objective, this work has delineated the expansive legal framework, which offers extensive protection to academic freedom within CoE Member States. It worth noting the vast number of contributors to such a framework, with multiple actors working towards the development of the respective protection. With regard to the sufficiency of the framework, the respective criticisms have identified multiple shortfalls; however, the case studies have evidenced the overall capability of the framework in addressing real and present attacks on academic freedom.
Considered collectively, these findings have identified inherent potential within the current academic freedom protection framework. The case setting out the importance of academic freedom is clear and authoritative. The ECtHR has, for the most part, made a cooperative partner, in developing the protection of academic freedom under the present framework. However, it must be noted that the lessons are far from over, as the law is far from settled. In order to ensure the effective protection of academic freedom, the Court must build upon its jurisprudence concerning other Convention rights in the context of academic freedom, and more extensively recognise the importance of the academic’s role in society, joining the concurring minority in Mustafa Erdoğan,438 with regard to academic speech.
434 See Chapter II(B)(2). 435 See for example, Recommendation 1762 (n. 26) and Recommendation CM/Rec (2012)7 (n. 49). 436 See for example, Academic Freedom Global Forum (n. 8). 437 Mustafa Erdoğan (n. 28) and Kula (n. 31). 438 Joint Concurring Opinion of Judges Sajo, Vucinic and Kuris, Mustafa Erdoğan (n. 28).
62 In short, academic freedom is a human right, and the lessons from Strasbourg support such a conclusion. However, the extent of its protection, under the ECHR, needs to be further refined, preferably through a clear and coherent judgment from the ECtHR, which expressly recognises the fullest extent of the framework advocated in this work.
63 Bibliography
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65 Leyla Şahin v. Turkey [GC], App. no. 44774/98 (ECHR, 10 November 2005). Lingens v. Austria, App. no. 9815/82 (ECHR, 8 July 1986). Lombardi Vallauri v Italy, App. no. 39128/05 (ECHR, 20 October 2009). Magyar Helsinki Bizottság v. Hungary, [GC] App. no. 18030/11 (ECHR, 8 November 2016). Mehmet Hasan Altan v. Turkey, App. no. 13237/17 (ECHR, 20 March 2018). Mendrei v. Hungary, App. no. 54927/15 (ECHR, 19 June 2018). Mozer v. the Republic of Moldova and Russia [GC], App. no. 11138/10 (ECHR, 23 February 2016). Mustafa Erdoğan and Others v. Turkey, App. nos. 346/04 and 39779/04 (ECHR, 27 May 2014). Navalnyy v. Russia, App. no. 29580/12; 36847/12; 11252/13; 12317/13 and 43746/14 (ECHR, 15 November 2018). Nilsen and Johnsen v. Norway, App. no 23118/93 (ECHR, 25 November 1999). Perinçek v. Switzerland [GC], App. no. 27510/08 (ECHR, 15 October 2015). Riolo v. Italy, App. no. 42211/07 (ECHR, 17 July 2008). Şahin Alpay v. Turkey, App. no. 16538/17 (ECHR, 20 March 2018). Sapan v. Turkey, App. no 44102/04 (ECHR, 8 June 2010). Satakunnan Markkinapörssi Oy And Satamedia Oy v. Finland [GC], App. no. 931/13 (ECHR, 27 June 2017). Sejdovic v. Italy [GC], App. no. 56581/00 (ECHR, 1 March 2006). Sorguç v. Turkey, App. no. 17089/03 (ECHR, 23 June 2009). Stambuk v. Germany, App. no. 37928/97 (ECHR, 17 October 2002). Stoll v. Switzerland, App. no. 69698/01(ECHR, 10 December 2007). Tarantino and Others v. Italy, App. nos. 25851/09; 29284/09 and 64090/09 (ECHR, 2 April 2013). Tuskia and Others v. Georgia, App. no. 14237/07 (ECHR, 11 October 2018). Uzun v. Turkey (dec.), App. no. 10755/13 (ECHR, 30 April 2013). Wille v. Liechtenstein [GC], App. no. 28396/95 (ECHR, 28 October 1999).
