The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/1359-0790.htm

International,
Work-related whistle-blowing in EU and
democratic societies context Turkish law

A comparative study of international, EU

and Turkish law 1165
Kadriye Bakirci
Faculty of Law, Hacettepe University, Ankara, Turkey

Abstract
Purpose – Turkey is required by the international and EU instruments and domestic law to address the
issue of whistle-blowing and the protection of whistle-blowers. The purpose of this paper is to analyse
Turkish legislation which is applicable to work-related whistle-blowing, the conflict between the worker’s
right to “blow the whistle” and the obligation to loyalty and confidentiality. The consequences of groundless
or deliberate false disclosures are considered. Comparisons are made with international conventions, the COE
Recommendation CM/Rec(2014)7 and the Proposed EU Directive on the Protection of Whistleblowers and
ECtHR precedents.
Design/methodology/approach – In the first part, this paper reviews the definition of whistle-blowing
and whistle-blower. The second part outlines the impact of international and EU Law on Turkish legislation.
The third part reviews the Turkish legal framework applicable to whistle-blowing.
Findings – Whistle-blowing in the public interest is suggested as a tool to combat corruption worldwide.
There is no doubt that some whistle-blowers have been beneficial to society. However without democratic
structures to take into account the assessment of the quality of the information, the type of the disclosure and
the category of the reporting person, there are downsides to excessive whistle-blowing. Therefore, whistle-
blowing should be discussed in the context of democratic societies, and a balanced approach should be
adopted to ensure the position of not only whistle-blowers but also the people affected by the reports.
Originality/value – The paper offers new insights into the limits of work-related whistle-blowing within
the context of freedom of expression and the right of employees and public officials to petition. The protection
of whistle-blowers and the consequences of groundless or deliberate false disclosures under Turkish Law
from a comparative perspective are considered.
Keywords COE Recommendation CM/Rec(2014)/7,
Obligation of workers to loyalty and confidentiality,
Proposed EU directive on the protection of whistle-blowers, Protection of whistle-blowers,
Turkish law on whistle-blowing, Work-related whistle-blowing
Paper type Research paper

1. Introduction
Definitions of whistle-blowing are different across societies, situations and periods of time.
Whistle-blowers can be seen as altruistic, selfless individuals who take action at
“extraordinary personal cost”. Whistle-blowers can also be shunned or seen as the official
and unofficial informants of management.
Because what is intended for by whistle-blowing, how it is used and to whom it is
available mark the difference, whistle-blowing is not a fundamental right to be defended
Journal of Financial Crime
Vol. 26 No. 4, 2019
pp. 1165-1202
This research is supported by the Turkish Scientific and Technological Research Council’s © Emerald Publishing Limited
1359-0790
international post-doctoral research grant. DOI 10.1108/JFC-09-2018-0090
JFC across any regime or any society. Whistle-blowing can only be regarded as a freedom of
26,4 speech if society is based on democratic principles[1] and international human rights
standards.
Incidences of organisational wrongdoing is a notoriously secretive activity and it is
usually only those engaged in corrupt deals or those who work with them that are aware of
it. Insiders are among the few people who are able to report cases of wrongdoing (past or
1166 ongoing) and identify the risk of future wrongdoing. By helping to detect wrongdoing,
whistle-blowers play a critical role in converting a vicious cycle of secrecy into a virtuous
cycle (Transparency International, 2010). However reporting or refusing to take part in
suspected wrongdoing can come at a high price: whistle-blowers often expose themselves to
great personal risks to protect the public interest. As a result of speaking out, they may lose
their jobs, dampen their career prospects and even put their own lives at risk. Therefore, to
provide a safe alternative to silence, legal measures should provide effective legal protection
of whistle-blowers against retaliation (Transparency International, 2010)[2].
On the other hand, not every work-related disclosure is true, not all whistle-blowers are
saints; not every concerned person is a legal entity or an employer, and groundless/baseless
or deliberate false accusations violate the fundamental rights of the people concerned by the
reports. Therefore full respect and protection of the rights of those concerned should also be
ensured.
As Levine points out, once accusations of malfeasance have been made, false or true, the
overseeing authorities have no choice but to take accusations seriously and investigate.
Unlike the universal principle of presumption of innocence, the accused is often presumed
guilty, if not by the investigating committee, then by the court of public opinion. When the
processes of reporting or anonymous accusations become an accepted part of the
organisational culture, the prevailing community spirit can be eroded. Instead of a culture of
sharing and cooperation, the result might be one of suspicion and mistrust (Levine, 2016).
A proposal for a Directive of the European Parliament and of the Council on the
Protection of Persons Reporting on Breaches of Union Law (hereinafter “Proposed
Directive”), which was proposed by the European Commission on 17 April 2018 to provide
increased protection for work-related whistle-blowers in the European Union (hereinafter
“EU”), states that, it is necessary to protect public disclosures taking into account
democratic principles such as transparency and accountability, and fundamental rights
such as freedom of expression and media freedom, whilst balancing the interest of the
concerned persons (such as protection of employers to manage their organisations and to
protect their interests) with the interest of the public to be protected from harm, in line with
the criteria developed by the international human rights standards, in the case-law of the
European Court of Human Rights (hereinafter “ECtHR”) and EU fundamental rights and
rules.
The Proposed Directive pursues a balanced approach to ensure not only the position of
whistle-blowers but also of the people concerned by the reports. Article 17 of the Proposed
Directive provides for effective, proportionate and dissuasive penalties which are necessary:
on the one hand, to ensure the effectiveness of the rules on the protection of reporting
persons, so as to punish and proactively discourage actions aimed at hindering reporting,
retaliatory actions, vexatious proceedings against reporting persons and breaches of the
duty of maintaining the confidentiality of their identity, and, on the other hand, to
discourage malicious and abusive whistle-blowing which affects the effectiveness and
credibility of the whole system of whistle-blower protection, and to prevent unjustified
reputational damage for the persons concerned.
2. The definitions of whistle-blowing and whistle-blower International,
The terms “whistle-blowing” and “whistle-blower” are subject to a multitude of definitions EU and
and do not translate well into many languages such is into Turkish.
What is common to all possible definitions of whistle-blowing is that whistle-blowing is
Turkish law
always about individuals disclosing information. Why, how, about what and to whom
might differ according to the chosen definition, but there is always a communication going
on. The whistle-blower “speaks” – although he/she sometimes writes – information. That
information can be warnings of risky practices, accusations of illegalities or undue diligence, 1167
or even expressions of concern. But, the whistle-blower speaks out a judgement of a
situation (Vandekerckhove, 2006).
The definition of whistle-blowing used by Transparency International (hereinafter “TI”)
is the disclosure of information related to corrupt, illegal, fraudulent or hazardous activities
being committed in or by public or private sector organisations (including perceived or
potential wrongdoing) – which are of concern to or threaten the public interest – to
individuals or entities believed to be able to effect action (TI, 2013).
In 2014 the Council of Europe (hereinafter “COE”) Committee of Ministers to Member
States adopted a Recommendation CM/Rec(2014)/7 on the protection of whistle-blowers
[hereinafter “Recommendation CM/Rec(2014)/7”]. According to the purposes of the
Recommendation and its principles “whistle-blower” means any person who reports or
discloses information on a threat or harm to the public interest in the context of their work-
based relationship, whether it be in public or private sector (Principle a); “disclosure” means
making information public (Principle d).
Article 3 of the Proposed Directive states that for the purposes of the Directive
“disclosure” means making information on breaches acquired within the work-related
context available to the public domain; “reporting person” means a natural or legal person
who reports or discloses information on breaches acquired in the context of his/her work-
related activities.
The proposal draws upon the case law of the ECtHR on the right to freedom of
expression enshrined in Article 10 of the European Convention on Human Rights
(hereinafter “ECHR”), and the principles developed on this basis by the Recommendation
CM/Rec(2014)/7, as well as further international standards and good practices, and EU
fundamental rights and rules such as the right to private life, the protection of personal data,
the presumption of innocence, the rights of defence, the freedom to conduct a business
(Charter of Fundamental Rights of the European Union (hereinafter “CFREU”) Articles 7, 8,
47, 48 and 16 respectively)[3].
The ECtHR has dealt with several whistle-blowing cases that have developed the legal
framework on this matter. In Guja v. Moldova[4], Heinisch v. Germany[5] and Bucur and
Toma v. Romania[6] in determining the proportionality of an interference with a right to
freedom of expression (whether an interference with freedom of expression in relation to the
actions of a whistle-blower who makes disclosures in the public domain was “necessary in a
democratic society”), the ECtHR established a number of factors which the Court must have
regard to: whether the applicant had alternative channels for making the disclosure; the
public interest involved in the disclosed information; the authenticity of the disclosed
information; whether the applicant acted in good faith; whether the public disclosure so
important in a democratic society that it outweighs the detriment suffered by the employer;
and the severity of the sanction imposed on the applicant who made the disclosure and its
consequences.
The rights provided by the ECHR should be regarded as a “floor of right” therefore
reliance on Convention rights should not restrict reliance on other legal rights or freedoms or
JFC principles which may be ensured under the other international instruments or EU law or
26,4 national laws (ECHR Article 53).
In all these definitions, there are four elements that make up the conditions for offering
protection to the whistle-blower:
 The actor element (who can blow the whistle): There is no limitation of the actors in
the definition by TI and United Nations (hereinafter “UN”) Convention against
1168 Corruption.

