Last Updated on July 4, 2019 by LawEuro
Information Note on the Court’s case-law 219
June 2018
Kula v. Turkey – 20233/06
Judgment 19.6.2018 [Section II]
Article 10
Article 10-1
Freedom of expression
Shortcomings in judicial review of reprimand imposed on academic following unauthorised participation in TV show: violation: violation
Facts – The applicant, a professor specialising in the German language, taught translation at a provincial university. He was invited to appear on a TV show in Istanbul, and informed his superiors. However, the director of the translation course expressed doubts about the connection between the applicant’s speciality field and the subject of the TV programme (“The cultural structure of the European Union and the traditional structure of Turkey – Comparing identities and modes of behaviour – Likely problems and suggested solutions”), whereupon the Faculty Dean decided that his involvement in the TV programme was inappropriate. Having been informed of that decision, the applicant nevertheless took part in the TV programme. Two weeks later, just after a colloquy in Istanbul which he had been authorised to attend, the applicant once again spoke on the same TV show, this time without informing his superiors in advance.
The applicant was given a reprimand by the Vice-Chancellor of the University for his actions. The disciplinary board noted that, even in the case of a research professor, participation in a TV programme of this kind had to be subject to some form of scrutiny. The disciplinary transgression used as the formal basis for the administrative sanction imposed on the applicant (the reprimand) was a breach of the statutory prohibition on leaving his “town of residence” without his superiors’ authorisation.
Law – Article 10
(a) Existence of interference with the freedom of expression – A whole series of factors convinced the Court that, behind its formal grounds, the real reason for the sanction had been the applicant’s unauthorised participation in the TV programme in question. Neither the applicant nor the university authorities had ever really considered things from the angle of his “leaving” his town of residence.
Therefore, the main issue in this case was the applicant’s use of his right to freedom of expression as an academic. That question had indubitably concerned the applicant’s academic freedom, which covered freedom of expression and of action, freedom to communicate information, and freedom to “conduct research and distribute knowledge and truth without restriction”. The sanction imposed, however minimal, could have had an impact on the applicant’s exercise of his freedom of expression, and even have had a chilling effect on it.
(b) Justification of the interference – For the reasons set out below, the Court found that, although the interference had been prescribed by law, it had not been accompanied by the requisite safeguards to be deemed “necessary in a democratic society”, which made it unnecessary for the Court to examine whether the interference had pursued a legitimate aim.
The present case concerned both an ex post facto disciplinary sanction (for unauthorised participation in a TV programme outside the applicant’s town of residence) and a prior restriction (the rejection of the request to participate in the first TV programme).
In neither case had an explanation ever been provided of why the applicant’s participation in the programme had been inappropriate.
At the time of the request for authorisation to participate in the first TV programme, the Dean had provided no reasons for his decision to reject it, and his subsequent letter in reply to the applicant’s request for explanations had merely referred to the translation course director’s misgivings about the extent of his knowledge concerning the subject of the programme.
When the disciplinary sanction had been imposed, the only reason given was a cursory reference to the relevant legal provision (concerning the applicant’s unauthorised departure from his town of residence), without any further information on the factual grounds for the sanction.
In their decisions the university authorities had at no point argued, for example, that the applicant’s unauthorised departure had disrupted the public university service; or that the applicant had abandoned his duties in order to appear on the TV programme in question; or that he had, in taking part in the latter, acted or spoken in a manner detrimental to the university’s reputation.
Furthermore, the subsequent judicial decisions had not been based on “relevant and sufficient” grounds for establishing whether the sanction imposed on the applicant had been necessary, in the circumstances of the case, for the aim pursued, even though the applicant had explicitly relied on academic freedom in support of his appeals
The administrative court and the Supreme Administrative Court (which upheld the first-instance judgment) ought to have conducted – as, in fact, they could have done under the law on the procedure applicable to administrative cases – a broader assessment than a mere formal review of lawfulness under the disciplinary regulations relied upon by the university authorities.
In the instant case, the judgments delivered failed to show how the domestic courts had carried out their task of, on the one hand, balancing the different competing interests and, on the other, preventing ultra vires action by the university authorities. The same shortcomings had also hampered the Court in effectively conducting its own scrutiny.
Conclusion: violation (unanimously).
Article 41: EUR 1,500 in respect of non-pecuniary damage.
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