Events
The applicant, who was temporarily assigned to the district police department, applied to the governor’s office with a petition for compensation for the material and moral damages he suffered due to the termination of his temporary assignment. In the aforementioned petition, the applicant used the phrase “I was assigned despite there being no need, public interest, or service requirement,” without citing any concrete facts and without a final court decision against the administration. As a result, the administration initiated a disciplinary investigation against the applicant. As a result of the investigation, it was decided that the applicant would be punished with a ten-month short-term suspension. The applicant filed a lawsuit in the administrative court seeking the annulment of the disciplinary penalty imposed on him; the court decided to dismiss the case. Upon this, the applicant filed an appeal. The regional administrative court, stating that the decision subject to appeal was in accordance with procedure and law, definitively decided to reject the appeal.
Allegations
The applicant claimed that the disciplinary penalty imposed on him for the statements he made in his petition to the administration violated his freedom of expression.
The Court’s Assessment
The Constitutional Court considers, within the context of the entirety of the events, whether a balance has been struck between the intervention in the freedom of expression of public officials belonging to certain categories and their obligation to comply with professional hierarchy rules to ensure that their use of expression is consistent with institutional discipline, does not disclose secrets, and is balanced.
The essential element in the performance of public services is the regular and continuous provision of the service, and in this context, the vital importance of internal institutional discipline is undisputed. When the subject matter concerns the provision of fully public services, such as security or defense services, it is known that disciplinary provisions are applied more strictly, particularly in the context of statements that undermine hierarchy. In this context, it cannot be said that it is unnecessary in a democratic society to require that petitions submitted by personnel subject to hierarchy and discipline to their superiors comply with certain procedures and that disciplinary sanctions be imposed on the basis of these procedures. However, when assessing whether the style of the petition damages internal institutional discipline, sensitivity must be exercised, and the right of personnel to submit petitions must not be disproportionately restricted.
In their petition, the applicant explained the damages they suffered due to the temporary assignment and addressed the illegality of their assignment based on elements such as “need, public interest, and service requirement.” The applicant stated that their purpose in using the aforementioned expressions was solely to justify their claim for compensation. Indeed, by using these statements, the applicant has created a justification for his claim for compensation; however, because his statements relate to an administrative act, even if it was not his primary intention, he has ultimately criticized his superiors’ actions as unlawful. However, this characterization alone cannot lead to disciplinary action.
The time factor is an important factor in assessing the effects of any statement made by a public servant on the administration. This is because a statement made during the performance of duties may lead to certain negative consequences, primarily the risk of making the performance of the duty impossible, whereas after the duty has been completed, such a risk no longer exists. In the specific case, considering that the application to the administration was made after the temporary assignment was completed, it is not possible to say that the statements used negatively affected the continuity function of the administration.
Another issue to be considered in the application is the medium in which the statement was made. In the specific case, the applicant used the statements subject to punishment in a petition addressed to the governor’s office, but no information or documentation was found in the application file indicating that the relevant statements were repeated in different areas. Accordingly, it is seen that the applicant limited the explanation of the statement to the petition and directed it only to the relevant administrative unit; it cannot be said that he tried to make his views known in the institution where he worked beyond this, in other words, that he made them public. However, it is also useful to examine the confidentiality measures taken by the administration in the investigation when assessing publicity. An examination of the documents relating to the investigation shows that the administration marked the correspondence with the applicant as “confidential” and organized the remaining numerous documents without any such marking, indicating that it did not deem it necessary to conceal the investigation as a whole. This situation constitutes evidence that the statements used were not considered a serious threat to internal discipline.
Consequently, the court failed to demonstrate that there was an overriding interest in enforcing the applicant’s obligation to comply with professional hierarchy rules over his freedom of expression. The court did not examine the complaint in question within the context of the whole incident; it did not take into account the specific circumstances of the incident, the nature of the statements used, the applicant’s manner of expression, the possible consequences of the statement, and, if any, its effects on public service or the discipline of the public institution. It is not possible to consider the reasoning presented by taking the applicant’s words out of context and separating them from the entirety of the concrete statement to be relevant and sufficient. Furthermore, it has not been assessed whether it is necessary in a democratic society to punish the applicant with a short-term suspension for the statements he used.
The Constitutional Court ruled that the reasons stated constituted a violation of freedom of expression.