The definition by TI covers any person who draws attention to a situation which is of
concern to or threatens the public interest.
Article 33 of the UN Convention against Corruption states that each State Party shall
consider incorporating into its domestic legal system appropriate measures to provide
protection against any unjustified treatment for any person who reports in good faith and on
reasonable grounds to the competent authorities any facts concerning offences established
in accordance with this Convention.
This protects all types of persons and is not restricted to those who raise concerns from
within an organisation. Therefore, anyone who tries to throw light on a corrupt, illegal,
fraudulent or hazardous activity internally or outside the organisation is a whistle-blower
and should be entitled to protection from retaliation.
The definitions by TI and UN Convention against Corruption is broader than the
definition in the COE Civil Law Convention on Corruption; the Recommendation CM/Rec
(2014)/7 and the Proposed Directive on the Protection of Whistleblowers.
The COE Civil Law Convention protects only employees. It states that each Party shall
provide in its internal law for appropriate protection against any unjustified sanction for
employees who have reasonable grounds to suspect corruption and who report in good faith
their suspicion to responsible persons or authorities (Article 9).
A wide definition of the work-based relationship, where whistle-blowers may require
protection has been provided by the Recommendation CM/Rec(2014)/7 and the Proposed
Directive.
According to the Proposed Directive “work-related context” means current or past work
activities in the public or private sector through which, irrespective of their nature, persons
may acquire information on breaches and within which these persons may suffer retaliation
if they report them (Article 3/10).
Under Recommendation CM/Rec(2014)/7 all individuals working in either the public or
private sectors, irrespective of the nature of their working relationship and whether they are
paid or not (Principle 3) and individuals whose work-based relationship has ended and,
possibly, where it is yet to begin in cases where information concerning a threat or harm to
the public interest has been acquired during the recruitment process or other pre-contractual
negotiation stage (Principle 4) are whistle-blowers.
Article 2 of the Proposed Directive sets forth the personal scope of the Directive.
According to the Proposed Directive protection should, firstly, apply to persons having the
status of “workers”, within the meaning of Article 45 of the Treaty on the Functioning of
the European Union, as interpreted by the Court of Justice of the EU. Based on the
Recommendation CM/Rec(2014)/7, it extends the protection to the persons, who, by virtue of
work-related activities (irrespective of the nature of these activities and whether they are
paid or not), have privileged access to information about breaches that can cause serious
harm to the public interest and who may suffer retaliation if they report, as well as to other
categories of persons who can be assimilated to them for the purposes of the Directive, such
as shareholders, volunteers, unpaid trainees and job applicants (European Committee on International,
Legal Co-operation, 2014). EU and
Therefore, both public and private sector workers and those outside the traditional
working relationship such as job applicants, trainees, volunteers and individuals whose
Turkish law
work-based relationship has ended should be entitled to protection from retaliation.
Limiting the scope of whistle-blowing protection to work-related disclosures by the
Recommendation CM/Rec(2014)/7 and Proposed Directive, as opposed to extending across-
the-board protection to any member of the public, is justified by the fact that although 1169
members of the public can also experience reprisals if identified as whistle-blowers, workers
require stronger legal protection as their institutional connection to their employer makes
them especially vulnerable (Chêne, 2009). The underlying principle of recommending
protection to whistle-blowers being their position of economic vulnerability vis-à-vis the
person on whom they depend for work:
 Character of the wrongdoing being disclosed: According to TI, Recommendation
CM/Rec(2014)/7 and Proposed Directive wrongdoing (including perceived or
potential wrongdoing) being disclosed must concern or threaten the public interest
(directly or indirectly), as opposed to interests which are merely personal or private
(Bowers et al., 2010).

The concept of “public interest” is generally understood to refer to the welfare or well-being
of the general public or society (COE, 2015). Although in the above instruments the
definition of whistle-blowing is limited to disclosures which have a public interest
dimension, the line between public interest and personal interest is a fine one. Some matters
can evolve into broader public interest issues if not addressed – such as when chronic
mismanagement deteriorates to the point where a safety risk is introduced into the equation,
or when financial disputes reveal broader patterns of fraud.
According to the Recommendation CM/Rec(2014)/7 “public interest report or disclosure”
means the reporting or disclosing of information on acts and omissions that represent a
threat or harm to the public interest (European Committee on Legal Co-operation, 2014).
Definitions make reference to the types of conduct that may be disclosed; namely,
information related to wrongdoing, including, but not limited to corruption; criminal
offences; breaches of legal obligation; miscarriages of justice; specific dangers to public
health, safety or the environment; abuse of authority; unauthorised use of public funds or
property; gross waste or mismanagement; conflict of interest; and acts to cover up any of the
above (TI, 2013).
According to the Proposed Directive effective detection and prevention of serious harm
to the public interest requires that the information reported which qualifies for protection
covers not only unlawful activities but also abuse of law, namely acts or omissions which do
not appear to be unlawful in formal terms but defeat the object or the purpose of the law
(Preamble Paragraph 29).
Recommendation CM/Rec(2014)/7 states that whilst it is for Member States to determine
what lies in the public interest for the purposes of implementing these principles, Member
States should explicitly specify the scope of the national framework, which should, at least,
include violations of law and human rights, as well as risks to public health and safety and
to the environment (European Committee on Legal Co-operation, 2014).
The purpose of the Proposed Directive is to protect those reporting violations of EU law,
which undoubtedly falls within the Union’s powers. Article 1 of the Proposed Directive lists
the areas where, according to available evidence, whistle-blower protection is necessary to
strengthen enforcement of the EU rules where breaches can cause serious harm to the public
JFC interest. The whistle-blowing systems to be implemented under the Proposed Directive
26,4 broadly cover illegal activities or abuses of rights – real or potential – which contravene
public procurement rules, competition rules, legislation on financial services, money
laundering and terrorist financing, safety of products placed on the union internal market,
food safety, transport safety, nuclear and radiation safety, protection of the environment,
animal health and welfare, public health and consumer protection, protection of privacy and
1170 personal data and security of networks and information systems. The proposal would also
protect whistle-blowing involving breaches of corporate tax rules and arrangements that
aim at obtaining a tax advantage and evading legal obligations, insofar as they are likely to
harm the proper functioning of the Union internal market through “unfair tax competition”
and “extensive tax evasion”.
The Proposed Directive states that effective prevention of breaches of EU law requires
that protection is also granted to persons who provide information about potential breaches,
which have not yet materialised, but are likely to be committed. For the same reasons,
protection is warranted also for persons who do not provide positive evidence but raise
reasonable concerns or suspicions. At the same time, protection should not apply to the
reporting of information which is already in the public domain or of unsubstantiated
rumours and hearsay (Preamble Paragraph 30).
One of the criteria used by the ECtHR for determining whether retaliation against
whistle-blowers making public disclosures interferes with freedom of expression in a way
which is not necessary in a democratic society, is whether the disclosure is in the public
interest. In Guja v. Moldova the ECtHR held that the information related to “very important
matters in a democratic society which the public has a legitimate interest in being informed
about and which fall within the scope of political debate”[7]. In Heinisch v. Germany the
ECtHR noted that the information disclosed by the applicant was in the public interest and
of “vital importance” to prevent abuse, taking into account the particular vulnerability of the
patients in the employer’s nursing home who are often unable to draw attention themselves
to shortcomings in the provision of their care. The Court held that the public interest in
receiving information about the care in the nursing home outweighed the rights of the
employer and the dismissal of the applicant was “disproportionately severe”:
 The recipient element (to whom must the whistle be blown): Whistle-blowing covers
reports to private or public employers (managers, directors or other responsible
persons); national authorities (such as regulatory or supervisory bodies and law
enforcement agencies), as well as disclosures to the public (most typically via web
platforms or social media, the media, elected officials, civil society organisations,
trade unions or professional/business organisations).

The definition by TI refers to the fact that disclosures are made to individuals or entities
believed to be able to effect action.
Article 33 of the UN Convention against Corruption refers to the competent authorities.
The COE Civil Law Convention on Corruption refers to the responsible persons or
authorities (Article 9).
Article 3 of the Proposed Directive refers to the “competent authority” in relation to the
external reporting, and the “public or private legal entity” as regards the internal reporting.
It states that “competent authority” means any national authority entitled to receive
reports in accordance with Chapter III (on external reporting) and designated to carry out
the duties provided for in the Directive, in particular as regards the follow up of reports
(Article 3/14).
 Third parties may also be authorised to receive reports on behalf of private and public International,
entities, provided they offer appropriate guarantees of respect for independence, confidentiality, EU and
data protection and secrecy. These can be external reporting platform providers, external
counsel or auditors or trade union representatives (Preamble Paragraph 43):
Turkish law
 Types of whistle-blowing: Although there may be considerable variations in the
actual ways by which workers might blow the whistle, studies have distinguished
four types of whistle-blowing – identified vs anonymous and internal vs external 1171
(Dworkin and Baucus, 1998; Oh and Teo, 2010).

