CYIL vol. 14 (2023)

CYIL 14 (2023) THE EUROPEAN COURT FOR HUMAN RIGHTS AND ACADEMIC FREEDOM “freedom of expression and of action, freedom to disseminate information and freedom to “conduct research and distribute knowledge and truth without restriction”. 74 Yet, it was crucial to determine whether the imposition of the disciplinary sanction might be justified in the case, in particular, whether it could be qualified as necessary in a democratic society. In that regard, it might have played role that, firstly, Professor Kula made his statements in extramural context and, secondly, there was not a direct link between his field of expertise and the topic of the debate on TV. 75 The ECtHR, however, concluded the necessity of interference with Professor Kula’s freedom of expression was not sufficiently established in the case. From the ECtHR’s perspective, neither disciplinary authorities nor national courts laid down with sufficient clarity why Professor’s participation in the TV programme was inappropriate and “no reason was given for the decision to impose a penalty beyond a mere reference to the relevant statutory provision”. 76 In the absence of any more comprehensive justification concerning the reasons for imposition of the disciplinary sanction, taking into account that none of the decision on national level found Professor Kula to have acted or spoken “in a manner detrimental to the university’s reputation”, 77 the ECtHR concluded on violation of Article 10 ECHR. Kula v Turkey, thus, shows that statements individual academics make in the extramural context benefit from freedom of expression too. Although, in its ruling, the ECtHR did not completely rule out extramural speech could be restricted, it appears that the possibility to impose restrictions on extramural speech should be rather exceptional. In particular, any restrictions on freedom of expression in extramural context have to be duly justified with sufficient clarity, in particular, it must be proven that they pursue a legitimate aim in the sense Article 10(2) ECHR and are necessary in a democratic society which presupposes that specific attention has to be paid to balancing the conflicting rights and interests which come into a play. The ECtHR’s positions on extramural speech have been recently confirmed in Torres v Spain. 78 In this case, military disciplinary proceedings were launched against Mr. Torres, professor of constitutional law at the Comillas Pontifical University in Madrid and, simultaneously, a member of the Spanish Military, who criticized the origins of the contemporary Spanish constitution in a debate broadcasted on TV, following a projection of a film. 79 Although disciplinary proceedings were later dropped due to a time bar and, also, the fact that the criticism was made in a cultural and a scholar rather than in a military context, 80 Professor Torres challenged the decision of disciplinary authorities before national courts. In his view, the decision contained some statements which suggested he exceeded the regulatory framework applicable to his freedom of expression 81 and which “amounted to a clear warning that if he were to make the same statement in the future he could be

74 Ibidem. 75 Kula v Turkey (n 65) para 33.

76 Idem, para 48. 77 Idem, para 48. 78 Ayuso Torres v Spain, No. 74729/17, 8 November 2022.

79 Idem, paras 5–7. 80 Idem, paras 8–10. 81 Idem, para 10.

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