THE FACTS

[6-13] 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 Centre 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 2^nd 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 dismissed the action under its substantive aspect.

IV. EXAMINATION AND GROUNDS

14.          The Constitutional Court, at its session of 14 April 2016, examined the application and decided as follows:

A.            The Applicant’s Allegations

15.          The applicant asserted that his employment contract was terminated on account of the complaint that he had filed with Communications Centre of the Prime Ministry (“BİMER”) in respect of his workplace while he was working at the workplace operated by the subcontractor of the Turkish Electricity Transmission Company (Türkiye Elektrik İletim A.Ş) (“TEİAŞ”), that even though he won the case before the First Instance Court, the Court of Cassation quashed the said decision and that his case was rejected, that thereby his right to legal remedy and right to a fair trial were violated and therefore he requested retrial.

B.            The Court’s Assessment

1.              Admissibility

16.          The Constitutional Court (“the Court”) is not bound by the legal qualification of the facts by the applicant, and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16).

17.          The essential issue in the present application was the termination of the applicant’s employment contract due to his petition lodged with the BİMER. In this connection, the applicant alleged that he had written the petition of complaint in order to claim his right, and that the termination of his employment contract and the rejection of his objections for this reason had violated his right to legal remedy and right to a fair trial. Accordingly, the substance of the applicant's complaint was the termination of the employment contract under the provisions of the rightful termination due to the complaint he had filed with the BİMER. This should be considered as a severe sanction in the form of the termination of the employment contract due to the issues raised by the applicant in his complaint.

18.          In the present case, the fact that the applicant who worked as installer of heating systems at the workplace operated by a subcontractor under the TEİAŞ 10^th Transmission Facility Operation Group Directorate lodged his complaints with the BİMER in relation to the matters that he deemed unlawful as regards the employer company would clearly benefit from the protection of Article 26 of the Constitution. Therefore, although the applicant alleged that his complaint’s constituting a reason for rightful termination had violated the right to legal remedy, the substance of his allegations concerned the freedom of expression due to his statements containing denunciation.

19.          For the reasons mentioned above, the applicant's allegations were examined on the basis of the freedom of expression guaranteed by Article 26 of the Constitution. Moreover, the alleged violation of the freedom of expression must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

2. Merits

20.         Article 26 of the Constitution, titled “Freedom of expression and dissemination of thought”, reads as follows:

“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing.

The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.

The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law. “

21.         In a great number of judgments, the Constitutional Court has outlined in detail the basic principles of the freedom of expression (see Nilgün Halloran, no. 2012/1184, 16 July 2014, §§ 30, 36; İbrahim Bilmez, no. 2013/434, 26 February 2015, § 40, 54; Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, §§ 58, 80, 94; Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, §§ 46, 50, 54; Medya Gündem Dijital Yayıncılık Ticaret A.Ş. [Plenary], no. 2013/2623, 11 November 2015, § 44; Hüseyin Sürensoy, no. 2013/749, 6 October 2015, §§ 47, 50, 51; Ali Rıza Üçer (2) [Plenary], no. 2013/8598, 2 July 2015, §§ 30-33; and others)

22.         The existence of social and political pluralism depends on the peaceful and free expression of all kinds of ideas. Similarly, an individual could actualize his/her peculiar personality in an environment where he/she could freely express and discuss his/her ideas. Freedom of expression is a value that we need in order to define, understand and perceive ourselves and to shape our relations with others within this framework (see Emin Aydın, no. 2013/2602, 23 January 2014, § 41).

23.         Freedom of expression is one of the indispensable pillars of a democratic society and one of the fundamental conditions in terms of the progression of society and the development of individuals. In this context, the Court has noted that the freedom of expressions is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population and that such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society (for a similar judgment of the ECHR, see Handyside v. the United Kingdom, no. 5493/72, 24 September 1976, § 49).

