THE FACTS

 [9-39] The applicant who had been serving as a contracted non-commissioned officer as of 30 August 2003 at the Air Forces Command requested the renewal of his contract at a date close to the expiry of his contract period of 9 years. However, his contract was not renewed by the administration.

 The action brought by the applicant for the annulment of the non-renewal of his contract was dismissed by the 1^st Chamber of the Supreme Military Administrative Court (“the SMAC”) on 21/5/2013. In its judgment, the SMAC noted that the administration had enjoyed its discretionary power lawfully while taking necessary actions on the grounds that the applicant had sent e-mails which had infringed confidentiality, which were not related to his duty and were sent for social purposes via his e-mail address created for internal use only; that he had used his e-mail address with a view to organizing tours and travels. The SMAC also specified that there was no manifest error of assessment on the part of the administration in respect thereof. This judgment became final after the remedy for rectification of the judgment had been exhausted.

IV. EXAMINATION AND GROUNDS

40. The Constitutional Court, at its session of 3 March 2016, examined the application and decided as follows.

A. The Applicant’s Allegations

41. The applicant maintained that his e-mails falling into the scope of his private life had been examined and recorded in the absence of a judge decision; that his expired employment contract with the air forces had not been renewed on the basis of the impugned e-mails which were not supported by concrete facts and evidence and author of which was unknown and which embodied no unlawful content, without taking his defence submissions; that in his action brought for non-renewal of his employment contract was also dismissed by the Supreme Military Administrative Court (“SMAC”) relied on the documents having no probative value. He accordingly alleged that his rights enshrined in Articles 5, 10, 11, 20, 35, 36, 37, 38, 49, 60 and 129 of the Constitution had been violated and accordingly requested a re-trial and compensation along with finding of a violation.

B. The Court’s Assessment

42. The Constitutional 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). In the present case, the applicant had been serving in the Air Forces Command as a non-commissioned officer on a contractual basis, and upon the expiry of his employment contract, it was not renewed. It appears that the underlying reason is the e-mails received or sent by the applicant via TSK-NET e-mail system, which is peculiar to the military staff. There is no finding that these e-mails contained any personal information, photo, image, record and etc. belonging to the applicant. As the concrete reason underlying the non-renewal of his contract was the monitoring of the applicant’s institutional e-mail account and the contents thereof, his allegations were examined within the framework of the right to respect for private life and the freedom of communication safeguarded by Articles 20 and 22 of the Constitution respectively.

43. The right and duty to work, which is enshrined in Article 49 of the Constitution and referred to by the applicant in his application form, is one of the fundamental rights and freedoms safeguarded by the Constitution but is not covered by the European Convention on Human Rights (“the Convention”) or any of its additional Protocols to which Turkey is a party. However, his complaint regarding the freedom of work is associated with the right to respect for private life as well as the freedom of communication which are under the joint realm of the Constitution and the Convention. Therefore, the alleged violation of Article 49 of the Constitution must be assessed within the framework of the applicant’s allegations as to the violations of Articles 20 and 22 of the Constitution.

1. Admissibility

44. The Court declared the application admissible for not being manifestly ill-founded and there being no other grounds to declare it inadmissible.

2. Merits

45. In its observations, the Ministry of Justice (“Ministry”), referring to similar judgments rendered by the European Court of Human Rights (“ECHR”), has accordingly noted that Article 8 of the Convention guarantees the right to a private social life; that there is no principal reason which requires the exclusion of professional activities from the scope of the notion of private life; that an individual serving as a public officer may raise a complaint due to his dismissal from office under Article 8 of the Convention; that the investigation carried out by the inspector into the individuals’ private lives as well as the resulting administrative dismissal essentially motivated by the conclusions drawn from their behaviours and conducts could be considered as an interference with the right to respect for his private life; and that although it is possible to use information gathered with respect to individuals seeking to be employed in certain positions, which are of importance for national security, in assessing their eligibility for the positions, this practice intended for protecting and maintaining national security must afford sufficient and efficient safeguards against the risk of misuse.

46. In his counter-statements against the Ministry’s observations, the applicant noted that he completely agreed with the issues specified in the Ministry’s observations.

47. In its letter of 10 July 2015, the Air Forces Command stated that that the Turkish Armed Forces (TAF) had informed the TAF personnel of the practice that the communications sent or received via e-mail system would be monitored by the E-mail Monitoring Unit; that the Instruction on E-mail System no. MY 411-7 TSK-NET, which was issued by the Turkish General Staff on 14 May 2007, was notified to all officers by publication on the intranet site and was thus easily accessible by all officers through their computers; that the officers were provided with practical explanations concerning the principles as to the use, and security, of information systems during the Briefings on the Security of Communications Electronics and Information System (CIS) and Briefings on the Security of Information Systems, which were regularly held on yearly basis; and that as it would be impossible for the applicant to use his institutional computer and perform his activities without attending the security briefings, it must be accepted that he had already attended such briefings.

48. Article 20 § 1 of the Constitution, titled “Privacy of private life”, reads 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.”

 49. Article 22 of the Constitution, titled “Freedom of communication”, reads as follows:

 “Everyone has the freedom of communication. Privacy of communication is fundamental.

 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 abovementioned grounds, communication shall not be impeded nor its privacy be violated. 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 be automatically lifted.

 Public institutions and agencies where exceptions may be applied are prescribed in law.”

 50. Article 20 of the Constitution embodies the right to respect for private life. Private life is a broad notion not susceptible to exhaustive definition. This notion affords protection for, inter alia, the individual’s physical and moral integrity, his physical and social identity, his name, sexual orientation and sexual life (see Ahmet Acartürk, no. 2013/2084, 15 October 2015, § 46). Issues such as personal information and data, personal development and family life are also covered by this right.

 51. Private life safeguards a “private social life”; in other words, a “private life” within the meaning of the individual’s right to develop his social identity. In this respect, the right in question also encompasses the right to establish contact with others in order to establish and develop relations. It is indicated in the ECHR’s case-law that the professional activities cannot be considered to fall outside the scope of the “private life” notion. Restrictions on an individual’s professional life may fall within Article 8 of the Convention where they have repercussions on the manner in which he or she constructs his or her social identity by developing relationships with others. It should be noted in this connection that it is in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity to develop relationships with the outside world (see Özpınar v. Turkey, no. 20999/04, 19 October 2010, § 45; and Niemietz v. Germany, no. 13710/88, 16 December 1992, § 29).

