‘A Court that matters’ to whom and for what? Academic freedom as a (non-)impact case

By Başak Çalı[*] & Esra Demir-Gürsel[†]

On 17 March 2021, the European Court of Human Rights (ECtHR or the Court) announced a new case-processing strategy. A document dramatically titled ‘A Court that matters’ states that the aim of this strategy is to deal with the pending cases on its docket in a more ‘targeted’ and ‘effective’ manner. The new strategy introduces a new category of cases called ‘impact’ cases. These cases fall under Category IV, covering ‘potentially’ well-founded cases not involving core rights under Articles 2, 3, 4, and 5(1) of the European Convention on Human Rights (ECHR or the Convention). The Court states that it has so far identified around 650 of the 17,800 pending Category IV cases as ‘impact’ cases. This leaves 17,150 cases whose adjudication will take a minimum of five to six years.

How, then, has the Court selected these 650 ‘impact’ cases? The Court explains the criteria to identify ‘impact’ cases as follows: ‘the conclusion of the case might lead to a change or clarification of international or domestic legislation or practice; the case touches upon moral or social issues; the case deals with an emerging or otherwise significant human rights issue.’ In addition, ‘[i]f any of these criteria are met, the Court may take into account whether the case has had significant media coverage domestically and/or is politically sensitive.’

In this blog post, we argue that the criteria laid out by the Court beg more questions than they answer. There is a crucial need for the Court to clarify how it distinguishes ‘impact’ from non-impact cases, and at what stage of the proceedings, through which process and based on whose expertise it does so.

In order to substantiate this argument, we focus on the example of a group of applications that the Court has not (yet) identified as ‘impact’ cases: the cases of academics from Turkey who were dismissed from their universities in 2016 and 2017 for exercising their right to freedom of expression. This case study lends itself well to analysis because two weeks after the announcement of this new case prioritisation strategy, on 31 March 2021, academics with cases pending before the ECtHR for almost four years received a letter from the Second Chamber of the ECtHR. They were told that their cases were not to receive priority status under Article 41 of the ECHR, due to the ‘current state of the proceedings.’ In these cases, the applications submitted to the Court date back to 2017, and no decision to communicate these cases to the Turkish government has yet been made by the President of the Section to which they were assigned. The letter dated 31 March 2021 was a response to the applicants’ further submissions from December 2020, describing the domestic developments taking place after they had first lodged their applications in 2017.

Here, we follow the definition of ‘impact’ cases offered by the Court, to show step by step how the current decision not to accord priority status to the academics’ cases raises questions as to what the new strategy means, as well as how and when it is applied by the Court.

‘Emerging or otherwise significant human rights issue’

According to the Court, a case can be qualified as an ‘impact’ case if it engages an emerging or otherwise ‘significant’ human rights issue. Leaving aside the ambiguity of this notion, we argue that the academics’ cases pending before the ECtHR must be seen as raising a significant human rights issue. Designating them ‘impact’ cases is warranted not only given the importance of freedom of expression in the Court’s interpretation of the Convention as a whole, but also due to the scale of Turkey’s intervention in freedom of expression in these cases.

Throughout its state of emergency between 2016-2018, which was imposed in the aftermath of the attempted coup of July 15^th 2016, Turkey dismissed a record number of 406 academics from universities for the mere act of signing a strongly worded petition in January 2016. The academics signing this petition, known as the ‘peace petition’, urged the Turkish Government to end military operations and curfews in Southeast Turkey. The act of signing this petition was treated as evidence that the signatories had a ‘link to or contact with terrorist organisations.’ They were subsequently dismissed from their posts at public universities based on emergency legislative decrees. Precisely because these dismissals were linked to singing a  petition prior to the failed coup attempt (and not to the failed coup attempt itself), the pending applications of academics before the ECtHR since 2017 concern a severe intervention in the freedom of expression – a provision that the Court calls ‘one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man’ (Handyside v. the United Kingdom, § 49).

What is more, the freedom of expression of those who signed the peace petition is not only an important issue for the academics concerned, who have had pending non-communicated applications before the Court for almost four years. The dismissal of an extraordinary number of academics and researchers from public universities has also had a significant impact on the quality of research and public debate in the country. A recent study carried out by the School of Human Rights (a research institution established by dismissed academics) states that academic research on ‘politically sensitive issues’ in Turkey has seen a sharp decline in recent years. The same study further found that academics routinely engage in self-censorship for fear of receiving the same treatment as the peace petitioners who lost their university jobs for expressing their opinions on a matter of public interest. There is, therefore, ongoing chilling effect of this interference on the freedom of expression of academics, particularly (but not only) in the humanities, social sciences, and law.

One may add one more layer of significance here. The precariousness of academic freedom and academics’ freedom of expression is a matter of significant concern not only in Turkey, but extends also to other countries such as Hungary, Poland, Greece, and France. Thus, on account of the importance of the right for the Convention system, the seriousness and the scale of the intervention, the significant chilling effect of the dismissals on academic life and research in Turkey, as well as the precariousness of academic freedom across Europe, it would be difficult to argue that dismissing academics from their universities for signing a petition is not a significant human rights issue in Europe today.

