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Individual Application User Guide Türkçe

(Serap Tortuk, B. No: 2013/9660, 21/1/2015, § …)
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REPUBLIC OF TURKEY

CONSTITUT

 

 

 

FIRST SECTION

 

JUDGMENT

 

SERAP TORTUK

(Application no. 2013/9660)

 

 

 

 

FIRST SECTION

JUDGMENT

 

President

:

Serruh KALELİ

Judges

:

Burhan ÜSTÜN

 

 

Hicabi DURSUN

 

 

Erdal TERCAN

 

 

Zühtü ARSLAN

Rapporteur

:

Şebnem NEBİOĞLU ÖNER

Applicant

:

Serap TORTUK

Counsel

:

Att. Cavit ÇALIŞ

 

I.          SUBJECT-MATTER OF THE APPLICATION

1.         By alleging that her rights defined in Articles 2, 13, 20, 21, 22, 36 and 38 of the Constitution were violated as she was dismissed from public office as a result of a disciplinary investigation initiated regarding her upon the speculation that some videos with sexual content involving the applicant were published on the internet. The applicant requested for the delivery of a decision as to the effect that the violation is determined, that a retrial is held, that in the event that the holding of a retrial was not adjudged, the pecuniary and non-pecuniary damages which she incurred be compensated.

II.       APPLICATION PROCESS

2.         The application was directly lodged with the Constitutional Court on 26/12/2013. In the preliminary examination that was carried out in administrative terms, it has been determined that there is no circumstance to prevent the submission of the application to the Commission.

3.         It was decided by the Third Commission of the First Section on 25/4/2014 that the file is sent to the Section in order for the examination of admissibility to be conducted by the Section. 

4.         On 11/7/2014, it was decided by the Head of the Section that the examination of admissibility and merits of the application be jointly carried out.

5.         The facts, which are the subject matter of the application, and a copy of the application was sent to the Ministry of Justice for its opinion. The opinion letter of the Ministry of Justice of 13/8/2014 was notified to the counsel of the applicant on 26/8/2014 and no counter-opinion was submitted by the counsel of the applicant against the opinion of the Ministry of Justice.

III.   THE FACTS

A.       The Circumstances of the Case

6.         The relevant facts as determined from the application form and the annexes thereof and the content of the trial file which is the subject matter of the application are summarized as follows:

7.         Upon the speculation as to the effect that a video with sexual content which was alleged to have belonged to the applicant was present on a user account which was created on behalf of the applicant in a social media site while she was working at Gülhane Military Medical Academy (GATA) as a civilian official nurse after she graduated from the Health Vocational College of GATA, and a disciplinary investigation was initiated regarding the applicant.

8.         In the expertise report of the Presidency of the Criminal Department of Gendarmerie of 1/11/2011 which was provided at the stage of investigation, as a result of the comparison of the head shot which belonged to the applicant and the videos which were present on the internet, it was stated that the conclusion was reached as to the effect that the persons in question were the same person. On the other hand in the report of 8/12/2011 which was drawn up by the same unit, it was stated that it was not technically possible to obtain the level of detail which was required for the identification of findings such as the suture scar and skin deformation which the applicant specified in her defense and stated were formed as a result of a medical intervention, since the resolution of the relevant videos were too low. 

9.         Through the decision of the High Disciplinary Board of the Ministry of National Defense (File No: MÜT-11-5470-J, of 27/6/2012), in the face of the defense of the applicant as to the effect that the videos were illegally published and the publication of the mentioned videos with her consent would be contrary to the natural course of life, it was stated that even if it could be considered that the videos in question with sexual content were illegally obtained and published on her Facebook page, it was proven through established judicial practices that a disciplinary investigation could be conducted through all sorts of evidence in administrative law, that within this scope, the act of the applicant was evaluated as performing disgraceful and shameful actions in a quality and degree which does not accord with the status of a public servant. The special laws which would apply to public servants who were assigned at Turkish Armed Forces were provided in Articles 232 and 233 of the Laws of Public Servants No.657 of 14/7/1965; that therefore, it was allowed by laws that stricter rules be applied regarding the public servants who were assigned at Turkish Armed Forces in terms of disciplinary law and that while there was no reward or certificate of achievement in the personal file of the applicant, the nature of the act had the characteristic of seriously harming the reputation of Turkish Armed Forces and the penalty of dismissal from public office was imposed on the applicant in accordance with clause (g) of subparagraph (E) of Article 125(1) of the Law No.657 and Article 13(5)(3) of the Regulation on the Disciplinary Boards and Disciplinary Chiefs of the Public Servants Who Are Assigned at Turkish Armed Forces of 11/3/1983.