24.         Taking into account the importance of freedom of expression in ensuring democratic pluralism, the assumption that only the State has a negative obligation not to interfere in the exercise of freedom of expression is not sufficient for an effective protection. For the real and effective use of the freedom of expression, it must be acknowledged that the State also has positive obligations beyond its obligation not to interfere. In this context, the positive obligation must cover not only the relations between the State and the individual, but also the relations between the individuals (for similar judgments of the ECHR, see Fuentes Bobo v. Spain, no. 39293/98, 29 February 2000, § 38; Özgür Gündem v. Turkey, no. 23144/93, 16 March 2000, §§ 42-46; and Palomo Sanchez and Others v. Spain [GC], no. 28955/06 ..., 12 September 2011, § 59).

25.         In the present case, the applicant was dismissed within the framework of the provisions of termination by the company where he had been employed, not by the State. The action filed by the applicant concerning the termination of the employment contract was dismissed by the Court of Cassation. In this connection, it cannot be acknowledged that the interference with the applicant's freedom of expression stemmed from the interference of the public authorities. However, in the event that the subject matter of the application was the failure of the public authorities to fulfil their obligations with regard to the protection of freedom of expression regulated under Article 26 of the Constitution, the public authorities then may be held responsible. In these circumstances, it is possible to examine the present case in terms of the positive obligations of the State within the meaning of Article 26 of the Constitution. In this regard, the duty falling on the Constitutional Court is to determine whether the balance between the conflicting interests of the individual and the public is fairly struck.

26.         In the present case, the persons employed as workers in a private company are expected to act in accordance with the rules of ethics and goodwill in their relationship with the employer. In this regard, the disclosure of professional secrets or an attack to the honour and reputation of the employer may be considered a legitimate reason for rightful termination. The question of legitimacy cannot be regarded as an obstacle for workers to benefit from the protection of freedom of expression regulated under Article 26 of the Constitution as individuals, in view of the principle that "everyone" shall enjoy freedom of expression. Therefore, the safeguard provided by Article 26 of the Constitution also encompasses the statements made, in general, by the private sector employees on their employers concerning their duties.

27.         On the other hand, in accordance with the exceptions set forth in the second paragraph of Article 26 of the Constitution, freedom of expression is not an absolute right. Although the freedom of expression has a restricted nature, the restrictions in question should be interpreted more narrowly and the need for restriction should be convincing and reasonable in view of the importance of freedom of expression for democratic societies. The criteria set out in Article 13 of the Constitution must be taken into account when imposing a restriction on fundamental rights and freedoms. For this reason, the review of the restrictions imposed on freedom of expression should be within the framework the criteria set out in Article 13 and in accordance with of Article 26 of the Constitution.

28.         In the light of the above-mentioned principles, in determining whether freedom of expression is violated or not, it must first be determined whether there had been an interference with the applicant's freedom of expression, and if so, whether the interference had been based on legitimate grounds. In order to be considered legitimate within the meaning of Article 26 of the Constitution, the found interference must be based on one or more grounds specified in the second paragraph of the same article and must comply with the safeguards stipulated in Article 13 of the Constitution on the restriction of rights and freedoms. For this reason, it should be determined whether the restriction is in conformity with the conditions of not impairing the essence as provided for in Article 13 of the Constitution, being prescribed by the relevant Article of the Constitution and by law, and conforming with the letter and spirit of the Constitution, the requirements of the democratic order of the society and the secular republic and the principle of proportionality.

a.             Existence of Interference

29.         On account of the petition of complaint he had filed with the BİMER against the company he had been working for, the applicant’s employment contract was terminated within the scope of the provisions of rightful termination. The action filed by the applicant in respect of the unlawfulness of the termination was dismissed. Therefore, termination of the applicant’s employment contract within the scope of the provisions of rightful termination on account of the fact that applicant had raised his complaints must be considered as an interference with the freedom of expression.