 52. The ECHR stresses that the investigation carried out by the inspector into the individuals’ private lives as well as the resulting administrative dismissal essentially motivated by the conclusions drawn from their behaviours and conducts can be considered as an interference with their right to respect for private life (See Özpınar v. Turkey, §§ 47-48).

 53. Article 22 of the Constitution sets forth that everyone has the freedom of communication and that privacy of communication is essential. In Article 8 of the Convention, it is enshrined that everyone has the right to respect for his correspondence. The joint protection realm of the Constitution and the Convention affords safeguards not only for the freedom of communication but also for privacy of the communication, regardless of its content and form. In this context, expressions used in the oral, written and visual communications, either mutual or collective, of individuals must be kept confidential. Communications via post, e-mail, telephone, fax and internet must be considered to fall under the scope of the freedom of communication as well as confidentiality of communication (see Mehmet Koray Eryaşa, no. 2013/6693, 16 April 2015, § 49).

 54. The freedom of communication and the principle of confidentiality of communication safeguards individuals’ communications not only in their private dwellings but also in their workplaces (see Bülent Polat [Plenary], no. 2013/7666, 10 December 2015, § 65).

 55. It is amongst the safeguards afforded by the Constitution and the Convention to prevent public authorities from arbitrarily interfering with the individual’s freedom of communication and confidentiality thereof (see Mehmet Koray Eryaşa, § 50).

a. Existence of Interference

56. In the present case, it has been observed that the e-mails sent and received by the applicant via the institutional e-mail address operated by the Air Forces Command system were monitored by the E-mail Monitoring Unit; that in deciding not to renew the applicant’s contract as a non-commissioned officer, the administration also took the contents of these e-mails into consideration; and that the 1^st Chamber of the SMAC, which dismissed the applicant’s action against his dismissal from military office, considered the contents of the e-mails in question in the reasoning of its decision dated 21 May 2013. It has been accordingly concluded that the applicant’s right to respect for his private life as well as freedom of communication have been interfered with as his e-mails sent and received at the workplace were collected, stored and relied on as a basis for the administrative act in the form of the non-renewal of his employment contract.

b. Whether the Interference Constituted a Violation

57. In Article 20 § 2 of the Constitution, it is set forth that the right to respect for private life may be restricted on certain grounds, and it is thereby accepted that this right is not absolute. It is also indicated in several judgments rendered by the Court “along with certain restrictions inherent in fundamental rights and freedoms, the principles enshrined in other provisions of the Constitution also set the innate boundary for these rights and freedoms. In other words, the scope and objective extent of fundamental rights and freedoms should be determined not independently in terms of each norm but according to the meaning inferred from the Constitution as a whole” (see the Court’s judgment no. E. 2012/100 K.2013/84, 4 July 2013).

58. The grounds justifying a restriction on the freedom of communication are set forth in Article 22 § 2 of the Constitution.

59. Article 13 of the Constitution, titled “Restriction of fundamental rights and freedoms”, reads 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.”

60. The said provision of the Constitution is of fundamental importance for establishing the regime which embodies, inter alia, the grounds justifying any restriction of the rights and freedoms and the safeguards. It accordingly indicates under which conditions the fundamental rights and freedoms enshrined in the Constitution may be restricted by the law-maker. Within the framework of the principle of constitutional holism, it is requisite that the constitutional provisions be applied collectively and in consideration of general rules of law. It is thus clear that all standards as regards the safeguards, notably the requirement of restriction by law enshrined in the said provision, must be taken into consideration also in determination of the scope of the rights laid down in Articles 20 and 22 of the Constitution (see Sevim Akat Eşki, no. 2013/2187, 19 December 2013, § 35).

61. Therefore, in dealing with the alleged interferences with the right to respect for private life and the freedom of communication, the questions of lawfulness and as to whether any ground justifying the interference exists must be considered under the particular circumstances of each concrete case.

i. Lawfulness

62. The Court has already discussed, in its previous judgments, whether monitoring of the institutional e-mail account of a military officer serving at the Air Forces Command as well as the contents thereof had a legal basis. Accordingly, the Court has observed that although it is not clearly set forth in Article 5 of Law no. 2937 and Article 2 of Law no. 1324 that e-mails of the TAF staff would be subject to monitoring within the scope of intelligence activities and counter-intelligence service, it is set out that public institutions and organizations are entrusted with the duty to engage in counter-intelligence activities and that the Chief of the Turkish General Staff shall carry out the intelligence services through the Forces Commands and their affiliated institutions. It has been further observed that the authority entrusted to the Chief of the Turkish General Staff within the scope of these statutory regulations also encompasses the authority to perform regulatory acts in order to ensure performance of intelligence service; that the Turkish General Staff and the Air Forces Command issued instructions in this respect on 27 February 2006 and 22 March 2006 respectively; that these instructions were then formed into MY 411-7 TSK-NET E-mail System Directive of the Turkish General Staff (“the Directive”) which is dated 14 may 2007 and embodies sufficiently explicit provision allowing for monitoring of the messages sent via the military officer’s institutional e-mail account; and that these statutory arrangements met the “lawfulness” condition (see Bülent Polat §§ 73-96). The Court has found no ground which would require it to depart from its previous judgments.

63. It appears that the applicant’s contract was not renewed on the basis of Articles 10 and 12 of Law no. 4678 as well as Article 14 of the Regulation on Contracted Officers and Non-Commissioned Officers.

64. In this sense, the interference with the applicant’s right to respect for his private life as well as his freedom of communication had a legal basis.

ii. Legitimate Aim

65. In the present case, there was an interference with the applicant’s freedom of communication and the right to respect for private life on the ground that the contents of the e-mails obtained through the monitoring of messages sent and received by the applicant via his institutional e-mail address were relied on for non-renewal of his contract. As would be seen, the impugned interference falls under the scope of the freedom of communication enshrined in Article 22 of the Constitution and the right to respect for private life enshrined in Article 20 thereof, as well.

66. In order for an interference with the freedom of communication to be considered legitimate, it must be based on one or several grounds enumerated in Article 22 § 2 of the Constitution, namely maintaining national security, public order, prevention of offence, protection of public health and public morals, or protection of the rights and freedoms of others.