10.     A case was filed by the applicant before the High Military Administrative Court with the request for the stay of execution and revocation of the disciplinary penalty imposed and it was claimed through the case petition and the petitions submitted at stages that the videos in question were published in a Facebook account opened on behalf of her, that it was not known by whom the specified account was opened, that the videos did not belong to her and that the sharing of the mentioned videos by her through an account opened with her own name was contrary to the natural course of life, that even if it was accepted that the videos in question belonged to her, the videos which were secretly shot and understood to be recorded in a house setting completely consisted of actions that belonged to her private life , that in this respect, it would not be a case that they would have an impact on the disturbance of the order and discipline within the institution as they were not videos which were recorded within the institution or in a way which would be connected to her duty and that the administration could not strike the balance between the requirements of the service and public interest and personal benefit by not exercising its discretionary power in a correct manner especially at the point of imposing a lower penalty.

11.     In the defense of the defendant administration, it was stated that although the videos with sexual content in question could be considered to have been illegally published, as public officials accepted to abide by the rules which the relevant legislation prescribed while starting to serve and the actions of the applicant which were the subject matter of the disciplinary investigation were disgraceful and shameful actions in a quality and degree which would not accord with the status of a public servant, the matters which she stated in her defense did not have any legal validity.

12.     The High Military Administrative Court adjudged on the dismissal of the request for the stay of execution through the decision of the Presidency of the Department on Duty (File No: E.2012/419 of 23/8/2012)

13.     In the opinion of the Office of the Chief Public Prosecutor of the High Military Administrative Court (File No: 2012/2862 of 10/12/21012), it was stated that it could not be determined by whom and in which way the videos which were shot in a house setting and needed to remain within the scope of the privacy of private life were published on the Facebook page and how long they remained on this page, that it could not be explained in the defense of the administration by whom and in which way these videos were obtained, that therefore, it was concluded that the videos which were stated to have belonged to the applicant through the criminal report were obtained and published without the consent of the applicant and in an illegal manner, that within this scope, it could not be mentioned that the administration exercised its discretionary power in line with the principle of proportionality by abiding by objective criteria and by striking a balance between public interest and personal benefit and an opinion was expressed as to the ruling of the revocation of the action which was the subject matter of the case.

14.     In the expertise report of the Presidency of the Criminal Department of Gendarmerie of 22/3/2013 which was provided during the trial, it was stated that, depending on the quality of the videos, it was not possible to identify the suture scar and skin deformation which the applicant claimed to be present on her body.

15.     Through the decision of the Second Chamber of the High Military Administrative Court (File No:E.2012/721, K.2013/516 of 24/4/2013) , the case for revocation was dismissed by stating that the execution of public service through the agents who lost the required reputation could result in the shaking the confidence of individuals in the administration, that the disciplinary investigation was separate from the criminal prosecution in accordance with Law No.657.Therefore, an action which required the penalty of dismissal from public office did not certainly need to be a disgraceful offense in terms of criminal law, that for this reason, the term of disgraceful and shameful action in a quality and degree which did not accord with the status of a public servanthad a broader scope than the disgraceful offenses stipulated in Article 48 of the Law No.657. And it was understood that the videos with sexual content in question were recorded by the applicant herself and transferred to another person through computer, therefore, the videos were opened to access to others by the applicant on the internet and that the relevant videos were received from a user account page which belonged to her, that within this scope, the evidence in question could not be considered to have been illegally obtained.

16.     The request for correction brought forward by the applicant was dismissed through the decision of the Presidency of the Second Chamber of the High Military Administrative Court (File No: E.2013/961, K.2013/1431 of 4/12/2013) and the decision was notified to the counsel of the applicant on 18/12/2013.

17.     An individual application was lodged on 26/12/2013.

B.       Relevant Law

18.     Clause (g) of subparagraph (E) of Article 125(1) of the Law No.657 with the side heading ''Types of disciplinary penalties and actions and cases to which penalty will be imposed'' is as follows:

       "The disciplinary penalties which will be imposed on public servants and the actions and cases which require each of the disciplinary penalties are as follows:

       ...

       E - Dismissal from public office: Shall be dismissal from public office without being appointed again.

       The actions and cases which require the penalty of dismissal from public office are as follows:

       .

       g) Performing disgraceful and shameful actions in a quality and degree which do not accord with the status of a public servant."

19.     Article 125(3) of the Law No.657 with the side heading Types of disciplinary penalties and actions and cases to which penalty will be imposedis as follows:

       The penalty which is one degree lower can be imposed with regard to the penalties to be imposed on the public servants whose works during their previous services are positive and who have received a reward or certificate of achievement .

20.     Article 13(5)(g) of the Regulation on the Disciplinary Boards and Disciplinary Chiefs of the Public Servants Who Are Assigned at Turkish Armed Forces of 11/3/1983 is as follows:

       "The disciplinary penalties which will be imposed on public servants and the actions and cases which require each of the disciplinary penalties are as follows:

       ...

       5 - Dismissal from public office: It shall be dismissal from public office without being appointed again.

       The actions and cases which require the penalty of dismissal from public office are as follows:

       .

       g) Performing disgraceful and shameful actions in a quality and degree which do not accord with the status of a public servant."

