Individual Application 15/19

Press Release Concerning the Judgment Finding a Violation of the Freedom of Expression Due to Imposition of Disciplinary Punishment for an Article Criticizing the Activities of a Professional Chamber

On 6 February 2019, the Second Section 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 Metin Yalçın (no. 2014/5959).

The Facts

The applicant is an independent accountant and financial advisor. At the material time, he was a member of the Chamber of Independent Accountants and Financial Advisors (“the Chamber”).

The applicant wrote an article for a bulletin issued by a group consisting of financial advisors. Subsequently, he was referred to the Disciplinary Committee by the decision of the Board of the Chamber due to his allegations concerning the directors of the Chamber in the said article. The Disciplinary Committee decided to give reprimand to the applicant; however, relying on the relevant regulation, it turned the reprimand into warning which was a lighter sentence, on the ground that he had never received a disciplinary punishment during three years.

Upon the applicant’s objection, the Union of Chambers of Certified Public Accountants of Turkey (“the TÜRMOB”) revoked the decision of the Disciplinary Committee and gave a warning to the applicant as a punishment. Upon the applicant’s request for annulment of this punishment, the administrative court gave a decision in his favour.

Following the TÜRMOB’s appeal, the Regional Administrative Court quashed the decision of the administrative court and hence dismissed the case. The applicants’ subsequent request for rectification of the decision was also rejected, therefore he lodged an individual application.

The Applicant’s Allegations

The applicant claimed that his freedom of expression was violated, stating that he had been imposed a disciplinary punishment due to his article published in a bulletin concerning the activities of a professional chamber.

The Court’s Assessment

Freedom of expression safeguarded by Article 26 of the Constitution ensures that individuals are not condemned because of their thoughts and opinions and that they freely express, tell, defend, convey and disseminate them to others through various methods.

Giving a warning to the applicant on account of his article criticizing the management of the professional chamber of which he was a member, which had been published in a bulletin, and dismissal of the action he had brought against this punishment constituted an interference with his freedom of expression.

A disciplinary investigation was launched against the applicant on account of his allegation in his article that the Chamber had provided a job opportunity to the client of one of its members who was taking office in the construction commission of the Chamber, where he used the expression “our active lithe directors (cevval kıvrak yöneticilerimiz)”.

In the present case, it must be noted that for the purposes of democratic participation, the applicant, who had a voice in the management of the Chamber and was bestowed with the right of election, might essentially disagree with and criticize the activities that he considered not to be in accordance with the founding purpose of the Chamber and express his opinions to this end in order to attract supporters. It must also be borne in mind that the applicant had compulsorily –in order to be able to practice his profession– become a member of a professional organization acting in the capacity of a public institution with a legal entity.

The applicant’s article was published in a free bulletin which was issued and distributed by a group of professional members for the other professional members. The applicant expressed his criticisms on a platform followed by the members of the Chamber, which appeals to a quite narrow audience, without mentioning any name. Accordingly, the identities of the persons targeted by the applicant in his allegations might be known only to the members of the Chamber. 

Besides, the applicant had not disclosed, before those who had not been the members of the Chamber, the names of the persons he had criticized. Considering both the content of the article and the applicant’s conduct, it was understood that the applicant had enjoyed his right to disagree and criticize by issuing the said article.

In view of the foregoing, the interference with the applicant’s freedom of expression had not met a pressing social need and therefore had not complied with the requirements of the order of a democratic society.

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

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