The Constitutional Court evaluated the balance between employees' freedom of expression and employers' honor and reputation in its new decision on freedom of expression ("Decision"). The Constitutional Court stated that the interference to the freedom of expression should be evaluated as a whole. It also reiterated its position that public officials have to endure more criticism on matters related to their duties.
The Constitutional Court's new decision, no. 2018/33476 and dated 7 October 2021, regarding the violation of a municipality official sociologist's ("Applicant") freedom of expression was published in the Official Gazette on 30 December 2021. (The Decision is available in Turkish here.)
The Applicant, a sociologist and shelter coordinator in a municipality, addressed statements regarding the municipality's decision to shut down the shelter to the municipality and the mayor's wife, who is the municipal social support service manager. The Applicant's employment agreement was then terminated due to their statements. The Applicant lodged a reemployment request, which was accepted by the court of first instance. The municipality appealed this decision and the regional court overturned the court of first instance's decision. The Applicant applied to the Constitutional Court alleging that their freedom of expression had been violated.
What does the decision cover?
The Constitutional Court stated that the state has positive and negative obligations regarding freedom of expression and decided that the concrete case should be evaluated within the scope of the negative obligations of the state, since municipalities are among the institutions that use public power. The Constitutional Court evaluated the allegations within the scope of freedom of expression and pointed out that the restrictions of rights and freedoms must (i) have lawful basis, (ii) rely on legitimate causes under the Constitution and (iii) comply with the needs of a democratic society and the principle of proportionality, according to Article 13 of the Constitution.
The Constitutional Court decided that interference with the freedom of expression must have a legal basis for being based on Law No. 4857 and rely on legitimate cause as part of protecting the reputation and rights of others. However, while evaluating compliance with the needs of a democratic society, the Constitutional Court stated that the restrictions on fundamental rights must correspond to a compulsory social need and be proportionate. The Constitutional Court stated that a fair balance should be established between the freedom of expression of an employee and the protection of the honor and reputation of the employer, adding that opinions should be evaluated within the context they are expressed. The Constitutional Court stated that the guarantees provided by the freedom of expression also cover the statements of the employees about their employers. Accordingly, the following must be taken into account while evaluating the interference on freedom of expression: (i) where, to whom and under what conditions the statements were expressed, (ii) the purpose of the applicant, whether the statements are expressed in good faith or to harm third parties, (iii) the contribution of the expressions to a public discussion, and (iv) the effects of the expressions on the person to whom they are addressed to.
In its evaluation within this scope, the Constitutional Court evaluated that the Applicant's statements are aimed at gathering public support regarding the closure of the shelter and are not expressed because of the Applicant's personal anger. The Constitutional Court emphasized the vital importance of shelters in society for combatting violence against women and decided that the Applicant's statements contributed to a discussion of public interest. The Constitutional Court also evaluated the Applicant's background in the shelter, in which they worked for years, and found that it is natural for the Applicant to express an opinion on this subject.
The Constitutional Court considered the mayor's wife — who is the municipality's social support service manager — as a public official, and reiterated its position that public officials have to endure more criticism because of their duties. The Constitutional Court stated that although the expressions used by the Applicant could be regarded as teasing, they do not justify the termination of their employment agreement. In light of these evaluations, the Constitutional Court decided that the Applicant's freedom of expression was violated, considering that the interference with the freedom of expression did not correspond to a compulsory social need and was not proportional.
This Decision of the Constitutional Court is important in terms of determining the balance between the freedom of expression of employees and the protection of the honor and reputation of the employer. In this context, rather than solely examining the expressions, it is necessary to evaluate the public discussion in which the expressions are used, the purpose of the expressions, and the effects of the expressions on the life of the person(s) to whom they are addressed. The Constitutional Court reemphasized its position that public officials have to endure more criticism because of their duties.
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