However, a disclosure might only be protected if the disclosure is made to certain recipients
under certain conditions.
Identified whistle-blowing is a worker’s reporting of wrongdoing using his/her real name
(or in some other form giving information which might identify him/her), whereas in
anonymous whistle-blowing the worker gives no information about himself/herself and
might use an assumed name (Park et al., 2008).
Under the definition by TI, in Recommendation CM/Rec(2014)/7 and the Proposed
Directive there is no requirement for disclosure being identified or anonymous.
Recommendation CM/Rec(2014)/7 and the Proposed Directive distinguishes between
internal and external alert systems, and disclosures directly to the public[8].
“Internal reporting” means provision of information on breaches within a public or
private legal entity; “external reporting” means provision of information on breaches to the
competent authorities (Proposed Directive Article 3/6 and Article 3/7 respectively).
Recommendation CM/Rec(2014)/7 Principle 9 states that Member States should ensure
that there is in place an effective mechanism or mechanisms for acting on public interest
reports and disclosures. In Recommendation CM/Rec(2014)/7 internal disclosure has been
encouraged (Principles 15, 16, 17, 24) (European Committee on Legal Co-operation, 2014).
The Proposed Directive sets out the obligation of Member States to ensure that legal
entities in the private and public sectors establish appropriate internal reporting channels
and procedures for receiving and following-up on reports (Articles 4, 5). However in the
private sector, entities employing fewer than 50 employees and those having an annual
turnover or a balance sheet of less than EUR 10 million are exempted from the obligation to
establish internal channels and procedures for reporting and follow-up of reports (unless
their activities give rise to specific risks) (Article 4/3 (a) (b)). No exemption is provided for the
financial services sector, or for companies “vulnerable to money laundering or terrorist
financing” (Article 4/3 (c)). In the public sector, all state, regional and departmental
administrations; municipalities with more than 10,000 inhabitants; and “other entities
governed by public law” are affected by the implementation of such mechanism under the
Proposed Directive (Article 4/6).
Articles 6-12 of the Proposed Directive obliges Member States to ensure that competent
authorities have in place external reporting channels and procedures for receiving and
following-up on reports and sets out the minimum standards applicable to such channels
and procedures. It is for the Member States to identify the authorities competent to receive
and give appropriate follow up to the reports on breaches falling within the scope of the
Directive.
The Proposed Directive states that protection from retaliation as a means of
safeguarding freedom of expression and media freedom should be provided both to persons
who report information about acts or omissions within an organisation (internal reporting)
or to an outside authority (external reporting) and to persons who disclose such information
to the public domain (Preamble Paragraph 32; Article 13). However, as a rule, reporting
JFC persons should first use the internal channels at their disposal and report to their employer.
26,4 If these channels do not work or could not reasonably be expected to work, they may report
to the competent authorities, and, as a last resort, to the public/the media. This requirement
is necessary to ensure that the information gets to the persons who can contribute to the
early and effective resolution of risks to the public interest as well as to prevent unjustified
reputational damage from public disclosures. At the same time, by providing for exceptions
1172 from this rule in cases where internal and/or external channels do not function or could not
reasonably be expected to function properly, Article 13 provides the necessary flexibility for
the reporting person to choose the most appropriate channel depending on the individual
circumstances of the case.
In other cases, internal channels could not reasonably be expected to function properly,
for instance, where the reporting persons have valid reasons to believe that they would
suffer retaliation in connection with the reporting; that their confidentiality would not be
protected; that the ultimate responsibility holder within the work-related context is involved
in the breach; that the breach might be concealed; that evidence may be concealed or
destroyed; that the effectiveness of investigative actions by competent authorities might be
jeopardised or that urgent action is required (for instance because of an imminent risk of a
substantial and specific danger to the life, health and safety of persons, or to the
environment). In all such cases, persons reporting externally to the competent authorities
and, where relevant, to bodies, offices or agencies of the EU shall be protected. Moreover,
protection is also to be granted in cases where EU legislation allows for the reporting person
to report directly to the competent national authorities or bodies, offices or agencies of the
EU, for example in the context of fraud against the EU budget, prevention and detection of
money laundering and terrorist financing or in the area of financial services (Proposed
Directive Preamble Paragraph 63).
Persons making a public disclosure directly should also qualify for protection in cases
where a breach remains unaddressed (for example, it was not properly assessed or
investigated or no remedial action was taken) despite having been reported internally and/or
externally following a tiered use of available channels; or in cases where reporting persons
have valid reasons to believe that there is collusion between the perpetrator of the breach
and the competent authority is reasonably suspected, that evidence may be concealed or
destroyed, or that the effectiveness of investigative actions by competent authorities might
be jeopardised; or in cases of imminent and manifest danger for the public interest, or where
there is a risk of irreversible damage, including, inter alia, harm to physical integrity
(Proposed Directive Preamble Paragraph 64).
Both Recommendation CM/Rec(2014)/7 and the Proposed Directive provide for the
reporting of whistle-blower alerts in diverse forms. According to the Proposed Directive
provided the confidentiality of the identity of the reporting person is ensured, it is up to each
individual private and public legal entity to define the kind of reporting channels to set up,
such as in person, by post, by physical complaint box(es), by telephone hotline or through an
online platform (intranet or internet) (Preamble Paragraph 42)[9].
The ECtHR found in Guja v. Moldova that the applicant did not have any effective
channel through which to make his disclosure as neither Moldovan legislation nor the
internal regulations of the Prosecutor General’s office provided for worker reporting. In
Heinisch v. Germany in applying the requirement of pursuing alternative channels for
making the disclosure the ECtHR noted the applicant had raised her concerns on numerous
occasions with her employer to no avail. It also made reference to the Resolution 1729 (2010)
of the COE Parliamentary Assembly on the protection of whistle-blowers which stipulates
that where internal channels cannot reasonably be expected to function properly then International,
external whistle-blowing should be protected. EU and
Turkish law
3. The impact of international and European Union law on Turkish legislation
In the Turkish language, there is no such word as “whistle-blowing” or an equivalent for the
meaning of the term whistle-blower, acquired in English-speaking countries. The language
used in Turkish law are, “reporting to public authorities”, “notifying/informing the 1173
authorised bodies”, “notifying/informing the competent authorities” and “making a
complaint” about wrongdoings which must concern or threaten the public and/or private
interest.
There is no consolidated and comprehensive whistle-blowing framework. Whistle-
blowing is regulated by a diffuse series of different laws which apply different obligations to
public and private entities and different levels of protection for different categories of
whistle-blowers.
In the absence of specific legal regulations on this issue, it is necessary to refer to the
international conventions which are ratified by Turkey and briefly discuss the impact of
international conventions and EU measures.
The Turkish Constitution provides the highest legislative authority for the fundamental
principles.
It states that where a conflict between ratified international conventions and domestic
law exists, international conventions shall prevail (Article 90).
The provisions of the Constitution are fundamental legal rules binding upon legislative,
executive and judicial organs, and administrative authorities and other institutions and
individuals (Article 11).
Turkey ratified the International Convention on Civil and Political Rights (hereinafter
“ICCPR”), the International Convention on Economic, Social and Cultural Rights (hereinafter
“ICESCR”), the International Convention on the Elimination of All Forms of Discrimination
Against Women (hereinafter “CEDAW”), the ECHR, the COE Revised European Social
Charter (hereinafter “RESC”), the COE Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data (hereinafter “CPPD”), the COE Convention
on Preventing and Combating Violence Against Women and Domestic Violence (hereinafter
“Istanbul Convention”), the International Labour Organisation (hereinafter “ILO”)
Convention concerning Discrimination in Respect of Employment and Occupation (No.111)
and the Convention concerning Termination of Employment at the Initiative of the
Employer (No.158).
Turkey is a party to the Universal Declaration of Human Rights (hereinafter “UDHR”),
the UN Convention against Corruption, the COE Civil Law Convention on Corruption, the
COE Criminal Law Convention on Corruption, the Additional Protocol to the Criminal Law
Convention on Corruption, the COE Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime, the Organisation for Economic Co-operation and
Development (hereinafter “OECD”) Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions.
All these international conventions have the force of law. The provisions of these
Conventions related to whistle-blowing, protection of whistle-blowers and concerned
persons are binding upon the legislative, executive, and judicial organs, the administrative
authorities, and other institutions and individuals.
The UDHR, ECHR[10] and ICCPR provides the right to freedom of expression (Articles
19, 10 and 19, respectively) and the right to respect for private and family life (Articles 12, 8
and 17, respectively). The CPPD protects personal data.
JFC The UDHR and ICESCR guarantee the right to work (Articles 23 and 6, respectively), and
26,4 just and favourable conditions of work (Articles 23 and 7, respectively).
Articles 1, 2, 4, 7 of the UDHR, Article 26 of the ICCPR, Articles 2/3 and 3 of the ICESCR,
Article 14 of the ECHR, Articles E and 20 of the RESC, CEDAW, Istanbul Convention, ILO
Conventions (No.111) and (No.158) prohibit discrimination.
Article 26 of the RESC guarantees the right to dignity at work, and Istanbul Convention
1174 provides protection for women against physical, sexual, economic and physiological
violence.
They all have relevance for whistle-blowers.
On the other hand Resolution 1729 (2010) of the COE Parliamentary Assembly on the
Protection of Whistleblowers, and Recommendation CM/Rec(2014)7 are non-binding
(Puppinck, 2012) but set guiding principles or long-term goals.
As a candidate for membership of the EU, Turkey should comply with the EU acquis
communautaire. Turkey has to harmonise its existing legislation in line with the principles
of the CFREU and in particular its Articles on freedom of expression and right to
information (Article 11), the right to fair and just working conditions (Articles 30, 31), the
right to human dignity (Article 1), protection from unjustified dismissal (Article 30), the
right to effective remedies (Article 47), the right to respect for private life, protection of
personal data, healthcare, environmental protection, consumer protection (respectively,
Articles 7, 8, 35, 37, 38), and the general principle of good administration (Article 41); EU
legislation on equal treatment, which provides for protection against victimisation in
response to a complaint or to proceedings aimed at enforcing compliance with this principle
and on protection against harassment at work[11]; and the Framework Directive 89/391/
EEC on safety and health of workers at work[12] which provides that workers or workers’
representatives may not be placed at a disadvantage because they consult or raise issues
with the employer regarding measures to mitigate hazards or to remove sources of danger.
Workers and their representatives are entitled to raise issues with the competent national
authorities if they consider that the measures taken and the means adopted by the employer
are inadequate for the purposes of ensuring safety and health (Article 11) (Commission
Communication on Safer and Healthier Work for All, 2017).
With respect to protection of concerned persons Turkey has to comply with the
provisions of the international conventions and EU law on the protection of the rights of the
person, the right to confidentiality, the provision of an effective remedy, and a fair trial as
well as the presumption of innocence and the right of defence, including the right to be heard
and the right to access their file, the fundamental liberties of the employer in accordance
with the UDHR, the ICCPR, ICESCR, ECHR, CFREU and the Proposed Directive.