B. European Commission of Human Rights K v. Austria, no. 16002/90 (EComHR, 13 October 1992). Strohal v. Austria, no. 20871/92, (EComHR, 7 April 1994).
C. International Court of Justice Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, 639.
D. Inter-American Court of Human Rights San Miguel Sosa and Others v. Venezuela, Series C No. 348 (IACtHR, 8 February 2018).
66 E. U.S. Supreme Court Keyishian v. Board of Regents, 385 U.S. 589 (1967). Wieman v. Updegraff, [1952] 344 U.S. 183.
F. Hungarian Constitutional Court (Magyarország Alkotmánybírósága) Order no. 3199/2018. (VI. 21.) Ab Végzése (4 June 2018).
G. Turkish Supreme Court (Anayasa Mahkemesi) Baskın Oran, Başvurusu Case no. 2014/4645 (28 September 2018).
H. French Constitutional Council Decision no. 83-165 DC (20 January 1984).
IV. European Union EU Parliament, Recommendation of 29 November 2018 to the Council, the Commission and the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy on Defence of academic freedom in the EU’s external action (2018/2117(INI)). Explanations Relating to the Charter of Fundamental Rights (14 December 2007) (2007/C 303/02).
V. United Nations
A. Human Rights Committee (HRC) Faurisson v. France, Comm. No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993 (HRC, 8 November 1996). ‘General Comment no. 34: Freedoms of opinion and expression (Article 19)’ (12 September 2011). Ross v. Canada, Comm. No. 736/97, U.N. Doc. CCPR/C/70/D/736/1997 (HRC, 18 October 2000).
B. Committee on Economic, Social and Cultural Rights (CESCR) ‘General Comment no. 13: The Right to Education (Article 13)’ (8 December 1999). ‘General Comment no. 21: Right of everyone to take part in cultural life (Article 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights)’ (21 December 2009).
VI. Council of Europe
A. Parliamentary Assembly (PACE) Recommendation 1762 (2006) on ‘Academic freedom and university autonomy’, adopted on 30 June 2006.
67 B. Committee of Ministers (COM) Recommendation No. R (87) regulating the use of personal data in the police sector, adopted on 17 September 1987. Recommendation R (2000)8 on ‘the research mission of universities’, adopted on 30 March 2000. Recommendation 1762 (2006) on ‘Academic freedom and university autonomy’ (Reply), adopted 26 September 2007. Recommendation CM/Rec (2007)6 of the Committee of Ministers to member states on the public responsibility for higher education and research, adopted on 16 May 2007. Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted 17 November 2010. Recommendation CM/Rec (2012)7 of the Committee of Ministers to member States on the responsibility of public authorities for academic freedom and institutional autonomy, adopted on 20 June 2012.
C. European Commission for Democracy through Law (Venice Commission) Opinion no. 831/2015, Turkey – Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey, adopted at the 106th Plenary Session (Venice, 11-12 March 2016). Opinion no. 865/2016, Turkey – Opinion on Emergency Decree Law Nos. 667 to 676 adopted following the failed coup of 15 July 2016, endorsed at the 109th Plenary Session (Venice, 9-10 December 2016). Opinion no. 872/2016, Turkey – Opinion on the Measures Provided in the Recent Emergency Decree Laws with Respect to Freedom of the Media, endorsed at the 110th Plenary Session (Venice, 10-11 March 2017). Opinion no. 891/2017, Hungary - Opinion on Article XXV of 4 April 2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education, endorsed at the 112th Plenary Session (Venice, 6-7 October 2017). Opinion no. 932/2018, Report on Separate Opinions of Constitutional Courts, adopted at the 117th Plenary Session (Venice, 14-15 December 2018).