67. It appears that the monitoring of messages sent/received via institutional e-mail addresses assigned by the TAF to its staff for professional purposes is intended for ensuring information security and conducting counter-intelligence activities. In this respect, it has been observed that in the present case, the impugned interference by the military authority, which is in charge of maintaining security throughout the country, aimed at ensuring security of information created and transmitted via the system enabling communication among the military staff. It has been accordingly concluded that the impugned interference aimed at maintaining national security for the purposes of information security and counter-intelligence, which constituted a legitimate aim within the meaning of Articles 20 and 22 of the Constitution (see Bülent Polat, §§ 101-103).

iii. Necessity in a democratic society and proportionality

68. An interference with the individuals’ fundamental rights must be proportionate to the legitimate aim pursued by this interference. Three tests to be taken into consideration in the assessment of the commensurateness, namely necessity in a democratic society, the very essence of the right and the proportionality, are also specified in Article 13 of the Constitution (see Marcus Frank Cerny [Plenary], no. 2013/5126, 2 July 2015, 70).

69. The phrase "necessary in a democratic society", which is expressed in the ECHR’s case-law, means that the interference must, inter alia, correspond to a pressing social need and be proportionate to the legitimate aim pursued (see Silver and Others v. the United Kingdom, no. 5947/72, 25 March 1983, § 97).

70. The very essence of the right, if infringed, renders the fundamental right or freedom in question dysfunctional. It refers to the core of the right or freedom and thereby affords individuals minimum safeguards, which are intangible, with respect of every fundamental right and freedom. In this sense, restrictions which make the exercise of the relevant right extremely difficult, make it dysfunctional, or eliminate it must be considered to have impaired the very essence of the right. Also, in the context of the freedom of communication, any such restriction, which eliminates the freedom, makes it dysfunctional or makes its exercise extremely difficult, would clearly impair its very essence. The aim of the principle of proportionality is to prevent excessive restrictions on fundamental rights and freedoms. As noted in the judgments rendered by the Court, the principle of proportionality embodies three sub-principles: suitability which means that the means used for restriction is suitable to the aim pursued by the restriction; necessity which means that the restrictive measure is necessary to attain the pursued aim; and commensurateness which requires the means to be commensurate with the aim as well as the restriction not to place a disproportionate burden (see the Court’s judgment no. E.2012/100 K.2013/84, 4 July 2013).

71. In determining whether a restriction has been imposed in accordance with the above-cited requirements, it must be taken into consideration whether the burden imposed on applicant was outweighed by the legitimate aim underlying the impugned measure constituting an interference, and whether a fair balance was struck between the general interest pursued and the protection of the individual’s fundamental right. This balance applicable to the restriction of all fundamental rights and freedoms by virtue of Article 13 of the Constitution must be taken into account also in respect of the restriction imposed on the right to respect for private life and the freedom of communication. Besides, in a field subject to strict rules and conditions such as personnel regime, the public authorities may, of course, exercise a wide margin of appreciation depending on the nature of the act and the aim pursued by the restriction. However, the question whether a fair balance was struck between the freedom of communication as well as the right to respect for private life and the legitimate interest in ensuring the public service to be performed in accordance with the above-mentioned considerations must be taken into account (see Marcus Frank Cerny, § 73).

72. His position as a public officer requires an individual to undergo certain burdens and responsibilities as well as to be subject to restrictions which are not applicable to ordinary persons, along with certain privileges and advantages the position affords to him. As the individual holds the public position of his own accord, he is therefore considered to have consented to make use of the privileges of this position and to bear its burdens, as well. The characteristics inherent in the public service entail these advantages and restrictions (see İhsan Asutay, no. 2012/606, 20 February 2014, § 38).

73. In the ECHR’s judgment, it is noted that the monitoring of an employee’s telephone, e-mail or internet usage at the workplace would not be per se, to a certain extent, in breach of the Convention; and it is therefore necessary to make an assessment in consideration of the ordinary and reasonable requirements of the workplace as well as the legitimate aims (see Copland v. the United Kingdom, no. 62617/00, 3 April 2007, § 48).

74. In the present case, it has been observed that the e-mails sent and received via the institutional e-mail account operated by the Air Forces Command were monitored by the E-mail Monitoring Unit. This system is a limited communication system which is allocated by the TAF to its own staff for professional purposes and which is available only for internal use and allows for communication among military personnel and transmission of data concerning military service. It also appears that through the system in question, the military officers could also create classified e-mails -which may be read only by the relevant parties- by use of electronic signature and encryption; and that such e-mails could not be monitored by the E-mail Monitoring Unit. In the present case, the e-mails monitored by the E-mail Monitoring Unit were the messages sent unencrypted. It is inevitable for the administration, within the meaning of the legitimate aim of maintaining national security, to take administrative measures that would enable monitoring communications in order to ensure security of information and data created via the e-mail system, to prevent sending of any data which may cause intelligence vulnerability, and to understand whether necessary encrypting process has been followed and whether there is any breach of confidentiality. The administration has laid down the principles on the monitoring of the communications of military staff through the institutional e-mail addresses in a sufficiently clear manner and informed all staff of these principles through notification.

75. In the present case, while the applicant was serving at the Air Forces Command as a non-commissioned officer, his employment contract, upon being expired, was not renewed by the administration. In deciding not to renew his contract, the administration relied on the need for contracted personnel as well as on the messages sent/received by the applicant via his institutional e-mail account. At the end of the examination made by the E-mail Monitoring Unit, it has been found out that the applicant sent, on 1 January 2006 and 14 June 2010 through his institutional e-mail account, 3 e-mails which were in breach of the confidentiality, 352 e-mails which were not related to his profession but intended only for chatting, and 393 e-mails which were for social purposes. It has been further observed that within the same period, the applicant received 4 e-mails in breach of confidentiality, 2 e-mails involving political propaganda, 522 e-mails which were not related to his profession but intended only for chatting and 587 e-mails which were for social purposes. It has been accordingly revealed that the applicant used his e-mail account for the purpose of tour and trip organizations which he made with another military officer in the capacity of a squadron leader; that the e-mails the applicant sent/received were in breach of the confidentiality; and that he received e-mails involving political issues/intended for propaganda. There is no explanation as to the contents of the messages which were sent by the applicant via his institutional e-mail account to the other military officer and which were found by the E-mail Monitoring Unit to be in breach of confidentiality. Nor is there any finding to the effect that the information included in these messages was leaked from the military network or that the military officer to whom these e-mails were sent had no authority to have access to this information.

76. The e-mails obtained within the scope of intelligence activities were sent between 2006 and 2010, and they were disclosed on 24 June 2010 as a result of the monitoring conducted by the E-mail Monitoring Unit. The contents of these e-mails were relied on for the non-renewal of the applicant’s contract. It appears that these contents contain messages which are not related to the profession but are intended for chatting and pursue social purposes, as well as contain articles and images concerning certain historical events.

