On 27 May 2014, the Second Section of the Court of Human Rights handed down a judgment in the case of Mustafa Erdoğan v Turkey vindicating academic freedom and, in particular, the freedom to criticise the judiciary. There is also an important concurring opinion which contains some interesting general reflections on the nature of academic freedom and the reasons why it should be protected under Article 10.
In 2001, Mustafa Erdoğan, a professor of constitutional law, published an article in the quarterly journal, “Liberal Thinking”, edited by Haluk Kürşad Kopuzlu criticising the judges of the Constitutional Court for their decision to dissolve a political party named Fazilet. The article (set out at ) questioned whether, as a matter of law, the conditions for dissolving the political party were met, which was allegedly operating contrary to the principles of secularism. The article suggested that the judges were incompetent and called into question their impartiality.
Three judges brought proceedings against the applicants, claiming that the article was a serious personal attack on their honour and integrity. In three separate decisions, between 2002 and 2004, the domestic courts held that certain passages in the article alleged that the members of the Constitutional Court had rendered their judgment under pressure, that the judges of the court did not know the law, and that their professional knowledge and intellectual capabilities were insufficient . They considered these allegations were defamatory of the members of the Court. The applicants were ordered to pay damages to each judge.
There was clearly an interference with the applicants’ right to freedom of expression but this was prescribed by law and pursued the legitimate aim of protection of the reputation or rights of others .
The issue was whether that interference had been justified as “necessary in a democratic society”. The Court began by emphasising the fundamental importance of freedom of expression in a democratic society and its applicability to ideas that offend, shock or disturb . It also reiterated the importance of the distinction between statements of fact and value judgments . It also noted the Axel Springer criteria of balancing the right to reputation and the right to freedom of expression.
The Court noted that it had stated on many occasions
that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10 … It has also underlined the importance of academic freedom … and of academic works … In this connection, academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction … It is therefore consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings … This freedom, however, is not restricted to academic or scientific research, but also extends to the academics’ freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence. This may include an examination of the functioning of public institutions in a given political system, and a criticism thereof.  (citations omitted).
The article in question, written by an academic, contributed to a debate of general interest about the manner in which the Constitutional Court ruled on certain issues, already the subject of virulent debate in Turkey, which the public had a legitimate interest in being informed of :
The press is one of the means by which politicians and public opinion can verify that judges are discharging their heavy responsibilities in a manner that is in conformity with the aim which is the basis of the task entrusted to them .
Furthermore, members of the judiciary acting in an official capacity should expect to be subject to wider limits of acceptable criticism than ordinary citizens, like politicians only to a slightly lesser extent  At the same time, the judiciary had to enjoy public confidence and might, therefore, “have to be protected against destructive attacks which are essentially unfounded” .
Courts, as with all other public institutions, are not immune from criticism and scrutiny. However, a clear distinction had to be made between criticism and insult .
Some of the expressions used in the article were harsh and could be perceived as offensive:
They were, however mostly, value judgments, coloured by the author’s own political and legal opinions and perceptions. In this connection, the Court also observes that they were based on the manner in which the Constitutional Court ruled on certain issues and that these rulings, including the dissolution of the Fazilet Party, were already subject to virulent public debate .
The Court noted that the domestic courts had not attempt to distinguish facts and value judgments nor did they assess whether the article was published in good faith . The domestic courts had not placed the impugned remarks within their context: they could not be construed as gratuitous personal attack. The Court also said that it was noteworthy that the article was published in a “quasi-academic quarterly” as opposed to a popular newspaper.
As a result, the domestic courts had not struck the right balance between the applicants’ right to convey Mr Erdoğan’s opinion on a topic of general interest with the judges’ right to be protected against insult. The Court therefore determined that the reasons given to justify interfering with the applicants’ right to freedom of expression had not been sufficient to show that that interference had been “necessary in a democratic society” for the protection of the reputation and rights of others and as such violated Article 10 of the Convention.
Judges Sajó, Vučinič and Kūris gave a concurring opinion dealing with the issue of academic freedom. They emphasise the importance of this freedom and suggest that the justification of “extramural” academic speech is best approached by considering the need to communicate ideas, which is protected for the sake of the advancement of learning, knowledge and science.
They suggested that academic speech should be accorded the highest level of protection and suggest a test for determining whether academic freedom has been impeded:
in determining whether “speech” has an “academic element” it is necessary to establish: (a) whether the person making the speech can be considered an academic; (b) whether that person’s public comments or utterances fall within the sphere of his or her research; and (c) whether that person’s statements amount to conclusions or opinions based on his or her professional expertise and competence. These conditions being satisfied, an impugned statement must enjoy the utmost protection under Article 10.
