July 17, 2026
by Emma de Vries
The European Commission for Democracy through Law of the Council of Europe (hereafter: the Venice Commission or the Commission) published its Updated Rule of Law Checklist in December 2025. Among other, the Checklist affords a more central place to the relationship between the Rule of Law and academic and educational institutions. It establishes a connection between the Rule of Law and academic freedom, but does so without explicitly defining academic freedom as a concept. Nevertheless, arguably, a conceptualization emerges from the way in which the Commission presents its sources and supports its claim that Rule of Law protection requires independent academic and educational institutions. The Commission relied on a rather eclectic collection of sources to make its case for institutional autonomy – the dimension of academic freedom the Commission focuses on. Institutional autonomy pertains to the independence of academic institutions from the state and the ability of academic institutions to take charge of their internal affairs, without undue interference. It is considered to be a prerequisite, though no guarantee, of individuals’ academic freedom (see e.g. par. 17 onwards of this 1997 UNESCO Recommendation on academic freedom and institutional autonomy). In this blog post, I describe the ‘conceptualization’ of academic freedom and institutional autonomy in the Checklist, consider how the Commission’s notion relates to the current academic freedom standard in ECtHR case law (and, to a lesser degree, ECHR law in general), and reflect briefly on what this might mean for our understanding of academic freedom. I argue that the approach taken by the Venice Commission is understandable given the lack of clarity concerning the protection of institutional autonomy in ECtHR case law, but that it nonetheless provides an unnecessarily vague understanding of academic freedom that is unhelpful for its protection.
The Venice Commission stresses the importance of the independence of educational institutions and of safeguarding academic freedom with regard to the Rule of Law. Thereby, the relationship between the Rule of Law and academic freedom is presented as bidirectional. On the one hand, the Rule of Law encompasses a robust system of ‘checks and balances’ (a newly added benchmark) that includes a free and lively ‘civic space’, of which academic institutions are part. By extension, the freedom of these institutions is crucial for them to be able to serve as a counterpower. This is why the Venice Commission focuses primarily on the institutional dimension of academic freedom, given that this is the dimension central to safeguarding the Rule of Law. Conversely, for academic freedom to be exercised effectively, it must be actively protected, which requires that Rule of Law institutions operate properly.
In the updated Checklist, the relationship between academic freedom and the Rule of Law is explored in connection to the role of academic and educational institutions in safeguarding Rule of Law principles (starting p. 54 of the Checklist). If education is designed in a way that it instils in students respect for human rights, democracy, and the Rule of Law, it can have a positive effect on the Rule of Law in general. For that effect to materialize, educational institutions, in particular also those offering (professional) legal education, should “enjoy sufficient safeguards protecting their independence in respect of curricula, academic appointments, student admissions, management and funding” (p. 55). This is the point where academic freedom is added to the mix, and it is also where the Venice Commission starts advancing its ‘conceptualization’ of academic freedom.
The statement concerning the required independence of educational institutions is supported by different ideas about and notions of academic freedom, drawn from sources of international and European human rights law. To start, the Commission recognizes that academic freedom’s legal foundation consists of an interplay between multiple rights, such as the right to education and the freedom of expression (in footnote 193). It subsequently refers to the Report of the United Nations’ Special Rapporteur on the right to education (Farida Shaheed, A/HRC/56/58, 24 June 2024), which links academic freedom to the right to education (NB: Shaheed extends academic freedom to primary and secondary education). Additionally, it is stressed that legal education should be done in keeping with academic freedom standards. One of the standards referred to is Article 13 of the EU Charter of Fundamental Rights, which protects freedom of the arts and sciences and states that ‘Academic freedom shall be respected’. This includes its institutional and organizational dimension. The other standard the Commission points to is Article 15 of the ICESCR (p. 55 of the Checklist), which encompasses the right to science, including the protection of the freedoms indispensable for science, also including institutional guarantees. The Commission connects Article 13 of the EU Charter and Article 15 of the ICESCR to several ECtHR judgments on Article 10 ECHR (right to freedom of expression) concerning academic freedom (in footnote 198; Kula v. Turkey, Sorguç v. Turkey, and Lombardi Vallauri v. Italy); Article 10 is currently the main locus of academic freedom’s protection under the ECHR. As further explored below, whether the ECHR protects the institutional dimension of academic freedom is unclear. The Venice Commission may have linked Article 13 of the EU Charter and Article 15 of the ICESCR to ECtHR case law to suggest that the standard in ECtHR case law matches these other standards (which it does not), or perhaps to (albeit implicitly) argue that it should expand to match these other standards.
