Events
The applicant, who was temporarily assigned to the District Police Department, submitted a petition to the governor’s office seeking compensation for the material and moral damages he suffered due to the termination of his temporary assignment. In the petition, the applicant used the phrase “I was assigned without any concrete facts and without a final court decision regarding the administration,” without referring to any specific facts. Upon this, the administration initiated a disciplinary investigation against the applicant. As a result of the investigation, the applicant was given a ten-month short-term suspension penalty. T he 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. The applicant then appealed. The regional administrative court stated that the decision under appeal was in accordance with the procedure and the law and decided to definitively 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
T he Constitutional Court assesses, in the context of the circumstances of the case, whether a balance has been struck between the interference with the freedom of expression of certain categories of public officials and their obligation to comply with the rules of professional hierarchy, the requirement that their use of expression be consistent with institutional discipline, the non-disclosure of secrets, and proportionality.
The essential element in the provision of public services is the regular and uninterrupted delivery of the service, and in this context, the vital importance of internal discipline is indisputable. When it comes to the provision of full 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 requiring petitions submitted by personnel subject to hierarchy and discipline to their superiors to comply with certain procedures and that disciplinary penalties be applied according to these procedures is unnecessary in a democratic society. However, sensitivity should be shown in assessing whether the manner in which the petition is submitted undermines internal discipline, and the staff’s right to submit petitions should not be disproportionately restricted.
The applicant explained in his petition the damages he suffered due to the temporary assignment and claimed that the assignment was unlawful based on elements such as “need, public interest, and service requirement.” The applicant stated that his sole purpose in using the above statements was to justify his claim for compensation. Indeed, by using these statements, the applicant created a justification for his claim for compensation; however, since the statements were related to an administrative act, even if this was not his primary intention, he 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 impact of any statement made by a public official on the administration. This is because a statement made during the performance of a duty may lead to certain negative consequences, primarily the risk of rendering the performance of the duty impossible, whereas such a risk ceases to exist once the duty has been completed. 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 aspect to consider in the application is the context in which the statement was made. In the specific case, the applicant used the statements subject to the penalty 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 places. Accordingly, it cannot be said that the applicant limited his statement to the petition and directed it only to the relevant administrative unit; beyond that, he tried to make his views known at the institution where he worked, in other words, he made them public. However, when evaluating the public’s right to be informed, it is also useful to examine the confidentiality measures taken by the administration during the investigation.
Upon examination of the documents related to the investigation, it is understood that the administration marked its correspondence with the applicant as “confidential” and organized the remaining numerous documents without such a mark, thus not deeming it necessary to conceal the investigation as a whole. This situation constitutes evidence that the statements used do not pose a serious threat in terms of 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 regarding freedom of expression.
The court did not examine the complaint in question in 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 style of expression, the possible consequences of the statement, and, if any, its impact on public service or the discipline of the public institution. The reasoning presented by taking the applicant’s words out of context and separating them from the entirety of the concrete statement cannot be considered relevant and sufficient. Furthermore, it was not assessed whether the short-term suspension penalty imposed on the applicant for the statements he used was necessary in a democratic society.
The Constitutional Court ruled that the stated reasons constituted a violation of freedom of expression.