JOINT CONCURRING OPINION OF JUDGES SAJÓ, VUČINIČ AND KŪRIS

1. We voted with the majority in finding that there had been a violation of Article 10 of the Convention. To our mind, however, it is important to take into consideration one additional point which has not been made explicit in the reasoning.

2. When it comes to the use of concepts and principles which are not yet clearly spelled out in the Court’s case-law, it is imperative to explain the reasons for and scope of those concepts and principles. This is required by the judicial duty to ensure that judgments are convincing and transparent. Without transparency of the underlying considerations, the meaning which is attributed to a concept and the scope of the applicability of a principle run the risk of being seen as arbitrary and do not offer sufficient guidance for the determination of future cases.

3. In paragraph 40 of the judgment, academic freedom has been defined as being “not restricted to academic or scientific research, but also [as] extend[ing] 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” and as “includ[ing] an examination of the functioning of public institutions in a given political system, and a criticism thereof”. One could hardly disagree that academic freedom is not limited to debates in scholarly journals, debates in academic settings and teaching. This freedom is protected under Article 10, which guarantees the freedom of expression in its various manifestations, including “extramural” speech, which embraces not only academics’ mutual exchange (in various forms) of opinions on matters of academic interest, but also their addresses to the general public – of which, by the way, academics themselves are also part. (As a broader concept, academic freedom transcends the scope of Article 10 in certain areas, but this dimension is irrelevant to the present case and will not be discussed further here.)

4. The level of protection granted to academic freedom, especially in its “extramural” manifestation, cannot be explained fully (and consequently, in a convincing and transparent way) within the four corners of the assumptions that underlie the Court’s case-law concerning freedom of expression. At least as matters currently stand, these assumptions remain at the level of intuitions. The meaning, rationale and scope of academic freedom are not obvious, as the legal concept of that freedom is not settled. Traditionally, academic freedom referred to a crucial element of university autonomy: non-interference by external powers in university teaching. This core academic freedom has increasingly been accepted as including personal freedom of expression, often in the sense of scholars’ autonomy. It is in this sense that the maxim of the independence of university teachers and researchers was recognised as a constitutional principle by the French Constitutional Council (see decision no. 83-165 DC, 20 January 1984, in which it was held that “by their very nature, the functions of teaching and research not only permit but require ... that free expression and personal independence are guaranteed by the provisions applicable to them” and that “the guarantee of [teachers’] independence stems from a fundamental principle recognised by the laws of the Republic”). A similar approach can be found in the constitutional case-law of many other European countries. Also, teachers’ freedom of expression is interlinked with the freedom of research. In order to provide for the self-determination necessary for the autonomous advancement of learning, knowledge and science, institutional autonomy is guaranteed under the name of academic freedom. However, although academic freedom refers, first and foremost, to institutional autonomy, it cannot be reduced to its institutional setting, since scholars’ institutional autonomy is meaningful only if they enjoy personal freedom of research that entails unimpeded communication of ideas within, but not exclusively within, the scholarly community. This interrelatedness between academic institutional autonomy and personal freedom of scholars is expressed in various instruments including 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, academic freedom and institutional autonomy are characterised as “essential values of higher education” which “serve the common good of democratic societies”. It is also 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”, and that “[u]niversity 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 paragraphs 4 and 5 of the Recommendation).

5. Thus, although scholars’ personal academic freedom is by all means a manifestation of freedom of expression covered by Article 10, it would make 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. Convincing justification for impugned “extramural” academic speech can very often be arrived at only if one takes into consideration the need to communicate ideas, which is protected for the sake of the advancement of learning, knowledge and science.

6. 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. This interrelationship is particularly strong in the context of social sciences and law, where scholarly discourse informs public discourse on public matters including those directly related to government and politics. In Recommendation No. R(2000)12 of the Committee of Ministers to member States on the social sciences and the challenge of transition, it is emphasised that “the social sciences play a strategic role in guaranteeing an informed public and in building a society based on democracy” and that “all democracies have a growing need for the social sciences for their economic and social development, to help their institutions to understand and to solve societal problems, to increase the confidence of their citizens in democracy and to enhance the vigour of the democratic process itself, encompassing electoral politics, government, and civil society”. As a matter of principle, social and legal scientists’ contributions to public discourse and other “extramural” utterances that are based on their research, professional expertise and competence serve the public interest. It is for this reason that social and legal scientists’ judgments, those of value no less than those of fact, where these academics freely express their views and opinions on matters belonging to the area of their research, professional expertise and competence, deserve the highest level of protection under Article 10. True, in general, in order to be protected under Article 10, a public comment or utterance on any matter, not only on one of public concern and irrespective of who has pronounced it, does not need to have an “academic element”. However, ceteris paribus , the presence or absence of an “academic element” in an impugned comment or utterance may be decisive in finding whether a particular “speech” which otherwise would constitute an unlawful infringement of personal rights is protected under Article 10.