Be it as it may, the Commission clearly understands academic freedom to encompass the autonomy of institutions. It attests to the need for legal regulation of the establishment of universities that offer law degrees and the need for quality control of legal education (p. 54-55), while placing the caveat that quality controls should not jeopardize the protection of academic freedom. To make the latter point, the Commission relies on ECtHR judgment Tarantino and others v. Italy (footnote 190). The judgment concerns the right to education (Article 2 of the First Protocol to the ECHR) and deals with the extent to which Governments should be allowed to control the higher education sector. Strikingly, academic freedom is only mentioned in the (partially) dissenting opinion of Judge Pinto de Albuquerque to the judgment, and not in the majority ruling. In his dissenting opinion, Judge Pinto de Albuquerque points to one central aspect of academic freedom: indeed, the autonomy of institutions. He considers “institutional autonomy” to be “a crucial guarantee of academic freedom” and “the best insurance of the freedom to provide for education and the right to education” (diss. op. Judge Pinto de Albuquerque). At the same time, he considers it possible for states to require state schools to “convey knowledge in an objective and pluralistic manner” (see ref. 16 in the diss. op. of Judge Pinto de Albuquerque).
Tracing the sources Judge Pinto de Albuquerque relies on for his conceptualization of academic freedom and institutional autonomy, we’re led to several other ECtHR judgments, but also to the 2009 Lisbon Declaration of the European University Association (refs. 16 and 19 of the opinion). The Lisbon Declaration stresses the academic and financial autonomy of institutions. Pinto de Albuquerque also refers to judgments of the US Supreme Court, and the German Bundesverfassungsgericht’s Hochschulurteil (refs. 19 and 21 of the opinion). Lastly, he refers the reader to General Comment no. 13 (on the right to education as protected by Article 13 ICESCR) in which both academic freedom and institutional autonomy are brought within the scope of the right to education.
One way to interpret all this, is to accept that the Commission construed academic freedom as encompassing, in any case, freedom of expression, the independence (autonomy) of educational institutions, and the right to science and freedom of scientific research. As mentioned, prominence is given to the notion of institutional autonomy. Considering that especially the protection of institutions is vital for Rule of Law protection and given that academic institutions serve as a counterpower, this focus is perhaps not surprising. What the Commission fails to recognize, however, is that while institutional autonomy is indeed included in the academic freedom standards it referred to, this dimension so far has not been recognized by the ECtHR in its case law, to which the Commission does refer.
As mentioned, Article 10 ECHR has so far been the main locus for the protection of academic freedom in ECHR law, judging from the ECtHR’s case law. One of the central cases in which the ECtHR has explicitly referred to academic freedom is Sorguç v. Turkey. In that case, the applicant, a professor, had criticized the way in which examinations for assistant professors in his field were being conducted. His utterances were protected by academic freedom, since it “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” (par. 35). The ECtHR expanded its notion of academic freedom in Mustafa Erdogan and others v. Turkey. In Mustafa Erdogan, a constitutional law professor (the first applicant) had criticized the Turkish Constitutional Court. In particular, he criticized a notably politically sensitive judgment in a popular publication (published by the second applicant). He rendered the judgment inappropriate and stated that the members of the Constitutional Court must be incompetent. Individual members of the Constitutional Court started civil proceedings for damages, which the applicant(s) were due to pay. The national courts sided with the members of the Constitutional Court. The ECtHR, this being an apparent case of silencing academic expression, ruled that 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 truth and knowledge without restriction” (par. 40).
