CYIL vol. 14 (2023)

JAN MALÍŘ CYIL 14 (2023) in Erdogan v Turkey, 50 one of the key decisions the ECtHR has rendered on academic freedom so far. The circumstances of the case were rather delicate too. The case concerned Mr. Erdogan, a professor of constitutional law at the University of Ankara, who, in an article published in a journal on liberal thinking, harshly criticized not only the decision of the Turkish Constitutional Court on the dissolution of the Fazilet political party but, also, the competence of individual justices of this court. This criticism led the justices to sue Professor and his publisher for defamatory statements. Some of the justices, including the President of the Constitutional Court, claimed damages as well. The damages were finally awarded as the Turkish courts took the view Professor’s statements went beyond the limits of acceptable criticism and there was not a harmony between the form and the content of the criticism. 51 This, in turn, resulted in the Professor lodging an application with the ECtHR, alleging violation of his freedom of expression under Article 10 ECHR. As for the ECtHR, it primarily reminded that, due to the significance freedom of expression has in the democratic society, any restriction of this freedom can be justified only where (i) it is prescribed by law, (ii) pursues a legitimate aim and (iii) is necessary in a democratic society. 52 While, in the circumstances of the case, the ECtHR accepted national courts’ judgements had the adequate legal basis in the Turkish civil law and pursued a legitimate aim, consisting in protecting the reputation or rights of others, it was not convinced the interference stemming from the judgements of national courts was necessary in a democratic society, a notion which basically “requires the Court to determine whether the interference complained of corresponded to a ‘pressing social need’” 53 and, more specifically, to examine “whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other”, such as freedom of expression and the right to private life. 54 In examining whether such a fair balance was struck, it was, under the ECtHR’s view, inevitable to pay attention to special circumstances of the case, characterized precisely by the presence of academic freedom. As the ECtHR held, academic freedom basically implies “freedom of expression and of action, freedom to disseminate information and freedom to incompatible with Article 10 and not necessary in a democratic society an interference consisting in the seizure of a book reproducing the content of a dissertation and dealing sociologically with the phenomenon of stars in a modern society); Riolo v Italy, No. 42211/07, 17 July 2008 (case in which the ECtHR declared incompatible with Article 10 ECHR the judgments of the Italian courts awarding damages for interference with personality rights arising from an Article written by a political scientist at the University of Palermo and pointing to possible links between local politics and the Mafia in the case of the murder of Judge Falcone in Italy in 1992; since the conclusions, originally published in an expert review, were picked up by the national press, the ECtHR assessed the necessity of the interference in line with the principles applicable to journalists, not academics); Association Ekin v France, No. 39288/98, 17 July 2001 (banning the circulation, distribution and sale of the book in France a collective monograph written by a group of academics dealing with the Basque question on the grounds of threat to public order the Court considers that the ban did not meet a pressing social need and was not proportionate to the legitimate aim pursued). 50 Mustafa Erdoğan and Others v Turkey, Nos. 346/04 and 39779/04, 27 May 2014.

51 Idem paras 5–24. 52 Idem, paras 30–32.

53 Idem, para 34. 54 Idem, para 37.

140