CYIL vol. 14 (2023)

JAN MALÍŘ CYIL 14 (2023) on human rights, the ECHR does not contain any express provision on academic freedom either. However, in the course of time, the European Court of Human Rights (ECtHR) 19 has been confronted with applications containing the claims related to academic freedom in the context of other rights and freedoms expressly enshrined in the ECHR. In its decisions, 20 the ECtHR has gradually developed standards relevant to academic freedom even though, as it will be shown infra, it has not read the ECHR in a way that would lead towards the recognition of the autonomous Convention right to academic autonomy but has treated academic freedom rather as a principle to be taken into account when interpreting the ECHR. Although their number is not overwhelming, the decisions the ECtHR has rendered on academic freedom are significant especially with respect to some aspects of academic freedom. 21 Furthermore, the existing case-law may expand in future. As it has been reported, the ECtHR has recently received numerous applications concerning the alleged breaches of rights and freedoms in the academic context which might result in further elaboration of the ECtHR’s positions on academic freedom. 22 Against this background, the purpose of the present Article is twofold. Firstly, the Article should provide an overview of the principal cases in which the ECtHR has dealt with academic freedom so far, and, secondly, it should assess the role academic freedom plays in the existing case-law of the ECtHR. Before doing so, however, it is worth mentioning which provisions of the ECHR have played role with respect to academic freedom. ECHR and Academic Freedom In the absence of express provisions on academic freedom in the ECHR, it might be expected that applications related to academic freedom would be primarily treated 19 On the ECtHR and its role, see e.g., GREER, S., The European Convention on Human Rights. Achievements, Problems and Prospects (Cambridge University Press, 2006) pp. 1–59; for a more recent overview, see, e.g., HARRIS, D., O’BOYLE, M., BATES, E., and BUCKLEY, C., Harris, O’Boyle, and Warbrick: Law of the European Convention on Human Rights , 4 th edition (Oxford University Press, 2018). 20 The effects of which exceed the circumstances of the individual cases, see, e.g., ECtHR, Ireland v The United Kingdom, No. 5310/71, 18 January 1978, para 12; these general effects of the interpretation provided for by the ECtHR are, aptly enough, described in terms of the “autorité de la chose interpretée”, see e.g., SUDRE, F., SURREL, H., PASTRE-BELDA, B., Droit européen et international des droits de l’homme , 15 th edition, Paris 2021, pp. 398–402; on the precedential character of the ECtHR’s judgements see, recently, e. g. WOJTYCZEK,K., “Precedent in the System of the European Convention on Human Rights”, in: FLORCZAK-WĄTOR, M., Constitutional Law and Precedent. International Perspectives on Case-Based Reasoning (Routledge, 2022) pp. 233–250; moreover, the ECtHR has gradually transformed the ECHR into a sort of “instrument constitutionnel de l’ordre public” and, through the dynamic interpretation of this “instrument constitutionnel”, it has contributed to laying down the common legal standards applicable to an ever-growing range of areas of law, see, concisely, HARRIS, D., O’BOYLE, M., BATES, E., and BUCKLEY, C., (n 19) p. 6–24; for a more in-depth treatment, see, inter alia, DE LONDRAS, F., and DZEHTSIAROU, K., Great Debates on the European Convention on Human Rights (Palgrave 2018), pp. 71–92. 21 The impact of the ECtHR’s case-law on academic freedom exceeds strict boundaries of the Council of Europe; see, inter alia, CJEU, C 66/18, European Commission v. Hungary (n 10), paras 224–225 (impact of the ECtHR’s case-law on the standards of academic freedom in the EU) or Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (n 7), para 21 (reflection of the ECtHR’s case-law on the global level). 22 ÇALI, B. and DEMIR-GÜRSEL, E., “A Court that matters’ to whom and for what? Academic freedom as a (non)impact case”, 11 June 2021, Retrieved 1 March 2023 https://strasbourgobservers.com/2021/06/11/a court-that-matters-to-whom-and-for-what-academic-freedom-as-a-non-impact-case/.

136