CYIL vol. 14 (2023)

CYIL 14 (2023) THE EUROPEAN COURT FOR HUMAN RIGHTS AND ACADEMIC FREEDOM rights and of legislation” rather than to constitutionally enshrined right. 202 This is actually true of some European constitutional system as well, such as the constitutional system of the Czech Republic. 203 Academic freedom under the ECHR seems to fit into such explanatory model well enough too. The fact academic freedom appears more as a principle than a right in the ECtHR’s case-law, however, does not signify that its role is merely “ornamental”. There are at least two legal consequences the invocation of academic freedom may have in the ECHR law. Firstly, where academic freedom is involved, the ECtHR will carry out a strict scrutiny of any interferences with rights and freedoms complained, in particular, it will carefully examine whether the interference in question was necessary in order to attain any of the legitimate aims for which the given right or freedom were restricted and whether the interference was necessary in a democratic society which involves a careful balancing of rights and interests in question. Secondly, the invocation of academic freedom implies that full exercise of rights and freedoms enshrined in the ECHR should be normally unhindered, whether by public authorities or private actors. Against this background, the ECtHR is no doubt willing to tailor the interpretation of rights and freedoms enshrined in the ECHR in line with specific requirements related to academic freedom. It may be expected that, in future, the ECtHR will be invited to reconsider its positions on academic freedom. It is believed that, in this respect, apart from the Council of Europe soft law, it could legitimately take recourse to standards stemming from the global soft law but, especially, from the common grounds between the laws of the Contracting States which might permit to argue there is a consensus between the Contracting States on at least some aspects of academic freedom and the extent in which academic freedom shall be respected. On the other hand, taking into account the subsidiary role the ECtHR should play in the human rights’ protection and, also, margin of appreciation left to the Contracting States in implementing many of the rights and freedoms enshrined in the ECHR, including freedom of expression or the right to private life, rather than imposing the single model of academic freedom which the Contracting States should pursue, the ECtHR should rather demarcate the playground within which the Contracting States should be entitled to legitimately act.

202 E. Barendt (n 1) p. 174 and, also, p. 181 et seq. 203 Academic freedom is not explicitly enshrined in the Czech constitutional order. However, the Constitutional Court has basically qualified academic autonomy as a principle inherently related to the freedom of research, guaranteed by Article 15(2) of the Charter of Fundamental Rights and Freedoms, which merits protection on constitutional level and implies, in particular, institutional autonomy of universities or research institutions (Pl. ÚS 25/07 of 13. March 2008, para 78). The permissibility of limits on the expression of academicians was at stake in a case which concerned arguments publicly made by a historian who invoked her freedom of expression; in that case, however, the Constitutional Court attributed greater weight to the protection of rights of others rather than to the protection of academic speech (III. ÚS 3393/15 of 12 September 2017).

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