THE FACTS

[7-24] The applicant is a Turkish language and literature teacher at a high school in İstanbul. He is also a board member of a branch of the labour union, namely Eğitim ve Bilim Emekçileri Sendikası (Eğitim-Sen).

The relevant labour union organized a strike to be held on 21 December 2011 in order to defend social and economic rights as well as to announce its demands. The day before the strike, the applicant wore a cockade at the school, on which it was written that “We are on strike on 21 December”.

On 20 December 2011, the school principal, along with the deputy principals, issued a report against the applicant, stating that the applicant wearing a cockade at the school and entering the classrooms with it, acted in breach of the school regulations. At the end of the subsequent investigation, the applicant was given a warning as a disciplinary punishment on 1 June 2012.

On 31 August 2012, the applicant challenged against the disciplinary punishment before the administrative court which later dismissed his application. The applicant’s subsequent appeal was also rejected, and the decision against him was upheld.

Thereupon, the applicant filed an individual application on 2 July 2014.

V. EXAMINATION AND GROUNDS

25. The Constitutional Court, at its session of 16 June 2016, examined the application and decided as follows.

A. The Applicant’s Allegations

26. The applicant maintained that he was a member of a labour union, namely EĞİTİM-SEN; that he had been imposed a sanction at the end of the disciplinary investigation, which, according to him, was due to his membership to the said union; that it was not permissible under Article 18 of Law no. 4688 to be subject to oppression due to the labour union-related rights; that the investigation conducted as a result of wearing a cockade on 21 December 2011 had been initiated by the school principal against whom he had previously filed a complaint with the public prosecutor’s office for the mobbing he had allegedly been subject to; that the investigation officer who had not been impartial and independent ordered sanction against him (the applicant); that the grounds for the sanction had not been explained to him and that no reference had been made to Law no. 657, which thus infringed the principle of legality of crimes and punishments (nullum crimen, nulla poena sine lege); that he had not been allowed to confront those who had given statement against him; that the documents he had submitted had not been taken into consideration in reaching the decision; that he had told that he would give his statement while his lawyer was present during the investigation, that in fact, his statement had been taken in the presence of his lawyer but these statements had not been included in the case file; that the allegations regarding the procedures and principles stated in the petition had not been addressed to; that many teachers working in the same school with him had also worn cockade, however it had been only him who had been subject to an action; that imposition of a disciplinary sanction on him for wearing the said cockade had been in breach of his freedom of thought and expression as well as his right to demonstration; that no restriction had been stipulated in the Constitution regarding the place where the demonstration would be held; that the court decisions against him had been null and void; and that no fair trial had been carried out during the disciplinary investigation and the proceedings before the court. As a result, the applicant claimed that his rights enshrined in Articles 10, 26, 34, 36 and 38 have been violated. In this respect, he requested that the violation be found; and he claimed non-pecuniary compensation, without stating any amount.

B. The Court’s Assessment

27. The Ministry, in its observations, referred to the judgments of the European Court of Human Rights (“the ECHR”) in similar cases and specified that the relevant issues should be taken into consideration in the assessment of the applicant’s allegations of violation and that the said act should not be considered within the scope of the labour union rights, but the freedom of expression.

28. 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). Although the applicant maintained that his having worn a cockade at school was related to his right to demonstration as he had worn it in relation to the strike organized by the union, his allegations should be examined within the scope of his freedom of assembly in relation to the labour union-related activities.

29. In addition, the applicant argued that he had been imposed disciplinary sanction for wearing a cockade at school in relation to the strike organized by the trade union of which he was a member, which, according to him, had actually resulted from the fact that there was hostility between the school principal and him. In this regard, he claimed that no action had been taken against the other teachers wearing a cockade, which was in breach of the principle of equality. Regarding the alleged violation of the principle of equality, the applicant is expected to adduce reasonable evidence to substantiate that he had been subject to different treatment than those who had been in a similar situation with him and that this difference had been based on discriminatory grounds such as race, colour, sex, religion, language, and etc. without a legal basis. In the present case, the applicant neither submitted similar cases, nor did he make any statement pointing to the type of the alleged discrimination and its manner. Therefore, as the alleged violations of the principle of equality cannot be put forth in an abstract manner and independently of other rights, they must be examined within the scope of the right to a fair trial as a whole. The applicant’s allegations concerning the disciplinary investigation process, trial procedure, reasoning of the decisions and the conclusion of the case have been examined under the right to a fair trial.

