CYIL vol. 14 (2023)

JAN MALÍŘ CYIL 14 (2023) of fact and, as such, susceptible to proof. 182 In that respect, as the ECtHR remarked, “people prosecuted as a result of comments they make about a topic of general interest must have an opportunity to absolve themselves of liability by establishing that they acted in good faith and, in the case of factual allegations, by proving they are true.” 183 However, that did not happen in the case. Although the neutrality of experts appointed by national courts was challenged by Mr. Yazici, national courts simultaneously declined to assess the private expert report Mr. Yazici submitted. 184 Furthermore, in the ECtHR’s view, there were inconsistencies in the way how the Turkish Court of Cassation interpreted plagiarism under domestic law and, also, the standard of proof required under Turkish law. 185 These findings signified the right to freedom of expression and the protection of the reputation or rights of others were not satisfactorily balanced by national courts and adequate procedural guarantees were not available in the case. The ECtHR, thus, ruled Article 10 ECHR was violated. 186 In the light of the Yazici v Turkey ruling, freedom of expression clearly extends to any statements which are related to claims of plagiarism. Such statements basically qualify as statements of fact which means that freedom of expression applies to these statements as long as these statements are reasonably linked to facts. In addition, procedural safeguards must be available before national courts so that veracity of any statements on plagiarism can be impartially verified. On the other hand, the ECtHR did not rule how plagiarism should be understood, leaving its definition to national legal systems. That, however, means that, in future, the ECtHR may be invited to reconsider the compatibility of national definitions In sake of completeness, it should be mentioned that the existing case-law of the ECtHR contains several statements on a more collective aspect of academic freedom which is institutional autonomy of academic institutions. This is quite important because institutional autonomy constitutes another key aspect of academic freedom both under international soft law and under many national legal systems. The focus on institutional autonomy is closely related to the perception that this autonomy is “a necessary precondition to guarantee the proper fulfilment of the functions entrusted to higher-education teaching personnel and institutions”, 187 including that of “market for ideas”. Compared to international soft law and national legal systems, however, the ECtHR’s rulings on institutional autonomy have been limited in scope. This can be attributed to the fact that, normally, the ECtHR has dealt with academic autonomy in the context of complaints over the interferences with individual rights and freedoms of individual academics. This perspective has somewhat minimized the possibility to deal with institutional autonomy, a collective aspect of academic freedom, with Article 10 or other provisions of the ECHR. Institutional Autonomy of Academic Institutions

182 Hasan Yazici v Turkey (n 177) para 61. 183 Idem, para 62. 184 Idem, paras 63–67.

185 Idem, para 66. 186 Idem, para 69.

187 The UNESCO Recommendation concerning the Status of Higher-education Teaching Personnel (n 8), para 18; doctrinally, recently, see, e.g., ROBERTS LYER, K., SALIBA, I., SPANNAGEL, J., “University Autonomy and Academic Freedom”, in: ROBERTS LYER, K., SALIBA, I., ILYAS SPANNAGEL, J., (eds.), University Autonomy Decline: Causes, Responses, and Implications for Academic Freedom (Routledge, London 2023) pp. 9–29.

156