CYIL vol. 14 (2023)

CYIL 14 (2023) THE EUROPEAN COURT FOR HUMAN RIGHTS AND ACADEMIC FREEDOM The ECtHR, however, did not uphold Mr. Petersen’s claim, considering the interference with his freedom of expression as justified. Firstly, the ECtHR opined his dismissal had the appropriate basis in national law. Secondly, the ECtHR admitted the purpose of the scheme of the scrutiny of competences of civil servants, including university teachers, described as the assurance of the public of the quality of the officials within the integrated civil service of the reunified Germany, could be qualified as a legitimate aim, falling under the scope of the aim of preventing disorder and protecting the rights of others under Article 10(2) ECHR. Thirdly and most essentially, the ECtHR ruled it was possible to see the dismissal of Mr. Petersen as necessary in a democratic society. While the ECtHR conceded “it would in all probability have been impossible for the applicant, in such a delicate field as that of modern history at the time of the Cold War, to publish work that conflicted with the official political line of the GDR at the time”, it also observed that “it is also legitimate that in reviewing the professional qualifications of a university lecturer employed to teach students in the FRG … assessment should also have contained a political element.” 161 From the ECtHR’s perspective, it also mattered that there was “the absence of any subsequent academic publications, even after reunification, that might have compensated for the shortcomings of the theses.” 162 It was no less material that Mr. Petersen had access to national courts to have an administrative decision on his tenure judicially reviewed. In the light of these facts, the ECtHR concluded that “the penalty imposed on the applicant, although severe, must be viewed in relation to the general interest of German society, regard being had to the exceptional historical context in which he was incorporated into the FRG civil service and to the conditions set forth in the Unification Treaty, of which he must have been aware.” 163 There is no doubt that some of the ECtHR’s statements, in particular, those on the admissibility of political elements in reviewing the qualification of university teachers, were case-specific and were closely linked to the unique circumstances of the reunification of Germany. More generally, it can, however, be inferred from the ruling of the ECtHR that freedom of expression is not in principle incompatible with the scrutiny of professional competences of academics provided that such scrutiny is based on objective criteria and its goal is not to sanction the academics under the scrutiny on account of information and ideas they have conveyed, (except for the extraordinary events, such as imperatives of the transition to democracy). If the scrutiny of professional competences, however, served for sanctioning an academic for her or his ideas and opinions, there would be presumably a breach of Article 10 ECHR. No less importantly, nearly a decade later, the ECtHR returned to the issue of academic tenure in Vallauri v Italy. 164 In that case, Luigi Lombardi Vallauri, long a professor of jurisprudence at the Catholic University of Milan, challenged the decision to dismiss his candidacy for the renewal of his professorship after the Holy See had declined to consent to this renewal on account of some of his unspecified opinions, allegedly incompatible with the Catholic doctrine. Professor Vallauri attempted to challenge the decision before national court, however, these courts declined their competence because of the terms of the Concordat between Italy and the Holy See. Consequently, Professor Vallauri lodged an application with

161 Ibidem. 162 Ibidem. 163 Ibidem. 164 Lombardi Vallauri v Italy, No 39128/05, 20 October 2009.

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