With its decision dated 10.05.2023 and numbered 2019/16719, the Constitutional Court (“CC”) ruled that the termination of the applicants’ employment contracts due to their posts on the innocence of a person suspected of membership of a terrorist organisation was unconstitutional and violated the freedom of expression.

Subject and Grounds of Application

In the case in question, two of the applicants were employed as technical staff at a state hospital and one as a driver at the provincial migration administration with an indefinite-term employment contract, and their employment contracts were terminated due to their posts praising the former mayor, who was arrested for terrorism, and signing a petition for his innocence.

As a result of the termination of their employment contracts, the applicants filed a claim for reinstatement, but the court of first instance dismissed the cases on the grounds that “employers cannot be expected to work with people they suspect”. The applicants appealed the decisions, and the Court of Appeal rejected their appeal on the grounds that “the relationship of trust necessary for the continuation of the labour relationship has been undermined”.

As a result of the decisions, the applicants made an individual application to the Constitutional Court claiming that their posts about a person they believed to be innocent were associated with a terrorist organisation, that the person in question was later acquitted, and that the termination of their employment contracts violated the freedom of expression, the right to a fair trial, the right to property and the principle of legality of penalties.

The Constitutional Court examined the application within the scope of freedom of expression.

Constitutional Court’s Review and Conclusion

The Constitutional Court, in its assessment of the applicants’ claim that their freedom of expression was violated by the termination of their employment contracts

Article 18 of the Labour Law No. 4857 (“Labour Law”)[1] stipulates that in order for the employer to terminate indefinite-term employment contracts, “a valid reason arising from the employee’s competence and behaviour must be shown by the employer”, and in the justification of the provision, it is stated that “in order to terminate the employment contract, the employee’s behaviour must seriously adversely affect the obligation to perform the work, not allow him to fulfil his obligation to perform the work properly, and the continuation of the employment relationship cannot be reasonably expected for the employer”,
It was not claimed that the posts and the signature campaign shown as a reason for termination were made during working hours or with work vehicles or at the workplace, that the applicants could not fulfil their responsibilities arising from the employment contract for this reason, and that the courts did not find any relevance between the posts and the applicants’ work, workplace or employer, and that the first instance and regional court of appeal decisions did not specify how the applicants’ posts shook the relationship of trust between the employee and the employer and what kind of negativities they caused in the workplace and what kind of business interests of the employer were damaged,
Words that legitimise, praise or encourage terrorism do not fall within the scope of freedom of expression and employers cannot be expected to work with employees who praise and/or support terrorist organisations; however, neither employers nor courts have explained how the applicants’ posts about a person who had no final conviction and was later acquitted were praising terrorism,
Even if it is accepted that the aforementioned posts have political content, there is a possibility that the expressions used may have a certain weight in the presence of situations concerning the public interest and this situation will not eliminate the necessity to protect freedom of expression,
The applicants were working under private law in the organisations that terminated their employment contracts, they did not have the status of civil servants, which requires a certain level of trust and loyalty to be established between them and the state administration; for this reason, the obligation of loyalty and abstinence that they are expected to fulfil towards their employers should not be as strict as that expected of employees working in public institutions,
The Constitutional Court stated that there is no allegation that the posts and the signature campaign in question reached a very wide audience and that the applicants’ recognition and representativeness in their workplaces were limited.

In line with the above-mentioned explanations, the Constitutional Court stated that the termination of their employment contracts was extremely severe in order to achieve the intended goals and that Article 18 of the Labour Law was subjected to an excessive interpretation and was used as a basis for indirect restriction of expressions of opinion and ruled that the freedom of expression guaranteed under Article 26[2] of the Constitution was violated.

[1] Basing the termination on a valid reason

Article 18 -In workplaces employing thirty or more workers, the employer who terminates the indefinite-term employment contract of an employee with at least six months of seniority is obliged to rely on a valid reason arising from the employee’s competence or behaviour or the requirements of the enterprise, workplace or work. (Additional sentence: 10/9/2014-6552/2 Art.) The seniority requirement is not sought for workers working in underground works.

[2] VIII. Freedom of expression and dissemination of thought

Article 26 – Everyone has the right to express and disseminate his thoughts and opinions individually or collectively by word, writing, pictures or other means. This freedom shall include the freedom to receive or impart information or ideas without interference by official authority. The provisions of this paragraph shall not preclude the granting of permission for broadcasting by radio, television, cinema or similar means.

The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, the protection of the fundamental characteristics of the Republic and the indivisible integrity of the State with its territory and nation, the prevention of crimes, the punishment of offenders, the non-disclosure of information duly designated as a State secret, the protection of the reputation or rights, private and family life or professional secrets prescribed by law, or the proper performance of judicial duty.

Regulatory provisions concerning the use of the means of disseminating news and opinions shall not be deemed to be restrictions on the freedom to express and disseminate opinions, provided that they do not prevent their publication.

(Additional paragraph: 3/10/2001-4709/9 Art.) The form, conditions and procedures to be applied in the exercise of the freedom of expression and dissemination of opinion shall be regulated by law.