CYIL vol. 14 (2023)

CYIL 14 (2023) THE EUROPEAN COURT FOR HUMAN RIGHTS AND ACADEMIC FREEDOM This led Professor Kharlamov to complain before the ECtHR over violation of his freedom of expression. While the ECtHR admitted the interference resulting from national courts’ decision might have had a lawful basis in national provisions, 110 it was not convinced about the legitimacy of the aim invoked by Russia, namely the protection of the rights or reputations of others. As the ECtHR expressly stressed, “a measure proscribing statements criticising the acts or omissions of an elected body” can be justified by the reference to this aim “only in exceptional circumstances”. 111 The ECtHR, however, considered it substantiated to deal with doubts raised in this respect in the wider context of scrutinizing the necessity of the given interference in a democratic society. Subsequently, the ECtHR observed that, in professional context, employees owe a duty of loyalty, reserve and discretion to their employer and that, in striking a fair balance, the limits of the right to freedom of expression and the reciprocal rights and obligations specific to the professional environment must be taken into account. 112 Simultaneously, however, the ECtHR stressed the Professor’s statements were made in circumstances in which academic freedom was involved. As the ECtHR explained, academic freedom “encompasses the academics’ freedom to express their opinion about the institution or system in which they work” and involves “[t]he principle of open discussion of issues of professional interest”. 113 Furthermore, the ECtHR noted that Professor Kharlamov’s statements were made in the context of a public debate on a matter of general interest – that of the opacity of the academic senate election. As the ECtHR remarked in that respect, “[t]he composition of the ruling body of the University and the procedure for designation of candidates to the election are of central importance for the University staff, and discussion around these issues at a University-wide conference forms an integral part of the organisation of the academic life and self-governance”. 114 Such a finding had important repercussions because “there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest and very strong reasons are required for justifying such restrictions”. 115 Moreover, the ECtHR considered that “the protection of the University’s authority is a mere institutional interest of the University, that is, a consideration not necessarily of the same strength as ‘the protection of the reputation or rights of others’ within the meaning of Article 10 § 2.” 116 That led the ECtHR to rule that the Russian courts “did not take into account specific features of academic relations and failed to recognise that the … case involved a conflict between the right to freedom of expression and the protection of reputation.” 117 In addition, the ECtHR disagreed with Russian courts’ view that Professor’s critical statements were statements of fact, taking into account that these statements “voiced his personal comment on a matter of public interest for the University staff” and constituted value judgements. 118 However, these statements did not lack basis in facts, as testified by the opinions of four of his fellow

110 Idem, para 24. 111 Idem, para 25. 112 Idem, para 27. 113 Ibidem. 114 Kharlamov v Russia (n 106) para 28. 115 Idem, para 29. 116 Ibidem. 117 Ibidem. 118 Kharlamov v Russia (n 106) para 31.

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