The three concurring judges in the Mustafa Erdogan case noted that the Court had the opportunity to elaborate further on academic freedom, but did not. They also remarked that academic freedom is not confined to contributions in scholarly journals, debates in an academic setting, or teaching. It also encapsulates the contributions that academics make – within their own areas of expertise – to the wider public debate before a non-academic audience (par. 3 of the opinion). This endorsement of ‘extramural expression’ to be protected as part of academic freedom is grounded in the need to communicate ideas “for the sake of the advancement of learning, knowledge and science” (par. 5 of the opinion). The concurring judges consider institutional autonomy to be front and centre to academic freedom (par. 4 of the opinion). Simultaneously, they recognize that academic freedom ‘transcends’ the scope of Article 10 in certain ‘areas’, as the concurring judges put it (par. 3 of the opinion). The judgment clearly concerned an interference with the freedom of expression, so logically other dimensions of academic freedom were not dealt with by the Court. There is thus no way to be sure that the institutional dimension of academic freedom cannot be covered by Article 10 ECHR, but the concurring opinion can be interpreted to imply that is does not; institutional autonomy would be one ‘area’ transcending the scope of Article 10. There are also signs to the contrary, though: for example, the ECtHR does on occasion refer to the 2006 Recommendation of the Council of Europe’s Parliamentary Assembly, that recognizes both academic freedom and institutional autonomy and stresses their interrelatedness (see e.g. par. 40 in Mustafa Erdogan and here (par. 24)). Nevertheless, it does not engage with its content in a way that provides clarity on the inclusion of institutional autonomy in the academic freedom doctrine of Article 10 ECHR.
As the ECtHR refers back to Sorguç and Mustafa Erdogan in other academic freedom cases, these judgments read in conjunction seem to cover the full scope of academic freedom’s current standard of protection under Article 10. However, not all cases that concern academic freedom are framed in that way by the ECtHR. For instance, academic freedom matters often remain implicit, such as in Rubins v. Latvia and Wille v. Liechtenstein, and sometimes the Court simply does not discuss it, even when it is relied on by the applicants in a case (e.g. Telek and others v. Turkey). There may be different reasons for the ECtHR not to engage with academic freedom, even when that seems logical or when applicants raise it in their complaint. For one, the ECtHR may simply not see the need to use the concept of academic freedom to resolve a specific case, but leaving academic freedom aside could also signify that the ECtHR does not have academic freedom sufficiently on its radar. In any case, the academic freedom standard under the ECHR is elusive at best, and whether institutional autonomy is covered by the Convention is questionable.
While both the Venice Commission and the concurring judges in Mustafa Erdogan accept that institutional autonomy is a central feature of academic freedom, the fact remains that the ECtHR itself has not considered whether and to what extent the ECHR protects this dimension and, crucially, whether that be under Article 10 or another provision. The legal protection of institutional autonomy in ECHR law is therefore not obvious. The Venice Commission rightly cites other sources of law in its incorporation of institutional autonomy in the updated Checklist. But its failure to provide its own conceptualization of academic freedom’s institutional dimension is unhappy. Recognizing the gap concerning the protection of institutional autonomy in ECtHR case law, the Commission could have explicated what it understands that institutional dimension to entail. And for the purpose of realizing the Checklist’s potential to add to our understanding of academic freedom as a legal right (and for the sake of it actually resulting in the mutual strengthening of academic freedom and the Rule of Law), it should have done so. There is merit in explicating that the ECtHR’s academic freedom doctrine so far does not include its institutional dimension, and subsequently making clear how the concept should be understood, even if instrumentally for the purpose of protecting the Rule of Law. Political standard-setting instruments such as the 2006 Recommendation of the Parliamentary Assembly, mentioned above, are particularly useful in that regard given the often broader understanding of academic freedom that they offer. While the references made to academic freedom in the 2025 Checklist may already signify the recognition of academic freedom as “a human right with ‘Rule of Law connotations’”, as was argued elsewhere by Olga Ceran, engaging with the concept more deeply would significantly add to that recognition and would benefit how we understand academic freedom and its importance to Rule of Law protection.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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