Professor penalised for unauthorised participation in a TV programme outside his town of residence: violation of the right to freedom of expression
Kula v. Turkey 19.06.2018 (no. 20233/06)
An academic participated in a television program expressing his views on a specific topic. Penalties imposed by the Faculty Dean for his televised participation despite his objection. Violation of freedom of expression because the intervention in question was unjustified and no rules compatible with the principles based on an acceptable assessment of the facts were applied.
The applicant, Onur Bilge Kula, is a Turkish national who was born in 1954 and lives in Ankara. At the time of the events he was a professor at Mersin University, specialising in the German language.
Mr Kula was invited to take part in a TV programme on the subject of “The cultural structure of the European Union and the traditional structure of Turkey – Comparing identities and modes of behaviour – Likely problems and suggested solutions”. The programme was to be broadcast live on Saturday 31 March 2001 on a public channel in Istanbul.
Mr Kula informed the director of the translation course at the University, who notified the Faculty Dean in a letter expressing misgivings as to whether there was any link between Mr Kula’s specialist field and the subject of the programme. A few days later the Dean notified his disagreement, but Mr Kula went ahead and took part in the programme.
Subsequently, Mr Kula appeared on the TV programme again, on Saturday 14 April 2001, following an international conference – which had taken place from 11 to 13 April 2001 in Istanbul –which he had been authorised to attend.
A disciplinary enquiry was initiated against Mr Kula for having twice taken part in the programme in question in Istanbul without his university’s authorisation. The Faculty Dean penalised him by reducing his salary by one eighth. Following an appeal to the Chancellor of the University, the penalty was reduced to a reprimand. Mr Kula appealed against that decision to the administrative courts, but his appeal was dismissed.
THE DECISION OF THE COURT
Article 10 (freedom of expression)
Reiterating that Article 10 of the Convention also protected the manner in which ideas were transmitted, the Court considered that the application primarily concerned Mr Kula’s exercise of his right to freedom of expression as an academic during a television programme organised outside his town of residence. It held that the case undeniably concerned the applicant’s academic freedom, which should guarantee freedom of expression and action, freedom to communicate information, as well as freedom to “seek and unrestrictedly disseminate knowledge and truth”.
The Court considered that however minimal the disciplinary penalty (a reprimand) imposed on Mr Kula, it could have impacted on his exercise of freedom of expression and have had a “chilling” effect. There had therefore been an interference, prescribed by law2, with Mr Kula’s right to freedom of expression. In that connection it noted that the authorities had not sufficiently clearly stated why Mr Kula’s participation in the 31 March 2001 TV programme had been deemed inappropriate, and that no reasons had been given for the decision to penalise him apart from a bald reference to the legal provision relied upon.
As regards the necessity of the impugned measure, the Court reiterated that it was for the domestic courts to verify whether the reasons forming the basis for the disciplinary sanction had been “relevant and sufficient”. However, the administrative court had merely ascertained the facts regarding Mr Kula’s unauthorised departure from his town of residence and had failed to consider the necessity of such a sanction in the light of the “academic freedom” argument explicitly put forward by Mr Kula. Yet that court, as well as the Council of State, which had validated the first-instance judgment, should have conducted a broader assessment than a simple scrutiny of formal compliance with the law under Rule 8(g) of the Disciplinary Rules, as would have been possible under section 7(4) of Law No. 2577.
The decisions given by the domestic courts did not therefore explain how they had fulfilled, on the one hand, their duty to balance the competing interests in the case and, on the other, their obligation to prevent any wrongdoing by the authorities. The same omissions also prevented the Court from effectively exercising its European scrutiny of whether the domestic authorities had implemented the standards established in its case-law on the balancing of competing interests.
Consequently, since the domestic courts had not provided relevant and sufficient reasons to justify the impugned interference, the Court held that they could not be deemed to have applied rules compatible with the principles set out in Article 10 of the Convention and, moreover, to have based themselves on an acceptable assessment of the relevant facts. There had therefore been a violation of Article 10 of the Convention.
The Court rejected Mr Kula’s other complaints, considering them manifestly ill-founded.
Article 41 (just satisfaction)
The Court held that Turkey was to pay the applicant 1,500 euros (EUR) in respect of non-pecuniary damage(echrcaselaw.com editing).