1. Freedom of Assembly

a. Admissibility

30. The applicant’s allegations that he had been imposed disciplinary sanction for his having worn a cockade at school, which had been related to the strike organized by the labour union of which he was a member, in breach of his freedom of assembly are not manifestly ill-founded. The alleged violation of the freedom of association must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

b. Merits

31. The applicant claimed that he had worn the cockade within the scope of the strike legally organized by the labour union of which he was a member according to which he would not go to the school the next day; and that he had been imposed a disciplinary sanction only for this act of him, which was in breach of his freedom of expression.

32. The Ministry, in its observations, specified that the freedom of expression constituted one of the foundations of the democratic society within the scope of Article 10 of the European Convention on Human Rights (“the Convention”) and that the freedom of expression applied not only to information and thoughts that were considered to be in favour or harmless or unimportant, but also to offensive, shocking or disturbing information and thoughts for a part of the state or society. In this context, it was stated that an examination should be made as to whether there had been an interference with the applicant’s freedom of expression, whether the interference had been prescribed by the law, whether the interference had pursued a legitimate aim as well as whether the interference had been necessary in the democratic order of the society.

33. Article 13 of the Constitution, titled “Restriction of fundamental rights and freedoms”, provides 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.”

34. Article 51 of the Constitution, titled “Right to union”, read as follows:

“Employees and employers have the right to form unions and higher organizations, without prior permission, and they also possess the right to become a member of a union and to freely withdraw from membership, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations. No one shall be forced to become a member of a union or to withdraw from membership.

The right to form a union shall be solely restricted by law on the grounds of national security, public order, prevention of commission of crime, public health, public morals and protecting the rights and freedoms of others.

The formalities, conditions and procedures to be applied in exercising the right to form union shall be prescribed by law.

(Repealed on September 12, 2010; Act No. 5982)

The scope, exceptions and limits of the rights of civil servants who do not have a worker status are prescribed by law in line with the characteristics of their services.

The regulations, administration and functioning of unions and their higher bodies shall not be inconsistent with the fundamental characteristics of the Republic and principles of democracy.”

35. The freedom of association stands for the individuals’ freedom to come together by forming a collective entity which represents them in order to protect their own interests. Freedom of association gives individuals the opportunity to realise their political, cultural, social and economic goals as a community. The right to labour union brings about the employees’ freedom of association by coming together so as to protect their personal and common interests. From this aspect, it is not an independent right, but a form or a special aspect of the freedom of association (see Tayfun Cengiz, no. 2013/8463, 18 September 2014, §§ 30, 32).

36. The fact that the activities carried out by the individuals continuously and coordinately are not regarded as association in our legal system does not mean that the freedom of association will not necessarily be mentioned within the provisions of the Constitution. In democracies, the existence of organizations under which citizens will come together and pursue common goals constitutes an important component of a sound society. In democracies, such an "organization" enjoys fundamental rights needed to be respected and protected by the State (see Tayfun Cengiz, § 31).

37. The rights and freedoms enshrined in Articles 33 and 51 of the Constitution are brought together in Article 11 of the Convention. In addition, in the interpretation and application of Article 11 of the Constitution, the case-law of the ECHR under Article 10 of the Convention should be taken into consideration (see Özgürlük ve Demokrasi Partisi v. Turkey, no. 23885/94, 8 December 1999, § 37; and Öllinger v. Austria, no. 76900/01, 29 June 2006, § 38).

38. Article 51 of the Constitution imposes both negative and positive obligations on the State. The State’s negative obligation not to interfere with the freedom of assembly enjoyed by the individuals as well as the labour unions within the scope of Article 51 is subject to the circumstances allowing for an interference on the grounds enumerated in Article 51 § 2-6. As a matter of fact, the criteria to be applied as regards the State’s both obligations do not differ. Regardless of the State’s positive or negative obligations, a fair balance must be struck between the conflicting ideas of the individual and the society. In the assessment of whether this fair balance has been struck, the Constitutional Court will pay regard to the fact that the public authorities enjoy a certain margin of appreciation in this respect (see Tayfun Cengiz, §§ 36 and 37).

39. In addition, the freedom of assembly may be subject to restrictions in accordance with the restriction regime set forth in the Constitution as regards the fundamental rights and freedoms. Articles 33 § 3 and 51 § 2 of the Constitution provides grounds for restriction concerning the freedom of assembly. However, the restrictions in this respect must have limitations as well. The criteria set forth in Article 13 of the Constitution must be taken into account in the restriction of fundamental rights and freedoms. Accordingly, the review of the restrictions on the freedom of assembly must be conducted in accordance with the criteria set forth in Article 13 of the Constitution as well as under Article 51 (see Tayfun Cengiz, § 38).

