Military personnel enjoy freedom of expression; however, the use of military status and military resources for political persuasion is assessed separately. The lawfulness of a sanction cannot be determined merely by looking at whether the speaker is a soldier or whether the words carry political content. The setting of the speech, the listeners' freedom to attend, the hierarchical relationship, the public resources used and the severity of the penalty must be examined together.
The decision of the Constitutional Court (Anayasa Mahkemesi, AYM) in Engin Kabadaş, Application No. 2014/18587, July 6, 2017 gives concrete form to this distinction. The AYM held that a judicial fine imposed on a colonel who made political statements at conferences that military personnel and their families were required to attend did not violate freedom of expression. This result does not mean that every political statement by any military member, in any setting, may be punished in the same way.
Does being a soldier eliminate freedom of expression?
Article 26 of the Constitution guarantees everyone the freedom to express and disseminate thoughts. Military status does not take a person outside this guarantee. At the same time, Article 12 of the Constitution sets out the duties and responsibilities that accompany the exercise of rights. Neutrality in military duty, service discipline and the non-use of state power for political purposes are important parts of this assessment. The general framework of freedom of expression is described in a separate article.
In paragraphs 36–38 of the Engin Kabadaş decision, the AYM explains the relationship between rights and responsibilities. In particular, at paragraph 38 it states that the constitutional provision on duties and responsibilities cannot be interpreted as adding a restriction on freedom of expression of its own accord. A general reference to military discipline therefore does not replace a legal basis and a proportionality review. Disciplinary sanctions linked to public officials' posts are addressed separately in the article on freedom of expression of public officials.
Direct quotation from the decision
“Public officials, including soldiers, enjoy freedom of expression just like all other members of society.”
Location of the quotation: AYM, Engin Kabadaş, Application No. 2014/18587, July 6, 2017, § 36. This sentence is part of the reasoning and must be read together with the holding, set out below, that no violation was found.
Legal characterization: Freedom of expression for soldiers is not a right that is removed at the outset. Military status and the duty of neutrality are factors that affect whether a restriction is necessary in the specific case. Without showing that these factors exist, no conclusion can be reached merely by invoking the profession.
What case did the Engin Kabadaş decision examine?
At the time of the events, the applicant was serving as deputy commander with the rank of staff colonel (kurmay albay). Acting on orders from his superiors, he gave conferences to military personnel and their families on the Atatürkist system of thought. Attendance at the conferences was mandatory. After recordings of the talks and presentations were published online, he was prosecuted for the offence of engaging in political activity.
In the retrial following the reversal (bozma) of the earlier judgment, it was accepted that the talks were aimed at influencing the political preferences and views of the listeners. The applicant was sentenced to a judicial fine of 780 Turkish lira (TL). This amount belongs to the historical sanction at issue in the application; it cannot be used today as a fixed penalty for the same act. The military trial process described in the decision also belongs to the period in which the events took place. The protection of the right to be elected and to engage in political activity through AYM decisions is examined in the article on the right to be elected and political activity.
The AYM specifically noted that the applicant was not punished for explaining Atatürk's principles and reforms. The sanction under review related to statements about politicians of the time and about current political issues (§§ 40–42). The general subject of the conferences and the words on which the punishment was based were thus separated from each other.
What does the AYM's ruling state clearly?
The AYM's ruling: The complaint of a violation of freedom of expression was found admissible. On the merits, the Court unanimously held that Article 26 of the Constitution had not been violated. The application was not dismissed for a manifest lack of foundation. The Court examined the interference on its merits and found it necessary and proportionate in the concrete circumstances.
This distinction matters. Admissibility concerns whether the application can be examined; the review of violation concerns whether the interference is compatible with the Constitution. A finding that an application is admissible does not mean that a violation has been found. Summarizing the decision in a single sentence stating that the "application was accepted" leads to a wrong conclusion.
Why were the compulsory audience and military hierarchy decisive?
The speaker's authority and the listeners' freedom
In the concrete case, the speaker was a senior officer. The listeners were military personnel under his command and their spouses. Because attendance was compulsory, the statements were not made in a freely chosen environment for debate. The AYM accepted that, in this relationship, the speaker could be expected to take greater care when expressing current political views (§ 44).
The weight of the decision does not rest on the content of the words alone. The authority conferred by rank, the institution's organization of the meeting and the listeners' lack of any opportunity to stay away from the setting also affected the outcome. The same sentences therefore cannot be assumed to lead automatically to the same result in a different context.
The use of public resources for political purposes
The AYM assessed statements made in the capacity of a soldier and through military facilities. In examining the legitimate aim, the neutrality of the armed forces and the protection of the democratic political order came to the fore (§§ 32–33). The question of whether the interference was necessary and proportionate was then examined separately. The existence of a legitimate aim did not, by itself, conclude the review.
Our assessment: In practice, the central question in this decision is not what the person thinks but how the person uses institutional authority while expressing their views. Critical speech and an activity aimed at steering subordinates' political choices are not the same legal characterization. A sanction decision should be able to show which words and conduct led to this second conclusion.
How are the legal basis and proportionality examined separately?