IV.    EXAMINATION AND GROUNDS

21.     The individual application of the applicant (App. No: 2013/9660 of 26/12/2013) was examined during the session held by the court on 21/1/2015 and the following was ordered and adjudged:

A.       The Applicant's Allegations

22.     The applicant alleged that her rights defined in Articles 2, 13, 20, 21, 22, 36 and 38 of the Constitution were violated by stating that she was dismissed from public office as a result of an investigation which was initiated regarding her upon the publication of videos with sexual content on the Internet, allegedly belonging to her, without her consent. The applicant also alleged that the relevant videos did not belong to her, that however, even if it were to be assumed that these videos belonged to her, she was punished because of an action which occurred in her private life and did not take place while on duty nor was related to her duty. It was not certain that how and by whom the videos which allegedly belonged to her were shot, when and by whom they were shared on the internet, therefore, the videos which were published without her consent and information were taken into consideration in the administrative investigation and trial regarding her although they qualified as evidence obtained by illegal means. Even if it was thought that the videos in question belonged to her and were recorded by her, the sharing of these videos by her on the internet would be contrary to the natural course of life, that for this reason, the sharing of the mentioned videos on the internet would be contrary to law and needed to be considered as illegal evidence in this respect, .The possibility of obtaining the mentioned videos through photomontage by combining the figures of face and naked woman was present and that the request that this doubt needed to be eliminated was not met at the stage of trial The applicant alleged on that she was dismissed from public office due to an act in the form of allowing her videos with sexual content to be shot in a way which would lead to the result of the incident gaining publicity by being published a social media site. However, the acts which were the subject matter of the disciplinary trial could be related to the period before she was admitted to public service and that there was no such reason as the publication of obscene videos among the cases which prevented admission to public service in Article 48 of the Law No.657, therefore, in the face of the possibility that the acts which were the subject matter of trial could belong to the process before the public service, they could not form the basis for the penalty of dismissal from public office and the mentioned action was voidable  in this respect. Moreover, the action could be statute barred in terms of the initiation of a disciplinary investigation and the imposition of a disciplinary penalty in this respect, that the phrase of disgraceful and shameful actionsstipulated in clause (g) of subparagraph (E) of Article 125(1) of the Law No. 657 and considered as the legal basis of the disciplinary penalty was limited to the offenses listed in clause (5) of subparagraph (A) of Article 48(1) of the same Law which specified the general and special conditions to be sought in those who would be admitted to public service and that this scope could not be extended with interpretation. Within this context, it was not legally possible to impose the penalty of dismissal from public office regarding the applicant by considering the actions performed as disgraceful and shameful actions in a quality and degree which did not accord with the status of a public servant although they were not listed among the offenses stipulated in Article 48 of the Law and that it did not accord with the principle of the state of law. The disciplinary penalty imposed against her action did not comply with the principle of proportionality and that her right to defense was restricted due to the fact that some documents which were taken as the basis for the judgment were not notified to her.

B.       The Constitutional Court’s Assessment

23.     It was asserted by the applicant that her rights defined in Articles 2, 13, 20, 21, 22, 36 and 38 of the Constitution were violated. The Constitutional Court is not bound by the legal qualification of the facts made by the applicant, it appraises the legal definition of the facts and cases itself. In the present case, it was considered to be appropriate to evaluate it in terms of Articles 20, 36 and 38 of the Constitution depends on the nature of the claims of violation. 

1. Admissibility

24.     In the examination conducted, since it is understood the application is not manifestly ill-founded, and there is no other reason which would require a decision of inadmissibility, it must be decided that the application is admissible.

2. Merits

25.     The applicant alleged that her rights defined in Articles 20, 36 and 38 of the Constitution were violated due to the fact that she received the penalty of dismissal from public office as a result of a disciplinary investigation initiated regarding her upon the speculation that her videos with sexual content were on the internet.

26.     In the opinion letter of the Ministry of Justice, it was stated that one of the legal interests which were protected within the scope of Article 8 of the European Convention on Human Rights (Convention) and Article 20 of the Constitution was "the right to privacy" and that this right also covered the ability of an individual to control the information related to him/her, that for this reason, the revelation and dissemination of any information that belonged to an individual without his/her own consent would result in the violation of the right to privacy. However, the disciplinary sanction on the applicant was imposed by the institution to which she was affiliated on the basis of a need that met a social reality and that while imposing the penalty of dismissal from public office regarding the applicant, the fact that it was not deemed appropriate to impose a lower penalty by accepting that the nature of the action had the characteristic of seriously harming the reputation of Turkish Armed Forces while there was no reward or certificate of achievement in her personnel file either needed to be taken into consideration in the evaluation of the matter of proportionality.