40. In the present case, the applicant, a teacher at a public school, wore a cockade at school, stating the strike decision -which will be carried out the next day- of the labour union of which he was the board member of branch, and he entered the classrooms with it. The first instance court, stating that the applicant’s having worn a cockade at school before the strike had no relation with the labour union activities, considered that the applicant had not complied with the rules and procedures determined by the authorities at the place of duty. There is no other act imputed to the applicant and subject to the disciplinary investigation.

41. In the present case, the initial matter to be resolved is to determine whether imposition of a warning against the applicant who had worn a cockade at school, pointing to the strike to be legally organized the next day by the labour union, had constituted an interference with the applicant’s freedom of association. At the later stages, it must be established whether the interference had had a legal basis, whether it had pursued a legitimate aim, whether the restriction had been necessary in a democratic society and whether the means used had been proportionate.

i. Existence of Interference

42. There is no doubt that the applicant’s having been imposed disciplinary sanction for his not complying with the obligations expected of a civil servant as a result of his wearing a cockade at school indicating the strike to be organized by the trade union the next day concerned his freedom of assembly as well as constituting an interference.

ii. Whether the Interference Constituted a Violation

43. Pursuant to Article 51 § 2 of the Constitution, no interference is allowed to be made with the freedom of assembly “if not prescribed by law” and if does not pursue the legitimate aims set forth therein. In addition, it is to be determined whether any restriction with the freedom of expression infringes upon the essence of the right and whether it is 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, as stipulated in Article 13 of the Constitution.

Legality

44. The applicant claimed that it was unclear which acts of him led to a disciplinary sanction against him and that the said acts were not set forth in the law. As a result of the assessments made, it has been concluded that Article 8 titled “Conduct and Cooperation”, Article 11 titled “Duties and Responsibilities of Civil Servants” and Article 125 titled “Types of Disciplinary Sanction and the Acts and Situations to be Punished” of Law no. 657, as well as Article 9 of the relevant Regulation meet the requirement of legality.

Legitimate Aim

45. The first instance court specified that “the complainant’s wearing a cockade at school on 20 December 2011 in relation to the strike decision of a labour union cannot be considered within the scope of labour union activities, as well as it had taken place at a location and time having no relation with the labour union activities”, therefore, the said interference had pursued the aim of protecting the public order and institutional discipline. The applicant claimed that the interference in question had not complied with the legitimate aim it had pursued.

46. In order for an interference with the freedom of assembly to be legitimate, it must have been made in accordance with the law on the grounds of national security, public order, prevention of commission of crime, public health, public morals and protecting the rights and freedoms of others as stipulated in Article 51 § 2 of the Constitution.

47. It has been concluded that even though it is assumed that the disciplinary sanction imposed on the applicant for his having worn a cockade at school where he was working, announcing the strike decision of the labour union of which he was a member, pursed the legitimate aims enumerated in Article 51 § 2 of the Constitution, it will be better to discuss this issue within the scope of the assessments to be made on the necessity of the interference.

Necessity in a Democratic Society and Proportionality

48. The applicant argued that his wearing a cockade at school did not comply with the restrictive regulations set forth in Law no. 657; that he had been imposed a disciplinary sanction based on the regulations and charges not covered by law; and that although other teachers working in the same school with him had also worn cockade, it had been only him who had been subject to an action. The applicant alleged that imposition of a disciplinary sanction against him for his wearing a cockade announcing the legal strike decision of the labour union of which he was a member and in this way also announcing that he would not attend the school the next day had been in breach of his freedom of expression. The applicant further stressed that the relevant investigation had been initiated by the school principal who had taken office after him as well as mobbing him.

49. The Ministry, in its observations, underlined that the freedom of expression enshrined in Article 10 of the Convention was also enjoyed by the public officials and that besides, the exercise of this freedom by the public officials requires more sensitive approach of the authorities; this issue is embodied in the Convention within the scope of duties and responsibilities. The Ministry also specified that in case of any interference with the freedom of expression, it should be examined whether there are grounds justifying the measures taken as well as “whether there is a reasonable balance between the aim pursued and the means employed” in terms of the requirements of the democratic society.

50. Freedom of assembly, in general, and the right to union, in particular, are not absolute and may be subject to certain restrictions. An assessment is required to be made as to whether the restrictions set forth in Article 51 § 2 of the Constitution concerning the right to union comply with the principles of necessity in a democratic society and proportionality, which are safeguarded by Article 13 of the Constitution.

