Press Release No: Individual Application 1/18

Press Release concerning the Judgment Finding a Violation of the Freedom of Expression due to Imposition of a Disciplinary Punishment on a Soldier in consequence of His Complaint to BIMER

On 16 November 2017, the Plenary of the Constitutional Court found a violation of the freedom of expression safeguarded by Article 26 of the Constitution in the individual application lodged by Adem Talas (no. 2014/12143).

The Facts

The applicant serves as a non-commissioned officer in the Turkish Armed Forces (“the TAF”). After working in the Turkish General Staff Electronic Systems Command (“GES”) for approximately twenty years, he has been assigned to the Edirne 54th Mechanized Infantry Brigade Communications Electronics and Information Systems Division (“MEBS”) as a supply sergeant.

The applicant alleges that in the brigade where he has been assigned, besides his service as a supply sergeant, he has also been given responsibilities concerning the notebooks in the brigade; the buildings, lands and trees in the barracks; and the LCD television, ammunition, gas station, boiler room, generator, dishwashing room and fuel purchasing-consuming in the nursery of the military lodgements. The applicant maintains that it is unfair. The applicant further argues that he has been punished many times due to the responsibilities given to him in an area where he does not have adequate information and skills; hence, he has been mentally depressed.

The applicant applied to the Prime Ministry Communication Centre (“the BIMER”) with a complaint petition in which he stated that: although he had expressed the difficulties he experienced in his new duty and his excuses in his defences, petitions of objection and appointment request forms, which he had submitted prior to the punishments imposed on him, he could not get any answer to some of these applications and that he could not get a positive answer to some of them; in addition, he stated that he subjected to discrimination, that he was tortured, that although he had not been given any punishment during his twenty years in office, he was given many punishments for the last two years, that this situation affected his psychology and that this negative effect was also reflected to his family.

Thereupon, the applicant was given a warning punishment by his superior upon decision of the Edirne 54th Mechanized Infantry Brigade Electronics and Information Systems Division Command, on ground of “irregular application and complaint to the BIMER”.

The applicant’s petition against the punishment was dismissed by his superior.

The applicant maintains that pursuant to the Turkish Armed Forces Disciplinary Law no. 6413, he does not have a right to lodge an application with the court against the warning punishment in question.

The Applicant’s Allegations

The applicant has maintained that imposition of a warning punishment on him for his application to the BIMER in order to obtain his constitutional rights has violated his freedom of thought and opinion.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Article 26 of the Constitution safeguards the freedom of expression of "everyone". Public officials, including soldiers, also enjoy the freedom of expression, like all individuals. This freedom, however, is not absolute and may be subject to restrictions.

The disciplinary punishment imposed on the applicant due to expressing his complaints must be considered as an interference with his freedom of expression.

However, the interference with the freedom of expression must be provided by law and must be in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence, as well as it must not be contrary to the spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality, which are set forth in Article 13 of the Constitution.

There is no matter regarding the legal ground and the legitimate aim of the interference with the applicant’s freedom of expression.

In the assessment as to whether the interference was in compliance with the requirements of the democratic order of the society, the reason of the applicant’s complaint, its legal and factual basis, the manner in which he complained, the probable comments he made in his complaint, its effect to the public institution and the punishment imposed on the applicant must be taken into account. The nature of the applicant's public service and the specific position of the institution he is assigned, which is directly related to the national security, and the existence of the special rules regulating the internal order and hierarchical structure of the TAF must also be paid regard.

The Constitutional Court will consider the facts as a whole in order to determine whether a balance has been struck between the interference with the freedom of expression of the public officials of certain categories and their obligation to comply with the rules of military hierarchy to ensure that their expressions “are compatible with the institutional discipline”, “do not disclose any secret” and “are balanced”.

In addition to this, the existence of reasonable procedures in order to be able to discuss within the institution the issues brought to the BİMER and to notify them to the higher authorities, the extent to which the statement owner complied with these procedures and the extent to which the internal information would be disclosed to the public in the event of not complying with these procedures must be taken into consideration.

A soldier’s ability to express his personal or service related problems as a requirement of the rule of law is prescribed as a right in military laws, and the use of this right has been regulated by adopting a certain method in military discipline and hierarchical order. In this scope, for military personnel, it is stipulated that complaints and requests must firstly be submitted to the superiors by the latter’s ranks in the framework of the Turkish Armed Forces Internal Service Law no. 211, with the exception of the applications to be lodged with the Grand National Assembly of Turkey. In case of not complying with this procedure, a disciplinary punishment is required under Law no. 6413.

When the applicant’s petition of complaint is evaluated as a whole, it is seen that it contains his requests for help and expressions emphasizing his desperateness, rather than an aggressive style. The applicant, in particular, expressed that he faced unfairness in terms of the areas where the other military personnel were held responsible and the areas where he was held responsible, and tried to explain that in disciplinary punishments he was especially targeted, that his health problems were ignored and that his defence submissions were not taken into consideration. He was given disciplinary punishment for his acting contrary to the procedure of complaint.

It has been understood that the issues raised by the applicant can be solved by his superiors within the military structure; that they are not such complaints that might cause damage with respect to the military authorities or cause a loss of reputation on the part of them; that the BIMER to which the petition was submitted is a public institution; and that the content of the petition was not disclosed to the public.

In conclusion, it cannot be said that existence of certain procedures of complaint applicable to those who are within the military hierarchy and discipline and existence of disciplinary punishments in this respect are not necessary in a democratic society. However, regard being had to the points above and in the circumstances of the present application, it has been concluded that imposition of a “warning” punishment on the applicant on account of his sending a petition to the BIMER, which is a public institution affiliated to the Prime Ministry, as a result of his not being able to receive a response from his superiors concerning his complaint about his personal problems and certain unfair practices regarding his service was not a necessary interference in a democratic society.

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

The Constitutional Court awarded the applicant TRY 4.000 for non-pecuniary damages.

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