Press Release No: Plenary Assembly 20/22

Press Release concerning the Decision Annulling the Provision Allowing for the Imposition of Disciplinary Sanction on the Law-Enforcement Officers for Directing Criticism towards the Acts and Actions of Their Superiors during Office

The Constitutional Court, at its session dated 26 January 2022, found unconstitutional and annulled the phrase “…during or …” laid down in subparagraph (5) of Article 8 § 4 (b) of Law no. 7068 on the Adoption of Decree Law on General Disciplinary Provisions of Law Enforcement Officers (file no. E. 2021/22). 

Contested Provision

It is set forth in the contested provision that the law-enforcement officers who have directed unfavourable criticisms, either orally or in written form, against the acts and actions of their superiors both during or outside working-time shall be subject to a deferment of advancement to a higher rank for a period of six months.

Ground for the Request for Annulment

It was maintained in brief that like the other individuals within the society, the law-enforcement officers, should have been entitled to freedom of expression, which also safeguarded the right to criticism, on condition of not jeopardising the proper functioning of the law-enforcement services; and that the provision imposing a blanket ban on any kind of criticisms without any definite boundary and extent being set did not meet any pressing social need and also constituted a disproportionate restriction on the freedom of expression. It was therefore argued that the contested provision was unconstitutional.

The Court’s Assessment

The essential function of Article 26 of the Constitution is to afford protection to freedom of expression in respect of all sections of the society without any distinction. Public officers also including the law-enforcement officers are entitled to freedom of expression, like all other individuals of the society. The contested provision, allowing for the imposition of a disciplinary sanction on the law-enforcement officers who have directed unfavourable criticism, either orally or in written form, against the acts and actions of their superiors during working-time, imposes a restriction on the freedom of expression. Pursuant to Article 13 of the Constitution, any restriction on the freedom of expression must be imposed only by law, comply with the grounds of restriction laid down in the Constitution and the requirements of a democratic society, as well as be proportionate. The introduction of certain restrictions or bans due to the expression of unfavourable thoughts and convictions with respect to acts or actions performed by the superiors at the law-enforcement agencies -where discipline and hierarchical order are given particular importance, which may damage the superiors’ authority over the staff, thus undermining the order within the agency and proper functioning of the service, cannot be said to be unnecessary as the underlying aim is to prevent any harm to, or setback in, the maintenance of public order and safety.

However, this cannot be construed to the effect that hierarchical superiors cannot be criticised in any way. That is because, there are also criticisms of constructive nature and may be even deemed reasonable under general conditions, which, despite being unfavourable, do not have any negative effect on the superior’s authority in objective terms, but may rather have an affirmative bearing on the functioning of the relevant services or contribute to the maintenance of labour peace. It is clear that punishing of such criticisms would not serve to meet a pressing social need in a democratic society.

The contested provision allows for punishing of any kind of unfavourable criticisms directed towards the acts and actions of the superiors during worktime without any distinction as to whether it has damaged the superiors’ authority and has involved any element damaging the hierarchical order or functioning of the agency or whether it may be deemed reasonable under general conditions. In this sense, the Court has concluded that the restriction imposed on the freedom of expression through the contested provision runs counter to the requirements of a democratic society.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.