Events
The applicant, who was working as an engineer at the General Directorate of Water and Wastewater Administration of the Metropolitan Municipality at the time of the events subject to the application, made a post on his social media account. The post in question was reported in a newspaper with various additions. The administration initiated a disciplinary investigation against the applicant on the grounds that his social media post constituted a source for the aforementioned news item. At the end of the disciplinary investigation, the applicant was sentenced to a warning. The aforementioned disciplinary penalty became final upon the rejection of the applicant’s appeal against the decision by the disciplinary board. The applicant filed a lawsuit before the administrative court for the cancellation of the disciplinary penalty imposed on him, and the court ruled for the cancellation of the subject action. The respondent administration filed an appeal against the annulment decision; the regional administrative court concluded that the applicant had committed the act attributed to him and definitively decided to annul the court decision and dismiss the case.
Allegations
The applicant claimed that his freedom of expression was violated by his disciplinary punishment for a post he made on his social media account.
The Court’s Assessment
When the social media post made by the public official is accepted as an attitude and behaviour unworthy of the dignity of the public official, the administration and judicial authorities are expected to make the following evaluations:
-Since freedom of expression is in question, it should not be ignored that civil servants are also individuals, and that they have the right to have social aspects such as having political views, being interested in national problems, and making choices.
– The conditions under which the expressions used outside the service are expressed should be taken into consideration and it should be demonstrated that the statement made is of a nature to undermine the reputation and trust of the public official’s position and the state duty undertaken – when evaluated together with its content. However, under the circumstances of the concrete case, if the public official made the statement of opinion by utilising any opportunity, including the title provided to him/her by his/her public office status and the field of duty, this must be shown.
-In addition, it must be demonstrated how the expression of opinion affects the continuity, effectiveness, efficiency or proper fulfilment of public services and what are the consequences that necessitate punishment or that it is highly likely to cause such consequences.
-In each case, the degree of the public official’s duties and responsibilities should be determined in relation to his/her position and field of duty.
-It must be shown that the disciplinary penalty imposed corresponds to a compelling social need; the disciplinary penalty must be proportionate to the degree to which the expression of opinion affects the public office.
-Evaluations must be very clear, specific and individualised.
The post subject to the concrete case basically consists of criticising the investigations carried out against the Fetullahist Terrorist Organisation structure in the province where the applicant works and the executive appointments made to the vacant positions within this scope. The applicant did not include any information in his post about which institutions and persons his criticisms pointed to. On the other hand, although it can be inferred that the applicant targeted his own institution and colleagues by expressing his criticisms within the scope of the province in which he was working, it would be a forced interpretation to reach the said inference in the face of both the statements of the applicant within the scope of the file and the fact that no other information or document to the contrary was submitted to the application file. Therefore, it was not possible to accept that the expressions used were directed at the public institution where the applicant worked. As a matter of fact, in the first instance court’s decision, the issue in question was analysed in detail and it was evaluated that the conditions of intent were not met in terms of the administration.
However, even if it is accepted for a moment that the expressions used are directed towards the public institution where the applicant works and therefore the interference has occurred, the administration and the regional administrative court are expected to act in accordance with the evaluations listed above, which the Constitutional Court expects to be made in such an interference with the freedom of expression of a public official. However, it has been concluded that both the administration and the regional administrative court did not make any of the evaluations stipulated by the Constitutional Court, except for stating abstractly that the post subject to the application was within the scope of “behaving in an attitude and behaviour unbecoming the dignity of a public officer” and that the action had been established.
As a result, it was not possible to accept that the administration and the regional administrative court, which did not apply the standards accepted by the Constitutional Court, demonstrated with a relevant and sufficient justification that the disciplinary punishment of the applicant corresponded to a compelling social need.
The Constitutional Court decided that the freedom of expression was violated for the reasons explained.
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