November 15, 2018
By Joanne Fish (University of Glasgow)
In Tuskia and Others v. Georgia (11 October 2018) the European Court of Human Rights ruled on a case concerning a protest against university reforms by a group of academics at Tbilisi State University. The applicants are nine professors, six of which were members of the Grand Academic Council, the highest representative body of the University until the Council was abolished in June 2005. The Strasbourg court ruled that their removal by the police from the rector’s office had constituted a justified interference with their right to freedom of assembly. In doing so the Court arguably did not take into account a lot of the context of the case, causing the academic freedom dimensions of the case to be significantly downplayed to the extent that it reads akin to an ordinary workplace dispute.
Facts of the Case
On the 19th June 2006, after a meeting of the Grand Council, members remaining at the meeting venue were instructed to disperse by police and the same happened while meeting again in a university lecture hall the following day. On the 3rd of July, at a meeting authorised by the Rector of the University, the Council elected a new Rector. A group of around 20 of them then went to the office of the acting Rector to inform him of the Council’s decision and to demand his resignation while others remained outside protesting. The police were called and after over an hour of negotiation with the applicants, they were removed from the office. The applicants alongside other protestors (about 400 people) gathered in a lecture hall to continue protesting. The applicants claim that, at about 23:00, police closed the doors of the hall preventing them from leaving until between 8:00 and 10:00 the next day (without access to water, food or toilet facilities), on which several of the applicants made a criminal complaint.
In terms of the domestic proceedings, the criminal charges against the applicants for participating in group actions violating public order were dropped to allow for the conduct of administrative proceedings. The applicants were found guilty of administrative offences and fined approximately 45 euros each. The Tbilisi Court of Appeal later dismissed the applicants’ grounds for appeal as unsubstantiated. The domestic court proceedings examined only the events of 3rd of July. As the applicants had made no mention of the events of the 19th and 20th of June upon appeal, the Strasbourg Court declared that aspect of their application inadmissible for non-compliance with the six-month time limit.
The reasoning of the Court
The Court, in outlining the general principles of the applicable articles emphasized that exceptions to the right of freedom of expression (Article 10) are to be ‘narrowly interpreted’ (Observer and Guardian v. the United Kingdom). Further, that there is a lesser degree of scope for justified interference when the speech in question is political or integral to a debate of public interest (Feldek v. Slovakia and Sürek v. Turkey). It also held that the right of freedom of assembly (Article 11) is not to be interpreted restrictively (Barraco v. France). While the Convention protects only the right to assemble peacefully, it does include the right to choose the time, place, and conduct of assembly within the limits established in paragraph 2 of Article 11(Sáska v. Hungary).
In its judgement, the Court held that the conduct of the applicants had not been of a nature and degree to exclude them from the scope of protection under Article 11 in light of Article 10. As such the applicants were thus entitled to invoke the guarantees of the Convention. The applicants’ removal from the Rector’s office and the administrative penalty imposed upon them had constituted an interference. The Court ruled that the action taken had been prescribed in law and accepted the conclusion that the decision of the police to remove the applicants from the office was justified by demands of public order and the protection of the interests of others. When examining whether the interference was necessary in a democratic society, the Court emphasized that the applicants had attempted to draw the attention of the university staff and general public to their disapproval of the ongoing university reforms and to demand the Rector’s resignation, which was a topic of public interest for which there is little scope under the Convention to restrict debate (Taranenko). However, the applicants had been granted a hall to use at the university on the same day and no physical force was used against them and police negotiated with them for over an hour. In addition, as they were allowed to stay on the premises and continue to protest afterwards, the Court concluded that, given the applicable margin of appreciation, the actions taken were not found to be disproportionate. Additionally, the Court considered that, as the applicants had disrupted public order on the university premises, it was foreseeable that this could amount to a minor breach of public order. For these reasons, the Court found that Article 11, read in the light of Article 10, had not been violated.
It can be argued that the Court’s analysis of the case neglects to consider the context in which the facts of the case occurred. As a result, the academic freedom dimensions of the case have been significantly downplayed to the extent that the Court’s construction of the case reads as an ordinary workplace dispute. It is worth emphasising that the Court has recognised the importance of academic freedom for a democratic society in its judgments in prior case law (Sorguç v. Turkey).