27.     According to the Article 148(3) of the Constitution and Article 45(1) of the Law on the Establishment and Trial Procedures of the Constitutional Court No. 6216 of 30/11/2011, in order for the merits of an individual application lodged with the Constitutional Court to be examined, it is necessary that the right which is claimed to be intervened by the public power be enshrined in the Constitution and that it also be covered by the Convention and the additional protocols to which Turkey is a party. In other words, it is not possible to decide on the admissibility of an application which contains a claim of violation of a right that is outside the common field of protection of the Constitution and the Convention (B. No. 2012/1049, 26/3/2013, § 18).

28.     The right to privacy of private life which is the subject of the claim of violation of the applicant is regulated in Article 20 of the Constitution and Article 8 of the Convention.

29.      Article 20 of the Constitution with the side heading of Privacy of private lifeis as follows:

       Everyone has the right to demand respect for his/her private and family life.  Privacy of private or family life shall not be violated.

       Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of  public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law, in cases where delay is prejudicial, again on the above-mentioned grounds, neither the person, nor the private papers, nor belongings of an individual shall be searched nor shall they be seized. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours.  The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall automatically be lifted.

       Everyone has the right to request the protection of his/her personal data.   This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives Personal data can be processed only in cases envisaged by law or by the persons explicit consent.  The principles and procedures regarding the protection of personal data shall be laid down in law. ."

30.     Article 8 of the Convention with the side heading ''Right to respect for private and family life'' is as follows:

       (1) Everyone has the right to respect for his private and family life, his home and his correspondence.

       (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

31.     The concept of private life is a broad concept which does not have a complete definition.  In this context, the legal value which is protected is, in essence, individual independence and while, on one hand, this protection refers to the fact that everyone has the right to live in an environment which is away from all undesired interventions and special for them, on the other hand, it is clear that the concept of private life cannot be reduced to the concept of everyone maintaining their personal life as he or she desires and keeping the outer world separate from this circle. In this respect, Article 20 of the Constitution guarantees the maintenance of a private social life (B. No. 2013/1614, 3/4/2014, § 31).

32.     One of the legal interests which are protected within the scope of the right to respect for private life is the right to privacy of an individual. However, the right to privacy does not only consist of the right to be left alone, but this right also covers the legal interest of an individual to be able to control the information regarding him/her. An individual has an interest in the fact that any information in relation to him/her cannot be revealed, disseminated without his/her own consent, that this information cannot be accessed by others and used in contrary to his/her consent, that in short, this information remains confidential. This matter points to the right of an individual to determine the future of the information regarding him/her (AYM, E. 2009/1, K. 2011/82, K.T. 18/5/2011; E. 1986/24, K. 1987/7, K.T. 31/3/1987).

33.     With this aspect, private life points to a conceptual and physical area in which individuals can primarily develop their own individuality and enter into the most private relations with other individuals. This area of privacy covers a private area in which the State cannot intervene or can intervene at a minimum level for legitimate purposes. The place of the right to privacy of an individual is, as a rule, the private area.  However, the right to the protection of private life can also extend to public space in certain cases. Because, the concept of legitimate expectation allows for the protection of the privacy of individuals also in public space in certain circumstances (B. No. 2013/1614, 3/4/2014, §§ 33-34).

34.     The concept of  private life, which is mentioned under the subcategory of the right to respect for private life, is interpreted quite broadly by the European Court of Human Rights (ECtHR) and they especially refrain from providing an exhaustive definition pertaining to this concept (Koch v. Germany, App. No.497/09, 19/7/2012, § 51).

35.     Nevertheless, in the case-law of the review bodies of the Convention, it is understood that the concept of the development and realization of the personality of an individualwas taken as the basis for the determination of the scope of the right to respect for private life. In the face of the fact that the right to the protection of private life cannot only be reduced to the right to privacy, many legal interests which are consistent with the development of personality in a freely have been included in the scope of this right. However, there is no doubt that actions and behaviors with sexual content which take place especially in private are included in this field.

36.     In Article 20 of the Constitution, it is stated that everyone has the right to respect for his or her private life and the privacy of private life cannot be violated and the right to privacy of private life included in this regulation corresponds to the right guaranteed within the scope of the right to respect for private life within the scope of Article 8 of the Convention. It is clear that the privacy area of an individual and his/her actions and behaviors that take place in this area are also within the scope of the private life of the individual. The right to privacy and the protection of the confidentiality of the information as regards this area are also considered by the Constitutional Court to be within the scope of Article 20 of the Constitution (AYM, E. 2009/1, K. 2011/82, K.T. 18/5/2011; E. 1986/24, K. 1987/7, K.T. 31/3/1987).

37.     In terms of the present case, it is clear that the applicant was not dismissed from public office as a result of a disciplinary investigation which was conducted for professional purposes. As understood from the process of disciplinary investigation, the decision of dismissal from public office and the decision of the court of instance, the behaviors of the applicant within the scope of her private life were particularly decisive in the process which is the subject of the application. Under these conditions, it is clear that the decision of dismissal from public office which was issued by showing elements belonging to her private life as justification constituted an intervention in the right to privacy of private life of the applicant.