77. It should be borne in mind that in recruiting personnel in a status where stricter rules apply as a requirement of the military discipline, the TAF has a broader margin of appreciation. Accordingly, it has been concluded that in cases where an electronic communication system, which is required to be used in line with professional purposes, and the correspondences with the system are monitored and where the system is found to have been misused for personal purposes, the interference with the use of this system may be deemed to be necessary in a democratic society.

78. In determining as to whether the interference with the applicant’s freedom of communication and right to respect for his private life was proportionate, the nature of the information included in these e-mails, the way in which such information was used and the severity of the sanction imposed on the basis of such information must be taken into consideration.

79. After the administration had found out that the institutional e-mail account had been used by the applicant for non-professional purposes and in breach of the rules specified in the Instruction, it nevertheless continued to employ him until the expiry of his contract (nearly for a period of 2 years);. Nor did the administration conduct a disciplinary investigation, or impose any sanction including termination of the contract, against him. Thereby, the administration also indirectly accept that the applicant’s impugned act was not of such a nature so as to preclude him from performing public service.

80. The administration’s act in the form of non-renewal of the applicant’s contract at the end of the monitoring of communication via his institutional e-mail account has a significant effect not only on his professional life but also on his economic future due to being deprived of his main source of income. Although the military staff whose contract is not renewed shall be entitled to health-care services and compensation, for a limited period of time, provided that certain conditions are fulfilled pursuant to Articles 16 and 18 of Law no. 4678, it is clear that such entitlements would not suffice to redress such a severe consequence as loss of job. Besides, the pre-requisite of being entitled to these opportunities is the lack of any fault on the part of the relevant staff in non-renewal of the contract. In the present case, given the grounds relied on by the administration in non-renewing the applicant’s contract, he may also be fully devoid of these opportunities. Furthermore, it must be taken into consideration that the applicant whose contract was not renewed after having served for 9 years as a non-commissioned officer has fewer opportunities -to find a job at another sector excluding military- than individuals engaged in other professions.

81. Although it has been taken into consideration that the act complained of by the applicant was not the termination of his contract but its non-renewal, it has been concluded that the administration, relying on the applicant’s use of his institutional e-mail account for non-professional purposes and accordingly its use for chatting and social purposes, in deciding not to renew his contract upon the expiry of nine-year service (contract) in the military failed to struck a fair balance between the general interest pursued through the interference and the loss sustained by the individual whose fundamental rights and freedoms have been restricted, also regard being had to the facts that the applicant had high conduct grades and had no unfavourable opinion from his superiors, had no disciplinary sanction, was rewarded letters of appreciation and qualified as an “excellent” officer. It has been also decided that the interference with the applicant’s right to respect for his private life as well as freedom of communication was disproportionate.

 82. For these reasons, the Court found violations of the right to respect for private life and the freedom of communication safeguarded respectively by Articles 20 and 22 of the Constitution.

 Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. Recep KÖMÜRCÜ, Mr. Alparslan ALTAN, Mr. Nuri NECİPOĞLU, Mr. Celal Mümtaz AKINCI and Mr. M. Emin KUZ did not agree with this conclusion.

3. Application of Article 50 of Code no. 6216

83. 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.”

 84. The applicant requested the Court to find a violation and to order a re-trial.

 85. In the present case, the Court has found violations of the right to respect for private life and freedom of communication safeguarded respectively by Articles 20 and 22 of the Constitution.

 86. As there is a legal interest in conducting a re-trial with a view to redressing the consequences of the violations of the said right and freedom, it must be decided that a copy of the judgment be sent to the 1^st Chamber of the SMAC to conduct a re-trial.

 87. Although the applicant claimed both pecuniary and non-pecuniary compensation, his claims for compensation must be dismissed as the order to send the judgment to the relevant tribunal in order to conduct a re-trial would constitute sufficient just satisfaction for the violations suffered by the applicant.

 88. The total court expense of 1,998.35 Turkish Liras (T”RY”) including the court fee of TRY 198.35 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

For these reasons, the Constitutional Court held on 3 March 2016:

A. UNANIMOUSLY that the application be DECLARED ADMISSIBLE;

B. By MAJORITY and by dissenting opinions of Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. Recep KÖMÜRCÜ, Mr. Alparslan ALTAN, Mr. Nuri NECİPOĞLU, Mr. Celal Mümtaz AKINCI and Mr. M. Emin KUZ that the right to respect for private life safeguarded by Article 20 of the Constitution and the freedom of communication safeguarded by Article 22 thereof were VIOLATED;

C. UNANIMOUSLY that a copy of the judgment be SENT to the 1^st Chamber of the SMAC to conduct a re-trial for redressing the consequences of the violations of the said right and freedom;

D. UNANIMOUSLY that the total court expense of TRY 1.998,35 including the court fee of TRY 198.35 and the counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;

E. UNANIMOUSLY that 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;

F. UNANIMOUSLY that a copy of the judgment be SENT to the Ministry of Justice.

DISSENTING OPINIONS OF JUSTICES BURHAN ÜSTÜN, SERDAR ÖZGÜLDÜR, RECEP KÖÜRCÜ, NURİ NECİPOĞLU AND CELAL MÜMTAZ AKINCI

 The military status of “contracted” commissioned/non-commissioned officer differs from the status of “regular” commissioned/non-commissioned officer. In this respect, the administration has a wide margin of appreciation in “renewing the contract” as in the present case. Undoubtedly, this margin of appreciation must be exercised in an objective manner consistent with public interest. It has been accordingly observed that in the present case where it was found out that the applicant had sent 3 e-mails in breach of confidentiality, 352 non-professional e-mails intended for chatting and 393 e-mails intended for social purposes, within the period of his expired contract period, through his computer assigned for public service, there is no aspect which impairs the objectivity of the margin of appreciation exercised by the administration in “deciding not to renew the contract” based on the conclusion that he would not perform effectively within the next contract period as well as in consideration of the disciplinary and military service requirements, which thereby reveal to be in the public interest. As we have accordingly concluded that the dismissal, by the military administrative tribunal, of the action brought by the applicant for annulment of the aforesaid act did not give rise to any violation; and that there were no grounds leading to the violation of the right to respect for private life and the freedom of communication, we disagree with the conclusion whereby the majority of the Court found violations of the said right and freedom.

DISSENTING OPINION OF JUSTICE ALPARSLAN ALTAN

1. The application concerns the alleged violations of the right to respect for private life and the freedom of communication due to non-renewal of the employment contract of the applicant, who was a non-commissioned officer, on account of his e-mails.

2. The majority of the Court found violations of the right to respect for private life safeguarded by Article 20 of the Constitution and the freedom of communication safeguarded by Article 22 thereof on the grounds that non-renewal of the applicant’s contract, which was already expired, due to his e-mails was neither necessary in a democratic society nor proportionate.