51. The concept of “democratic society” enshrined in the Constitution should be interpreted from a contemporary and liberal point of view. The criterion of “democratic society” clearly reflects the parallelism between Article 13 of the Constitution and Articles 9, 10 and 11 of the Constitution where this criterion is employed. Thus, the criterion of democratic society should be interpreted on the basis of pluralism, tolerance and open-mindedness (for judgments of the ECHR in the same vein, see Handyside v. the United Kingdom, no. 5493/72, 7 December 1976, § 49; and Başkaya and Okçuoğlu v. Turkey, nos. 23536/94, 24408/94, 8/7/1999, § 61). The Constitutional Court has also stressed this qualification many times in its previous judgments (see Tayfun Cengiz, § 52).

52. Accordingly, civil servants –who are individuals at the same time– enjoy the protection of fundamental principles of a democratic society such as pluralism, tolerance and open-mindedness. In other words, unless there is a case of inciting violence or the denial of democratic principles, even if some opinions expressed within the framework of the right to union and the manner in which they are expressed are unacceptable for the competent authorities, the measures aimed at eliminating the freedoms of expression and association cannot serve the democracy and yet, they imperil it (see Kayasu v. Turkey, nos. 64119/00, 76292/01, 13 November 2008, § 77).

53. Another guarantee which will intervene in all kinds of limitations on rights and freedoms is the ''principle of proportionality'' expressed under Article 13 of the Constitution. This principle is a guarantee which needs to be taken into consideration with priority in applications regarding the limitation of fundamental rights and freedoms. Although the requirements of a democratic order of the society and the principle of proportionality are regulated as two separate criteria under Article 13 of the Constitution, there is an inseparable bond between these two criteria. As a matter of fact, the Constitutional Court examines whether there is a reasonable relation and balance between the aim and the means (see Tayfun Cengiz, § 53).

54. According to the decisions of the Constitutional Court, proportionality reflects the relationship between the objectives of limiting fundamental rights and freedoms and the means. The review of proportionality is the inspection of the means selected based on the sought objective in order to reach this objective. For this reason, in any interference with the right to union, whether the interference selected in order to achieve the sought objective is suitable, necessary and proportionate needs to be evaluated. In this context, the main axis for the evaluations to be carried out with regard to the relevant incident will be whether the justifications which the courts of instance that caused the interference relied on in their decisions are in line with the principles of ''necessity in a democratic society'' and ''proportionality'' with a view to restricting the right to union (see Tayfun Cengiz, §§ 54 and 55).

55. In addition, the freedom of association -when it comes to civil servants- raises the discussion of whether their opinions have been expressed in a balanced and impartial manner without any traces of politics, whether personal attitudes have been exhibited and whether their impartiality have been safeguarded. In this respect, the ECHR grants a margin of appreciation to the national authorities in determining the extent of the duties and responsibilities of the civil servants in relation to their position (see İsmail Sezer v. Turkey, 36807/07, 24 March 2015, § 28; Ahmed and Others v. the United Kingdom, no. 22954/93, 2 September 1998, §§ 53, 54; and Otto v. Germany (dec.), no. 27574/02, 24 November 2005). However, it should be noted that this situation that restricts the freedom of association has also limits.

56. It may be legitimate for a State to subject the civil servants, by reason of their status, to an obligation of commitment as well as to certain duties and responsibilities. However, it is beyond any doubt that the civil servants are also individuals and thus they have social aspects such as having political opinions, dealing with country and social problems and making choices and that they have the right to enjoy Articles 10 and 11 of the Convention (see İsmail Sezer v. Turkey, § 52; and Vogt v. Germany, no. 17851/91, 26 September 1995, § 53).

57. In addition, it should also be noted that the freedom of association guarantees the members of a union, for the defense of their interests, the right to have their union heard, but that it does not guarantee them a precise treatment by the State (see İsmail Sezer v. Turkey, § 50).

58. The Constitutional Court shall establish, in the particular circumstances of each case as well as considering the case as a whole, whether the impugned interference had been necessary in a democratic society, whether the essence of the right had been impaired during the interference and whether it had been proportionate (see Yaman Akdeniz and Others, no. 2014/3986, 2 April 2014, § 44). In this respect, the duties performed by the applicant, the conditions of his place of duty, the nature of the act subject to the disciplinary sanction and the reflection of the applicant's attitude to his duty will be evaluated.

59. Given the fact that the applicant is a Turkish language and literature teacher at a public school at secondary level and he is also a union representative, it should be borne in mind that he could not be deprived of the right to engage in the union activities, the organized form of expressing thoughts within the scope of freedom of expression. However, in situations where the necessity is indisputable in a democratic society, restrictions may be brought to political and social activities in the areas of military, security forces or some other areas. It has been understood that the applicant was not in a position that would require such restrictions or posed other security threats, as well as that the school administration did not complain that he had performed attitudes and actions falling foul of his impartiality.