D. Research Division Cultural rights in the case-law of the European Court of Human Rights (Strasbourg, Council of Europe 2011) (updated 17 January 2017).
E. Other Publications Frédéric Ede, ‘The length of civil and criminal proceedings in the case-law of the European Court of Human Rights’ (Strasbourg, Council of Europe 2007) Monica Macovei, A Guide to the Implementation of Article 10 of the European Convention on Human Rights (Strasbourg, Council of Europe 2004). Toby Mendel, Freedom of Expression: A Guide to the Interpretation and Meaning of Article 10 of the European Convention on Human Rights (Strasbourg, Council of Europe 2013).
68 VII. Bologna Process Bologna Declaration (adopted 19 June 1999). Prague Communiqué (adopted 19 May 2001). Berlin Communiqué (adopted 19 April 2003). Bergen Communiqué (adopted 19 May 2005). London Communiqué (adopted 18 May 2007). Leuven / Louvain-la-Neuve Communiqué (adopted 29 April 2009). Budapest / Vienna Communiqué (adopted 12 March 2010). Bucharest Communiqué (adopted 27 April 2012). Yerevan Communiqué (adopted 15 May 2015). Paris Communiqué (adopted 25 May 2018).
VIII. UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel, adopted on 11 November 1997.
IX. Books Eric Barendt, Freedom of Speech (Oxford, OUP 2005). Florence Benoît-Rohmer and Heinrich Klebes, Council of Europe Law—Towards a Pan-European Legal Area (Strasbourg, CoE 2005). John Dewey (ed. Jo Boydston), The Later Works, 1925-1953, Volume II: 1935-1937 (Carbondale, SIU Press 1987). Charles Haskins, The Rise of Universities (Ithaca, Cornell University Press 1957). Matthew Hertzog, Protections of Tenure and Academic Freedom in the United States (Cham, Palgrave Macmillan 2017). Jennifer Lackey, Academic Freedom (Oxford, OUP 2018). Martin Luther King, A Gift of Love: Sermons from Strength to Love and Other Preachings (Boston, Beacon Press, 2012). Jennifer Lackey, Academic Freedom (Oxford, Oxford University Press, 2018). Philip Leach, Taking a Case to the European Court of Human Rights (Oxford, OUP 2017). John S. Mill, On Liberty (1859) (Ontario, Batoche Books 2001). Johan Östling, Humboldt and the Modern German University, trans. by Lena Olsson (Lund, Lund University Press 2018).
69 X. Book Chapters and Essays Hans-Jürgen Bartsch, ‘The Acceptance of Recommendations and Conventions within the Council of Europe’ in Le rôle de la volonté dans les actes juridiques. Études à la mémoire du Professeur Alfred Rieg (Brussels, Bruylant 2000). Marten Breuer, ‘Establishing Common Standards and Securing the Rule of Law’ in Stefanie Schmahl and Marten Breuer, The Council of Europe: Its Law and Policies (Oxford, OUP 2017), Ch. 28. Anne Brodsky and Elena Welsh, ‘Applied Research’ in Lisa Given (ed.), The SAGE Encyclopedia of Qualitative Research Methods (California, SAGE Publications 2008). Christoph Grabenwarte, ‘Constitutional Standard-setting and Strengthening of New Democracies’ in Stefanie Schmahl and Marten Breuer, The Council of Europe: Its Law and Policies (Oxford, OUP 2017), Ch. 32. Koïchiro Matsuura, Foreword in Abdulqawi Yusu (ed.), Standard-setting in UNESCO Vol I: Normative Action in Education, Science and Culture Essays in Commemoration of the Sixtieth Anniversary of UNESCO (Paris, UNESCO 2007), Foreword. Mike McConville and Wing Hong Chui, ‘Introduction and Overview’ in Mike McConville and Wing Hong Chui (eds.), Research Methods for Law (Edinburgh, Edinburgh University Press 2007), Ch. 1. Michael Lynch, ‘Academic Freedom