3. In the incident giving rise to the present case, the expired contract of the applicant, who was a contracted non-commissioned officer at the TAF, was not renewed by the administration as he had used the electronic communication system, which should have been used for professional purposes, for personal purposes in spite of having been provided with other means to carry out his private communications.

4. According to the letter of the Air Forces Command dated 17 July 2015, the TSK Net E-Mail System is a limited communication system which is allocated by the TAF to its own staff for professional purposes and which is available only for internal use and allows for communication among military personnel and transmission of data concerning military service.

5. On 30 August 2003, the applicant signed a 9-year contract with the Air Forces Command so as to serve as a contracted non-commissioned officer. Upon the expiry of his contract, the administration decided not to renew his contract. The administration stated that it had exercised its discretion by taking into consideration the need of the Air Forces Command for contracted staff as well as the applicant’s career summary (year of experience, awards/appreciations/penalties, intelligence on his personal status, trainings received and success in these trainings). The classified document, which is one of the documents taken into consideration, consists of the Survey Result Report of 24 June 2010 and its annexes, which were issued by the E-Mail Monitoring Unit concerning the messages sent/received by the applicant via TSK Net E-mail System peculiar to the staff at the Air Forces Command. There are findings in the Report to the effect that the applicant used his e-mail account for tours and trips which he organized together with another military officers with the rank of squadron leader; and that he had breached confidentiality through the e-mails he sent/received and received e-mails with political motives/propaganda. According to these findings, the applicant sent 3 e-mails in breach of confidentiality, 352 non-professional e-mails intended for chatting and 393 e-mails created for social purposes and received 4 e-mails in breach of confidentiality, 2 e-mails involving political propaganda, 522 non-professional e-mails and 587 e-mails created for social purposes.

6. The impugned incident was dealt with by the relevant judicial tribunals which primarily noted that it was an administrative contract underlying the impugned case; that those with whom the contract was signed did not have the status of “public officer”; that there was no regulation which forced the administration to renew the contract after it had expired; that the administration was afforded a margin of appreciation whereby it was entitled to seek certain qualifications in staff to perform public service as well as to dismiss those who would cause prejudice to public service; and that the administration exercised its discretion in a lawful manner, and there was no manifest error of assessment.

7. The scope of the examination to be made by the Court which would deal with the impugned incident through individual application mechanism must be determined well. In examining the alleged violations of the right to respect for private life and the freedom of communication safeguarded respectively by Articles 20 and 22 of the Constitution, the Court should consider the applicant’s legal status, personal situation, practices prior to the incident as well as nature and characteristics of the institution where the applicant was serving. Assessments made irrespective of such particulars of the present case may lead to wrong conclusions.

8. It is clear that the Air Forces Command operating under the Turkish Armed Forces has a wide discretion to ensure the use of the communication system -which is allocated to the staff for professional purposes, is available only for internal use and enables transmission of data on military service only among military staff- in line with its intended purposes, as well as to take relevant measures so as to prevent any use which does not fit for the intended purposes. As a matter of fact, the Directive on MY 411-7 TSK-NET E-mail System, which was issued by the Turkish General Staff on 14 May 2007, also embodies principles on this matter and lays down conditions and principles for monitoring of the communication system. Besides, it is explicitly set forth in Article 5 § 2 of the Directive that a legal action shall be taken against the staff who have misused the e-mail system and have made a habit of misusing even if this act does not constitute another offence. The Air Forces Command noted that the said Directive and the instructions on the principles of use of e-mail system had been notified to all staff.

9. The administration’s decision not to renew the applicant’s contract is based on hundreds of messages which were sent/received by him through the TSK-NET e-mail system used by and among the staff of the Air Forces Command, which were formulated for tour and trip organizations, social purpose, and some of which were also in breach of confidentiality. The impugned messages do not contain any information, photo, image and record belonging to the applicant himself.

10. As also emphasized in the reasoning put forward by the majority, it appears that the monitoring of the communications via the institutional e-mail addresses allocated by the TAF to its own staff aims at ensuring information security and counter-intelligence. In this respect, in the present case, it has been observed that the impugned interference by the military administration, which is liable to protect and maintain country security, was intended for ensuring security of information created and shared via the system used as a means for communication by and among the staff. Therefore, the interference aimed at ensuring national security within the framework of information security and counter-intelligence activities, which is a legitimate aim within the meaning of Articles 20 and 22 of the Constitution (see Bülent Polat, §§ 101-103).

11. As also indicated in the majority’s conclusion, it must be taken into consideration that in recruiting personnel in a position for which stricter rules apply as required by the military discipline, the TAF has a wider margin of appreciation. Accordingly, it has been concluded that in cases where an electronic communication system required to be used in line with its intended purpose as well as the communications via the system are monitored and where it is found out that the communication system is misused for personal purposes, any interference with such use may be deemed to be necessary in a democratic society.

12. In the judgment, the majority has reiterated the grounds with which I also agree, and in the last section, the majority has noted that the applicant continued performing his duties until the expiry of his contract period without being subject to any disciplinary action and any sanction as to the termination of his contract in spite of having acted contrary to the rules; that his deprivation of main source of income due to the termination of his contract would adversely affect his economic future; that the applicant whose contract was not renewed after having served for 9 years as a non-commissioned officer has fewer opportunities -to find a job at another sector excluding military- than individuals engaged in other professions; and that the applicant had high conduct grades and had no unfavourable opinion from his superiors and no disciplinary sanction. The majority has accordingly concluded that the interference with the applicant’s private life and freedom of communication was disproportionate.

13. The applicant’s having good personal record and being subject to no disciplinary sanction until the end of his contract cannot be considered as a factor compelling the administration to renew the contract for the next period. Besides, the considerations to the effect that the applicant’s economic future would adversely affect or it would be difficult for the applicant to find another job due to non-renewal of the contract are a matter of debate and cannot be taken into account in terms of examinations as to whether there has been a violation.

14. The issue needed to be meticulously discussed by the Court in its examination is the extent to which the administration’s wide margin of appreciation in terms of the requirements of the military service -recognized by the majority of the Court- may be interfered with. In the present case, the factor which also extends the administration’s margin of appreciation, which is indeed wide, is the establishment of the employment relation between the administration and the applicant through a contract. In its examinations within the scope of individual application mechanism, the Court should accept that, except for practices involving manifest arbitrariness, the TAF has a much wider margin of appeciation in processes concerning the non-renewal of a contract, which are dealt with also by the Supreme Military Administrative Court.