38.     In Article 20 of the Constitution, while some reasons for restriction which are understood to be relevant to all aspects of this right are included in terms of the right to privacy of private life, even the rights for which no specific reason for restriction has been envisaged have some restrictions stemming from their nature, moreover, it can be possible to restrict these rights also based on the rules included in other Articles of the Constitution. At this point, the guarantee criteria included under Article 13 of the Constitution bear functional quality (B. No. 2013/2187, 19/12/2013, § 33).

39.     Article 13 of the Constitution with the side heading Restriction of fundamental rights and freedomsis as follows:

       Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence.  These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

40.     The indicated provision of the Constitution is of fundamental importance in terms of restricting rights and freedoms and the regime of guarantees, and it indicates the criteria which the lawmaker takes into consideration and can restrict all the rights and freedoms contained within the Constitution. Since it is compulsory to implement the rules of the Constitution together and by taking into account the general law rules within the framework of the principle of holism of the Constitution, it is clear that all guarantee criteria contained within the indicated regulation, notably the condition of restricting with law, also need to be observed in determining the scope of the right covered under Article 20 of the Constitution (B. No. 2013/2187, 19/12/2013, § 35).  

41.     The criterion of restricting rights and freedoms with the law has an important place in the constitutional jurisdiction. When there is an intervention to a right or freedom, the first matter that needs to be determined is whether or not there is a legal provision that authorizes the intervention, that is, a legal foundation of the intervention (App. No. 2013/2187, 19/12/2013, § 36).

42.     It is understood that the disciplinary sanction which is the subject matter of the application and the ongoing judicial process were conducted on the basis of clause (g) of subparagraph (E) of Article 125(1) of the Law No.657 and Article 13(5) (g) of the Regulation on the Disciplinary Boards and Disciplinary Chiefs of the Public Servants Who Are Assigned at Turkish Armed Forces.

43.     It is clear that disciplinary sanctions are established in order to sustain the order of a public or private organization, to ensure that it works in an efficient, fast and useful manner, to protect its honor and reputation. The aim of disciplinary penalties especially in terms of individuals who perform the public duty is to attach a public officer to the duty, to ensure that public service is duly performed and accordingly, to ensure the peace of institutions. Disciplinary penalties are imposed in order to ensure that public services are duly performed and that public servants act in harmony within a hierarchical order. The phrase "to ensure that public services are duly performed ..." stipulated in Article 124(2) of the Law No.657 also puts forth the indicated aim of disciplinary penalties. In this context, the imposition of some restrictions especially in relation to the actions and behaviors of public officers as a result of sanctions as regards the disciplinary law depend on the indicated legitimate bases.

44.     However, in spite of the indicated legitimate bases, it is obligatory to establish a proportion between an intervention made in the fundamental rights of an individual and the legitimate aim sought with this intervention. In Article 13 of the Constitution, three separate measures of guarantee are also included in the form of the elements of requirement, the essence of a right and proportionality in a democratic society for being considered in the evaluation of this proportion.

45.     The applicant claims that the investigation conducted on her private life and her dismissal from public office as a result of this constituted a disproportionate intervention in the right to privacy of private life guaranteed in Article 20 of the Constitution, states that as also understood from the documents included in the file of the disciplinary investigation initiated on her, this investigation did not cover the activities within the scope of her duty, that there were elements as regards private life such as actions with sexual content which were claimed to have taken place in her area of privacy behind the investigation in question. She claims that the investigation in question, with this aspect, was directly about her private life, that moreover, the type of administrative sanction imposed on her, that is, her dismissal from public office constituted an extremely severe penalty and that the option of imposing a lower penalty was ignored.

46.     Modern democracies are regimes in which fundamental rights and freedoms are ensured and guaranteed in the broadest manner. It cannot be accepted that the restrictions which bear prejudice to the essence of fundamental rights and freedoms and restrict them in a considerable manner or render them completely non-exercisable accord with the requirements of a democratic societal order. As the aim of a democratic state of law is to ensure that individuals exercise rights and freedoms in the broadest manner, it is necessary to predicate on an approach which brings the individual forward in legal regulations. For this reason, not only the measure of the imposed restrictions but also all elements thereof such as its conditions, reason, method and the legal remedies which are prescribed against the restriction should be evaluated within the scope of a democratic societal order.

47.     The essence of a right means the core which, when violated, renders the fundamental right and freedom in question meaningless and with this aspect, provides a minimum inviolable area of guarantee for the individual in terms of each fundamental right. In this framework, it should be accepted that the restrictions which considerably make the exercise of a right difficult, make the right non-exercisable or remove it violates the essence of the right. In the context of the right to privacy of private life, it is clear that the interventions which bear the consequence of the removal of this right, the rendering thereof non-exercisable or making the exercise thereof extremely difficult will also violate the essence of this right. The aim of the principle of proportionality is the prevention of the restriction of fundamental rights and freedoms more than necessary. In accordance with the judgments of the Constitutional Court, the principle of proportionality covers the elements of proportionality that define the availability which means the fact that the means used for restriction is suitable for achieving the aim of restriction, the obligation which points the obligation of the restrictive measure in order to achieve the aim of restriction and the fact that the means and aim are not within a disproportionate measure and the fact that the restriction does not impose an immoderate measure (AYM, E.2012/100, K.2013/84, K.T. 4/7/2013). 