b.             Whether the Interference Constituted a Violation

30.         The above-mentioned interference constitutes violations of Articles 13 and 26 of the Constitution provided that it is not based on one or more grounds specified in Article 26 of the Constitution or does not meet the criteria provided for in Article 13 of the Constitution. For this reason, it should be determined whether the interference is in conformity with the conditions of not impairing the essence as provided for in Article 13 of the Constitution, being prescribed by the relevant Article of the Constitution and by law, and conforming with the letter and spirit of the Constitution, the requirements of the democratic order of the society and the secular republic and the principle of proportionality.

i.               Lawfulness

31.         It is considered that the grounds for the termination of the applicant's employment contract for rightful reasons were based on Article 25 § 2 (b) and (e) of Law no. 4857. The said provision was found to meet the criterion of “lawfulness” as well as the requirements of “accessibility” and “foreseeability” (see, among many other authorities, Tuğba Arslan [Plenary], no. 2014/256, 25 June 2014, §§ 80-101).

ii.             Legitimate Aim

32.         In the reasoning of its judgment on dismissal, the 7^th Civil Chamber of the Court of Cassation established that the expressions in the applicant's complaint contained insults and provocation targeting the employer. Moreover, in its reasoning, the first instance court considered the reasons for rightful termination within the context of the applicant’s ”engaging in conduct incompatible with honesty and loyalty such as abuse of the employer’s trust, theft and disclosure of the employer’s trade secrets” as provided by Article 25 § 2 (e) of Law no. 4857. In view of both decisions, as regards the dismissal of the action by the Court of Cassation on account of the fact that the complaint was determined to contain insults and provocation, in spite of the fact that the applicant's first action was accepted by the first instance court, it must be acknowledged that the grounds for finding the impugned termination rightful were the protection of the honour and reputation of the employer. In this context, it must be accepted that the purpose of the interference with the freedom of expression within the framework of the regulations under Article 26 § 2 of the Constitution was legitimate and fell within the scope of the “protection of the reputation or rights of others”.

iii.           Necessity in a Democratic Society and Proportionality

33.         In the present case, the applicant, who was a worker, filed a complaint with the BİMER about the employer's activities and reported the problems he personally encountered and the conduct of the company. In such circumstances, as a rule, a worker's notification of the public authorities about the unlawful conducts in the workplace or injustice of the employer is within the scope of the guarantee of freedom of expression. Such a situation may concern only a worker, or a group of workers, who are aware of what is happening at the workplace and may be notified to the employer or to the public (for a similar judgment of the ECHR, see Langner v. Germany, no. 14464/11, 17 September 2015, § 44).

34.         In this context, in case of an interference with the freedom of expression, the Constitutional Court must assess whether “relevant” and “sufficient” grounds have been put forward to justify the measures taken, and whether “a reasonable balance is struck between the means employed and the aim sought to be achieved by the restriction” in terms of the requirements of the democratic society (see Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, §§ 64-73). Such an assessment must take into account the motive by which the applicant makes a statement in the particular circumstances of the case, the legal and factual bases, style and possible interpretations of the statement as well as its effects on the employer, and the sanction imposed on the applicant.

35.         Having regard to the particular circumstances of the application, the applicant worked as installer of heating systems at the workplace operated by a subcontractor under the TEİAŞ 10^th Transmission Facility Operation Group Directorate. With his complaint filed with the BİMER, the applicant sought help from the relevant public authorities by reporting his personal situation at the company and the conduct of the company. Moreover, the petition was only submitted to the relevant public authority and not publicly disclosed, in other words, it was not an announcement made to the public in a way that undermines the company's reputation. In this context, the petition of complaint was only seen by the relevant public authorities and the company and learned by a limited number of people.

36.         As a rule, the right of a worker to report the employer, on his or her own motion by exercising his/her civil right within the scope of the requirements of the rule of law, cannot be considered as a ground for rightful termination, unless the employee deliberately or informally provides false information. As a matter of fact, the 7^th Civil Chamber of the Court of Cassation emphasized the same issue and noted that the certain parts of the applicant’s complaint filed with the BİMER sought help and fell within the scope of the right to legal remedy.