In the Engin Kabadaş decision, the basis for the interference is given as Article 148, subparagraph (C), of Law No. 1632 on the Military Criminal Code (Askerî Ceza Kanunu). The AYM accepted that this provision met the requirement of lawfulness in the concrete case (§ 31). That finding does not mean that every disputed statement constitutes the element of political activity in the law. The elements of the offence and the applicability of the provision in terms of person and time are determined separately in each file.
In the proportionality review, the conditions in which the speech took place and the penalty imposed were assessed together. The AYM found the reasoning of the first-instance court relevant and sufficient and concluded that a fair balance had been struck between the applicant's freedom and his duties and responsibilities. The relatively low amount of the judicial fine was also taken into account in this concrete assessment (§ 45).
| Element to examine | Question to be answered in the file |
|---|---|
| Status and setting | Was the statement made in military capacity, or using duty or institutional resources? |
| Audience relationship | Was attendance voluntary; were the listeners under the speaker's command? |
| Nature of the act | Which specific words support the distinction between criticism and political persuasion? |
| Sanction | Is the penalty proportionate to the act found and to its effect? |
This table is an assessment tool prepared from the review criteria of the decision. Each row is neither an independent element of an offence nor a holding stated verbatim by the AYM. Its purpose is to make visible the connection between the reasoning and the concrete facts.
How did the decision treat the claim about an unlawful recording?
The applicant argued that the recording published online was unlawful and that evidence obtained later could not be used either. The first-instance court did not rely on the video in its judgment and based itself on other evidence. The AYM found that the court had responded to the objections in detail and that there was no separate claim that the other evidence had been obtained by unlawful methods (§ 41).
Legal characterization: This decision is not case law permitting unlawful recordings to be used freely in proceedings. On the contrary, in the concrete proceedings the recording was excluded and the judgment rested on other evidence. The AYM's assessment concerns whether there was clear arbitrariness in admitting those other items of evidence.
The complaint of an unfair trial was examined together with the freedom of expression complaint because of the nature of the application (§ 26). For that reason, no separate finding of a fair-trial violation, or of no violation, should be added to the decision. The holding in the operative part and the matters discussed in the reasoning should be shown separately. For the scope of the right to a fair trial, see the article on the right to a fair trial.
Which documents should be evaluated in a similar dispute?
The full text of the speech, the meeting order, the invitation or attendance arrangements, the job description, the audience and the reasoning for the sanction should be examined together. A short extract from a recording may not show the context of the speech. Objections concerning how evidence was obtained and used should be raised by specifying which recording or document they are directed against.
Whether the measure is a disciplinary sanction or a criminal conviction affects the route of review. The decision discussed in this article concerns a criminal conviction; it cannot replace the procedure to be followed against a disciplinary sanction. The relevant remedy should be identified by determining the status on the date of the events, the type of measure, and the dates of service and of learning of it.
An individual application to the AYM is not a first objection route that replaces ordinary remedies. Under Articles 45–47 of Law No. 6216, effective ordinary remedies must be exhausted and, as a general rule, the thirty-day application period must be observed. The start of the period is calculated from the concrete file details, including the date on which the final decision was learned of; the trial timetable in an earlier decision does not carry over to a new file.
Conclusion
The duty of military neutrality does not eliminate freedom of expression; it may be one of the grounds limiting the use of institutional authority for political persuasion. The reason no violation was found in the Engin Kabadaş decision is that military status, the military setting, compulsory attendance, the hierarchical relationship and the penalty were assessed together. A sound legal characterization must set out these determining conditions, rather than presenting the decision as an unlimited ban covering all military statements. Other AYM decisions on qualified rights are discussed in separate articles: administrative fine for posting placards, summons to an equivalent examination and election of leaders of religious communities. For the general framework, see the article on qualified rights.
Frequently Asked Questions
Is every political statement by military personnel a crime?
No. The elements of the applicable provision and the context of the statement must be examined. The Engin Kabadaş decision concerns conferences organized with military resources and with mandatory attendance; it does not lead to an automatic conviction for every personal statement.
Does this decision concern a disciplinary sanction?
No. The sanction at issue is a judicial fine imposed for the offence of engaging in political activity. Disciplinary proceedings may be subject to different legal bases and remedies.
Is a small fine always considered proportionate?
No. The amount is one of the assessment elements. The basis, necessity and effect of the sanction and the circumstances of the specific case are examined separately. The historical amount in the decision is not a current penalty schedule.
Did the AYM treat the unlawful video as valid evidence?
No. The first-instance court did not rely on the video in its judgment. The AYM found no clear arbitrariness in the assessment based on the other evidence. The decision cannot be read as a general permission to use unlawfully obtained recordings.
Sources and legal bases
- Constitutional Court (AYM), Engin Kabadaş, Application No. 2014/18587, July 6, 2017, §§ 26–46 and the operative part. Full-text access may require logging in.
- Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Articles 2, 12, 13 and 26.
- Law No. 1632 on the Military Criminal Code (Askerî Ceza Kanunu), Article 148; official consolidated text, accessed October 13, 2026.
- Law No. 6216, Articles 45–50.
- Constitutional Court (AYM), Qualified Rights: Decision Summaries (Nitelikli Haklar: Karar Özetleri), June 2025, printed pp. 348–349.