4. The Turkish legal framework applicable to whistle-blowing

There is no specific legislation on whistle-blowing in Turkey. Therefore fundamental
principles of the Turkish Constitution, general provisions, rights and obligations provided
by civil laws, employment laws, administrative laws, criminal laws, and some other specific
laws such as laws related to occupational health and safety, data protection, social
insurance, tax, terrorism, witness protection etc. are applicable to whistle-blowing.
In Turkey, workers are mainly divided into two groups. These are dependent workers
and independent workers (self-employed) (Bakirci, 2016; Bakirci, 2017).
There are three types of dependent workers: Employees working under a private/civil
law employment contract – working either in the private or public sector; permanent civil
servants working in the public sector; and public officials with an administrative law
employment contract working in the public sector.
 Different strands of legislation apply to these three groups of workers and different levels International,
of protection against dismissal exist for them. EU and
Individual labour/employment law is only applicable to employees working under a
private law employment contract either in public or private sector. Relationships
Turkish law
between employers and employees are regulated by the Turkish Constitution, and
mainly by several different Acts namely Employment Act (hereinafter “EA”; Act
No.4857), Obligations Act (hereinafter “OA”; Act No.6098), Occupational Health and
Safety Act (hereinafter “OHSA”; Act No. 6331), Protection of Personal Data Act
1175
(hereinafter “PPDA”; Act No.6698), Social Insurance and General Health
Act (Hereinafter “SIGHA”; Act No.5510), Turkish Civil Code (hereinafter “CC”; Act
No.4721), Turkish Criminal Act (Hereinafter “CA”; Act No.5237), The Exercise of Right
to Petition Act (Hereinafter “RPA”; Act No.3071), Human Rights and Equality
Institution of Turkey Act (Hereinafter “HREIA”; Act No. 6701), Ombudsperson Act
(hereinafter “OmA”; Act No.6328) and Labour Courts Act (hereinafter “LCA”; Act No
7036). The relationship between employees’ trade unions and employers themselves or
employers’ unions (collective labour law) is regulated by the Turkish Constitution; and
the Trade Unions and Collective Agreement Act (hereinafter “TUCAA”; Act No.6356).
Disputes concerning employees working under a private law employment contract are
settled by mandatory mediators[13] or labour courts (LCA Article 3).
On the other hand, the relationship between civil servants; public officials working
under an administrative law employment contract, and the state is not a private
contractual relationship and, therefore, they are within the scope of a special section of
public law (administrative law). Civil servants and public officials with an
administrative law employment contract are governed mainly by the Turkish
Constitution, Civil Servants Act (hereinafter “CSA”; Act No.657), Statutory Decree on
Personnel Regime of State Economic Enterprises (The Statutory Decree No.393),
Regulation on Complaints and Appeals of Civil Servants, Regulation on the Principles
of Ethical Behaviour of the Public Officials and Application Procedures and Essentials,
Declaration of Assets and Fight Against Bribery and Corruption Act (hereinafter
“DABCA”; Act No. 3628), OHSA, PPDA, SIGHA, RPA, HREIA, OmA, Procedure of
Administrative Justice Act (hereinafter “PAJA”; Act No. 2577), Regulation on
Disciplinary Boards and Discipline Chiefs Act, The Prosecution of Public Officials Act
(hereinafter “PPA”; Act No. 4483) and CA. The relationship between public officials’
unions and public employer’s unions is regulated by the Turkish Constitution, and
Public Officials Trade Unions and Collective Agreement Act (hereinafter “PTUCA”;
Act No.4688). Disputes concerning civil servants and public officials working under an
administrative law employment contract are not settled by labour courts but by
administrative courts.
The laws in Turkey applicable to whistle-blowing comprise four frameworks:
(1) The first governs freedom of expression and the limits of work-related whistle-
blowing within the context of freedom of expression.
(2) The second governs the right of petition, the obligation to notify the authorised
bodies about any criminal offence and the types of (external/internal and
identified/anonymous) whistle-blowing.
(3) The third governs protection of whistle-blowers against retaliation.
(4) The fourth governs the protection of the concerned persons and the consequences
of groundless or deliberately false disclosures.
JFC 4.1 Freedom of expression and the limits of work-related whistle-blowing within the context
26,4 of freedom of expression
4.1.1 Freedom of expression. The whistle-blower’s right to speak up is closely related to
freedom of expression, freedom of conscience and to the principles of transparency and
accountability.
The UDHR, ECHR, ICCPR and CFREU provide the right to freedom of expression
1176 (Articles 19, 10, 19 and 11, respectively).
The ECHR Article 10/1 states that everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and impart information and ideas
without interference by public authorities and regardless of frontiers.
According to the ECtHR, the right to freedom of expression “constitutes one of the
essential foundations of a democratic society and one of the basic conditions for its progress
and for each individual’s self-fulfilment”. Subject to paragraph 2 of Article 10 (relating to
lawful restrictions of this right)[14], it is applicable not only to “information” or “ideas” that
are favourably received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb. Such are the demands of pluralism, tolerance and
broadmindedness without which there is no “democratic society”[15].
In several decisions, the ECtHR has made it clear that the right to freedom of expression
is relevant and applicable in the workplace. In Guja v. Moldova the ECHR reiterated that the
right to freedom of expression applies to the workplace and so could be relied on by whistle-
blowers. The ECtHR was clearly of the view that the disclosure of illegal conduct or
wrongdoing in the workplace by a public sector worker should, in certain circumstances,
enjoy protection. In Heinisch v. Germany the ECtHR confirmed its approach taken in Guja v.
Moldova that workers, in certain circumstances, should enjoy protection in respect of the
disclosure of illegality or wrongdoing in the workplace.
The Turkish Constitution Article 26 provides freedom of expression and dissemination
of thought. Article 26/1 states that everyone has the right to express and disseminate his/her
thoughts and opinions by speech, in writing or in pictures or through other media,
individually or collectively. This freedom includes the liberty to receive or impart
information or ideas without interference by official authorities.
This provision is general as it covers any kind of expression.
On the other hand, the Turkish Constitution Article 10, EA Article 5 and CSA Article
10 protects workers against discrimination on a number of grounds including political
opinion[16]. This may have some relevance in cases where the views expressed by workers
exercising the right to freedom of speech can be classified as political. Dismissal or other
detriment imposed for exercising the right to freedom of expression on matters of a political
nature would amount to discrimination at work on the ground of political opinion (CAECR,
1988 and 1998), unless there is an exception prescribed by law[17].
When assessing the limits of the freedom of expression of a shop steward (trade union
representative), trade union members and participants of trade union activities, this is a
more complex issue compared to other employees or other public officials[18].
However, under the Turkish Constitution (Article 40)[19] anyone victimised for blowing
the whistle could argue that a court should decide their case with regard to their human
right to freedom of expression and the right to disclose information in particular[20].
4.1.2 The limits of work-related whistle-blowing within the context of freedom of
expression. Workers are under the obligation of loyalty, confidentiality, obedience, trust and
good faith in employment. Therefore, the right to freedom of expression in the workplace
may interfere with the workers’ obligations of loyalty, confidentiality and good faith.
 4.1.2.1 The obligation of workers to loyalty and confidentiality. The right to freedom of International,
expression is not absolute, but a qualified right. The right is set out in the first paragraph of EU and
Article 19 of ICCPR, Article 10 of ECHR and Article 26 of the Turkish Constitution which
also provides a second paragraph that allows the right to be interfered with “as prescribed
Turkish law
by law” and as “necessary” for one of the express aims provided[21].
ECHR Article 10/2 states that the exercise of the freedom of expression, as it carries with
it duties and responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in the interests 1177
of national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
The Turkish Constitution provides for the restriction of fundamental rights and
freedoms. According to Article 13 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
society and the secular republic and the principle of proportionality. Under the Article 26/2
the exercise of the freedom of expression and dissemination of thoughts may be restricted
for the purposes of national security, public order, public safety, safeguarding the basic
characteristics of the Republic and the indivisible integrity of the State with its territory and
nation, preventing crime, punishing offenders, withholding information duly classified as a
state secret, protecting reputation or rights and the private life and family life of others, or
protecting professional secrets as prescribed by law, or ensuring the proper functioning of
the judiciary.
Therefore, an interference with a whistle-blower’s right to freedom of expression can be
justified if it is under the workers duty of confidentiality, provided it is necessary for a
legitimate reason such as national security or the maintenance of confidence and it is
proportionate.
In addition, the Turkish Constitution guarantees the fundamental liberties of the
employer, namely the occupational liberty (Article 48) and the right to property (Article 35)
which shall guarantee the employer protection of his/her trade secrets. Article 48 states that
everyone has the freedom to work and conclude contracts in the field of his/her choice and
the establishment of private enterprises. The State shall take measures to ensure that
private enterprises operate in accordance with national economic requirements and social
objectives and in security and stability.
Freedom of expression may also be restricted for the purposes of “protecting reputation
or rights and the private life and family life of others” (Turkish Constitution Article 26/2).
According to the Constitution, everyone has the right to life and the right to protect and
improve his/her corporeal and spiritual existence (Article 17); everyone has the right to
demand respect for his/her private and family life (Article 20).
Thus, an employer’s right to protection of its reputation including commercial interests
or the right to respect for a private life can justify an interference with a worker’s right to
freedom of expression in disclosing information relating to his/her worker. In situations of
whistle-blowing a court will weigh a worker’s right to freedom of expression to signal illegal
conduct or wrongdoing on the part of the employer against the employer’s right to protect
their reputation or privacy.
In determining whether public disclosure is so important in a democratic society that it
outweighs the detriment suffered by the employer, the Court in both Guja v. Moldova and
JFC Bucur and Toma v. Romania balanced the public interest in maintaining public confidence
26,4 in the public bodies against the public interest in disclosing information of their
wrongdoing. In both cases, the employer was a public body.
4.1.2.1.1 The obligation of employees to loyalty and confidentiality. According
to the OA the employee must carry out the work assigned to him/her with due care and
loyally safeguard the employer’s legitimate interests. For the duration of the employment
1178 relationship the employee must not exploit or reveal confidential information obtained while
in the employer’s service, such as manufacturing or trade secrets; he/she remains bound by
such obligation of confidentiality even after the end of the employment relationship to the
extent required to safeguard the employer’s legitimate interests (Articles 396; 444-447)).
The scope of the employee’s obligation to loyalty consists of refraining from disclosure of
confidential ınformation; the avoidance of any conduct which may be detrimental to the
employer or the workplace; the avoidance of commitment to dishonest acts; reporting to the
employer wrongdoings detrimental to the employer or the workplace etc.
There is no definition of “wrongdoing” but the behaviours or activities which are within
the scope of international human rights instruments which are binding on Turkey,
Constitutional and statutory rights and freedoms (such as freedom of expression/speech and
trade union activities) which might be against or detrimental to the employer will not
constitute “wrongdoing”.
Turkish private employment laws allows employers to immediately lay off employees
for a breach of loyalty and confidentiality if the employee’s conduct constitutes a just cause
under the EA Article 25/II. The OA defines just cause as any circumstance which renders
the continuation of the employment relationship in good faith unconscionable for the party
giving notice (Article 435/2).
The EA Article 25/II (b) (e) and (f) states that if the employee is guilty of any speech or
action against the honour or the dignity of the employer or member of his/her family, or
levels groundless accusations against the employer in matters affecting the latter’s honour
or dignity; if the employee commits a dishonest act against the employer, such as a breach of
trust, theft or disclosure of the employer’s trade secrets; if the employee commits an offence
on the premises of the undertaking which is punishable with seven days’ or more
imprisonment without probation; or conducts other similar behaviour the employer may
terminate the employment contract, whether for a definite or indefinite period, before its
expiry or without having to comply with the prescribed notice periods[22].
On the other hand if the conduct of the employee is not as serious, but adversely affects
the normal functioning of the workplace or the obligation of the employee to perform his/her
duties adequately[23] the employer may dismiss the employee based on a valid cause
(dismissal with notice) according to the Articles 18–21 of the EA. Under the EA Article 18
the employer who terminates the open-ended contract of an employee (except for certain
employer’s representatives) who is employed in an establishment with 30 or more employees
and who meets a minimum seniority of six months, must depend on a valid reason for such
termination connected with the conduct of the employee[24]. Employees whose contracts are
for an indefinite period and employed in an establishment with less than 30 employees or
who do not meet a minimum seniority of six months and also the employer’s representative
and his/her assistants authorised to manage the entire enterprise as well as the employers’
representative managing the entire establishment but who is also authorised to recruit and
to terminate employees are not covered by the Article 18.
The issue before the courts is to determine in each case whether the case necessitates
application of valid dismissal (EA Articles 18-21) or justified dismissal (EA Article 25/II)
(the consequences of which for the employee may be quite different).
 The ECtHR has held that an interference with a right should be examined with regard to International,
the facts of the case to determine whether the interference was “proportionate to the EU and
legitimate aim pursued” and the reasons advanced for justifying the interference are
“relevant and sufficient”[25].
Turkish law
On the other hand, under the present system, employees outside of the coverage of the
EA Article 18 can be dismissed without being given any reason at all with a notice period
under the EA Article 17. However, this freedom cannot be exercised in violation of the
principles of good faith (CC Article 2; EA Article 17; OA Article 434)[26]. 1179
In a recent decision (Ilter Nur Judgement, 2016) the Turkish Constitutional Court
followed the precedent of the ECtHR that if the right to freedom of expression is in conflict
with the rights of the employers then the courts will carry out a balancing exercise to
establish which right takes precedence. The Constitutional Court has decided that the
freedom of expression of an employee whose employment contract was terminated upon his
complaint to the Prime Ministry Communication Centre, about the working conditions at the
workplace, the unequal treatment of him and ineffectiveness of the inspections carried out
by the inspectors, has been breached.
In the action brought by the applicant for invalidity of the termination of his employment
contract and for his reinstatement, the first instance court (the local labour court) decided
that the termination would be annulled and the applicant would be reinstated to his former
position. Upon the appeal of the decision, the Turkish Court of Cassation found the
termination of the applicant’s employment contract justified as the employee exercised his
right to legal remedies by means of using defaming and abusing statements, quashed the
first instance decision and decided to dismiss the action under its substantive aspect (Ilter
Nur Judgement, 2016).
The applicant maintained that although he had succeeded in his action brought before
the first instance court, the first instance decision had been quashed by the Court of
Cassation which subsequently dismissed the action. He therefore alleged that his rights to
legal remedies and to a fair trial had been breached and requested re-trial (Ilter Nur
Judgement, 2016).
In brief, the Constitutional Court made the following assessments within the scope of
such allegations.
The interference with the applicant’s freedom of expression must be examined in terms
of the State’s positive obligations. It was found that certain expressions in the applicant’s
petition were defamatory and came within the scope of “the right to protect other
individuals” reputation or rights’ and that such interference was legitimate (Ilter Nur
Judgement, 2016).
A warning made by an employee to the public authorities about illegalities at the
workplace or unjust acts of the employer is in principle under the protection of the freedom
of expression principle. When the applicant’s petition is assessed as a whole, it was observed
that the petition included aggressive statements seeking assistance and emphasising the
applicant’s desperation. The applicant tried to say that he was subject to unjust treatment in
terms of his area of activity and that of the other employees. On the other hand, it was stated