7. In this case the Court has been confronted with “extramural speech” by Mr Erdoğan, namely his public comments on a matter of public concern in the area of his professional competence, which is constitutional law. In paragraph 40 of the judgment, the majority have cited Aksu v. Turkey ([GC], nos. 4149/04 and 41029/04, § 71, ECHR 2012) in finding that “it is ... 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 very general principle, which we fully endorse, calls for a tool for its application, that is to say an applicable test by which it could be determined whether academic freedom, and not only freedom of expression as an “umbrella concept”, has been impeded. So far, no such test has been applied in the Court’s case-law. This case presented an opportunity to fill this gap. Regrettably, this opportunity has not been taken.

8. We submit that 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, as indicated in paragraph 6 above. 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.

9. Turning to the circumstances of this particular case, the reasoning set out in paragraph 45 of the judgment has to be cited, namely that “when account is taken of the content of the article as a whole, and the context and the form in which they were expressed, the Court is of the opinion that the impugned strong and harsh remarks contained in the article, set out in general terms, with respect to the judges of the Constitutional Court, cannot be construed as a gratuitous personal attack against the claimants”. In fact, to substantiate this finding only one argument has been explicitly put forward, namely that Mr Erdoğan’s “article ... was published in a quasi-academic quarterly as opposed to a popular newspaper”. That is clearly not enough and could therefore be misleading. We think that it should also have been explicitly noted that the said “strong and harsh remarks ... with respect to the judges of the Constitutional Court”, as value judgments, were part of an explanatory opinion based on the scholarly analysis conducted by a professional academic in the field of constitutional law. This is precisely what can justify their protection under Article 10 in the context in which they were expressed. We do not intend to speculate here whether hypothetical generalised “strong and harsh remarks” of an identical nature but lacking an “academic element” (for example, because they were made by a non-academic commentator) would likewise have been regarded as not constituting “a gratuitous personal attack against the claimants” and would enjoy the same level of protection under Article 10, even if they had been made public in the same or equivalent “quasi-academic” journal.

10. This is by no means to deny the offensive nature of the personal conclusions of Mr Erdoğan’s article. Under “ordinary” circumstances such language, especially if read in isolation, should raise serious concerns as being offensive to personal reputation, in particular because it depicts identifiable members of a court on the grounds of their judgment. The Court’s case-law has on more than one occasion recognised that “the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence; and it may therefore prove necessary to protect judges from offensive and abusive verbal attacks” (see De Haes and Gijsels v. Belgium , 24 February 1997, § 37, Reports of Judgments and Decisions 1997–I; Janowski v. Poland [GC], no. 25716/94 , § 33, ECHR 1999-I; and Ungváry and Irodalom Kft. v. Hungary , no. 64520/10, § 44, 3 December 2013). However, in the present case the Court has dealt with a situation where a professor of constitutional law had offered a scholarly analysis of a Constitutional Court judgment, a matter clearly within his academic expertise and competence. His professional analysis preceded his opinion on the personalities of certain judges, and the opinion was based on that analysis. Professor Erdoğan, after having considered alternative explanations for the specific reasoning and conclusions of the Constitutional Court, came to the conclusion that the judgment analysed was unprofessional and that this lack of professionalism originated in the lack of professionalism of the judges of that court. This is an informed opinion – not in the sense that it is factually correct, but in the sense that it is research-and-facts-related. To express such an opinion in that situation was a legitimate thing to do for an academic within the scope of the professional freedom needed in the field of constitutional law, which by its nature plays “a strategic role in guaranteeing an informed public and in building a society based on democracy” (see Recommendation No. R(2000)12, cited above). We find that these considerations were not properly taken into account in the proportionality analysis, when the domestic courts accepted that the protection of the reputation of judges – which is necessary in a democratic society – did not allow a constitutional law professor to express his informed opinion, even if factually incorrect, on the alleged lack of professionalism of the judges of the Constitutional Court.