Press Release Nr: Individual Application 35/16
02.07.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF ADEM YÜKSEL ON THE RIGHT TO PRIVATE LIFE
(Click for full text of judgment)

The Constitutional Court held, at its plenary meeting on 1/6/2016, with regard to the individual application lodged by Adem Yüksel (application no. 2013/9045) that there had been a breach of the right to private life guaranteed in Article 20 of the Constitution.

The Facts

On 11/8/2011, the applicant started to serve as a military attaché in the Tbilisi Embassy while working in the Turkish Armed Forces (“the TAF”) as a staff colonel. Thereupon, the applicant’s wife who was working as a civilian officer in the TAF took unpaid leave.

In September and December 2011, four tape records of sexually explicit content alleged to belong to the applicant’s wife were broadcasted on the Internet. The applicant was ordered to return to the country upon a written order of 16/12/2011 in which the ground thereof was not specified and was subsequently assigned under the command of the Presidency of the Turkish General Staff. On 19/12/2011, the applicant’s statement was taken by the administrative investigation board. The applicant’s wife, who returned from abroad three days later, rejected the allegations during the interview made with the board and did not find it necessary to submit a sample voice record at this stage.

In the report of 26/12/2011 drawn up by the Presidency of the Criminal Department of the Gendarmerie General Command upon the request of the administrative investigation board, it was stated that voice of the woman in the tape records broadcasted via Internet “most probably” belong to the same person; and that there was no manipulation in the records. Within the same period, the administrative investigation board heard eight workmates working in the same workplace with the applicant’s wife on 23/12/2011 and 26/12/2011 with a view to establishing whether the tape records broadcasted on the Internet belonged to the applicant’s wife or not. Moreover, out of these personnel whose statements were taken, those who did not have any knowledge concerning the impugned tape records were enabled to listen to a certain part of the records, and subsequently, their statements were taken. Given the information available in the tape records, it has been concluded that the voice in these records might belong to the applicant’s wife. On 30/12/2011, the applicant’s permanent appointment to abroad was cancelled upon the approval of the Chief of the General Staff on 30/12/2011due to these tape records broadcasted via Internet, and the applicant was then charged in the 3rd Corps Command of the Land Forces Command (İstanbul).

Thereupon, on 9/1/2012, the applicant brought an action before the 1st Chamber of the Supreme Military Administrative Court (“the SMAC”) for the stay of execution and revocation of the act of “cancelation of the appointment for a permanent task abroad”. The applicant’s request for the stay of execution was rejected on 6/3/2012.

In the meanwhile, the applicant filed a criminal complaint against the relevant military officers who made the tape records alleged to belong to the applicant’s wife listened to the other personnel serving in the TAF; however, an authorization for investigation was not granted. This decision was served on the applicant on 7/5/2012.

During the stage of exchanging of petitions, the applicant requested from the court to be provided with a copy of the confidential documents. The court decided not to render a decision concerning the applicant’s request on the ground that it was the Secretariat General’s task to allow for the examination of the confidential documents in an action which was at the notification stage and noted that upon the decision of the Secretariat General, an appeal may be lodged with the Chamber.

In the meantime, an administrative investigation was initiated against the applicant’s wife due to these tape records broadcasted on the Internet, and the High Disciplinary Board of the Ministry of National Defence imposed a penalty of dismissal from profession on the applicant’s wife. An action was brought against this decision before the 2nd Chamber of the SMAC within the prescribed period.

Thereupon, the decision on dismissal of the applicant’s wife from profession and a warning letter within the scope of Article 153 of the Military Criminal Code were served on the applicant. On 13/8/2012, the applicant requested to be retired by reserving his legal rights and was retired on 27/9/2012 upon the approval of the Minister of the National Defence.

The Secretariat General of the SMAC did not find the request for the examination of the confidential documents in the action brought by the applicant appropriate. Upon the objection to the decision, the 1st Chamber of the SMAC accepted the request partially.

The applicant maintained that his representative had became aware, upon examining the confidential information, of the fact that the administrative investigation board had been established due to the tape records; and that the administrative investigation board had acted in an unduly manner, by illegal methods and on the basis of a tape record actor of which was not identified.

