Press Release No: Individual Application 106/21
Press Release concerning the Judgment Finding a Violation of the Freedom of Expression for Termination of Employment Contract due to Expressions towards the Mayor’s Spouse
On 7 October 2021, 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 Gülbiz Alkan (no. 2018/33476).
A shelter where the applicant, a sociologist in the relevant municipality, was serving as a coordinator was closed down by the decision of the same municipality. Before the issuance of the decision for closure of the shelter, the applicant had sent an e-mail to the respondent mayor and also sent a letter to the mayor’s spouse who was a manager at the same municipality, asking for help for the revocation of the impugned decision. Despite these attempts and endeavours by the applicant, the municipality closed down the shelter and dismissed the personnel working there. The impugned decision became a matter of discussion both in local and national press, and a columnist of a national newspaper, raising allegations with respect thereto in his article, relied on statements of a municipal officer without disclosing his name. During the ongoing discussions, the inspection board of the municipality initiated an inspection and inquiry against the applicant due to her expressions in the post she shared via a mobile phone application. Four days later, her employment contact was terminated as the conditions underlying the termination with good cause had been fulfilled. At the end of the proceedings initiated by the applicant for reinstatement to her post, the incumbent labour court decided in her favour. However, on appeal by the municipality, the regional administrative court (“the appeal court”) revoked the first instance decision and dismissed the case.
The Applicant’s Allegations
The applicant maintained that her freedom of expression had been violated due to the termination of her employment contract on account of her expressions towards the mayor’s spouse.
The Court’s Assessment
In the present case, the appeal court acknowledged that the expressions used by the applicant so as to indicate that the grounds underlying the closure of the shelter were ridiculous had been targeted at the mayor’s spouse; and that the termination of her employment contract had a justified cause. The mayor’s spouse admittedly targeted by the applicant was not the latter’s employer. The appeal court concluded that the impugned termination of the applicant’s employment contract had a justified cause on the basis of the mere fact that the addressee was the mayor’s spouse, without taking account of the reasons why the applicant had uttered these expressions and the position of the mayor’s spouse within the municipality.
Upon her futile attempts to prevent the closure of the shelter through negotiations with the authorised persons, the applicant also discussed the issue with several non-governmental organisations so as to forge public opinion for the revocation of the municipal decision and tried to receive support by sharing her opinions via social media. Therefore, the expressions relied on as a ground for termination of her employment contract were not uttered by the applicant for an individual interest or due to personal feelings of anger towards her superiors and employer. Besides, given the vital importance of the shelters, closure of which was challenged by the applicant, in the prevention of violence against women, the applicant’s considerations contributed to a debate on a matter of high public interest.
In consideration of the fact that the applicant had served as a coordinator at the shelter for years, the expression of her opinions on the matter should be considered normal. In this sense, the rude or ironic nature of the expressions used by the applicant should not override the significance of the contribution of these expressions to the public debate.
Moreover, the content of the expressions and their effects on the life of the addressee should also be taken into consideration. In the relevant post, the applicant criticised the decision of the mayor’s spouse, albeit being a woman, which ordered the closure of the shelter. In this sense, it is obvious that the impugned expressions were not targeted at the addressee for insult, but were in the form of criticism towards a public activity being performed. The impugned expressions may be considered to be offensive for the addressee. However, the Court has always stressed that the officers wielding public power should be more tolerant towards criticism and that the acceptable limits of criticism should be more extensive for them.
Despite these findings, the appeal court failed to discuss the context of the expressions used by the applicant, the platform where these expressions were posted, and the fact that the mayor’s spouse faced these expressions due to the public position she was holding. Concluding that the applicant’s expressions reached the level of severity that would annoy the mayor’s spouse, the appeal court dismissed the former’s case but failed to demonstrate that the impugned expressions were capable of justifying the termination of her employment contract. The appeal court made an assessment, regardless of the manner in which and the reason why the impugned expressions had been uttered, and whether these expressions had had a background and had been uttered within the scope of a public debate.
Although the applicant asserted that the impugned posts had not been shared by her, the judicial bodies failed to make inquiries necessary to reveal the source of these posts. It should be particularly emphasised that subjecting individuals to sanctions due to posts with uncertain sources may have a deterrent effect on the expression of thoughts and lead to the justification of defamations.
Accordingly, the appeal court acknowledged, by merely making an abstract assessment and without striking a balance between the freedom of expression and the right to honour and dignity, that the impugned expressions constituted a good cause for termination of the employment contract. In this sense, the appeal court failed to demonstrate that the interference with the applicant’s freedom of expression had met a pressing social need in a democratic society.
Consequently, the Court has found a violation of the freedom of expression.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.