Academic Freedom Dimensions
There are essentially two academic freedom dimensions to this case:
Firstly, the background of the case suggests that the government attempted to undertake a university reform in order to exercise additional control over the workings of the university. This in itself raises academic freedom concerns with regard to university autonomy, which is a crucial aspect of academic freedom. Significantly, prior to its abolition, the Grand Council had opposed the university reforms proposed and later imposed by the Government. The abolition of the Grand Council in 2005 can, therefore, be seen as the Government getting rid of a respected university body, which had some degree of power and influence, in order to implement reforms enabling greater governmental control over the university. That the applicant’s primary means of collectively opposing university reform (the Grand Council) had been abolished by the Government, in and of itself raises academic freedom issues. Further when understood as the preface to the events of this case, the latter is shed in a somewhat different light, as it allows reading the applicants’ actions as a collective defence against threats to their academic freedom. In any event, it is worth emphasising, at this point, that the government’s university reforms qualify as a debate of public interest and, as a result, there is less scope for justifiable interference with the freedom of assembly and expression. However, while paying lip-service to this principle, it does not seem that the Court effectively took it into account when deciding upon the case.
It is worth highlighting that the Court’s judgement concerned only one of the incidents giving rise to concerns over academic freedom. As such, entire events have been excluded on the basis of non-exhaustion of domestic remedies or failure to comply with the six-month rule. For instance, the incidents of July 4th, in which the applicants were locked in a lecture hall overnight was alleged by the applicants as degrading treatment in violation of Article 3. It is a great shame that the technical legal problems with this claim prevented these events from playing a central role in the case. Given that the actions of the police were undoubtedly more far-reaching during this incident, the Court’s consideration of the legality, legitimate aim, necessity and proportionality in justification of these facts would have been very interesting. Regardless of the obstacles preventing these claims from being ruled on in Strasbourg, there is certainly an argument to be made that this kind of police conduct being sustained by protestors of academic reform without adequate redress may have a chilling effect on academic freedom. Additionally, the police dispersals of the meetings of the Council on two consecutive days could not be examined in full by any Court, as they had not even been subject of any domestic proceedings. That the Court was not formally competent to examine these complaints is not at issue. However, the lack of competence to examine these events should not have led the Court to completely disregard them, as the facts reviewed by the Court did not occur in isolation. Instead being part of a broader chain of events, all raising academic freedom concerns, they should have been read against the background thereof.
Secondly, protesting against university reforms is arguably an aspect of academic freedom in and of itself. Moreover, such freedom also encompasses the freedom to choose the means to protest. The Court mentions on a couple of occasions that the university had authorised the applicants to make use of lecture halls at certain points. By taking the provision of allocated rooms to the applicants into consideration in deciding whether the interference with the right to freedom of assembly was justified, the Court arguably perpetuates the idea that the University is entitled to dictate to any meaningful extent the place and time of the exercise of the freedom of assembly. This is hard to square with broader ECtHR case law. In the case of Sáska v. Hungary, for instance the Court held that, within certain limits, the free choice as to time, place and means of protesting is protected by the Convention. By taking the offering of an alternative, and in this case not a comparable alternative, into consideration for the purposes of the proportionality test, the Court suggests that the university was entitled to a greater degree of control over the logistics of the protest than had been suggested in previous cases. This is, of course, contrary to the dictates of a robust protection of the freedom of assembly and expression.
Convicting persons for exercising their freedom of assembly in this manner (that being peacefully and for a relatively short period of time), even if only for administrative offences, may have a chilling effect on academic freedom. Particularly given that the occupation of buildings is a typical manner of protest at universities. The case is about the extent to which academics in Georgia are able to invoke their rights of freedom of expression and association in order to criticise government policy on education, but upon reading this judgement one could be forgiven for being unaware thereof. As such, the Court has failed to truly do justice to the implications of the government’s actions to the detriment of academic freedom.
Joanne Fish is an undergraduate student at the University of Glasgow. Last academic year, as an exchange student, she participated in a project on academic freedom by the legal clinic of Ghent University.