In this case the Judges provided a sustained defence of academic freedom which, in the words of the concurring judges should be accorded the “highest protection” under Article 10. Although the words used could, under ordinary circumstances, be offensive to personal reputation, they were acceptable in the context of a scholarly analysis by an academic lawyer.
The Court had previously emphasised
the importance of academic freedom, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction (Sorguç v. Turkey Application No. 17089/03, 23 June 2009 at . See also Lombardi Vallauri v. Italy Application No. 39128/05, 20 October 2009 at ).
The Court had made it clear that one cannot expect academics to restrict themselves to harmless or innocent statements. In the context of the scientific debate and the academic freedom of expression it would also be “particularly unreasonable to restrict freedom of expression only to generally accepted ideas” (Hertel v Switzerland Application No. 25181/94, 25 August 1998).
It is interesting to note that in an earlier case against Turkey, the Government itself relied on the importance of academic freedom and the freedom of expression of academics. In Aksu v Turkey the Grand Chamber referred explicitly to this circumstance, increasing the level of protection of freedom of academic speech
In particular, the Turkish courts attached importance to the fact that the book had been written by an academic and was therefore to be considered as an academic work. In recent judgments, the Court has also stressed the importance of such works (..). It is therefore consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings (Aksu v. Turkey Application 4149/04 and 41029/04, 15 March 2012, ).
The importance of the freedom of academic speech is also clearly reflected in the Charter of the Fundamental Rights of the European Union. Whereas in Article 11 of the Charter freedom of expression and information is guaranteed in a very similar way as in Article 10 ECHR, Article 13 of the EU-Charter explicitly protects freedom of the arts and sciences: “The arts and scientific research are free. Academic freedom is respected”.
In this case, the Court recognised the value of the participation by the academic world in public debate, taking part in discussions on important issues in a democratic society. This is of particular importance in the field of social sciences, such as political sciences and law, where academic discourse, reports, studies and participation in public debate by academic informs society on matters directly related to government, politics, democracy, respect for human rights, justice and the rule of law.
The importance of both institutional academic freedom and individual freedom of researchers, scholars or academics in general is expressed in Recommendation CM/Rec(2012)7 of the Committee of Ministers to member States on the responsibility of public authorities for academic freedom and institutional autonomy. In this Recommendation, it is emphasised that
academic freedom should guarantee the right of both institutions and individuals to be protected against undue outside interference, by public authorities or others”, which is “an essential condition for the search for truth.
It further states that
university staff and/or students should be free to teach, learn and research without the fear of disciplinary action, dismissal or any other form of retribution (See also D. Voorhoof and P. Humblet, “Human Rights and the Employment Relation. The Right to Freedom of Expression at Work”. In X., Proceedings of the International Conference on the European Convention on Human Rights and the Employment Relation” [pdf], Actes du Colloque “La convention européenne des droits de l’homme et la relation de travail”, CNRS and Strasbourg University, 30-31 January 2014, 33 p. (e-publi)).
One point of concern about the judgment relates to the fact that the Court took into account that “the article in question was published in a quasi-academic quarterly as opposed to a popular newspaper”. It is difficult to see why this is relevant. Surely a legal analysis of a judgment by a professor in constitutional law should be protected in the same way whether it is published in a legal journal, a quasi-academic quarterly, a weekly magazine, or a newspaper. The concurring opinion draws the attention to this point arguing that when “speech” has an “academic element”, it must enjoy the utmost protection under Article 10 ECHR. The concurring opinion therefore rightly points out that
where and how (inter alia, in what form of publication or to what audience) the “speech” was given or was otherwise made public is a secondary, auxiliary and often not decisive factor.
A final point to note is that the majority of the Court, applying its standard approach, derives the guarantee for extra protection of the applicant’s right to freedom of expression from the fact that “the article in question, written by an academic … contributed to a debate of general interest”. There is strong argument that, in the context of freedom of academic speech, this is a much less important element than in other cases. The very high level of protection of academic speech should not depend on its contribution to (an ongoing) public debate or issue of public interest for society. Rather, every form of academic speech as such should be able to count on the very high level of protection guaranteed by Article 10 of the Convention. This was the approach of the concurring Judges who argued that it makes little sense
to attempt to justify the specific instance of “extramural” academic speech by a general reference to “the needs of a democratic society”, the typical justification accepted for freedom of expression in the Court’s case-law. This would be superficial.
They contended that academic speech deserves the highest level of protection because of the “need to communicate ideas, which is protected for the sake of the advancement of learning, knowledge and science”, and that in itself is the justification for its paramount protection. As they said:
There is no Chinese wall between science and a democratic society. On the contrary, there can be no democratic society without free science and free scholars.
For more information on the notion and impact of academic freedom: J. VRIELINK, P. LEMMENS, S. PARMENTIER and the LERU working group on Human Rights, Academic Freedom as a Fundamental Right (League of European Research Universities,Leuven,2010),