Press Release No: Individual Application 27/16
14.06.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF İLTER NUR ON THE FREEDOM OF EXPRESSION

On 14/4/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by İlter Nur (application no. 2013/6829) that there had been a breach of the freedom of expression guaranteed in Article 26 of the Constitution.    

The Facts

While the applicant was serving as a worker having service contract with a contractor firm under the Turkish Electricity Transmission Corporation (“the TEİAŞ”), he applied to the Prime Ministry Communications Center and complained of the working conditions at the workplace, the inequality between him and the other workers and ineffectiveness of the inspections carried out by the inspectors at the workplace. Upon his complaint, his service contract was terminated. In the action brought by the applicant for invalidity of the termination of his service contract and for his reinstatement, the 2nd Chamber of the Samsun Labour Court decided that the termination would be annulled and the applicant would be reinstated to his former position. Upon the appeal of the decision, the Court of Cassation found the termination of the applicant’s service contract justified as the worker exercised his right to legal remedies by means of using defaming and abusing statements, quashed the first instance decision and decided to dismiss the action under its substantive aspect.  

The Allegations

The applicant maintained that although he had succeeded in his action brought before the first instance court, the first instance decision had been quashed by the Court of Cassation which subsequently dismissed the action. He therefore alleged that his rights to legal remedies and to a fair trial had been breached and requested re-trial.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of such allegations.  

The interference with the applicant’s freedom of expression does not stem from the acts of the public authorities and must be examined within the scope of the State’s positive obligations. It must be assessed that the interference in which the action was dismissed as certain expressions in the applicant’s petition were qualified as defamation and insult falls within the scope of “the right to protect other individuals’ reputation or rights” and that it is legitimate.

A warning made by a worker to the public authorities due to illegalities at the workplace or unjust deeds caused by the employer is in principle under the guarantee of the freedom of expression.  When the applicant’s petition is assessed as a whole, it has been observed that the petition included expressions beyond an aggressive style but seeking for assistance and underlining the applicant’s desperation.  The applicant especially tried to express that he was subject to unjust treatment in terms of his branch of activity and that of the other workers. On the other hand, it was specified that the employer had not paid the full insurance amount and showed the working hours different than the actual ones in the official documents although the personnel worked by shifts. Also for emphasizing that his complaint was not researched seriously, the applicant told “when an inspector pays a visit, they wine and dine the inspector and send them back. They do not take care of us. When we make a complaint, they threat us. They completely see us as an unskilled worker”. It was not specified in the reasoning of the decision whether the defaming and abusing words were the applicant’s endeavour for ensuring his complaint to be examined seriously within the whole content of the compliant petition. It was not also assessed whether or not such expressions were not only addressing to the employer but also for the inspectors who had not performed their tasks.

On the other hand, it has been also observed that given the fact that the petition was not publicized other than being disclosed to the public authorities and the firm, the question as to whether the complaint would lead to an unfavourable outcome in respect of the employer’s reputation was not assessed. When the non-severe impacts of the complaint petition on the employer and the unfavourable impact of the sanction namely the termination of the applicant’s service contract in pursuance of the provisions concerning the rightful termination on the applicant are compared, the question as to whether application of the provisions concerning the rightful termination had been necessary was not discussed in the reasoning of the decision. Therefore, it has been concluded that with regard to the termination of the service contract as per the rightful termination provisions in the reasoning of the decision, there was no relevant and sufficient justification as regards a fair balance between the applicant’s freedom of expression and the employer’s reputation and the employer’s interest for ensuring peace in labour relations.

It has been consequently held by the Constitutional Court that there was a breach of freedom of expression which is guaranteed in Article 26 of the Constitution.

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

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