Events
The applicant, who was temporarily assigned to the district police directorate, applied to the governor’s office with a petition for compensation for the material and moral damages he suffered due to his temporary assignment after his assignment was terminated. In the aforementioned petition, the administration initiated a disciplinary investigation against the applicant due to the statements he used in the petition without a finalised judicial decision against the administration and without justifying the concrete events, such as “My assignment was made despite the fact that there was no need, public interest and service requirement”. As a result of the investigation, the applicant was sentenced to a short-term suspension of ten months. The applicant filed a lawsuit at the administrative court for the cancellation of the disciplinary penalty imposed on him; the court dismissed the lawsuit. Thereupon, the applicant filed an appeal. The regional administrative court, on the other hand, stated that the decision subject to appeal was in accordance with the procedure and the law, and definitively decided to reject the appeal application.
Allegations
The applicant claimed that being penalised with a disciplinary penalty due to the expressions he used in his petition to the administration violated his freedom of expression.
Court’s Assessment
The Constitutional Court considers whether there is a balance 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 in order to ensure that the way in which they use expression is compatible with institutional discipline, does not disclose secrets and is balanced.
The essential element in the execution of public services is the regular and continuous provision of the service and it is indisputable that internal discipline is of vital importance in this context. When it comes to the provision of full public services such as security or defence services, it is known that the provisions on discipline are applied more strictly, especially in the context of statements that may damage the hierarchy. In this context, it cannot be said that it is not necessary in a democratic social order to require compliance with certain procedures in the petition submitted by the personnel in hierarchy and discipline to the authority to which they report and to have disciplinary sanctions based on these procedures. However, it is also necessary to be sensitive when assessing whether the style of the petition harms the internal discipline of the institution and the right to petition of the personnel should not be disproportionately restricted.
In his petition, the applicant explained the damages he suffered due to his temporary assignment and addressed the unlawfulness of his assignment on the basis of factors such as “need, public interest and service requirement”. The applicant stated that the purpose of using the aforementioned expressions was to justify his claim for compensation. Indeed, the applicant justified his claim for compensation with the expressions he used, but since his expressions were related to an administrative act, he was in a position to criticise his superiors’ action on the basis of illegality, even if this was not his main purpose. However, it is not possible for this characterisation alone to bind the relevant action to a disciplinary penalty.
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The time factor is an important factor in the evaluation of the effects of any statement made by a public official on the administration. This is because a statement made during the performance of the duty may lead to certain negative consequences, particularly the risk of making the performance of the duty impossible, whereas there is no such danger after the completion of the duty. In the concrete case, considering that the application to the administration was made after the performance of the temporary assignment, it is not possible to say that the statements used negatively affected the continuity function of the administration.
Another issue to be evaluated in the application is the medium in which the statement was made. In the concrete case, the applicant used the expressions subject to the penalty in his petition addressed to the governorship, but no information or document indicating that he repeated the relevant expressions in different areas was found in the application file. Accordingly, it is seen that the applicant limited his statement to the application petition and directed it only to the relevant administrative unit, and beyond that, it cannot be said that he tried to make his views known in the institution he worked for, in other words, it cannot be said that he used it for the purpose of publicising it.
However, in the publicity assessment, it is also useful to examine the confidentiality measures specific to the investigation. From the examination of the documents related to the investigation, it is seen that the administration organised the correspondence with the applicant with the phrase “confidential” and the rest of the documents without any phrase and did not need to conceal the investigation as a whole. This constitutes a presumption that the expressions used were not considered as a serious threat to internal discipline.
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As a result, the court has not been able to demonstrate the overriding interest in the fulfilment of the applicant’s obligations to comply with the rules of professional hierarchy vis-à-vis freedom of expression. The court did not look at the complaint subject to the application in the entirety of the case; the circumstances of the concrete case, the nature of the expressions used, the style of the applicant’s statement, the possible consequences of the statement and its effects, if any, on the public service or the discipline of the public institution were not taken into consideration.
It is not possible to accept the justification put forward by detaching the applicant’s words from the context of the incident and the integrity of the concrete statement as relevant and sufficient. Furthermore, it has not been assessed that it is necessary in a democratic society to penalise the applicant with a short-term suspension for the expressions he used.
The Constitutional Court decided that the freedom of expression was violated for the reasons explained.
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