Being a public official does not mean giving up freedom of expression. However, the duty of impartiality, public trust in the civil service and the professional obligations required by the post may be relevant when assessing a post. The lawfulness of a disciplinary penalty is determined not by whether the post is political, but by setting out its content, its factual basis, its connection with the duties of the post and whether the sanction is necessary.
This article addresses the general framework under Law No. 657 on Civil Servants (Devlet Memurları Kanunu) and two decisions of the Constitutional Court (AYM): Hüseyin Şen, Application No. 2017/6883, October 18, 2023 and Yalçın Bektaş, Application No. 2019/26843, December 14, 2023. Judges, military personnel, police officers and other public personnel with special status may be subject to separate laws, so it cannot be assumed that all personnel are under the same disciplinary regime.
What framework applies to a public official's right to criticize?
Article 26 of the Constitution also applies to public officials. Statements made outside working hours or through a personal account may also benefit from this protection. However, the fact that an account is personal does not by itself show that a statement has no connection with public service. The title shown on the profile, whether the information shared was learned through the job, and the effect of the statement on the impartiality of the service may all be important in the specific case.
The provisions of Law No. 657 on impartiality and loyalty to the State, on providing information to the press and on discipline must be read together. However, naming a provision is not enough. The administration must show which act violated which prohibition, and how. Punishing posts of very different natures with a general expression such as "conduct unbecoming of a civil servant" (memur vakarına aykırılık) or similar does not remove the need for concrete reasoning. For military personnel, the duty of political neutrality is examined separately in our article Freedom of expression of military personnel.
Legal characterization: A disciplinary penalty is an interference by public authority with freedom of expression. It requires a legal basis, a legitimate aim and a proportionality review. The status of the personnel is one element of that review; it does not replace constitutional review.
Is expressing a political opinion the same as breaching the duty of impartiality?
Expressing an opinion on any political matter cannot automatically be treated as a political activity prohibited for a civil servant, whether in favor of or against a political party. The content of the statement, its continuity, its audience and its connection with the requirements of the service must be examined. Criticizing a public policy and using official authority for a particular political purpose are different legal matters.
On the other hand, statements suggesting that a civil servant will act in a discriminatory way in connection with their duties, that baselessly accuse individuals of crimes, or that cause concrete harm to professional impartiality may require a different assessment. This distinction cannot be drawn without looking at the text of the post and the circumstances of the event.
Why does the Hüseyin Şen decision have two different outcomes?
In the Hüseyin Şen application, criminal proceedings and a disciplinary procedure arising from social media statements were both raised. The outcomes of the main application and of the joined application differ. For this reason, describing the decision simply as a "finding of a violation of freedom of expression" hides the result reached on the disciplinary side.
The ruling on the criminal proceedings
Constitutional Court's ruling: For application 2017/6883, the Court found a violation of freedom of expression under Article 26 of the Constitution, in relation to the process of deferring the pronouncement of judgment in the criminal case. In this review the Court applied the safeguards it set out in the Atilla Yazar and Others decision. To remedy the violation, a retrial was ordered.
This result is not a general ruling that the posts are immune from all legal consequences. The constitutional review of the procedure and safeguards used in the criminal proceedings was treated separately from the grounds on which the disciplinary act rests.
The ruling on the disciplinary penalty
Constitutional Court's ruling: For the joined application 2018/5627, the Court found no violation of freedom of expression. Within the case, the Court assessed the content of the posts by the applicant, who was a teacher, and their relationship with the duty of political impartiality. The reasoning in paragraphs 20–26 of the decision supports this result.
Our assessment: For the same or related statements by the same person, different constitutional outcomes may arise in the criminal and disciplinary fields. When the file is prepared, the proceedings, application numbers and operative parts should be shown separately. Presenting a violation finding in the criminal field as if it also applied to the disciplinary field is legally incorrect.
Why is an unsupported factual allegation important in the Yalçın Bektaş decision?
The Yalçın Bektaş application concerns a reprimand imposed on a civil servant for sharing, on social media, a serious factual accusation about politicians. While accepting the right to take part in political debate, the Court examined whether the statement was merely a political assessment and what the factual basis of the concrete accusation was.
Direct quotation and the outcome
"the fact that the statement concerns political parties or political matters cannot alone be considered sufficient."
Where the quotation appears: AYM, Yalçın Bektaş, Application No. 2019/26843, December 14, 2023, § 20. The relevant part of the sentence is reproduced verbatim.
In the review in paragraphs 20–24 of the decision, the nature of the civil servant's statement and its factual basis are important. Repeating content taken from someone else does not by itself remove the legal assessment of a serious accusation. The relationship between the factual basis for the claim and public trust in the service was addressed in the concrete case.
Court's ruling: By majority vote, the Court found no violation of freedom of expression. The existence of a dissenting opinion shows that the decision should not be presented as unanimous. The ruling does not mean that all political posts by civil servants are prohibited; it is the result reached on the specific content, the accusation and the disciplinary sanction.
Except for passages marked as direct quotations, the other statements about the decision are summarized while keeping their meaning. The operative provisions were verified against the operative parts of the relevant decisions, so that the judicial result is kept separate from the author's assessment.
How should a social media post be examined?
Ownership of the account and the integrity of the post
First, it must be determined whether the account really belongs to the personnel, whether the post was made by that person and whether the image was altered. Similarity of name or profile photo alone may not be sufficient. If the person accepts ownership, the dispute moves to another point; if not, technical and other evidence must be assessed.
