15 November 2018 Thursday

Hulusi Özkan (no. 2015/18638, 15 November 2018)

The Facts

At the material time, the applicant who was a police officer, made the comment “…High-ranking persons! Death is both for you and for us… Allah will already call you to account for this, and here will the Emniyet-Sen…” under the topic titled “Mobbing towards the Head of the Emniyet-Sen…” on a Facebook page created by a number of police officers.

A disciplinary investigation was launched against the applicant on account of his comment and he was given a reprimand by the administration.

The action brought by the applicant for the annulment of the administrative action was dismissed by the administrative court. The regional administrative court, having examined the appeal lodged by the applicant, upheld the administrative court’s decision and, subsequently, rejected the applicant’s request for rectification of the decision.

The Applicant’s Allegations

The applicant, stating that he had shared a comment containing neither an insult nor a criminal element on the social media for once, maintained that his freedom of expression was violated due to imposition of a reprimand.

The Court’s Assessment

The hierarchical rules within the Security Directorate (“the directorate”), which is vested with the power to use weapons and similar equipment, as well as the special powers related to judicial actions in addition to the administrative ones, are naturally stricter than the rules applicable to civil servants. However, this should not be interpreted as that the directorate or the hierarchical superiors cannot be criticized.

Regard being had to the title of the topic on the social media under which the applicant shared a comment and to the expressions used by the applicant, it was observed that the applicant expressed his dissatisfaction and reproach with the management of the directorate without mentioning the name of any executive.

It cannot be said that the applicant’s expressions disclosed a secret about the directorate, nor did they attain the severity threshold which would damage the directorate or cause it lose reputation.

The first instance court failed to strike a balance between the applicant’s freedom of expression and his obligations to abide by the rules of professional hierarchy, and it also failed to demonstrate the best interest in the applicant’s fulfilment of his obligations to abide by the mentioned rules vis-à-vis his freedom of expression. The court confined itself to stating that the impugned expressions were incompatible with the professional ethics. It neither dwelled on the meaning of them nor did it examine the context in which they were used.

The first instance court did not examine the complaint subject of the application in the entirety of the incident, nor did it take into account the particular circumstances of the incident, the issue criticized, the applicant’s purpose in expressing his opinion, the manner in which he expressed his opinion, the possible consequences thereof and its effects on the public service or the discipline of the public institution, if any.

The facts put forth though the examination of the applicant’s expressions irrespective of the context of the incident and of the entirety of the concrete explanation cannot be regarded as relevant and sufficient. Furthermore, imposition of a reprimand on the applicant due to his expression was not necessary in a democratic society.

Consequently, the Constitutional Court found a violation of the applicant’s freedom of expression safeguarded by Article 26 of the Constitution.