‘Change or clarification of international or domestic legislation and practice’

The second criterion concerns whether a case would lead to a change or clarification of international or domestic legislation and practice. Indeed, the Turkish academics’ cases have real potential for change and clarification of domestic legislation and practice. In their applications to the ECtHR, the academics go to great lengths to explain why the State of Emergency Inquiry Commission (SoE Commission), which the Turkish Government established upon recommendation by the Council of Europe in order to address the mass dismissals from public office after the attempted coup of 2016, is not an effective remedy for the 406 academics dismissed for signing the peace petition. This is because the SoE Commission has no competence ratione materiae to review complaints concerning restrictions on freedom of expression. Moreover, the procedure before the SoE Commission cannot lead to restitutio ad integrum, as required by the ECtHR remedy case law, since the Commission has no power to reinstate the academics to their previous position at their institutions. It can only decide to uphold or dismiss an academic’s request to return to public service employment. If an application is upheld by the SoE Commission, the choice of where the academic concerned is to be re-appointed to public service is left to the discretion of the executive authorities. Moreover, their reinstatement to the university where they previously held an academic post has been precluded by another state of emergency legislative decree.

Since its establishment in 2017, the SoE Commission has not concluded the applications from the academics dismissed for signing the peace petition. This is despite a ruling by the Turkish Constitutional Court (TCC) in 2019, which defined the act of signing the peace petition as an exercise of freedom of expression, and found that criminal prosecution and criminal sentences against signatory academics violated their right to freedom of expression under the Turkish Constitution. Regardless, under the current domestic legal framework, academics first have to wait for the decision of the SoE Commission. Subsequently, they will need to appeal to administrative courts, the Council of State and, if necessary, they will submit individual applications to the TCC. For many, this will mean not only that they cannot expect a final domestic ruling until 10 years or more after signing their name to the petition, but also 10 years or more of interruption to their income, research, and teaching. Therefore, a speedy decision from the ECtHR bears real potential to have a strong impact on the clarification of domestic legislation and practice. It can clarify, inter alia, whether the dismissed academics’ cases can be dealt with by the SoE Commission at all, and it can lay out what steps need to be taken for restitutio ad integrum at the domestic level.

In December 2021, academics submitted further communications to the ECtHR regarding domestic developments, including the SoE Commission’s failure to comply with the TCC’s judgment and its categorical postponement for more than three years of the review of the signatory academics’ cases. Nevertheless, on 31 March 2021, the Court informed the applicants that their applications were not to receive priority status.

‘If any of these criteria are met, the Court may take into account whether the case has had significant media coverage domestically’

The case of academics who were first criminalised and then dismissed from their universities for signing a petition certainly received intense media coverage in Turkey. Independent media outlets extensively covered the dismissal of the academics and the criminal proceedings instituted against them. The state-controlled media, too, covered the petition – by targeting the academics as traitors, profiling and attacking them, or heavily criticising the Constitutional Court’s ruling that upheld the academics’ right to freedom of expression in the face of their criminal trials.

That being said, it is not possible to understand from this criterion how much coverage by domestic media is deemed significant and what metric the Court uses to measure this, or which media outlets count in this assessment. The latter aspect is particularly relevant for a number of Council of Europe member states where journalists and media outlets work under threat of criminal persecution and closure.

‘The case touches upon moral or social issues; the case deals with an emerging or otherwise significant human rights issue’

These are the most baffling aspects of the criteria laid out by the Court, as it is not at all clear whether there is any single potentially well-founded case before the Court that does not touch upon moral or social issues and, perhaps more crucially, what is meant by the ‘politically sensitive’ criterion. What notions of salience are employed by the Court to assess a case as politically sensitive? For example, are cases deemed politically sensitive because they are so described by domestic authorities, external commentators or human rights groups, or because of the Court’s own independent assessment of political sensitivity?

Despite this lack of clarity, there should be little doubt that both the dismissal of the 406 academics and the issues they raised in their petitions regarding the curfews in Turkey are very much ‘politically sensitive,’ given how the academics were openly targeted by the most powerful government figures for the petition’s content.

‘Impact’ cases: The need for much greater transparency

In this post, we have not addressed the question of whether the introduction of ‘impact’ cases is a sound case priority policy in the first place, or of the effects that this policy will have on the long-standing debate between the individual and constitutional justice functions of the Court, against the backdrop of the Court’s systemic case backlog problem. Instead, our aim was to show that the definition of ‘impact’ cases as communicated to the public by the Court is far from decision-guiding in its current form. At what stage of the proceedings a case is qualified as such is also unclear.

Taking each of the terms employed in the Court’s definition at face value, we showed that the cases of hundreds of academics dismissed from their universities for signing a petition should qualify as ‘impact’ cases. It is not clear what reasons would work against their classification as such at this current stage of proceedings. This test-case, therefore, shows at the very least that there is a need for much greater transparency in how the Court circumscribes and employs the terms of its ‘impact’ case definition and at what point it makes such a determination following the launch of an application and further communications by applicants.  

[*] Başak Çalı is Professor of International Law and Co-Director, Centre for Fundamental Rights at the Hertie School and Director, Centre for Global Public Law, Koç University, Istanbul.

[†] Dr. Esra Demir-Gürsel is a Georg Forster Postdoctoral Research fellow of Alexander von Humboldt Foundation at the Law Faculty of the Humboldt University of Berlin.