that the employer had not paid the full insurance payments and had wrongly recorded the
working hours to be different from the actual hours. Also when claiming that his complaint
had not been properly investigated the applicant said “when an inspector pays a visit, they
wine and dine the inspector and send them back. They do not take care of us. When we
make a complaint, they threaten us. They are dismissive of us as an unskilled worker”. It
was not specified in the reasoning of the decision whether the defaming and abusive words
were the applicant’s attempt to ensure that his complaint would be taken seriously within
JFC the whole context of the complaint petition. It was not indicated whether the complaints
26,4 related solely to the employer or whether they were also directed to the inspectors who had
not performed their tasks (Ilter Nur Judgement, 2016).
On the other hand, it has been also observed that given the fact that the petition was not
publicised other than by being disclosed to the public authorities and the firm, the question
as to whether the complaint would lead to an unfavourable outcome in respect of the
1180 employer’s reputation was not assessed. When the non-severe consequences of
the complaint petition for the employer and the adverse consequence of the termination of
the applicant’s employment contract are compared, the issue of justified contract
termination should have been discussed in the reasoning of the decision. Therefore, it has
been concluded that with regard to the termination of the employment contract as per the
termination based on just cause provisions in the reasoning of the decision, there was no
relevant and sufficient justification as regards a fair balance between the applicant’s
freedom of expression and the employer’s reputation and the employer’s interest in ensuring
peace in labour relations (Ilter Nur Judgement, 2016).
The Court did not place the right to freedom of expression on an equal footing with the
right of the employer to protect his reputation.
It has been consequently held by the Constitutional Court that there was a breach of
freedom of expression which is guaranteed in Article 26 of the Constitution.
4.1.2.1.2 The obligation of public officials to loyalty and confidentiality. In
Turkish law, the situation of public officials is clearly distinguished from that of private
employees. The mission of public service confers a particular dimension and seriousness to
the concept of subordination. The purpose of subordination is to demand obedience and
discipline of personnel not in one’s own interest, but in the public interest.
Public (administrative) personnel laws such as CSA (Articles 6-31), Regulation on the
Principles of Ethical Behaviour of Public Officials and the Application Procedures and
Essentials, Act on the Establishment of the Council of Ethics for Public Officials (hereinafter
“ACEPO”; Act No. 5176), the DABCA and the Act on Prohibited Activities of Former Public
Officials (hereinafter `APAFÒ; Act No. 2531) provide for the obligation of public officials in
terms of obedience, loyalty and confidentiality, trust, declaration of assets, to sign an
“ethical agreement” document, prohibition of engagement in commerce or other revenue-
earning activities, prohibition on receiving gifts and providing benefits, prohibition on
providing benefits from enterprises in their charge. It also covers public officials`
obligations of transparency, impartiality, honesty, protecting the public interest,
accountability, respect for the principles of equality and the rule of law, democracy and
human rights etc.
CSA (Articles 124-145) and some other public (administrative) personnel statutes[27]
provide disciplinary sanctions (including dismissal) against public officials who do not fulfil
their tasks and obligations determined by the public (administrative) personnel legislation.
However the right and obligation to object to unlawful orders is also guaranteed by the
Turkish Constitution (Article 137) and CSA (Article 11).
Turkish public (administrative) personnel laws impose an “obligation of confidentiality”
on all public officials (permanent or contractual) under penalty of disciplinary (CSA Articles
124-145) and criminal action (CA Article 258). The principle of official secrecy forbids public
officials to disclose secret information (CSA Article 31), or removing official documents,
tools and equipment from authorised spaces (CSA Article 16) and to make any job-related
statements to the media without explicit permission of the relevant authority (CSA Article
15). The Regulation on the Principles of Ethical Behaviour of the Public Officials and the
Application Procedures and Essentials states that `Public officials (permanent or
contractual) while performing their duty cannot exceed their authority and make International,
statements, engagements, promises or attempt to bind the institutions they work for. They EU and
cannot make a misleading and factitious statement` (Article 18).
CA Article 258 states that any public official who discloses or publicise confidential
Turkish law
documents, decisions and orders and other notifications delivered to him/her by virtue of
office, or facilitates access to such information and documents by third parties, is punished
with imprisonment for one year to four years. The same punishment is applicable also for
1181
that official upon expiry of their office[28].
4.1.2.2 Good faith/reasonable belief/authenticity of the disclosed information. The
Turkish Constitution Article 14 prohibits the abuse of fundamental rights and freedoms. It
states that none of the rights and freedoms embodied in the Constitution shall be exercised
when attempting to violate the indivisible integrity of the State including its territory and
nation, and to endanger the existence of the democratic and secular order of the Republic
based on human rights. No provision of this Constitution shall be interpreted in a manner
that enables the State or individuals to destroy the fundamental rights and freedoms
recognised by the Constitution or act with the aim of restricting them more extensively than
stated in the Constitution. The sanctions to be applied against those who perpetrate
activities contrary to these provisions shall be determined by law[29].
Under the CC every person is bound to exercise and fulfil their rights and obligations
according to the principles of good faith. The legal order does not protect the manifest abuse
of a right (Article 2). Therefore employer and employees are expected to act in good faith
towards each other in the negotiation, formation and execution of contracts. Together with
the norms that regulate the formation and execution of contracts the good faith norms lay
down a general criterion of behaviour for contracting parties.
The COE Civil Law Convention on Corruption (Article 9), and the UN Convention against
Corruption (Article 33) require the protection of employees who have reasonable grounds to
suspect corruption and who report in good faith their suspicion to responsible person or
authorities.
TI suggests that the law shall protect any disclosure that is made in honest error (TI,
2009).
The ECtHR in Guja v. Moldova and Heinisch v. Germany held that the motives of the
person should be considered to determine whether an interference in a person’s right to free
expression could be justified. One of the criteria established in the two cases for the finding
of an interference with the right to freedom of expression is good faith on the part of the
whistle-blower and in Heinisch v. Germany it was stated to be a “determinant factor”18. The
Court in Guja v. Moldova stated that “an act motivated by a personal grievance or a personal
antagonism or the expectation of personal advantage, including pecuniary gain, would not
justify a particularly strong level of protection”.
In Guja v. Moldova the Court decided that the letters disclosed were genuine, and the
applicant was acting in good faith.
In Heinisch v. Germany the ECtHR reiterated that a person who chooses to disclose
information must carefully verify, as far as permitted by circumstances, its accuracy and
reliability. This did not appear to be an onerous burden in this case as the court found that
the applicant’s allegations were not devoid of a factual background, and there was no
evidence that she knowingly or frivolously reported incorrect information. The ECtHR also
found the applicant was acting in good faith. Although she allowed herself a degree of
exaggeration and generalisation, the applicant’s disclosures were held to be a description of
the serious shortcomings in the functioning of the nursing home.
JFC The Court in Bucur and Toma v. Romania bore in mind Resolution 1729 (2010) of the
26,4 COE Parliamentary Assembly on the protection of whistle-blowers and the need to protect
whistle-blowers on the basis that they had “reasonable grounds” to believe that the
information disclosed was true.
On the other hand under the EA and the precedents of the Turkish Court of Cassation to
enjoy protection, the matters reported by the reporting persons should be true. EA Article
1182 25/II (b) states that if the employee levels groundless accusations against the employer in
matters affecting the latter’s honour or dignity employer may terminate the employment
contract immediately[30]. According to the precedents of the Turkish Court of Cassation
termination of the employment relationship of an employee who made disclosures in the
public interest or submitted any kind of complaint against the employer (e.g. criminal or
administrative complaint) owing to misconducts made within the business is deemed as
invalid if such disclosure or complaint is a true statement[31].
However neither good faith nor truthfulness of the accusation is one of the obligations
placed upon a whistle-blower either by Recommendation CM/Rec(2014)7 or the Proposed
Directive. The focus is on the value of the information disclosed and not the motive of the
whistle-blower. As motive is subjective – and likely to be interpreted differently by opposing
parties, the fundamental issue is whether a disclosure is in the public interest. A malicious
whistle-blower may be just as right as an impartial one.
Recommendation CM/Rec(2014)7 Principle 22 read as “Protection should not be lost
solely on the basis that the individual making the report or disclosure was mistaken as to its
import or that the perceived threat to the public interest has not materialised, provided he or
she had reasonable grounds to believe in its accuracy”. It does not mention “good faith”
recognising that motivation is not important as long as there is a public interest. Protection
should not be lost if the whistle-blower’s report is mistaken. All that is required is that he/
she had reasonable grounds to believe in its accuracy (European Committee on Legal Co-
operation, 2014).
The Proposed Directive Article 13 which is based on the principles of the
Recommendation CM/Rec(2014)7 outlines the conditions under which a reporting person
shall qualify for protection under the Directive. Article 13/1 states that:
A reporting person shall qualify for protection under this Directive provided he or she has
reasonable grounds to believe that the information reported was true at the time of reporting and
that this information falls within the scope of this Directive.
It requires that the reporting person should reasonably believe, in light of the circumstances
and the information available to them at the time of the reporting, that the matters reported
by them are true. This reasonable belief should be presumed unless and until proven
otherwise. This is an essential safeguard against malicious or abusive reports, ensuring that
those who knowingly report wrong information do not enjoy protection. At the same time, it
ensures that protection is not lost where the reporting person made an inaccurate report in
honest error. In the same vein, reporting persons should be entitled to protection under the
Directive if they had reasonable grounds to believe that the information reported falls within
its scope (Preamble Paragraph 60).
On the other hand in the above decision (Ilter Nur Judgement, 2016) the Turkish
Constitutional Court did not preclude either the motive of the whistle-blower in making the
report or disclosure or of his/her good faith in so doing as being relevant to the question of
whether or not the whistle-blower is to be protected. It dismissed the requirement for
authenticity of the accusation as well. It concentrated on the right to petition and fair
balance between the applicant’s freedom of expression and the employer’s reputation and International,
the employer’s interest for ensuring peace in labour relations. EU and
Turkish law
4.2 Right of petition
4.2.1 In general. The Turkish Constitution Article 74 provides for the right to petition the
Grand National Assembly and competent authorities with a complaint or request in their
own or public interest and the right to information for everyone. Everyone has the right to 1183
obtain information and to appeal to the Ombudsperson.
The Right of petition to the Grand National Assembly and competent authorities, and
appeal to the Ombudsperson and to the Turkish Human Rights and Equality Institution,
and the right to information have been regulated by the RPA, CSA, OmA, HREIA, Right to
Access to Information Act (hereinafter “RAIA”; Act No.4982) and CPA.
Also, in recent years, Turkey introduced new disclosure channels which have
empowered people to report to authorities matters of concern. In 2006 the Prime Ministry
Communication Centre, and in 2015 the Presidency Communication Centre were established.
Both of these centres are accessible by anyone via letter, hotline and internet for any kind of
complaints, disclosures or access to the information within the framework of RAIA, RPA
and ACEPO.
4.2.2 Obligation to notify the authorised bodies about any criminal offence. No express
distinction has been made between the disclosures which are in the public or private interest
in Turkish law.
However the CA Articles 277 oblige every Turkish citizen to notify the authorised bodies
about any criminal offence[32]. A person’s failure to disclose criminal activity he/she knows
of is an offence under CA. Article 277 states, “Any person who fails to notify the authorised
bodies about an offence at the very instant is punished with imprisonment up to one year;
Any person who fails to notify the authorised bodies about the commission of an offence
where it is still possible to limit its consequences, is punished with imprisonment according
to the provisions of above subsection[33].”
All acts which are harmful to the public interest and which constitute crimes under the
CA have to be disclosed by Turkish citizens.
Authorised bodies include the chief public prosecutor’s office and the police (Criminal
Procedure Act (hereinafter “CPA”; Act No.5271) (Article 158)[34].
The CA has some special provisions in respect of public officials’ and public or private
sector health personnel obligation to notify the authorised bodies of criminal offences while
performing their services (Articles 279, 280; The Regulation on Complaints and Appeals of
Civil Servants, Article 11)[35]. According to Article 279, “Any public official who neglects or
delays in notification of an offence to the authorised bodies being aware of commission of an
offence which requires investigation or prosecution, is punished with imprisonment from six
months to two years; In the case of the commission of this offence by an official undertaking
duty in a judicial department, the punishment to be imposed according to the above
subsection is increased by one half.” According to the Article 280 any health personnel
(medical doctors, pharmacists, midwives, nurses and other persons rendering health
services) who identify the commission of an offence while performing his/her duty, but
neglects to notify this to the authorised bodies, is punished with imprisonment up to one
year.
Article 284 criminalises the failure to notify the authorised bodies about the known
location of a person, against whom decision is obtained for his/her arrest or conviction; and
failure to notify the authorised bodies about the location where all the evidence or
indications of offence are concealed by other. According to the CA Article 284/3 the
JFC punishment to be imposed is increased by one-half in the case of failure to disclose the
26,4 accused, arrested or convicted person or the evidences of an offence by a public official while
performing their duty.
The CA also obliges anyone who becomes aware of the exploitation of State secrets and
disloyalty in State services to notify the authorities before commission of the act. Failure to
notify the authorities in time, is punished with imprisonment even if the offence is not
1184 completed (Article 333/4)[36].
If any criminal offence is committed in a work-related context any public or private
sector worker like any other citizens is obliged to notify the authorised bodies directly.
Therefore there will be no breach of confidentiality or obligation of loyalty for whistle-
blowing on criminal offences. Work-related external disclosures (directly to the competent
authorities) would enjoy immunity from disciplinary proceedings and liability under
criminal, civil and administrative laws.
4.2.3 Disclosure of non-criminal wrongdoings.
4.2.3.1 Right of petition of employees in relation to non-criminal wrongdoings. Regarding
non-criminal wrongdoings, there is no regulation for private law employees to prioritise
internal reporting for wrongdoing which may be detrimental to the public or to themselves.
In contrast under the RPA every Turkish citizen and foreigners who live in Turkey have the
right to petition the Grand National Assembly and competent authorities with a complaint
or request in their own or public interest (Articles 1, 2, 3).
Therefore disclosure by employees to the competent authorities outside the workplace
will not be regarded as a violation of the employeès confidentiality/loyalty obligation.
4.2.3.2 Right of petition of public officials in relation to non-criminal wrongdoings. The
right to petition or make a complaint has been specifically regulated for public officials.
The CSA (Article 21) and Regulation on Complaints and the Appeals of Civil Servants
(Articles 3, 11) guarantee the right of public officials to make an appeal/complaint in relation
to their official or personal relations with the public authorities, their individual employment
relationships, and the wrongdoings they are subjected to by third persons while performing
their service.
Both state that internal reporting channels must be used by public officials (permanent
and contractual) for complaints related to their work. Therefore the internal route is
mandatory for public officials for wrongdoings other than criminal offences.
Every public institution has an internal discipline and inspection mechanism for
investigation of reported cases of wrong acts. Either the discipline chief, discipline
committee or the inspectors from the relevant ministry or Prime Ministry conduct the
investigation if requested by the relevant authority or by order of the superior authority.
Public officials reporting cases to their superiors usually use this mechanism.