15. The Court has previously examined cases where the contracts of the applicants, who were military officers, had not been renewed due to their e-mails. In these cases, the Court dismissed the alleged violations, considering the special status afforded to the TAF by virtue of the military discipline as well as the latter’s wide margin of appreciation.

16. In this respect, the grounds relied on and the conclusion reached by the Plenary of the Court in its judgment no. 2013/7666 and dated 10 December 2015 are as follows:

“63. The ECHR stresses that the investigation carried out into the individuals’ private lives within the framework of their professional lives as well as the resulting administrative dismissal essentially motivated by the conclusions drawn from their behaviours and conducts could be considered as an interference with the right to respect for private life (see Özpınar v. Turkey, § 47).

…

 65. The freedom of communication and the principle of confidentiality of communication safeguard individuals’ communications not only in their private dwellings but also in their workplaces (see Halford v. the United Kingdom, no. 20605/92, 25 June 1997, § 44; and Copland v. the United Kingdom, no. 62617/00, 3 April 2007, §§ 41, 43 and 44).

66. It is amongst the safeguards afforded by both the Constitution and the Convention to prevent public authorities from arbitrarily interfering with the individuals’ freedom of communication and confidentiality of their communications. Monitoring of the content of communication constitutes a severe interference with the confidentiality of communication and thereby with the freedom of communication (see Mehmet Koray Eryaşa, § 50).

i. Existence of an Interference

67. In the present case, it has been observed that the e-mails sent and received by the applicant via the e-mail system operated by the Air Forces Command were monitored by the E-mail Monitoring Unit; that in deciding not to renew the applicant’s contract, the administration took into consideration these e-mails as well; and that the 1^st Chamber of the Supreme Military Administrative Court also relied on the contents of these e-mails in dismissing the applicant’s action brought due to non-renewal of his contract, by its decision of 28 May 2013. It has been accordingly concluded that the applicant’s right to respect for private life as well as freedom of communication have been interfered with as his e-mails sent and received at the workplace were collected, stored and relied on as a basis for the administrative act (non-renewal of the employment contract).

…

 Lawfulness

 …

 84. By its interlocutory decision, the Court asked the Air Forces Command to provide information about the legislation allowing the monitoring of the e-mails sent/received by the TAF staff. As noted in the reply of the Air Forces Command, the legal basis of the monitoring of the e-mails sent/received via the institutional e-mail account by the E-mail Monitoring Unit is formed by Article 5 § 1 (a/3) of Law no. 2937, Article 2 § 2 (a) of Law no. 1324, the instruction no. 6406668 and dated 27 February 2006, which was issued by the Turkish General Staff, as well as the Directive no. MY 411-7 TSK-Net E-mail System of the Turkish General Staff dated 14 May 2007.

 85. In Article 5 of Law no. 2937, the duties incumbent on the ministries and the other public institutions and organizations concerning the State intelligence are specified, and in Article 5 § 1 (a/3) of the same Law, “counter-intelligence activities” are enumerated among these duties.

86. In Article 2 § 2 (a) of Law no. 1324, it is set forth that the Chief of the General Staff shall ensure performance of the intelligence, operational, organizational, training, education and logistic services through the Land, Naval and Air Forces Commands and the affiliated institutions of the Turkish General Staff.

87. It has been observed that although it is not clearly set forth in these provisions that e-mails of the TAF staff would be subject to monitoring within the scope of intelligence activities and counter-intelligence service, it is set out that public institutions and organizations are entrusted with the duty to engage in counter-intelligence activities and that the Chief of the Turkish General Staff shall carry out the intelligence services through the Forces Commands and their affiliated institutions. It has been further observed that the authority entrusted to the Chief of the Turkish General Staff within the scope of these statutory regulations also encompasses the authority to perform regulatory acts in order to ensure performance of intelligence service. It should be borne in mind that the extent to which the legislation -which could not offer solution for every possibility as it has been worded in an abstract fashion- shall afford protection for fundamental rights and freedoms mainly relate to the field for which the relevant text is formed, its content as well as the qualification and numbers of its addressees. Therefore, the complex nature or abstract nature, to a certain extent, of the legal provision cannot be per se considered to be in breach of the principle of foreseeability (see Halime Sare Aysal [Plenary], no. 2013/1789, 11 November 2015, § 61).

88. In this respect, the statutory arrangement in question establishes the main framework of the impugned restriction and may also leave the determination of the operational conditions and procedural details mainly to the regulatory acts. However, also in this case, the relevant regulatory act must be accessible to its addressees and clear and precise to the extent that could sufficiently elucidate the content (see Halime Sare Aysal, § 62).

89. Accordingly, it must be discussed whether the regulatory acts, issued by the Turkish General Staff by virtue of the power entrusted to it by the relevant Law and allowing for the monitoring of e-mails sent by military staff through their computers at the workplace, have satisfied the accessibility and clarity requirements.

90. The instruction no. 6406668 and dated 27 February 2006, which was issued by the Turkish General Staff in line with the said statutory arrangements, is the first administrative act which envisages the establishment of E-mail Monitoring Units. It is noted in this instruction that the TSK-Net E-mail System was established for the purposes of ensuring coordination at the military quarters, exchanging information, notifying orders as well as sending/receiving new year, feast day celebrations and similar types of messages; that the E-mail Monitoring Units under the intelligence departments would be established in order to determine whether the sent/received e-mails are related to profession as well as intended for intelligence and counter-intelligence purposes; and that the staff who are entitled to use the institutional e-mail system shall be notified of the prohibitions and sanctions against signature.

91. In order for the fulfilment of this instruction, the Air Forces Command issued the order no. 48960 and dated 22 March 2006 whereby it is specified that e-mails would be subject to examination by the E-mail Monitoring Unit in order to ascertain whether they are related to profession and intended for intelligence and counter-intelligence purposes; that the directive shall be notified to all staff against signature, and the copies of notification would be kept in their personal files within the unit.

92. The issues specified in these orders have been turned into a special directive, the MY 411-7 TSK-NET E-mail System Directive of 14 May 2007, which was issued by the Turkish General Staff (“the Directive”). By virtue of this Directive, the staff are banned from using the system for non-professional purposes as well as from sending images, audio, video and written files which do not fit for public morals, and it is also set forth that a legal action shall be taken against the staff who have used the e-mail system outside its intended purpose even if his act does not constitute another offence.

93. In Section 4, Article 5 of the said Directive, it is provided for that the E-mail Monitoring Unit may monitor e-mails in order to determine whether the e-mails are related to their profession, the intelligence and the counter-intelligence services, within the scope of monthly and annual monitoring plans, either within or beyond the users’ knowledge.