37.         However, the Court of Cassation acknowledged that the following expressions of the applicant constituted insult and provocation: “When an inspector comes, they offer food to him and send him back; they don’t care about us. If we are to complain, they threaten us. They are always treating us as if we were construction workers.” The Constitutional Court stated that in individual applications concerning freedom of expression, the removal of a statement from its context could lead to erroneous results in the application of the principles contained in Articles 13 and 26 of the Constitution and in making an acceptable assessment of the findings collected (see Fatih Taş, § 99). For instance, when expression of an opinion constitutes an attack on the reputation and rights of others when removed from its context in which it is expressed, this does not in itself justify an interference with the freedom expression. Therefore, the expressions that the Court of Cassation considers insulting and provoking must be considered as a whole together with the other expressions in the same context.

38.         Having regard to the applicant’s petition of complaint, it does not have an aggressive style, but contains expressions seeking help and emphasizing his helplessness. The applicant had tried to express the injustice he had faced in his work, in particular when compared to other employees. Furthermore, the applicant alleged that the employer had underpaid the insurance fees and altered the employee’s working hours in official documents, in spite of the fact that the employees worked shifts. The applicant also used the expression, “When an inspector comes, they offer food to him and send him back; they don’t care about us. If we are to complain, they threaten us. They are always treating us as if we were construction workers”, in order to emphasize that his complaint had not been investigated with due diligence.

39.         Therefore, having regard to the applicant’s petition of complaint as a whole, whether the words containing insults and provocation had been said in the context of emphasizing the failure to investigate the applicant's complaint with due diligence was not mentioned in the reasoning. In particular, whether the aforementioned statements had targeted the inspectors allegedly not performing their duties, along with the employer, was not assessed. Moreover, the impugned reasoning also lacked an assessment as to whether the petition of complaint would have negative consequences for the employer's reputation given that it had not been publicly disclosed to any person other than the public authorities and the company. Having regard to the less severe nature of the effects of the petition of complaint on the employer in comparison with the negative effects on the applicant caused by the sanction in the form of termination of his employment contract under the provisions of justified termination, it has been observed that the necessity of the application of these provisions was not discussed in the reasoning. As regards the termination of the applicant's employment contract under the provisions of justified termination, it has been considered that in the reasoning of the relevant decision, no relevant and sufficient grounds were put forth in terms of striking a fair balance between the applicant's freedom of expression and the employer's reputation and interests in ensuring peace in business relations.

40.         In the light of the above, it must be held that freedom of expression safeguarded by Article 26 of the Constitution has been violated.

3. Application of Article 50 of Code no. 6216

41.          Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled.

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

42.          The applicant requested the annulment of the decision delivered against him.

43.          It has been concluded that freedom of expression was violated.

44.          As there is a legal interest in conducting retrial in order to redress the consequences of the violation of the applicant’s freedom of expression, a copy of the judgment must be sent to the 7^th Civil Chamber of the Court of Cassation for retrial.

45.          The total court expense of 198.35 Turkish liras (TRY) calculated over the documents in the case file must be reimbursed to the applicant.

V. JUDGMENT

The Constitutional Court UNANIMOUSLY held on 14 April 2016 that

A.            Alleged violation of the freedom of expression be DECLARED ADMISSIBLE,

B.            Freedom of expression guaranteed under Article 26 of the Constitution was VIOLATED,

C.            A copy of the judgment be SENT to the 7^th Civil Chamber of the Court of Cassation for retrial in order to redress the consequences of the violation of freedom of expression,

D.            The total court expense of TRY 198.35 be REIMBURSED TO THE APPLICANT,

E.             The payment be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date; and

F.             A copy of the judgment be SENT to the Ministry of Justice.