48.     At this point, in order to determine whether or not a restriction has been made by complying with the indicated criteria, in the face of the legitimate aim which formed the basis of the measure which is claimed to have constituted an intervention and have violated the right to privacy of private life, it is obligatory to determine whether or not a fair balance was struck between the consideration of the severity of the sacrifice which was incumbent upon the individual and the protection of the requirements of the pursued general interest and the fundamental right of the individual. This balance which is valid in terms of the restriction of all fundamental rights and freedoms stipulated in the Constitution through Article 13 of the Constitution should also be taken into account in the restriction of the right to privacy of private life. While it is possible to restrict the right to privacy of private life, there should be no disproportionality between the legitimate aim prescribed in the restriction and the means of restriction, attention should be paid to striking a fair balance between the general interest which can be achieved by the limitation and the loss of the individual whose fundamental right and freedom is restricted (B. No. 2013/1614, 3/4/2014, § 49).

49.     Public authorities have discretionary power in two separate stages of the process of the restriction of a right. The first of these is the selection of the criterion of restriction. The second one is the requirement of the restriction made in order to achieve the legitimate aim pursued within the framework of the relevant criterion of restriction. However, this discretionary power granted to public authorities is not unlimited and it is necessary that the measure which is the subject of the claim of a violation accord with the constitutional fundamental rights and freedoms, that is, the arguments used for the legitimization of the intervention be available, obligatory and proportionate.

50.     The indicated discretionary power has a separate scope which is specific for each case. Depending on the elements such as the quality of the guaranteed right or legal benefit and the importance thereof in terms of an individual, the scope of this authority becomes narrow or wide.

51.     When important rights or legal interests which belong to the area of privacy or are related to the existence or identity of an individual are in question, discretionary power is narrower. In this context, when the aspects of the right to privacy of private life such as the right to sexuality and the right to privacy are in question, it is necessary to keep discretionary power more narrow and it is obligatory that particularly serious reasons be present for interventions in these areas (For a decision of the ECtHR in the same vein, see Dudgeon v. the United Kingdom, App. No. 7525/76, 22/10/1981, § 52). Because, it is clear that the confidentiality of the area of privacy and the right to respect for this area are one of the most necessary and fundamental rights for the security, existence, and identity of an individual.

52.     On the other hand, it is natural that public authorities have a broad discretionary power which varies depending on the quality of the activity and the aim of the restriction in an area such as personnel regime which is subject to strict rules and conditions.  In this context, in the face of the fact that the concept of private life does not only point to the area of privacy, but it guarantees that individuals sustain a private social life, it is clear that especially public officials can be subjected to restrictions in terms of some elements of private life which become integrated with their professional lives. Nevertheless, these individuals, as in the restrictions prescribed for other individuals, need to benefit from minimum criteria of guarantee (For a decision of the ECtHR in the same vein, see Ozpınar v. Turkey, App. No. 20999/04, 19/10/2010). It is obligatory to take into account whether or not a fair balance has been struck in particular between the right to privacy of private life which is one of the fundamental rights of an individual and the legitimate interest in ensuring that public service is performed in accordance with the aforementioned bases.

53.     Although it is clear that the disciplinary sanction which is the subject of the application is based on the aforementioned legitimate bases, it is necessary that the restriction which is understood to have constituted an intervention in the private life of the individual not render the indicated right by violating its essence. At this point, specifically for the present case, it should be examined whether or not a fair balance was struck between the individual interest of the applicant within the scope of Article 20 of the Constitution and the interest of public or similarly, the interest of another individual.

54.     From the evaluation of the administrative and judicial process which is the subject matter of the application, it is seen that upon the speculation as to the effect that a video with sexual content which was claimed to have belonged to the applicant was present on a user account which was opened on behalf of the applicant , a disciplinary investigation was initiated on her, that in the expert report received in the process of disciplinary investigation, as a result of the comparison of the relevant videos and the head shot of the applicant, a conclusion was reported as to the effect that the persons in the video and the photo were the same person, that however, in the expert report which was provided within the scope of the request of the applicant that a detailed analysis be conducted by considering her body lines and the scars which she claimed to be present on her body, it was established that it was not technically possible to conduct a detailed analysis due to the quality of the videos whose resolution is low, that, through the decision of the High Disciplinary Board of the Ministry of National Defense of 27/6/2012, even if it could be considered that the videos in question were illegally obtained and published on her Facebook page, it was proven through established judicial practices that a disciplinary investigation could be conducted through all sorts of evidence in administrative law, that within this scope, the act of the applicant was evaluated as performing disgraceful and shameful actions in a quality and degree which did not accord with the status of a public servant, that the applicant was sentenced to the penalty of dismissal from public office.