94. It is further set forth that the staff may create a message through their e-signatures and encryption, and such messages may be read only by their addressees. It has been therefore understood that the E-mail Monitoring Unit cannot have access to the content of e-mails which have been created by use of e-signature and encryption method, which is also approved by the Air Forces Command in its letter of 24 July 2015.

95. According to the reply given on 24 July 2015 to the Court’s interlocutory decision of 25 June 2015, it has been observed that these orders and the Directive were not published in the Official Gazette but made available on 14 May 2007 on the intranet to which the TAF staff could have access through their computers at the workplace; and that the applicant, who was a TSK-NET user, had the opportunity to have access to the Directive at any time. It has been further observed that the document “Rules to be Observed by Information System Users”, setting forth that any game, letter, image, video, music and presentation files which are not related to the profession and are not suitable cannot be saved and used on the computers; and that document security principles must be observed when e-mails are sent via intranet, was served on the applicant on 29 December 2009; that the order on the Use of TSK-NET E-mail System was served on him on 30 July 2010; and that all these documents are kept in his personal file.

96. Accordingly, it has been revealed that the said Directive embodies provisions which are sufficiently clear to the effect that the messages sent by the military staff via their institutional e-mail account may be monitored. It has been further observed that the provisions in question were sufficiently accessible and foreseeable by the applicant regard being had to the fact that they were made available on 14 May 2007 on intranet whereby the TAF staff could have access through their computers at the workplace and also notified to the applicant against his signature. It has been therefore concluded that these provisions satisfied the “lawfulness” condition.

 97. The applicant’s contract was not renewed by the military administration by virtue of Articles 6 and 12 of Law no. 4678 as well as Article 14 of the Regulation on Contracted Commissioned and Non-Commissioned Officers.

98. It has been accordingly observed that the interference with the applicant’s right to respect for private life and freedom of communication had a lawful basis.

 Legitimate Aim

 …

 100. An interference with the freedom of communication may be considered legitimate only when it is based on one or several grounds specified in Article 22 § 2 of the Constitution, namely maintaining national security, public order, prevention of commitment of offence and protection of public health and public morals or the others’ rights and freedoms.

101. Pursuant to Article 5 § 1 (a/3) of Law no. 2937 and Article 2 § 2 (a) of Law no. 1324, the counter-intelligence has been designated as the duties entrusted to the public institutions and organizations, and the Chief of the General Staff shall perform the intelligence service through the Force Commands and affiliated institutions. In the Directive, it is set forth that institutional e-mail accounts of the TAF staff shall be subject to monitoring, within or beyond the users’ knowledge, in order to find out whether the messages are intended for profession/service as well as in terms of intelligence and counter-intelligence purposes.

 102. It is thereby set forth in the Directive that the E-mail Monitoring Units are entitled to monitor the messages with a view to ascertaining whether the e-mails are intended for profession/service, whether necessary encryption process has been followed, whether there has been any breach of confidentiality and whether there has been any video, audio files or infected files and files involving malicious codes. It accordingly appears that the said monitoring of the communications via the institutional e-mail addresses allocated to the military staff by the TAF for professional purposes is for ensuring data security and counter-intelligence.

 103. In this scope, it has been revealed that the interference in the present case by the military administration in charge of protecting and maintaining the country’s safety were intended for ensuring security of data created and shared via the system whereby the military staff maintained communication with each other to conduct the military service. It has been therefore concluded that the impugned interference was for maintaining national security within the meaning of information security and counter-intelligence, which was a legitimate aim under Articles 20 and 22 of the Constitution.

 Necessity in A Democratic Society and Proportionality

 …

 112. In the ECHR’s judgments, it is set forth that the monitoring of an employee’s telephone, e-mail or internet usage at the workplace to a certain extent would not be per se constitute a breach of the Contract; and that it is necessary to make an assessment in consideration of the ordinary and reasonable requirements of the workplace as well as of the legitimate aims (see Copland v. the United Kingdom, § 48).

 113. In the present case, the e-mails sent/received by the applicant via the institutional e-mail system operated by the Air Forces Command were monitored by the E-mail Monitoring Unit. This system is a limited communication system which is allocated by the TAF to its own staff for professional purposes and which is available only for internal use and allows for communication among military personnel and transmission of data concerning military service. Through the system in question, the military officers could also create classified e-mails -which may be read only by the relevant parties- by use of electronic signature and encryption; and that such e-mails could not be monitored by the E-mail Monitoring Unit. In the present case, the e-mails monitored by the E-mail Monitoring Unit were the messages sent unencrypted. It is inevitable for the administration, within the meaning of the legitimate aim of maintaining national security, to take administrative measures that would enable monitoring communications in order to ensure security of information and data created via the e-mail system, to prevent sending of any data which may cause intelligence vulnerability, and to understand whether necessary encrypting process has been followed and whether there is any breach of confidentiality. The administration has laid down the principles on the monitoring of the communications by military staff through the institutional e-mail addresses in a sufficiently clear manner and informed all staff of these principles through notification. Thereby, the applicant was also notified of the relevant procedure. Therefore, it cannot be said that the applicant was unaware of the procedure. It has been accordingly concluded that the monitoring of the applicant’s e-mails sent/received through the institutional e-mail system was necessary in a democratic society.

 114. Besides, regard being had to the facts that, as stated in the letter of the Air Forces Command dated 24 July 2015, the military staff were provided with the opportunity to create e-mails which were confidential as being encrypted through TSK-NET E-mail System (intranet); that they also had the opportunity to use communication means other than intranet, through which confidential communication could also be ensured; that they could also communicate by telephones at the workplace or their mobile phones at certain places; and that they could also use their personal e-mails which could not be subject to monitoring, the monitoring of the applicant’s communications though his institutional e-mail address cannot be said to be disproportionate.

 115. Besides, the applicant served as a military officer at the Air Forces Command, and his contract, which had been expired, was not renewed by the administration. In exercising its discretionary power, the administration relied on the grounds such as the need for contracted staff and immoral letters, images and caricatures in the applicant’s e-mails. As these messages and images were also related to the applicant’s title, the TAF employing the applicant considered it as a factor adversely affecting the institution’s reputation. It has been accordingly revealed that the military administration decided not to renew the contract of the applicant for tarnishing the institution’s prestige as a social need to protect the institutional reputation and to prevent re-occurrence of such acts. As required by the duties undertaken by the TAF to ensure and maintain national security, those wishing to serve at the TAF are to be subject to certain restrictions which other persons are not subject. Therefore, it is undoubted that the TAF has a wide margin of appreciation concerning the qualifications to be sought in its staff.

