Press Release No: Individual Application 21/16
27.04.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF TEVFİK TÜRKMEN ON THE RIGHT TO PRIVACY AND THE FREEDOM OF COMMUNICATION

The Constitutional Court held, at its plenary session dated 3/3/2016, with regard to the individual application lodged by Tevfik TÜRKMEN (application no. 2013/9704) that there had been a breach of the right to privacy and the freedom of communication which are respectively guaranteed under Articles 20 and 22 of the Constitution.

The Facts

The applicant who had been serving as a contracted non-commissioned officer as of 30/8/2003 at the Air Forces Command requested the renewal of his contract at a date close to the expiry of his contract period of 9 years. However, his contract was not renewed by the administration.

The action brought by the applicant for the annulment of the non-renewal of his contract was dismissed by the First Chamber of the Supreme Military Administrative Court (“the SMAC”) on 21/5/2013. In its judgment, the SMAC noted that the administration had enjoyed its discretionary power lawfully while taking necessary actions on the grounds that the applicant had sent e-mails which had infringed confidentiality, which were not related to his duty and were sent for social purposes via his e-mail address created for internal use only; that he had used his e-mail address with a view to organizing tours and travels. The SMAC also specified that there was no explicit error in the assessment made by the administration in respect thereof. This judgment became final after the remedy for rectification of the judgment had been exhausted.

The Applicants’ Allegations

The applicant maintained that e-mails which were within the scope of his private life had been examined and recorded without a judge’s decision; that his expired contract had not been renewed on the basis of e-mails which had not been supported with concrete cases and evidence, the creator of which had not been known and the content of which had not included any unlawful letter and without his defence submission being taken. The applicant accordingly alleged that there had been a breach of his rights set out in Articles 5, 10, 11, 20, 35, 36, 37, 38, 49, 60 and 129 of the Constitution.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this allegation:

As the concrete reason for non-renewal of the applicant’s contract was the monitoring of the institutional e-mail account and the contents thereof, the applicant’s allegations were examined within the scope of the right to privacy and the freedom of communication which are respectively guaranteed in Articles 20 and 22 of the Constitution.

The lawfulness and the question whether there are grounds justifying the interference must be assessed within the particular circumstances of the present incident in the examination of the interferences alleged to be made in the right to privacy and the freedom of communication.

It has been understood that the monitoring of the institutional e-mail account belonging to the military personnel serving in the Air Forces Command and the contents thereof and the non-renewal of the applicant’s contract had a legal basis; that the impugned interference of the military administration which is liable to ensure and protect the security of the country pursued the aim of protecting the national security within the scope of the information security and counter-intelligence activities, which is a legitimate aim within the framework of Articles 20 and 22 of the Constitution.

Being a public officer requires an individual to tolerate certain troubles and responsibilities and to be subject to restrictions to which other persons are not along with the certain privileges and advantages provided. Monitoring of phone conversations held by the public officers at their workplaces, of e-mail correspondences made via the computer provided for them and of their use of Internet to a certain degree does not alone lead to the violation of the fundamental rights and freedoms. In this respect, an assessment must be made by having regard to the ordinary and reasonable requirements of the workplace and the legitimate aims. It must be taken into consideration that the margin of appreciation of the Turkish Armed Forces is much wider while employing personnel in a status for which stricter rules apply in terms of the requirements of the military discipline. Accordingly, it has been concluded that monitoring of an electronic communication system required to be used in line with the position-oriented purposes and in this scope, monitoring of the correspondences within this system and, in cases where it is established that this communication system has been misused for personal purposes, the interference in such use could be deemed to be necessary in a democratic society.

In determination as to whether the interference in the applicant’s freedom of communication and the right to privacy was proportionate or not, it must be required that an assessment be made given the nature of the information included in the e-mails in questions, the manner in which such information was used and the severity of the sanction imposed on the basis of the information in question.

The administration continued to employ the applicant until the duration of his contract expired after it had determined that the applicant had used the official e-mail account for reasons not related to his duty and in breach of the pre-determined rules. During that period, the applicant was not subject to a disciplinary investigation; and nor was any sanction including the termination of the contract imposed. The non-renewal of the applicant’s contract has a significant impact on his economic future for being deprived of his main source of income as it has on his professional life.

It has been concluded that although it is taken into account that the act which was brought before the court by the applicant is not the termination of but the non-renewal of the contract, a fair balance was not ensured between the general interest likely to be attained through restriction and the loss sustained by the applicant whose fundamental rights and freedoms were restricted as the misuse of the official e-mail account for purposes other than duty-related ones and thereby the conversations and social-purpose posts via this address was accepted as a ground for the non-renewal of the applicant’s contract at the end of his period of office (contract) of 9 years in respect of him whose personal record grades were very high; in respect of whom any unfavourable opinion was not delivered by his superiors; who did not have any disciplinary punishment; who was rewarded certificates of appreciation and awards and in respect of whom qualification certificate at the “excellent” level was issued. It has been accordingly concluded that the interference in the applicant’s right to private life and the freedom of communication was disproportionate.

The Constitutional Court has consequently held that there was a breach of the right to privacy and the freedom of communication which are respectively guaranteed under Articles 20 and 22 of the Constitution for the above-mentioned reasons.

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

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