and the Politics of Truth’ in Jennifer Lackey (ed.), Academic Freedom (Oxford, OUP 2018), Ch. 2. Kerstin Odendahl, ‘Securing and Enhancing the Common Cultural Heritage’ in Stefanie Schmahl and Marten Breuer, The Council of Europe: Its Law and Policies (Oxford, OUP 2017), Ch. 33. André Oosterlinck, ‘Accountability, the Magna Charta Universitatum and the Bologna Declaration’ in Lars Engwall and Peter Scott (eds.), Trust in Universities (London, Portland Press 2013), Ch. 4. Margherita Rendel, ‘Human Rights and Academic Freedom’ in Malcolm Tight (ed.), In Academic Freedom and Responsibility (London, Open University Press 1988), Ch. 7. Debbie Sayers, ‘Article 13 – Freedom of Arts and Sciences’ in Steve Peers et al (eds.), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing 2014). Judith Townsend, ‘Freedom of Expression and the Chilling Effect’ in Howard Tumber and Silvio Waisbord (eds.), The Routledge Companion to Media and Human Rights (London, Routledge 2017), Ch. 7. John Turner, ‘The Price of Freedom’ in Malcolm Tight (ed.), In Academic Freedom and Responsibility (London, Open University Press 1988), Ch. 9. Dirk Voorhoof, ‘Freedom of journalistic newsgathering, access to information and protection of whistle-blowers under Article 10 ECHR and the standards of the Council of Europe’ in András Koltay (ed.), Comparative Perspectives on the Fundamental Freedom of Expression (Budapest, Wolters Kluwer 2015), Ch. 12. Dirk Voorhoof and Patrick Humblet, ‘The Right to Freedom of Expression in the Workplace under Article 10 ECHR’ in Filip Dorssemont, Klaus Lörcher, Isabelle Schömann (eds.), The European Convention on Human Rights and the Employment Relation (London, Bloomsbury Publishing 2013), Ch. 10. Klaus Wolff, ‘Academic Freedom and University Autonomy’ in Guy Neave (ed.) The Universities’ Responsibilities to Society: International Perspectives (Oxford, Elsevier Science 2000), Ch. 6.
70 XI. Articles Peter Altbach, ‘Academic Freedom: International Realities and Challenges’ (2001) 41:1/2 Higher Education 205. Trine Baumbach, ‘Chilling Effect as a European Court of Human Rights’ Concept in Media Law Cases’ (2018) 6:1 Bergen Journal of Criminal Law and Criminal Justice 92. Klaus Beiter, Terence Karran and Kwadwo Appiagyei-Atua, ‘“Measuring” the erosion of academic freedom as an international human right: a report on the legal protection of academic freedom in Europe’ (2016) 49:3 Vanderbilt Journal of Transnational Law 597. Jason Peter Byrne, ‘The Social Value of Academic Freedom Defended’, (2015) 91 Indiana Law Journal 5. Henry Steele Commager, ‘The University and Freedom: “Lehrfreiheit” and “Lehrnfreiheit”’ (1963) 34:7 The Journal of Higher Education 361. John Dewey, ‘Academic Freedom’ (1902) 23 Educational Review 1. Kanstantsin Dzehtsiarou, ‘What is Law for the European Court of Human Rights?’ (2018) 49:1 Georgetown Journal of International Law 89. Louis Fischer, ‘Academic Freedom and John Dewey’ (1977) 60:8 The High School Journal 379. Ralph F. Fuchs, ‘Academic Freedom: Its Basic Philosophy, Function and History,’ (1963) 28:3 Law and Contemporary Problems 431. Janneke Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights’ (2018) 18 Human Rights Law Review, 495. Larry Gerber ‘“Inextricably linked”: Shared governance and academic freedom’ (2001) 87:3 Academe 22. Susan Jasper, ‘Britain’s education reform act: A lesson in academic freedom and tenure’ (1990) 16:3 Journal of College and University Law 449. Terence Karran, ‘Academic Freedom in Europe: Reviewing UNESCO’s Recommendation’ (2009) 57:1 British Journal of Educational Studies 191. Terence Karran, ‘Academic Freedom in Europe: Time for a Magna Charta?’ (2009) 22 Higher Education Policy 163. Julia Laffranque, ‘A Look at the European Court of Human Rights Case Law on Moral Issues and Academic Freedom’ (2017) 26 Juridica International 34. Tamás Lattmann, ‘Attack on the CEU in Hungary - Attack only on academic freedom?’ (2017) International Law Reflections 2017/6/EN. Grahame Lock, ‘The Universities: A New Legal Grammar’ (2010) 2:3 Amsterdam Law Forum 71. Michael Olivas, ‘Reflections of professorial academic freedom: Second thoughts on the third “essential freedom”’ (1993) 45:6 Stanford Law Review 1835. Ronan Ó Fathaigh, ‘Article 10 and the Chilling Effect Principle’ (2013) European Human Rights Law Review 304. Robert Post, ‘Academic Freedom and Legal Scholarship’, (2015) 64:4 Journal of Legal Education 530. Robert Quinn and Jessie Levine, ‘Intellectual-Human Rights Defenders and Claims for Academic Freedom under Human Rights Law’ (2014) 3 International Human Rights Law Review 209.
71 Tom Ruys and Emre Turkut, ‘Turkey’s Post-Coup ‘Purification Process’: Collective Dismissals of Public Servants under the European Convention on Human Rights’ (2018) 18 Human Rights Law Review 539. Donald Savage and Patricia Finn, ‘UNESCO and the Universities’ (1999) 85:4 Academe 40. Janet Sinder, ‘Academic freedom: A bibliography’ (1990) 53:5 Law and Contemporary Problems 381. Robert Spano, ‘The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law’ (2018) 18:3 Human Rights Law Review 473. Ulrich Teichler, ‘Universities Between the Expectations to Generate Professionally Competences and Academic Freedom Experiences from Europe’ (2013) 77 Procedia - Social and Behavioral Sciences 421. William Tierney and Michael Lanford, ‘The Question of Academic Freedom: Universal Right or Relative Term’ (2014) 9:1 Frontiers of Education in China 4. Jogchum, Paul Lemmens and Stephan Parmentier, ‘Academic Freedom as a Fundamental Right’ (2011) 13 Procedia Social and Behavioral Sciences 117.
XII. Reports Amnesty International, Purged Beyond Return? No Remedy for Turkey’s Dismissed Public Sector Workers (2018). Council of Europe, Analysis of statistics 2018 (January 2019). Human Rights Foundation of Turkey, Academics for Peace: A Brief History (15 March 2019). International Commission of Jurists, Justice Suspended: Access to Justice and the State of Emergency in Turkey (2018). Terence Karran and Lucy Mallinson, Academic freedom in the U.K.: legal and normative protection in a comparative context (University and College Union, May 2017). David Randall, Charting Academic Freedom: 103 Years of Debate (National Association of Scholars, January 2018). Olağanüstü Hal Işlemleri Inceleme Komisyonu, Faaliyet Raporu (Activity Report, 2018). Scholars at Risk, Report of incident on 19 December 2018 (Academic Freedom Monitoring Project) available at:
72 XIII. Blogs and News Articles Petra Bárd, ‘To leave or not to leave?: Viktor Orbán’s war against George Soros and the CEU dilemma’ (Reconnect, 14 February 2019), available at:
73 XIV. Other AAUP, 1915 Declaration of Principles on Academic Freedom and Academic Tenure (adopted 31 December 1915). Kofi Annan, ‘Secretary-General’s remarks at Plenary Session of the Global Colloquium of University Presidents’ (19 January 2005), available at:
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