The full text of the post, its date and time, the content it responded to, its links and its comments should be preserved together. Sharing a news item in order to criticize it is different from sharing it in order to support it. Likes, reposts and the person's own explanation should also be assessed separately according to the nature of the act.
Connection with duties and concrete effect
The administration must show that the statement caused harm to the service. It cannot be said that actual material harm must occur in every case; however, a foreseen risk must not rest on assumptions detached from the statement and from the duties. The connection with duties may differ for a teacher working with students, for health personnel, and for persons authorized to speak on behalf of an institution.
The visibility setting of the post, the audience it reached and whether the person spoke on behalf of the institution all matter. A closed account is not entirely unprotected; a publicly open account is not automatically a ground for discipline. These features become meaningful when the necessity of the interference and the severity of the sanction are assessed.
A lighter sanction and a reasoned choice
Even if the act is considered to require a disciplinary sanction, the type of sanction must also be justified. The gravity of the act, its consequences, the personnel's situation and the criteria in the relevant law are taken into account. Choosing the most severe sanction without discussing any alternative may create a problem in the proportionality review. On the other hand, there is no rule applicable to all cases that a warning must always be given first.
How should the right of defence and the application file be prepared?
Under Law No. 657, Article 130, no disciplinary penalty may be imposed without taking the person's statement of defence. A request for a statement of defence must make the allegation understandable, and the person must have a real opportunity to respond. If it is unclear which post, on which date, violated which duty, this must be stated clearly.
The documents in the file should be reviewed together: the request for a statement of defence, documents from the investigation, the defence petition, the criminal decision and the record of notification. Documents showing the factual basis of the post should be submitted, and the difference between the meaning attributed to the person and the actual meaning of the statement should be made concrete. Merely saying that the personal intention was good may not be enough to explain content as it appears outwardly.
The objection route under Law No. 657 and the lawsuit route before the administrative courts must be kept apart. The existence of an objection authority does not by itself resolve how the period for bringing an action is calculated. The date of notification, the nature of the administrative application used, the special status law and the provisions of Administrative Procedure Law No. 2577 (İdari Yargılama Usulü Kanunu) must be read together. It cannot be assumed that applying to the wrong authority always preserves the time limit.
What must be shown in an individual application to the Constitutional Court?
Once the effective ordinary remedies have been exhausted, the thirty-day individual application period generally comes into play. The application should not argue only that the disciplinary penalty was wrong; it should explain why the courts did not strike an adequate balance between freedom of expression and official duty obligations. The entire content, the grounds and the substantive objections raised before the courts should be shown.
The outcome of each disciplinary file before the Constitutional Court is not the same. In the two decisions reviewed, the absence of a violation in the disciplinary respect does not mean that the application was pointless, nor does it show that all similar penalties are lawful. When comparing cases, the comparison should be made in terms of the act, the status, the reasoning and the level of the sanction.
For more detail, see our articles Qualified rights in Constitutional Court decisions, The boundary between freedom of expression and insult and The right to be elected and political activity. For our firm's work in this area, see the page on Constitutional Court and European Court of Human Rights (AİHM) applications.
Conclusion
The freedom of expression of public officials is protected; a disciplinary penalty must rest on concrete and sufficient reasoning. At the same time, the duties of impartiality and trust connected with the post cannot be excluded from the assessment. The difference between the criminal and disciplinary outcomes in the Hüseyin Şen decision and the review of factual basis in the Yalçın Bektaş decision show why abstract generalizations are insufficient. What is decisive is not only the political nature of the post, but the content of the allegation and its concrete connection with public service.
Frequently Asked Questions
Can a disciplinary penalty be imposed for a post made outside working hours?
Being made outside working hours does not by itself make the act lawful or unlawful. The connection of the act with the disciplinary provisions of the law and with official duties, and the proportionality of the sanction, are examined.
Is a statement made on a personal account considered to have been made on behalf of the institution?
Not always. The way the account is presented, the title used, the content of the statement and the person's authority to represent the institution are assessed together. A personal account label does not remove every possibility of responsibility.
If a post belongs to someone else, does no liability arise?
The way the content was shared and whether it was adopted both matter. The meaning of a re-share is assessed in context; neither an automatic rule of no responsibility nor an automatic identification can be applied.
Does a violation finding in a criminal case also remove the disciplinary penalty?
Such a result cannot be drawn automatically. In the Hüseyin Şen decision, a violation was found with respect to the criminal proceedings, but not with respect to the disciplinary penalty. The operative parts must be read separately.
Can a disciplinary penalty be imposed without taking a statement of defence?
Under the general regime of Law No. 657, a disciplinary penalty cannot be imposed without taking a statement of defence. The special personnel status, the notification of the allegation and the opportunity given to respond must be examined separately.
Sources and legal bases
- Constitution of the Republic of Türkiye, Articles 13, 26 and 129.
- Law No. 657 on Civil Servants (Devlet Memurları Kanunu), particularly Articles 7, 15, 125, 127, 130 and 135.
- AYM, Hüseyin Şen, Application No. 2017/6883, October 18, 2023, paras. 20–26 and the operative part; joined application 2018/5627.
- AYM, Yalçın Bektaş, Application No. 2019/26843, December 14, 2023, paras. 20–24, the operative part and the dissenting opinion. Decision links may require a session.
- Law No. 6216, Articles 45–50.
- AYM, Qualified Rights: Decision Summaries (Nitelikli Haklar: Karar Özetleri), June 2025, the thematic starting source on the freedom of expression of public officials.