Cancellation Of The Rule Imposing Disciplinary Penalties On Law Enforcement Personnel Who Criticise The Actions Or Transactions Of Their Supervisors Or Superiors On Duty
Rule Subject to Objection
The rule subject to objection stipulates a short-term suspension for six months for law enforcement personnel who say or write words or writings that criticise the actions or transactions of their superiors or superiors in a negative way on or off duty.
Grounds for Application
In summary, it was argued that the rule is unconstitutional by stating that law enforcement personnel should benefit from the freedom of expression, which also guarantees the right to criticism, just like other individuals in the society – provided that the regular functioning of law enforcement services is not harmed – and that the rule prohibiting all kinds of criticism without a certain limit and scope is not intended to meet a compelling social need and imposes a disproportionate restriction on the freedom of expression.
Evaluation of the Court
The main function of Article 26 of the Constitution is to protect the freedom of expression of all segments of society without discrimination. Public officials, including law enforcement personnel, enjoy freedom of expression just like all other members of society.
With the rule subject to objection, a restriction is imposed on the freedom of expression by allowing disciplinary punishment to be imposed on law enforcement personnel who speak or write words or writings that negatively criticise the actions or transactions of their superiors or superiors on duty.
Pursuant to Article 13 of the Constitution, restrictions on freedom of expression must be made by law and must comply with the reasons for restriction stipulated in the Constitution, the requirements of the democratic social order and the principle of proportionality.
It cannot be said that it is not necessary to impose certain restrictions and prohibitions on the expression of negative opinions or convictions regarding the actions or transactions of those who serve as superiors or superiors in law enforcement forces, where discipline and hierarchical order are at the forefront, which may undermine their authority over the personnel and cause disruption of the order of the institution and thus the functioning of the service, in order to prevent any weakness in the public order and security of the society.
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However, this does not mean that hierarchical superiors and superiors cannot be criticised in any way. As a matter of fact, it is also possible to speak of criticism that, although negative, does not have any negative effect on the authority of the superior or superior when viewed objectively, on the contrary, may positively affect the functioning of the service or contribute to the establishment of working peace, constructive and reasonable within the general understanding of service, and it is clear that punishing such criticism would not serve to meet a compulsory social need in a democratic society.
The rule allows for the punishment of all kinds of criticism, regardless of whether the negative criticism of the actions or transactions of superiors or superiors within the duty carries an element that damages the authority, harms the hierarchical order or functioning of the institution, or whether it can be reasonably met within the understanding of service in general. In this respect, it has been concluded that the restriction imposed on the freedom of expression by the rule is not in accordance with the requirements of the democratic social order.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
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