29 Apr VIOLATION OF FREEDOM OF EXPRESSION DUE TO PUNISHMENT FOR SHARING ON SOCIAL MEDIA
Events
The applicant, who was working as a physical education teacher at a high school at the time of his/her registration, is also a member of the Board of Directors of a trade union and a branch secretary.
A public servant registered with the trade union where the applicant was a secretary was referred to the Provincial Disciplinary Board for evicting the residence where he resided by exceeding the legal period granted to him; the applicant also attended the aforementioned meeting of the Board as a trade union representative. After the meeting ended, the applicant shared the issue on his personal social media account. A disciplinary investigation has been opened against the applicant due to this sharing and other allegations he has made. As a result of the investigation, 125 of the Civil Servants’ Code No. 657 was dismissed due to the aforementioned share. in accordance with the article, it was decided that the applicant would be punished with a reprimand sentence.
The applicant filed a lawsuit in the administrative court with a request to cancel the administrative procedure in question. The administrative court reached the conclusion that there was no violation of the law in the administrative procedure and decided to dismiss the case.
The District Administrative Court, which examined the file on the objection of the applicant, 3. The Administrative Litigation Department (Department) has decided to uphold the decision. The applicant’s request to correct the decision was rejected by the same Department.
Count
The applicant claimed that being punished with a reprimand sentence due to the sharing he had made on his social media account violated his freedom of expression.
Evaluation of the Court
The fact that the state imposes a duty of commitment and imposes duties and responsibilities on civil servants working in the civil service is a legitimate acceptable situation due to the status of civil servants. But it is far from a doubt that civil servants are also individuals, that they have the right to have political views, to deal with country problems, to have social aspects such as making choices.
However, in the case of civil servants, whether opinions are explained in a balanced and politically neutral manner, whether personal attitudes are taken and whether their impartiality is guaranteed are evaluated in the freedom of expression examination. In this regard, there is a margin of appreciation of the national authorities in determining the assignment and degree of responsibility in relation to the position in which the officer is located, the area in which he works, and so on.
In the concrete case, the applicant, who was the union manager and secretary, attended the disciplinary committee meeting held regarding a public employee who was a member of the union as a union representative. The applicant took aim at the attitude of the provincial director of national education about the punishment of public personnel with the information he shared after the meeting.
It is understandable that some meetings and decisions made by public institutions are kept secret due to their nature. However, it has not been claimed that the decision taken by the Provincial Disciplinary Board is confidential or that there is a legislative provision or practice that it should remain confidential. In what way and with whom the Provincial Disciplinary Board was formed, the working procedures and principles were determined by the State Civil Servants Disciplinary Regulation. In the concrete case, it is seen that the applicant has made public his views, which he has made public by signing under the disciplinary committee members, with some personal evaluations. For this reason, it cannot be said that the applicant has publicly disclosed some information that should remain confidential.
The applicant believes that the staff who are members of the trade union have been wronged, that the provincial director of national education, who is the supervisor of the staff, should take care of the staff and tries to defend his rights as a trade union manager. The applicant also did not share any of the opinions and opinions expressed by the board members during the meeting, which were not reflected in the decision.
The fact that public officials are subject to certain restrictions arising from their status should not mean that they should sacrifice a fundamental freedom such as freedom of expression in advance in order to become a public official. For this reason, a public official can criticize using his freedom of expression, provided that he is balanced, does not cast a shadow on his impartiality in terms of the public duty he performs, and does not disrupt his duty. In case the applicant’s social media account shared a concrete expressions of assignments and responsibilities arising from the status of public servants and impartiality, which may affect where it is not contrary to nature, meeting with a member of the syndicate that its views on the administrator, reflecting the need to take advantage of the protection of freedom of expression are phrases that was decided.
Considering the above evaluations, it has been assessed in the administrative and court decisions that a fair balance has not been established between the freedom of expression and the duties and responsibilities of the applicant, who is a public Dec, and that the disciplinary punishment that constitutes the intervention does not meet a mandatory social need.
The Constitutional Court has decided that freedom of expression has been violated on the grounds described.
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