4.3 Protection of whistle-blowers

It has been shown time and again that whistle-blowers often face indifference, hostility or,
worse, retaliation, whether they report a concern within an organisation or enterprise, or to
an appropriate public authority or make a disclosure to the public or refuse to take part in
suspected wrongdoing.
Experience from around the world demonstrates that the forms of retaliation are varied
and numerous. Retaliation might take the form of suspension, lay-off, dismissal or
equivalent measures; demotion or withholding of promotion; transfer of duties, change
of location of place of work, reduction in wages, change in working hours; withholding of
training; negative performance assessment or employment references; imposition or
administering of any discipline, reprimand or other penalty, including a financial penalty;
coercion, intimidation, harassment or ostracism at the workplace[37]; discrimination, International,
disadvantage or unfair treatment; failure to convert a temporary employment contract into a EU and
permanent one; failure to renew or early termination of the temporary employment contract;
Turkish law
damage, including to the person’s reputation, or financial loss, including loss of business
and loss of income; blacklisting on the basis of a sector or industry-wide informal or formal
agreement, which entails that the person will not, in the future, find employment in the
sector or industry; early termination or cancellation of contract for goods or services; 1185
cancellation of a licence or permit (Proposed Directive Article 14).
Retaliation violates the fundamental rights, in particular individuals’ freedom of
expression as well as the public’s right to access information and media freedom; the right to
work; the right to fair and just working conditions; the right to human dignity; the right to
respect for private and family life, protection of personal data and the general principle of
good administration.
The term “retaliation” is used expressly in the Recommendation CM/Rec(2014)7 and in
the Proposed Directive.
According to the Proposed Directive “retaliation” means any threatened or actual act or
omission prompted by the internal or external reporting which occurs in a work-related
context and causes or may cause unjustified detriment to the reporting person (Article 3/12).
It conveys exactly the close (cause and effect) relationship that must exist between the
report or disclosure and the sanction that has been inflicted on the person who has made it in
order that he/she can enjoy legal protection. Effective protection of reporting persons
requires a broad definition of retaliation, encompassing any act or omission occurring in the
work-related context which causes them detriment.
Article 9 of the COE Civil Law Convention on Corruption; Recommendation CM/Rec
(2014)7; Article 33 of the UN Convention against Corruption and the Proposed Directive calls
for adoption of national legislation for the protection of whistle-blowers[38].
Recommendation CM/Rec(2014)7 (Principle 21) and the Proposed Directive (Article 14)
require that reporting persons should be protected against any form of retaliation, whether
direct or indirect, taken by their employer or customer/recipient of services and by persons
working for or acting on behalf of the latter, including co-workers and managers in the same
organisation or in other organisations with which the reporting person is in contact in the
context of his/her work-related activities, where retaliation is recommended or tolerated by
the concerned person.
Under the Proposed Directive to qualify for protection the reporting persons should meet
the conditions set out in Article 13[39].
Protection should be provided against retaliatory measures taken vis-à-vis the reporting
person himself/herself but also those that may be taken vis-à-vis the legal entity he/she
represents, such as denial of provision of services, blacklisting or business boycotting.
Indirect retaliation also includes actions taken against relatives of the reporting person who
are also in a work-related connection with the latter’s employer or customer/recipient of
services and workers’ representatives who have provided support to the reporting person.
The Proposed Directive states that where retaliation occurs undeterred and unpunished,
it has a chilling effect on potential whistle-blowers. A clear prohibition of retaliation in law
has an important dissuasive effect, further strengthened by provisions for personal liability
and penalties for the perpetrators of retaliation. Beyond an explicit prohibition of retaliation
provided in law, it is crucial that reporting persons who do suffer retaliation have access to
legal remedies. The appropriate remedy in each case will be determined by the kind of
retaliation suffered (Article 15).
JFC Whistle-blower protection in a work-related context runs in parallel to the protection that
26,4 workers and workers’ representatives enjoy under the ILO Convention (No.158) (Article 4)
and RESC (Article 24) when raising issues of compliance with their employers. The ILO
Convention (No.158) and RESC provides dismissal protection against invalid dismissal. The
Convention and RESC identifies specific reasons for termination that are not valid, including
the filing of a complaint or the participation in proceedings against an employer involving
1186 alleged violation of laws or regulations or recourse to competent administrative authorities.
This formulation does not deal with adverse consequences short of dismissal. Under the ILO
Convention (Article 4) and RESC (Article 24) the Parties also undertake to ensure that a
worker who considers that his/her employment has been terminated without a valid reason
shall have effective remedies.
In Turkish Criminal Law some protective measures are afforded for important crimes
such as corruption cases, arms and drug smuggling, terrorism. But these laws are a
patchwork. Their field of application varies considerably and the conditions for granting
legal protection are diverse[40].
In private employment/labour laws and public (administrative) personnel laws the range
of recipients to whom a protected disclosure may be made is too narrow. Employment/
labour laws and public (administrative) personnel laws usually provide protection for
whistle-blowers who are formally employed. These laws protect them from dismissal or
some other limited forms of reprisal. Those outside the traditional employment relationship
(e.g. consultants, contractors, trainees, volunteers, job seekers and others) are outside of the
protection provided by the employment/labour laws and public (administrative) personnel
laws.
Whistle-blowers outside of the scope of private employment/labour laws and public
(administrative) personnel laws can seek remedies/sanctions under the general rules of civil,
administrative and/or criminal law.
4.3.1 Protection against direct retaliation. Private employment/labour laws and public
(administrative) personnel laws do not cover all acts of reprisal or interference with the
whistle-blower’s disclosure.
4.3.1.1 Protection of employees
4.3.1.1.1 Protection of employee’s rights against employer’s freedom of contract.
According to Recommendation CM/Rec(2014)7 (Principle 11) and the Proposed Directive
(Preamble Paragraph 69) it should not be possible to waive the rights and obligations of
workers by contractual means. Individuals’ legal or contractual obligations, such as loyalty
clauses in contracts or confidentiality/non-disclosure agreements, cannot be relied on to
preclude workers from reporting, or to deny protection or to penalise them.
Turkish Constitution Article 48/1 states that “Everyone has the freedom to work and
conclude contracts in the field of his/her choice”.
However no one can contract out of the right to make a public or private interest report or
disclosure. OA Article 26 limits freedom of contract and states that ‘A contract is null and
void if its terms are impossible, unlawful, immoral or violates personality rights. However,
where the defect pertains only to certain terms of a contract, those terms alone are void
unless there is cause to assume that the contract would not have been concluded without
them’.
Therefore an employment contract, or the terms of an employment contract, which
prevents an employee from making a public or private interest report or disclosure or
penalises him/her for having done so violates the principle of freedom of expression, and
right to petition and obligation to disclosure and is null and void under Turkish law.
4.3.1.1.2 Protection of employees’ social and economic rights. Acts of dismissal, International,
transfer or demotion, or the withholding of training or promotion affecting a reporting EU and
person, and the appropriate remedy in each case, need to be assessed in terms of the harm
suffered by the reporting person.
Turkish law
4.3.1.1.2.1 Protection of employees against invalid or abusive dismissal. Under the
EA some types of employees’ misconducts might result in the dismissal of the employee.
While some types of misconducts might cause valid dismissal with a notice period (Article
18), grave misconducts such as an unreasonable and/or unjustifiable act being capable of 1187
amounting to a breach of the implied term of mutual trust and confidence may lead to
immediate (without a notice period) dismissal (Article 25/II)[41].
The EA provides limited protection for reporting persons against invalid (Articles 18, 19,
20, 21) and abusive dismissal (Article 17):
 Invalid dismissal[42]: Article 18(3)(c) of the EA states that recourse to competent
administrative or judicial authorities or participation in proceedings against an
employer to pursue the rights or to fulfil the obligations arising from the legislation
or contract cannot be considered a valid reason for termination of an indefinite
employment contract with a notice period[43].

