CYIL vol. 14 (2023)

CYIL 14 (2023) THE EUROPEAN COURT FOR HUMAN RIGHTS AND ACADEMIC FREEDOM in this capacity. No less significantly, the ruling shows that interference with freedom of expression may be found even where no effective harm or sanction is inflicted on an academic as long as the academic may be discouraged from expressing freely by a mere prospect of legal action initiated against her or him, whether in the form of disciplinary proceedings, criminal prosecution, or action for damages (“chilling effect”). Even after Torres v Spain, however, the question remains to what extent academic freedom can be invoked by academics when they clearly speak in the intramural context off-topic, i. e. outside the strict confines of their expertise (which was not the case of Professor Torres who made his comments within his field of expertise). This will, thus, merit further attention in the subsequent case-law. Freedom to Criticize Academic Institutions Within the ambit of academic freedom, freedom of expression is not limited to freedom of expression in intramural or extramural context. It also entails freedom to express on functioning of academic institutions or academic procedures, including the freedom to criticize these institutions or procedures. The recognition of the freedom to criticize in the academic context actually brings law of the ECHR in line with the recommended global standards on academic freedom. 93 The freedom to criticize is also typical of many national legal systems where freedom to criticize is sometimes directly linked to intramural speech. 94 The existence of freedom to criticize is apparent from several rulings rendered by the ECtHR. In Sorguç v Turkey, 95 a professor of construction management from the Istanbul Technical University criticized the Turkish system of the examinations for assistant professors. In particular, he castigated the fact the promotion panels involved persons who were not experts in the given field which resulted in the promotion of inadequate candidates, including those who had never published in the given field. 96 Although the cases Professor Sorguç described in his paper, distributed at a conference, contained no names or affiliations, one associated professors identified himself with the description and sued Professor Sorguç for compensation for allegedly defamatory statements. Even though the first-instance court originally dismissed the action, holding that Professor Sorguç’s statements were merely a criticism of the academic system, 97 under the impact of the higher courts, finally, it had to award the damages. 98 Ironically enough, before the final judgement was rendered, the assistant professor was dismissed by his own university “on account of his inadequate scientific competence and personal values”, following the disciplinary proceedings. 99 Before the ECtHR, Professor Sorguç claimed that, as a result of national courts case law, there was an unjustified interference with his freedom of expression. The key issue the ECtHR had to tackle was whether the interference was “necessary in a democratic society”. 93 The UNESCO Recommendation concerning the Status of Higher-education Teaching Personnel (n 7) para 31. 94 Barendt, E. (n 1) p. 270. 95 Sorguç v Turkey, No. 17089/03, 23 June 2009. 96 Idem, para 6.

97 Idem, paras 7–8. 98 Idem, paras 9–19. 99 Idem, para 15.

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