 116. In the present case, it must be borne in mind that the act complained of by the applicant was not the termination of his contract but its non-renewal. The administration did not terminate the applicant’s contract due to sending of impugned images and writings. However, upon the expiry of the contract period, in assessing whether to extend the applicant’s contract, the administration decided not to renew it by relying on his conducts, rewards, penalties as well as the report issued by the e-mail monitoring units. Regard being had to the wide margin of appreciation conferred upon the TAF in employing staff in the status for which much stricter rules apply as a requirement of military discipline, the non-renewal of the applicant’s contract cannot be said to be unnecessary in a democratic society and disproportionate.

 117. For these reasons, as the applicant’s allegations constituted no violation, the Court has found no violation of the rights enshrined in Articles 20 and 22 of the Constitution.”

 17. The abovementioned grounds are applicable to the present case, and there are also no particular circumstances which would require the Plenary of the Court to depart from its previous judgment.

 18. It must be accepted that the non-renewal of the applicant’s contract on the basis of the findings to the effect that the applicant used his e-mail account for organizing tours and trips together with a squadron leader, that he breached confidentiality through the e-mails he sent/received, and that there were also e-mails involving politics/propaganda, falls within the margin of appreciation of the Turkish Armed Forces. In consideration of the fact that the applicant’s contract was not terminated but not renewed, the impugned interference cannot be said to be unnecessary in a democratic society and disproportionate.

 19. As I am of the opinion that neither the applicant’s right to respect for private life nor his freedom of communication safeguarded respectively by Articles 20 and 22 of the Constitution has been violated, I disagree with the majority’s conclusion finding violations of the said right and freedom.

DISSENTING OPINION OF JUSTICE M. EMİN KUZ

 The majority of the Court found violations of the right to respect for private life and the freedom of communication due to non-renewal of the applicant’s contract. In the reasoning of the judgment, the majority noted that the interference with the applicant’s said right and freedom satisfied the lawfulness requirement and pursued a legitimate aim; but no fair balance could be struck between the general interest in non-renewal of the applicant’s contract and the loss suffered by him; and that therefore, the impugned interference was found disproportionate.

 In the present case, the contract of the applicant serving as a contracted non-commissioned officer was not renewed. In the action brought by the applicant against this act, the defendant administration noted in its defence submissions that his contract had not been renewed within the scope of the administration’s discretionary power and in consideration of the need for contracted staff, the applicant’s conducts, the available intelligence about him and other relevant issues. As also revealed from the documents submitted by the administration to the Supreme Military Administrative Court (“SMAC”), the Turkish Armed Forces found out that the applicant misused his e-mail account, which was allocated to the staff for professional purposes, was not for external use and allowed transmission of data only among military staff and only concerning military service, and thereby breached confidentiality through his e-mails.

 The administration has laid down the principles on the monitoring of the communications by military staff through the institutional e-mail addresses, for the purpose of maintaining national security, in a sufficiently clear manner and informed all staff of these principles through notification. Regard being had to the facts that through this e-mail system, the military staff may create a message through their e-signatures and encryption which could be read only by their addressees; that the E-mail Monitoring Unit cannot have access to the content of e-mails; that the military staff also have the opportunity to use communication means other than intranet, through which confidential communication could also be ensured; that they could also use their personal e-mails which could not be subject to monitoring, the monitoring of the applicant’s communications though his institutional e-mail address cannot be said to be unnecessary in a democratic society and disproportionate (see Bülent Polat [Plenary], no. 2013/7666, 10 December 2015, §§ 113 and 114).

 Besides, the Law no. 4678 on the Contracted Commissioned and Non-Commissioned Officers to be Employed at the Turkish Armed Forces embodies no provision as to the circumstances under which a contract will be renewed. Nor does the Regulation on the Commissioned and Non-Commissioned Officers, which was put into force relying on this Law, contain any provision which requires the administration to renew the contract. Moreover, as also inferred from Article 16 § 3 (a) and Article 18 § 1 of the said Law where the rights to be conferred on contracted and non-contracted officers whose contracts will not be renewed in the absence of “any fault attributable to them” are specified, the administration is given a wide margin of appreciation in renewing the contracts. In consideration of the requirements of the service, the administration may even decide not to renew the contract of the contracted staff in the absence of any fault attributable to them.

 Therefore, it cannot be said that the monitoring of the applicant’s communications via intranet system allocated to him for the performance of military service and the reliance by the administration, inter alia, on the results of the monitoring cannot be considered disproportionate.

 Besides, in the reasoning of the judgment rendered by the Court’s majority, it is specified that as no disciplinary investigation was conducted and the applicant’s contract was not terminated, until the expiry of the contract’s term, even after it had been revealed that the institutional e-mail account had been misused for non-professional purposes and in breach of the pre-determined rules, the administration indirectly accepted that the applicant’s acts were not of such nature as to preclude him from performing public service (§ 79). However, this consideration reflects an understanding which ignores the difference between the status of contracted staff and that of public officers. As also indicated in the SMAC’s decision on the impugned incident, unlike the public officers, the contracted officers are not afforded job security. The statutory arrangement concerning contracted staff, which is set forth in Law no. 4678, affords a much wider margin of appreciation to the administration than many other laws including provision on the status of contracted staff, as a requisite of the nature of the military service. In this regard, it is in the administration’s discretionary power – within the meaning of Law no. 4678 and the relevant Regulation, not to conduct an investigation into, and not to terminate his contract due to, the applicant’s use of his institutional e-mail address for purposes not related to military service. It is also in the administration’s discretion to take the applicant’s acts into account in the assessments as to the renewal of the contract instead of imposing a disciplinary sanction on him or terminating his contract, given the short period up to the expiry of the contract period. Any consideration to the contrary would eliminate the difference between the status of contracted commissioned/non-commissioned officers and that of other commissioned/non-commissioned officers, as well as render the said Law dysfunctional.

 In this sense, given the stricter rules applicable as a requisite of military service as well as the wide discretion afforded to the administration concerning contracted staff, the non-renewal of the applicant’s contract by the administration relying on his conducts, rewards and penalties as well as on the report issued at the end of the monitoring of his e-mails cannot be found disproportionate.

 For these reasons and on the basis of other grounds relied on in the dismissal decision previously rendered by the Plenary of the Court, no. 2013/7666 and dated 10 December 2015, I do not agree with the majority’s conclusion that the applicant’s right to respect for private life and freedom of communication were violated.