CYIL vol. 14 (2023)

CYIL 14 (2023) THE EUROPEAN COURT FOR HUMAN RIGHTS AND ACADEMIC FREEDOM under Article 2 of Protocol No. 1 by the ECtHR because this provisions basically enshrines the right to education. 23 Such approach would correspond with the view that “[a]cademic freedom is a distinct, fundamental democratic right in part grounded in the right to education”, as recently reaffirmed by the Rome Inter-Ministerial Conference. 24 In reality, however, the significance of Article 2 of Protocol No. 1 with respect to academic freedom has been limited so far. This can be related to the fact that the scope of the right to education under Article 2 of Protocol No. 1 – subject to controversies at the time of drafting the ECHR 25 – is narrower in comparison with the right to education under global treaties on human rights. 26 The truth is that, in spite of the narrow wording of Article 2 of Protocol No. 1, the ECtHR has been willing to extend its scope so that it could pertain to higher education. 27 On the other hand, however, the ECtHR has largely abstained from interpreting the provisions of Article 2 of Protocol No. 1 in a way that would lead towards the recognition of a robust right to education entailing, inter alia, the right to academic freedom or the positive obligations to guarantee the respect for academic freedom on behalf of the Contracting States. This abstention has been no doubt related to the fact that Article 2 of Protocol No. 1 leaves the Contracting States a wide margin of appreciation, as to organization of the system of higher education. This wide margin of appreciation is, in turn, linked to the fact that the Contracting States must balance educational needs against financial resources available to them. 28 This view basically corresponds with the fact that, in terms of its nature, the right to education is prevailingly perceived as positive right. In addition to Article 2 of Protocol No. 1, academic freedom might also be treated under Article 9 ECHR which enshrines freedom of thought, conscience, and religion. Although the ECtHR’s case-law on this Article is abundant, it does not seem to contain any particularly elaborated positions on academic freedom as such. 29 Thus, principal legal grounds for dealing with issues related to academic freedom in the system of the ECHR have been identified elsewhere. This has been primarily the case of Article 10 ECHR which enshrines freedom of expression. This provision has become the key provision which serves the ECtHR to deal with issues related to academic freedom. 30 In wider perspective, such situation is not, however, astonishing. Firstly, compared to the right to education, freedom of expression under Article 10 ECHR, traditionally viewed as one of the essential foundations of a democratic

23 On the controversies over the presence of the right to education in the ECHR and on the interpretation of Article 2 Protocol 1, see, inter alia, D. Harris, M. O’Boyle, E. Bates and C. Buckley (n 19) pp. 896–909.

24 Rome Ministerial Communiqué, Annex I – Statement on Academic Freedom, cit. 25 See, inter alia, D. Harris, M. O’Boyle, E. Bates and C. Buckley (n 19) p. 896. 26 Idem, p. 908.

27 Based on Article 2 of Protocol No. 1, the ECtHR has been willing to examine issues such as the admissibility of university admission exams, see, Mürsel Eren v Turkey, No. 60856/00, 7 February 2006; restriction of the number of studying places available at universities ( numerus clausus ), see, Tarantino and Others v Italy – No. 25851/09, 29284/09 and 64090/09, 2 April 2013; or the implementation of policies capable of suppressing de facto disadvantages in higher education, see Çam v Turkey, No. 51500/08, 23 February 2016. 28 Leyla Şahin v Turkey, No. 44774/98, 10 November 2005, para 154. 29 See, inter alia, Harris, D., O’Boyle, M., Bates, E. and Buckley, C., (n 19) pp. 571–591; see, also, ECtHR, Guide on Article 9 of the European Convention on Human Rights, Retrieved on 1 March 2023 https://www. echr.coe.int/documents/guide_art_9_eng.pdf. 30 For a more in-depth treatment, see, inter alia, D. Harris, M. O’Boyle, E. Bates and C. Buckley (n 19) pp. 592–683.

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