In the meantime, a total of eleven persons including the applicant and his wife filed criminal complaints on various dates on the ground that unsubstantial posts including aspersions and defamations against them were made available on the social networking site. It was concluded that three suspects identified within the scope of the investigation had no relation with the offences committed, and accordingly the Chief Public Prosecutor’s Office rendered a decision of non-prosecution.

While the action brought by the applicant’s wife was pending, she accepted to give a sample voice record. Thereupon, the Presidency of the Criminal Department of the Gendarmerie General Command specified in its report that the woman in the tape records broadcasted via Internet was “most probably the same person” with the applicant’s wife.

At the end of the hearing held on 19/3/2013, an interlocutory decision was taken, and accordingly information was requested from the Presidency of the Second Chamber of the SMAC, which subsequently provided information in a letter concerning the action and submitted the criminal reports concerning the tape records to the court.

The 1st Chamber of the SMAC dismissed the action brought by the applicant on 18/6/2013.

The action brought by the applicant’s wife due to the penalty of dismissal from profession and her request for rectification of the judgment were dismissed by the SMAC.

The Applicant’s Allegations

The applicant maintained that while he was serving as a staff officer, he had to retire at the age of 47; that the tape records broadcasted on the Internet cannot be accepted as evidence; that the sole foundation of the impugned administrative act was the issues that must remain within the scope of private life; and that there had been illegal interferences with the private life and family life. He also alleged that the requests made had not been taken into account; that these tape records had been also listened to the workmates of his wife working in the same workplace with her; that this procedure was wrong and the trial was based on insufficient examination; that their requests for receiving report from the Forensic Medicine Institute had not been accepted; that he had been exposed to degrading treatments; and that there had been a breach of the prohibition of torture and ill-treatment, the right to private and family life and the right to a fair trial.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this application:

In the period in question, various decisions were taken on the basis of the dialogues with others not belonging to the applicant himself but to his wife. Those who are appointed as military attaché are automatically assessed as to whether they have the ability to represent. While satisfying that they have such ability, their families are also taken into consideration. Therefore, it is in the administration’s discretion to make the tape records alleged to belong to his wife subject-matter of the investigation even if such records are not related to the applicant himself.

It must be also established whether the applicant and his wife had any responsibility in leaking of these tape records to the Internet. Many persons other than the applicant and his wife filed criminal complaints before the Ankara Chief Public Prosecutor’s Office due to tape records broadcasted through social media accounts and requested identification and punishment of those who were responsible. Moreover, the applicant stated both before the investigation board and the non-military prosecutor’s office that the tape records in question were not authentic. Therefore, given the fact that other persons including the applicant filed criminal complaints on different grounds, it was found established that any responsibility could not be attributed to the applicant in a concrete manner.

The applicant stated that he could not learn, at the first stage, the legal ground of the interference with his professional life and could become aware of this ground only after the defence petition was submitted in the course of the action brought. Given the procedure applied during the administrative investigation conducted, it has been revealed that the most intimate parts of private life were further disclosed through the acts performed by the administration; and that this thereby led to infringement of a far greater personal interest compared to the expected public interest.

Moreover, the courts’ competence to examine whether an administrative act is lawful or not is not only restricted with the issue as to whether the administrative acts are based on material facts. It has been observed that the court did not assess the objections that the records in question were obtained from the Internet; that the content of the criminal reports of the gendarmerie was not precise; that making the tape records listened to the workmates of the applicant’s wife infringed the applicant’s personal rights; and that there was no evidence other than the tape records broadcasted.

Having regard to the grounds adduced by the court, the Constitutional Court has reached the conclusion that dismissal of this action did not only affect the professional life of the applicant, but the applicant and his family were also caused to experience trouble in their social life by means of showing the reports drawn up by the Criminal Department as a ground and indirectly giving an impression that these tape records were authentic.

It has been consequently held by the Constitutional Court that there was a breach of the right to private life, which is guaranteed in Article 20 of the Constitution, for the above-mentioned grounds.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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