These provisions provide protection to whistle-blowers in relation to disclosures, which

might be of concern to private and/or public interests. However, this provides limited
protection:
Firstly because only a whistle-blower, whose contract is for an indefinite period and is
employed in an establishment with 30 or more employees, and who meets a minimum
seniority of six months (Article 18), is entitled to challenge such invalid termination before
the mandatory mediator/competent labour courts in Turkey, and to request reinstatement.
Also, Article 18 does not apply to an employer’s representative and his/her assistants
who are authorised to manage the entire enterprise. It does not apply to an employers’
representative who manages the entire establishment and who is authorised to recruit and to
terminate employee’s contracts of employment.
Above all the EA does not oblige the employer to reinstate the employee who was
dismissed as a result of whistle-blowing. The employee who alleges that no reasons were
given for the termination of his/her employment contract or who considers that the reasons
shown were not valid is entitled to lodge an appeal against that termination with the
mandatory mediator/labour court. If the mandatory mediator/labour court concludes that
the termination is invalid because no valid reason has been given or the alleged reason is
invalid, the employer must re-engage the employee in work. However if upon the application
of the employee, the employer does not re-engage him/her in work, compensation to be not
less than the employee’s four months’ wages and not more than his/her eight months’ wages
will be paid to him/her by the employer (Articles 20, 21).
Allowing for compensation as an alternative to reinstatement in the case of dismissal
might give rise to a systematic practice in particular by larger organisations. This might
have a dissuasive effect on future whistle-blowers:
 Abusive (bad faith) dismissal[44]: Under the EA Article 17, the employer is free to
terminate the open-ended contracts of the employees, who are not covered by the
EA Article 18, by observing the notice requirements without providing any valid
reason. However, if this freedom is exercised in violation of the principles of good
faith (CC Article 2; EA Article 17; OA Article 434) and is contrary to certain
specified rights of the employee, for example if it is based on filing a grievance/
complaint/disclosure or any other abusive ground this would constitute abusive
JFC (bad faith) dismissal[45]. This group of employees can claim abuse of the right to
26,4 terminate[46] and they have to prove that the employer terminated his/her contract
to retaliate against him/her because of the disclosure. Only these employees can
request compensation amounting to three times their wages for the term of notice
(EA Article 17/6). They have no reinstatement rights.

This regulation does not provide full protection to whistle-blowers because it does not
1188 provide reinstatement of the employee who is dismissed in bad faith. Also the burden of
proof of the employer’s intent is on the shoulder of the employee.
CC (Articles 24-25)[47] and OA (Articles 49, 58)[48] provide civil remedies such as
compensation for economic loss in the case of invalid or abusive dismissal, as well as
damages for any injuries or suffering:
 Unjustified dismissal[49]: On the other hand the EA Article 25/II (a) states that if the
employee levels groundless accusations against the employer in matters affecting
the latter’s honour or dignity or conducts other similar immoral, dishonourable or
malicious behaviour the employer may terminate the employment contract, whether
for a definite or indefinite period, before its’ expiry or without having to comply
with the prescribed notice periods.