55.     It is understood that in the opinion of the Office of the Chief Public Prosecutor submitted within the scope of the case filed by the applicant with the request for the revocation of the relevant action, it was concluded that especially the mentioned videos were obtained and published in contrary to the consent of the applicant and it was determined that the videos in question were shot in a house setting, that in the defense of the administration, it was stated that although the videos with sexual content in question could be considered to have been illegally published, as public officials accepted to abide by the rules which the relevant legislation prescribed while starting to serve and the actions of the applicant which were the subject matter of the disciplinary investigation were disgraceful and shameful actions in a quality and degree which would not accord with the status of a public servant, the matters which she stated in her defense did not have any legal validity, that in the decision of the Second Chamber of the High Military Administrative Court of 24/4/2013, it was stated that it was understood that the videos in question were recorded by the applicant herself and transferred to another person through computer, that therefore, the videos were opened to access to others by the applicant in the internet environment and that the relevant videos were received from a user account page which belonged to her, that thus, the evidence could not be considered to have been illegally obtained and that the request of the applicant was dismissed and that the request for correction which had been filed was not accepted, either.  

56.     The right to privacy primarily corresponds to a spatial area and this area is the house and premises of an individual. It is necessary to evaluate in the evidence of some criteria whether or not the measures which affect an individual outside this place will be examined within the scope of the right to privacy of private life. In this respect, the right to privacy which is within the scope of guarantee of Article 20 of the Constitution, as a rule, does not extend to public space. When an individual gets into public space, that is, becomes visible, the right to privacy protected in the sub-category of the right to privacy of private life, as a rule, cannot be asserted. In this context, although the area of applicability of the right to privacy within the scope of the right to privacy of private life is, as a rule, the area of private life, some public spaces or contexts in which individuals interact with other persons can also be within the scope of the right to the protection of private life. Moreover, the right to privacy of private life provides an individual with a personal area in which s/he can act freely and develop and realize his/her personality. Therefore, the fact that an individual opens his/her private life on his/her own automatically decreases his/her right to respect for private life to a certain extent (App. No. 2013/1614, 3/4/2014, §§ 62-63).

57.     In nearly all of the justifications of the decisions issued in the administrative and judicial processes which are the subject matter of the application, it is seen that it was stated that although the videos with sexual content in question could be considered to have been illegally published, as public officials accepted to abide by the rules which the relevant legislation prescribed while starting to serve and the actions of the applicant which were the subject matter of the disciplinary investigation were disgraceful and shameful actions in a quality and degree which would not accord with the status of a public servant, the matters which she stated in her defense did not have any legal validity and that it was stated that the videos in question covered the actions of sexual content which were understood to have been recorded in a house setting.

58.     The applicant who bears a certain responsibility as a public servant was involved in the system of discipline and attitude arising out of being a public official on her own will by accepting this duty. This system which depends on the aforementioned bases, due to its nature, imposes on the rights and freedoms of an individual restrictions which cannot be imposed on any citizen. Because public interest expects full compliance from public officials in terms of the professional and ethical rules with which they need to comply. It is clear that the behaviors of the applicant which are contrary to professional and ethical rules especially in terms of some elements of private life which can be associated with her professional life may have a certain effect on the reputation of public officials and, in this context, of public service. However, although it was stated in the decision of the court of first instance that it was understood that the videos in question were recorded by the applicant herself and transferred to another person through computer, that therefore, the videos were opened to access to others by the applicant in the internet environment and that the relevant videos were received from a user account page which belonged to her and the title of the applicant as a public official was emphasized in the justifications of the relevant disciplinary decisions and judicial decision, it is understood that the actions and behaviors of the applicant which are the subject matter of the present case are related to the actions of private life which took place in her field of privacy and for which no finding was established as to the effect that they were revealed with her consent. 

59.     The applicant was obliged to respond to the claims which were not only related to her professional life but also her private life in the process of disciplinary investigation which was concluded with the penalty of dismissal from public office. In this context, it is seen that the claims directed towards the applicant were not only related to the execution of her duty, but rather related to the actions of private life which took place in her area of privacy. Therefore, the scope of the investigation which is the subject of dispute exceeds the limits of professional life. In this context, it is understood that it was determined, in the justifications of the decisions of the administration and judicial authorities, that the act which the applicant performed by way of shooting and publishing the videos which belonged to her actions with sexual content that were stated to have been recorded and transferred by the applicant to another person through computer, to have been opened to access to others by the applicant in the internet environment and to have been received from a user account page that belonged to her were within the scope of the disgraceful and shameful actions in a quality and degree which did not accord with the status of a public servant and that the results of the decisions were predicated on these justifications, that consequently, the disciplinary action which is the subject of the application and the behaviors which were made the subject of the judicial process were, in essence, the actions of private life which were not relevant to professional activity, but were included in her field of privacy .

