Press Release No: Individual Application 39/16
02.11.2016

PRESS RELEASE CONCERNING JUDGMENT OF G.G. ON THE VIOLATION OF THE PRIVACY OF PRIVATE LIFE

On 13/10/2016 the Plenary Assembly of the Constitutional Court held with regard to the individual application lodged by G.G. (App. No: 2014/16701) that there had been a breach of privacy of the applicant’s private life guaranteed in Article 20 of the Constitution.

In the following applications that are in the same vein the Court also held that there had been a breach of privacy of the applicant’s private life guaranteed in Article 20 of the Constitution Ö. A. (App. No: 2014/4868), F. T. (App. No: 2014/6180), İlknur Yüksel (App. No: 2014/7738), E. G. (App. No: 2014/12428), Erhun Öksüz (App. No: 2014/12777), Deniz Gebeş (App. No: 2014/12862), Haluk Öktem (App. No: 2014/13433) ve K. Ü. (App. No: 2014/15792).

The Facts

In the incident giving rise to the present individual application, while the applicant G.G. was serving as a commissioned officer under the command of the Air Forces Command, an investigation was launched against him on the ground that some images published on a website on 2 December 2010 constituted immoral, disgraceful and shameful act. In this scope, on 10 December 2010 the applicant’s statement was taken, and on 11 March 2011 his corps, which was intelligence, was changed as infantry. In the course of the investigation, news headed “Here are those shocking images” was published in a national newspaper dated 21/6/2012 and the relevant images were displayed in the content of the news in blurred manner.

When the documents included in the file with respect to the applicant are examined, it has been understood that on 10/12/2010 the Air Forces Command took the applicant’s statement within the scope of the counter-intelligence activities.  As the section including “the name of the person taking the statement” and some parts of the statement were darkened, the unit which had taken the statement could not be determined. During the statement taking process, the applicant was asked about the places where he had worked until then; the persons whom he lived with; among the women he had met on the internet or personally, the ones with whom he had had sexual intercourse; whether he had had sexual intercourse with foreign women; the identity of the woman whose images with him were displayed on the internet; the place where the images were recorded; whether those women knew his being a military officer or his duty; the reason for his having left the lodgment; and whether he had sent confidential documents through his official e-mail account without encrypting them. It has been understood that the applicant answered the mentioned questions, in particular, he explained his relations with the women with whom he had had sexual intercourse in the past; and that he signed the record of statement. Moreover, the applicant noted that classified documents regarding his private life had been obtained, and therefore, he was a victim. 

As a result of the administrative investigation conducted against the applicant, on 3/8/2012 his superior officers issued a certificate for dismissing the applicant which indicated that “It is not appropriate for him to stay in the Turkish Armed Forces(“the TAF”)”, on the ground that he had had immoral acts undermining the dignity of the TAF. On 15/11/2012 the Commission established within the Air Forces Command handled the applicant’s situation, and relying on the same grounds, it decided that the applicant’s dismissal be submitted for the commander’s approval. After the relevant decision was approved by the Chief of Air Staff and the Chief of General Staff respectively on 16/11/2012 and 24/12/2012, the applicant was dismissed by a Triple Decree dated 13/2/2013 and numbered 2013/90.

The applicant brought an action against the Ministry of National Defence before the Supreme Military Administrative Court (“the SMAC”), requesting the annulment of his dismissal. In his petition, the applicant argued that his statements taken during a an unlawful process where questions regarding his private life and not related to his duty had been asked could not be used as evidence, and that although he had a favourable service record full of appreciations, this was not taken into account.

On 1/4/2014 the 1st Chamber of the SMAC dismissed the applicant’s request for annulment. In the relevant decision it was noted that the applicant had confessed his sexual relations and that although he was a successful personnel regard being had to his previous service records and disciplinary situation, he did not carry the qualification of being a morally justified person, and that there was not unlawfulness in terms of the action taken. It was also indicated that the applicant’s statements had not been taken within the scope of criminal investigation, but disciplinary proceedings, and that there was no evidence showing that his statement had been taken under duress.