60. The labour union of which the applicant was a member decided to organize a strike for one day on 21 December 2011 with a view to warning the Government within the framework of the Convention, the Constitution and the other relevant laws with the requests related to “collective bargaining, secured employment, basic salary to ensure them live properly, inclusion of additional payments in pensions, and cessation of pressures, punishments and exiles”. On the cockade worn by the applicant it was written that “We are on strike on 21 December”. It should be taken into consideration that the demonstration that the union had been planning to hold aimed at defending the social and personal rights of the working class, and that there had been no indication that it was not peaceful. Again, it should be evaluated that except for announcing the strike and its date, the cockade worn by the applicant the day before the strike contained no illegal phrases or signs that would hurt the public or misdirect them and that as the school where the applicant was working was a secondary school, the students were less likely to be influenced by their teachers when compared to primary education students.

61. The applicant claimed that he was the board member of a branch of the labour union and had tried to announce the reason why he would not go to school the next day in his capacity as the unionist and that he had committed no acts other than wearing a cockade. Although the cockade the type of which is explained above seems to be contrary to the legal arrangements concerning the appearance of a civil servant during his duty, it should be accepted as a part of the labour union activity, as it had been worn temporarily the day before the strike that had been legally planned by the labour union, it had been related to the strike organization as a way of demonstrating the employees’ solidarity as well as freely exercising their union rights and it had had an objective to inform the third parties. In this respect, the ECHR reiterates that, having regard to the eminent place of freedom of association in a democratic society, an individual does not enjoy this freedom if the possibilities of choice or action available to him remain ineffective or reduced to the point of offering no utility (see Akın Şişman and Others v. Turkey, no. 1305/05, 27 September 2011, §§ 32-34).

62. In the present case, the applicant was given a warning as a disciplinary sanction as a result of his act. The impugned sanction, however small it may be, is likely to dissuade union members such as the applicant from participating in strikes or actions legally organized in order to defend their interests (see Kaya and Seyhan v. Turkey, no. 30946/04, 15 December 2009, § 30; Karaçay v. Turkey, no. 6615/03, 27 June 2007, § 37; Doğan Altun v. Turkey, no. 7152/08, 26 May 2015, § 50; and Ezelin v. France, no. 11800/85, 26 April 1991, § 43).

63. Consequently, it has been concluded that the impugned warning as a disciplinary sanction had not been necessary in a democratic society for not serving a pressing social need. Therefore, there has been a violation of the applicant’s right to union safeguarded by Article 51 of the Constitution.

2. Right to a Fair Trial

64. The applicant claimed that although he had stated during the disciplinary investigation that he would make his defence in the presence of a lawyer, he had not been granted additional time as well as an opportunity to defend himself, that he had been allowed to avail of the right to examine the witnesses, that the investigation against him had been conducted by the school principal against whom he had previously filed a complaint for the mobbing he had allegedly been subject to, and that the act with which he had been charged did not comply with the legal provisions.

65. However, given the circumstances of the case as well as finding of a violation of the right to union safeguarded by Article 51 of the Convention, it has been concluded that the main legal issue raised by the applicant has been examined and resolved. Thus, there is no need for a further examination of the other complaints.

3. Application of Article 50 of Code no. 6216

66. 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.”

67. The applicant requested that a violation be found.

68. It has been concluded that the right to union was violated.

69. As there is a legal interest in conducting retrial in order to redress the consequences of the violation of the applicant’s right to union, a copy of the judgment must be sent to the 5^th Chamber of the Istanbul Administrative Court for retrial.

70. As finding of a violation has constituted an adequate redress for the applicant, his claim for compensation due to the alleged interference with his right to union must be dismissed.

71. The total court expense of 2,006.10 Turkish liras (TRY) including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.

V. JUDGMENT

The Constitutional Court UNANIMOUSLY held on 16 June 2016 that

A. The alleged violation of the right to union be DECLARED ADMISSIBLE;

B. The right to union safeguarded by Article 51 of the Constitution was VIOLATED;

C. It was not necessary to examine the complaints under the right to a fair trial;

D. A copy of the judgment be SENT to the 5^th Chamber of the Istanbul Administrative Court to conduct retrial in order to redress the consequences of the violation of the right to union;

E. The applicant’s compensation claim be DISMISSED;

F. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be REIMBURSED to the APPLICANT;

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

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