60.     It is clear that especially public officials can be subjected to restrictions in terms of some elements of private life which also become integrated with their professional lives. Nevertheless, in the face of the fact that the courses of action with similar characteristics have been included in which the disciplinary penalty to be prescribed can be determined through the appraisal by the administration of the severity and the level of importance there between in the regulation as to the effect that exhibiting attitudes and behaviors which are not suitable for the solemnity of a Public servant requires the penalty of warning, that exhibiting behaviors which have the quality of destroying the reputation and the feeling of trust of a Public servant outside service requires the penalty of condemnation, that performing disgraceful and shameful actions in a quality and degree which do not accord with the status of a public servant requires the penalty of dismissal from public office within the scope of the acts and cases which require a disciplinary penalty stipulated in Article 125 of the Law No.657 and that similar regulations are also included in the provisions of the relevant Regulation, it is understood that the fact that the applicant received the penalty of dismissal from public office as a result of the disciplinary process on her has created an important effect on her professional life as well as her economic future as she was deprived of her main source of income and that it has become more important.

61.     When the aforementioned disciplinary process and the justifications of the decisions of the administrative and judicial authorities are taken into consideration, as it is understood that, within the scope of the disciplinary penalty which was imposed on the applicant, a fair balance could not be struck between the general benefit which could be achieved by restriction and the loss of the individual whose fundamental right and freedom was restricted, it should be decided that the applicant's right to privacy of private life guaranteed in Article 20 of the Constitution was violated.

62.     As it has been decided, by concluding that the applicant's right to privacy of private life guaranteed in Article 20 of the Constitution was violated, that the file be sent to the relevant Court to hold a retrial in order for the violation and the consequences thereof to be removed (§ 66), it has not been deemed necessary to separately evaluate the claim that the rights defined in Articles 36 and 38 of the Constitution were violated.

3. In Terms of Article 50 of the Law No.6216

63.     The applicant requested that a judgment be delivered on the holding of a retrial on the dispute and, in the event that no legal benefit was observed in the holding of a retrial, pecuniary damages of TRY 303.148,00 and non-pecuniary damages of TRY 50.000,00 be adjudged.

64.     In the opinion of the Ministry of Justice, no opinion was expressed as regards the request of the applicant for compensation.

65.     Article 50(2) of Law No.6216 with the side heading ''Judgments" is as follows:

       "If the determined violation arises out of a court judgment, 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 favor 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 judgment based on the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its judgment of violation."

66.     As it has been determined in the current application that Article 20 of the Constitution was violated, it should be decided that the file be sent to the relevant Court in order for the violation and the consequences thereof to be removed.

67.     Even though a request for pecuniary and non-pecuniary damages was filed by the applicant, as it has been understood that the fact that a judgment be delivered to send the file to the relevant Court for holding a retrial constituted a sufficient compensation with a view to the claim of violation of the applicant, it should be decided that the requests of the applicant for compensation be dismissed.

68.     It should be decided that the trial expenses of TRY 1,698.35 composed of the fee of TRY 198.35 and the counsel's fee of TRY 1,500.00 which were made by the applicant and determined in accordance with the documents in the file be paid to the applicant.

V.       JUDGMENT

In the light of the reasons explained, it is held UNANIMOUSLY on 21/1/2015;

A.       That the applicant's

                   1. The allegation as to the fact that Article 20 of the Constitution was violated is ADMISSIBLE,

                   2. Right to privacy of private life enshrined in Article 20 of the Constitution WAS VIOLATED,   

B.       That the file be sent to the relevant Court for holding a retrial in order for the violation and the consequences thereof to be removed,

C.       That the requests of the applicant for compensation be REJECTED,

D.       That the trial expenses of TRY 1.698,35 in total, composed of the fee of TRY 198,35 and the counsel's fee of TRY 1.500,00 which were made by the applicant be PAID TO THE APPLICANT,

E.       That the payment be made within four months as of the date of application by the applicant to the Ministry of Finance following the notification of the decision; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date on which this period comes to an end to the date of payment.

I. CASE DETAILS

Deciding Body First Section
Decision/Judgment Type Merits (violation)
Tag
(Serap Tortuk, B. No: 2013/9660, 21/1/2015, § …)
   
Case Title SERAP TORTUK
Application No 2013/9660
Date of Application 26/12/2013
Date of Decision/Judgment 21/1/2015
Official Gazette Date/Issue 3/6/2015 - 29375
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


The case concerns the alleged violations of the rights enshrined in Articles 2, 13, 20, 21, 22, 36 and 38 of the Constitution due to the dismissal of the applicant from public office as a result of a disciplinary investigation initiated against her upon the speculation that some videos with sexual content involving the applicant were published on the internet.

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Right to respect for private and family life Private life (privacy - general) Violation Re-trial

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law 125
Regulation 13
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The Constitutional Court of the Turkish Republic