The Applicants’ Allegations

The applicant lodged an individual application with the Constitutional Court. He alleged that he had been interrogated under psychological pressure by the intelligence unit unlawfully, in breach of the privacy of his private life, and that the administration took his statement in an unlawful manner and drew up an intelligence report by distorting his statements. The applicant also submitted that during the period when he had been holding office in the TAF, he had been awarded many certificates of appreciation, he had very good service records, he had reflected no aspect of his private life into his work, and that his dismissal had been disproportionate. For these reasons, the applicant alleged that there had been a violation of the privacy of his private life, within the meaning of Article 20 of the Constitution.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of these allegations: 

The notion of private life does not refer to only the sphere of privacy but also secures the individuals’ living a private social life. Certain elements of private lives of especially public officers, which are also integrated with their professional lives, may be subject to restrictions within the scope of the discretionary power of the administrative authorities. However, these persons must avail themselves of the constitutional guarantees, as in the restrictions likely to be imposed in respect of the other individuals. Furthermore, when it comes to securing the right to sexuality and the right to intimacy which remain within the scope of the privacy of private life, the discretionary power vested in the administration must be narrower.

On the other hand, in the disciplinary actions taken and in the court’s decisions where these actions are subject to review of lawfulness, effects of the conducts and acts of the individuals regarding their private lives on their professional lives must be explained; their effects and risks on the functioning of the relevant institutions rendering public service must be ascertained; assessments as to such issues must be supported with sufficient and plausible grounds; and furthermore, the disciplinary actions taken must be examined in terms of proportionality by taking into consideration previous professional records and achievements of the individuals. In addition, for effective enjoyment of the rights enshrined in Article 20 of the Constitution, the decision-making processes which constitute interference must contain procedural guarantees which would ensure requisite respect for the rights and freedoms protected under this article and must be fair.

In the present incident, taking of the applicant’s statement in question without referring to certain and concrete acts and without informing him for which legal action his statement would form a basis casts doubt on the statement in legal terms. Moreover, given the questions asked during the statement taking process, it has been observed that the applicant was forced to reply to allegations regarding not his professional life but his private life.  In this respect, it has been revealed that the reasoning parts of the decisions taken by the administration and the judicial authorities include findings that the applicant had relations with women he met via internet or in social surroundings, that some of these women were foreigners, and that he did not live in a prudent manner in moral terms. It has been also observed that conclusions of these decisions are based on these grounds. It has been consequently revealed that the impugned disciplinary action and the behaviours discussed in the judicial process are acts which are not pertaining to the applicant’s professional life but which are concerning his private life and remain within the sphere of his intimacy. Therefore, scope of the applicant’s dismissal which is in dispute goes beyond the limits of professional life.

It has been observed that in spite of allegations that the applicant’s statement taking process contained illegal elements as to the procedure and content thereof, the decision rendered by the SMAC failed to elaborate on the conditions under which the applicant’s statement was taken and reveal why and how the applicant provided detailed information concerning his sexual life, which forms the most confidential sphere of his private life, as from the previous years. It has been also observed that the action brought by the applicant against his dismissal from the TAF on the basis of the issues included in the applicant’s statement which were of abstract nature was dismissed by the SMAC. Moreover, it has been revealed that the decision of the SMAC did not provide sufficient and convincing grounds concerning the effects of the applicant’s conducts and acts remaining within the sphere of his private life on his professional life; nor did it elaborate on the effects of and risks posed by these acts on and to the functioning of the TAF. It has been further observed that any research was not carried out into the allegations that the evidence considered to form a basis for the applicant’s dismissal was unlawfully obtained; and that although the administration became aware of the acts constituting a ground for his dismissal, any action was not taken in respect of the applicant for two years.

It must be acknowledged that the SMAC’s decision lacked relevant and sufficient ground which would justify the interference in the applicant’s right to intimacy on the grounds that the SMAC failed to reply, in a reasonable manner, to the applicant’s allegations which were explicitly and concretely maintained in the course of the proceedings and considered to be able to alter the outcome of the proceedings; that effects of the issues falling into the sphere of the applicant’s private life on his professional life were not explained; and that he was denied availing himself of the effective procedural guarantees by which he could request, under fair conditions, requisite respect for privacy of his private life. In addition, it has been concluded that the applicant’s dismissal was not assessed in terms of proportionality by taking into consideration the applicant’s previous service record and achievements; that a fair balance was not struck between the general interest aimed to be attained with the restriction in question and loss suffered by the applicant whose fundamental right and freedom was restricted; that any examination was not carried out as to whether the restriction imposed on privacy of the applicant’s private life is a compulsory or exceptional measure or is the last remedy which may be resorted or the last precaution which may be taken; and that due diligence was not shown.

The Constitutional Court consequently held that there had been a breach of privacy of the applicant’s private life guaranteed in Article 20 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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