CYIL vol. 14 (2023)

JAN MALÍŘ CYIL 14 (2023) sanctioned on the ground of his military status”, something which, basically, undermined “his freedom of expression as a professor of constitutional law”. 82 The Spanish Government denied there was an interference with Professor’s freedom of expression because he did not suffer any harm. 83 The ECtHR, however, held the statements contained in the decision “could be deemed a de facto warning or admonition addressed to the applicant, which could have a chilling effect, preventing him from expressing in the future similar opinions since fresh disciplinary proceedings might be brought”, especially taking into account a relative severity of disciplinary sanctions imposable in the military context. 84 That meant that, even in the absence of imposition of an effective disciplinary sanction, there was an interference with Professor’s freedom of expression. 85 When it came to justification of the interference, although the ECtHR ruled freedom of expression can be restricted where there is a real threat to military discipline, 86 it pointed out that a circumstance that the same person simultaneously holds the post of university professor “could lead to situations in which his right to freedom of expression in the field of teaching could collide with the restrictions in the military sphere.” 87 As, on TV, Professor made his comments in a discussion in which another professor participated and his academic status was duly emphasized, the ECtHR opined the case “relates essentially to the exercise by the applicant of his right to freely express his views as an academic during a television programme”, or, in other words, “unquestionably concerns his academic freedom” which should guarantee him “freedom of expression and of action”. 88 Under these circumstances, even though no sanction was imposed on Professor, the statement contained in the decision of the disciplinary authorities “effectively warned the applicant to censure his future behaviour and statements concerning the Constitution, irrespective of the context or the intent, and could lead to a sanction”. 89 As the ECtHR explained, even in the absence of an effective sanction, “the warning as regards his future behaviour was in itself liable to have an impact on the exercise of his freedom of expression and even to have a chilling effect in that regard.” 90 Noting that national authorities did not take into account the applicant’s status as a university law professor, 91 the ECtHR, consequently, concluded that the interference with Professor Torres’s freedom of expression was unnecessary in a democratic society and Article 10 ECHR was breached. 92 Apart from confirming that, in the context of academic freedom, freedom of expression applies to extramural speech and any restrictions on extramural speech should obey the same principles as restrictions imposed on intramural speech, Torres v Spain interestingly demonstrates that freedom of expression may benefit even the academics who hold double or multiple status, when they act in academic capacity and invoke freedom of expression 82 Idem, para 26. 83 Idem, paras 37–40.

84 Idem, para 43. 85 Idem, para 45. 86 Idem, paras 47 and 49 and the case-law cited therein. 87 Idem, para 56. 88 Ibidem. 89 Ayuso Torres v Spain (n 78) para 58.

90 Ibidem. 91 Ibidem. 92 Ayuso Torres v Spain (n 78) para 59.

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