Violation Of Freedom Of Expression Due To Punishment For Posting On Social Media
Events
The applicant, who was working as a physical education teacher in a high school at the time of the post, is also a member of the Executive Board and branch secretary of a trade union.
A public servant, who was registered to the union of which the applicant was the secretary, was referred to the Provincial Disciplinary Board for evacuating his lodgings beyond the legal deadline; the applicant attended the aforementioned meeting of the Board as a union representative. After the meeting ended, the applicant posted about the issue on his personal social media account. A disciplinary investigation was initiated against the applicant due to this post and other allegations. As a result of the investigation, the applicant was sentenced to reprimand in accordance with Article 125 of the Civil Servants Law No. 657.
The applicant filed a lawsuit at the administrative court for the cancellation of the administrative action. The administrative court concluded that there was no violation of law in the administrative act and dismissed the case.
Upon the objection of the applicant, the 3rd Administrative Case Chamber (Chamber) of the Regional Administrative Court, which examined the file, decided to uphold the decision. The applicant’s request for correction of the decision was rejected by the same Chamber.
Allegations
The applicant claimed that his freedom of expression was violated when he was penalised with a reprimand for a post he had made on his social media account.
The Court’s Assessment
It is legitimate for the state to impose a duty of loyalty, duties and responsibilities on civil servants working in public service due to the status of civil servants. However, it is beyond doubt that civil servants are also individuals and have the right to have political views, to be interested in the problems of the country and to have social aspects such as making choices.
However, in the case of civil servants, whether their views are expressed in a balanced and politically neutral manner, whether they display personal attitudes and whether their impartiality is guaranteed is evaluated in the examination of freedom of expression. In this context, the national authorities have a margin of appreciation in determining the degree of duty and responsibility of the civil servant in relation to his or her position and the field in which he or she works.
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In the concrete case, the applicant, who is a union executive and secretary, attended the disciplinary board meeting of a public employee who is a member of the union as a union representative. After the meeting, the applicant made a post targeting the provincial director of national education’s attitude towards the punishment of public personnel.
It is understandable that some meetings and decisions taken by public institutions are kept confidential due to their nature. However, it is not claimed that there is a legislative provision or customary practice that the decision taken by the Provincial Disciplinary Board is confidential or should remain confidential.
The manner in which and with whose participation the Provincial Disciplinary Board is formed, its working procedures and principles are determined by the Regulation on Discipline of Civil Servants. In the concrete case, it is seen that the applicant conveyed the opinions of the members of the disciplinary board, which were made public by signing under their signatures, to the public with some personal evaluations. Therefore, it cannot be said that the applicant publicised certain information that should remain confidential.
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The applicant thinks that the personnel who are members of the union have been subjected to injustice, that the provincial director of national education, who is the supervisor of the personnel, should protect the personnel and tries to defend their rights as a union leader. Applicant did not share any of the views and opinions expressed by the board members during the meeting, which were not reflected in the decision.
The fact that public officials are subject to certain limitations arising from their status should not mean that they should sacrifice a fundamental freedom such as freedom of expression in advance for the sake of being a public official. Therefore, a public official may criticise by exercising his/her freedom of expression, provided that it is balanced, does not cast a shadow on his/her impartiality in terms of the public duty he/she carries out and does not disrupt his/her duty.
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In the concrete case, it has been concluded that the statements shared by the applicant on his social media account are not contrary to his duties and responsibilities arising from his status as a public official and do not cast a shadow on his impartiality, and that they are statements reflecting his views on the meeting held regarding a member of the trade union of which he is an executive, which should benefit from the protection of freedom of expression.
Considering the above-mentioned evaluations, it was assessed that the administrative and court decisions did not establish a fair balance between the freedom of expression of the applicant, who is a public official, and his duties and responsibilities, and that the disciplinary penalty constituting the intervention did not meet a compelling social need.
The Constitutional Court decided that the freedom of expression was violated for the reasons explained.
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