Therefore if the employeès accusations are groundless in matters affecting the employer’s
honour or dignity then he/she can be immediately dismissed based on a just cause[50]. The
EA does not mention the need for intent by the employee.
This provision conflicts with the COE Civil Law Convention on Corruption, the UN
Convention against Corruption, ECtHR precedents, Recommendation CM/Rec(20 14)7 and
the Proposed Directive.
The COE Civil Law Convention on Corruption (Article 9), and the UN Convention against
Corruption (Article 33) require protection of employees who have reasonable grounds to
suspect corruption and who report in good faith their suspicion to responsible persons or
authorities (TI, 2009).
One of the criteria established in Guja v. Moldova and Heinisch v. Germany by the ECtHR
for the finding of an interference with the right to freedom of expression is good faith on the
part of the whistle-blower.
On the other hand under the Recommendation CM/Rec(2014)7 and the Proposed
Directive there should not be sanctions for misguided reporting if the whistle-blower had
reasonable grounds to believe in its accuracy at the time of the disclosure[51].
4.3.1.1.2.2 Protection of employees against negative certificate or failure to furnish
the certificate on due time. Retaliation might take the form of giving a negative
reference for future employment.
The EA Article 28 states that the employer must furnish the employee leaving
employment with a certificate stating the nature and duration of employment. The employee
who suffers a loss or the new employer who has recruited him/her may claim compensation
from the previous employer for the latter’s failure to furnish the certificate on due time or for
the incorrect information contained in the certificate.
Under the EA Article 99 the employer or his/her representative who violates the
obligation to arrange a work certificate in accordance with Article 28 or writes incorrect
information on this certificate, shall be liable to a fine of 150 liras for each employee in this
category[52].
4.3.1.1.3 Protection of employee’s personal rights. Under the Turkish Constitution
(Articles 17, 20)[53], OA, EA, PPDA, OHSA, CC, CA and RAIA an employer has the
obligation to safeguard/care for his/her employees which means that an employer should International,
take all steps which are reasonably possible to ensure their wellbeing. Requirements under EU and
an employer’s duty of care are wide-ranging and may manifest themselves in many
different ways such as to respect and safeguard the employee’s personality rights, to treat
Turkish law
them fairly and to protect them against any kind of violation.
Under the CC, any violation of personal rights is considered unlawful unless justified by
private or public interest, or undertaken by a lawfully empowered authority, or with the
consent of the related person (Article 24)[54]. 1189
The OA Article 417 provides that within the employment relationship, the employer is
obliged to safeguard and respect the employee’s personality rights, and to maintain an order
in the workplace which is in conformity with the principles of equity. In particular he/she
must take all measures which are necessary to ensure that employees are not sexually or
psychologically harassed and that any victim of sexual or psychological harassment suffers
no further adverse consequences.
Under the EA (Article 25/II) the employer is obliged to take necessary action to prevent
employees from exposure to mobbing and sexual harassment or any other maltreatment[55].
The HREIA also prohibits mobbing, and psychological and sexual harassment in the
workplace (Article 2)[56].
Under the OA (Article 417) and the OHSA the employer is obliged to take all necessary
measures to ensure health and safety in the workplace.
On the other hand under the OA (Article 419), EA (Article 75), PPDA, CA, CC, RAIA
(Article 21) employers are under the obligation of protecting their employees’ personal
information/data.
Under Turkish law retaliation against reporting employees constitutes the breach of the
employer’s obligation to safeguard employees.
In this case the reporting employee has the right to refrain from working (OA Article 97)
or to terminate his/her employment contract based on just cause (EA Article 24/II), and/or to
claim civil remedies and to appeal for administrative monetary fines and criminal sanctions.
4.3.1.1.3.1 Right of employees to refrain from working. Under the OA Article 97 a party
to a bilateral contract may not demand performance until he/she has discharged or offered to
discharge his/her own obligation, unless the terms or nature of the contract allow him/her to
do so at a later date.
This principle applies to employment contracts and gives the employee the possibility of
enforcing his/her rights, in cases of serious violation of the duties of the employer, without
having to go to court. Therefore when the employer is in arrears with his/her obligation to
safeguard his/her employee and retaliates against the employee, the employee may refuse
performance until the employer has stopped retaliating against his/her.
The employee retains his/her right to wages even during the period of such refusal and is
not obliged subsequently to make up the work not performed.
Dismissal on the ground of justified refusal to work is unlawful.
4.3.1.1.3.2 Right of employees to terminate the employment contract. According to
Article 24/II(b) and (c) of the EA, the employee may terminate the employment contract
immediately if the employer is guilty of any speech or action constituting an offence
against the honour or reputation of the employee or if he/she harasses the employee
sexually or, if the employer assaults or threatens the employee, or commits an unlawful
action, or commits an offence against the employee which is punishable with
imprisonment, or levels serious and groundless accusations against the employee in
matters affecting his/her honour or for other immoral, dishonourable or malicious
conduct or other similar behaviour.
JFC The employer must also protect whistle-blowers from colleagues who make allegations
26,4 damaging the honour and respect of the whistle-blower in the workplace. According to
Article 24/II (d) of the EA, the employee may terminate the employment contract
immediately in cases where the employee was sexually harassed by another employee or by
third persons in the establishment, if adequate measures were not taken although the
employer was informed of such conduct or informed of other immoral, dishonourable or
1190 malicious conduct or other similar behaviour.
4.3.1.1.3.3 Civil remedies for employees. An individual who has his/her personal rights
unlawfully violated is entitled to request protection from a judge, or to seek compensation
for the violation.
The CC and OA provide remedies such as compensation for physical and moral damages
in the case of harassment, mobbing, etc. (CC Articles 24-25; OA Articles 49, 58). According to
the OA Article 49 any person who, by his/her fault and unlawful behaviour causes damage/
loss to another is obliged to provide compensation. Even when there is no law prohibiting
the damaging behaviour, a person who wilfully causes damage to another in an immoral
manner is likewise obliged to provide compensation. The OA Article 417/3 states that the
compensation for damages regarding the death, impairment of bodily integrity or breach of
the private rights of the employee, owing to the conduct of the employer which is against the
law and the contract, including the foregoing provisions, shall be subject to the provisions
for responsibility originating from inconsistency with the agreement[57].
Under the CC the claimant may also demand that the judge takes action to prevent
assault, to eliminate such threat and to assess the unlawful consequences of the assault even
though the assault is discontinued. In addition to such action, the claimant may also request
publication or notification of the recovery of damages or the judgement to third parties
(Article 24)[58].
4.3.1.1.3.4 Administrative monetary fines in violation of employees’ rights. The EA
(Articles 98-108) provides monetary fines against the employer or his/her representative
who violate the provisions of the EA in relation to the obligation to arrange a work
certificate in accordance with Article 28 or writes incorrect information on this
certificate[59]; the provisions as to wages, on annual leave with pay, on the organisation of
work and on health and safety.
Administrative penal fines are also foreseen in the OHSA against the employer or his/her
representative who violates the health and safety provisions of the OHSA (Article 26).
4.3.1.2 Protection of public officials. Under public (administrative) personnel laws, senior
officials are under the obligation of safeguarding the public officials.
To protect whistle-blowers in the public sector from retaliation and retribution by
their superiors, the Regulation on Complaints and Appeals of Civil Servants requires
that civil servants who have performed the obligation to report a crime should not be
subjected to disciplinary sanctions or retaliation which may aggravate their working
conditions (Article 14).
Nevertheless, public officials may also face considerable difficulties. Most of the time
they can be subjected to harassment, mobbing, disciplinary actions, loss of promotion
opportunities, punitive transfers.
Under Turkish law civil servants (permanent public officials) are better protected by
public (administrative) personnel laws mainly by the CSA. They are permanent workers and
they have full job security.
The situation for public officials working under administrative contracts is a more
complex issue compared to civil servants and private law employees. They work mainly on
yearly contracts. No provisions for job security exist and the body of jurisprudence that has
been developed by the administrative courts and Conseil d’etat (Highest Court in International,
administrative law) about this group is conflicting (Bakirci, 2016; Bakirci, 2017). EU and
However, public officials may appeal to the relevant administrative authority and can
object to disciplinary sanctions such as warnings, reprimands and deduction from salary, or
Turkish law
suspension of grade advancement.
In addition, disciplinary decisions including dismissal from public service are subject to
judicial inspection (the Turkish Constitution Article 129; CSA Article 135).
Remedies are available through the administrative courts and include annulment of 1191
unlawful decisions such as a disciplinary sanction, damages and costs as well as
reinstatement and back pay.
Monetary fines are available under the HREIA which prohibits discrimination, mobbing,
psychological and sexual harassment in public workplaces (Article 2)[60].
4.3.1.3 Protection of employees and public officials against retaliation in the form of
discrimination. Under the Turkish Constitution (Article 10), the EA (Article 5), CSA Article
10 and the HREIA protection is available against retaliation if it takes the form of
discrimination as a reaction to a complaint or to proceedings.
Article 10 of the Turkish Constitution states that everyone is equal before the law
without distinction as to language, race, colour, sex, political opinion, philosophical belief,
religion and sect, or any similar grounds
According to the EA Article 5, no discrimination based on language, race, sex, political
opinion, philosophical belief, religion and sex or similar reasons is permissible in the
employment relationship. Differential remuneration for similar jobs or for work of equal
value is not permissible. If the employer discriminates against the employee in the execution
of the employment relationship, the employee may demand compensation up to his/her four
months’ wages plus other claims of which he/she has been deprived[61].
The reporting employee also has the right to refrain from working (OA 97)[62] or to
terminate his/her employment contract based on just cause (EA Article 24/II)[63].
The employer or his/her representative who acts in violation of the principles and
obligation foreseen in Article 5 of the EA shall be liable to a fine of 150 liras for each
employee in this category (EA Article 99).
CSA Article 10/2 states that senior officials shall treat the civil servants in their charge
equally and fairly. They shall use the authority of their superior position within the
principles described in laws, regulations and statutes. Discrimination by the senior officials
might result in disciplinary actions against the senior officials, and/or remedies through the
administrative courts.
On the other hand the HREIA prohibits discrimination based on sex, race, colour,
language, religion, sect, philosophical and political opinion, ethnicity, wealth, birth status,
marital status, health, disability, and age in both private or public sector (Article 2). Under
the HREIA victimisation as a reaction to a complaint or to proceedings aimed at enforcing
compliance with the equality principle is also considered to be a type of discrimination.
Article 4/2 states that if persons who have started or participated in administrative or legal
proceedings in respect of the principle of equality, and the prevention of discrimination, are
subjected to prejudicial treatment because of those proceedings, then such prejudicial
treatment is considered to be a type of discrimination. The Human Rights and Equality
Institution is a public legal entity with administrative and financial autonomy. It is affiliated
to the Turkish Prime Ministry. Natural persons and legal entities can file complaints of
discrimination. The Human Rights and Equality Board investigates discrimination upon
complaint and ex-officio and fines people and public/private legal entities in cases of
discrimination.
JFC 4.3.1.4 Protection of employees and public officials by penal sanctions. Penalties are
26,4 necessary to ensure the effectiveness of the rules on whistle-blower protection.
The Proposed Directive Article 17 states that Member States shall provide penalties
applicable to natural or legal persons that hinder or attempt to hinder reporting; take
retaliatory measures against reporting persons; bring vexatious proceedings against
reporting persons; breach the duty of maintaining the confidentiality of the identity of
1192 reporting persons.
The Turkish Constitution Article 49 states that everyone has the right and duty to work.
The State shall take the necessary measures to raise the standard of living of workers, and
to protect workers and the unemployed to improve the general conditions of labour, to
promote labour, to create suitable economic conditions for the prevention of unemployment
and to secure labour peace. According to the CA Article 117/1 any person who violates the
right to work and freedom of occupation by using violence or threats or by performing an
act contrary to the law, can be sentenced to imprisonment from six months to two years or
the imposition of a punitive fine upon complaint of the victim.
The CA also provides penal sanctions against retaliatory acts such as offences of bodily
harm (Articles 86-89), torture (Article 94), torment (Article 96), sexual harassment (Article
105), threat (Article 106), blackmail (Article 107), prevention of the use of trade union rights
(Article 118), hate crime and discrimination (Article 122), prevention of communication
(Article 124), defamation (Article 125), violation of communicational secrecy (Article 132),
tapping and recording of conversations between individuals (Article 133), violation of
privacy (Article 134), recording of personal data (Article 135), unlawful delivery or
acquisition of data (Article 136) etc.
The CA makes it a criminal offence to destroy, delete, conceal, change or corrupt the
evidence to hide the truth (Article 281); and to facilitate an offender in the avoidance of his/
her investigation, arrest or conviction (Article 283).
In addition, a variety of penal sanctions are set out in the CA for miscellaneous offences
by public officials. Among these are the neglect to perform a control duty (Article 251),
exceeding the limits of authorisation for use of force (Article 256), misconduct in office
(Article 257).
Prosecution of public officials for alleged offences is subject, except in cases prescribed
by law, to the permission of the administrative authority designated by law (the Turkish
Constitution Article 129; CSA Article 24; PPA). The aim of subjecting public officials to a
special criminal investigation procedure is to protect civil servants against any allegations
concerning their duties and to provide them with the security envisaged by the Constitution
(Articles 128-129) and CSA (Article 25).
4.3.2 Protection of employees and public officials against indirect retaliation. There are no
special sanctions provided for actions taken against the whistle-blowers’ relatives who are
also in a work-related connection with the whistle-blower’s employer. However, the
legislation which can be applied to whistle-blowers against retaliation is also applicable to
the whistle-blower’s relatives where relevant.
On the other hand according to the EA Article 24/II (a) and (b), the employee may
terminate the employment contract immediately based on just cause if the employer is guilty
of any speech or action constituting an offence against the honour or reputation of a member
of the employee’s family and/or if the employer assaults or threatens a member of the
employeès family with an illegal action, or commits an offence against a member of the
employeès family which is punishable with imprisonment or for other immoral,
dishonourable or malicious conduct or other similar behaviour.
 4.3.3 Interim relief for whistle-blowers. Recommendation (Principle 26) and Proposed International,
Directive (Article 15) require that retaliation in any form be prohibited and sets out further EU and
measures that Member States should take to ensure the protection of reporting persons,
including interim relief pending the resolution of legal proceedings, in accordance with the
Turkish law
national framework. Interim relief can be in particular necessary to stop threats, attempts or
continuing acts of retaliation, such as harassment at the workplace, or to prevent forms of
retaliation such as dismissal, which might be difficult to reverse after the lapse of lengthy
periods and which can financially ruin the individual (a factor which can seriously 1193
discourage potential whistle-blowers).
Interim relief for public officials pending the outcome of administrative proceedings is
available under some conditions (PAJA Article 27). This could be in the form of a
provisional measure ordered by a court to prevent forms of retaliation that might be difficult
to reverse after the lapse of lengthy periods, such as disciplinary sanction or dismissal.
Interim relief pending the outcome of civil proceedings is not available under Turkish
Law (such as for employees with a private law employment contract). However, employees
subject to assault on his/her personal rights may claim protection from the judge against the
individuals who made the assault. The claimant may demand that the judge takes action to
prevent assault (such as mobbing or physical intimidation) and elimination of such threat
under CC Article 25.
Non-judicial bodies are not empowered to take temporary measures to protect the
whistle-blower.
4.3.4 Guarantee of confidentiality for whistle-blowers. While reporting openly and
without fear is ideal, experience shows that legal protection alone is not reassurance enough
for an individual who comes across wrongdoing in the course of their work and is unsure
whether or to whom to report it or is worried about their position. For these reasons,
confidentiality, should be offered and guaranteed to the individual disclosing the
information to reassure them and ensure that the focus remains on the substance of the
disclosure rather than on the individual who made it (European Committee on Legal Co-
operation, 2014).
Recommendation CM/Rec(2014)7 (Principle 18) and the Proposed Directive require that
Member States should ensure that competent authorities have in place adequate protection
procedures for the processing of reports of infringements and for the protection of the
personal data of the persons referred to in the report.
The Proposed Directive states that internal (Article 5) and external (Articles 6, 9)
reporting channels and procedures should ensure the confidentiality of the identity of every
reporting person (Preamble Paragraphs 55, 58)[64].
In Turkish law legal provisions on confidentiality are sporadic.
Under the CPA the indictment prepared by the public prosecutor may contain the
identity of the whistle-blower in cases where there is no danger of disclosure (Article 170/e).
In some special laws, for instance under the Anti-Terror Act (No.3713), Tax Procedure
Act (No.213), DABCA, PPA, Act on Judges and Prosecutors (No.2802), Anti-Smuggling Act
(No.5607); Police Duties and Entitlements Act (No. 2559); Prevention of Offences Against
Law and Order Act (No.1481) the identity of whistle-blowers cannot be made public without
their consent. However, when the denunciation is valid, the identity can be made public at
the request of the prosecuted person.
Under the CPA, except for those mentioned in the CPA, it is not possible to refrain from
taking the witness stand (Article 46). Article 58 states that the witness shall be asked first
about his/her name, family name, age, occupation and domicile, the address of his/her
workplace or where he/she is residing temporarily, if any, his/her telephone numbers. If
JFC deemed necessary, questions related to the reliability of his/her testimony shall be asked, to
26,4 inform the judge, especially about his/her relationships with the suspect, accused or the
victim. If there is a fear of gravely endangering the witness or his/her relatives if the
witness’s identity is revealed, necessary precautions shall be taken to keep the identity a
secret. The witness, whose identity shall not be revealed, is obliged to explain the grounds
and occasion of obtaining knowledge of the facts about which he/she is going to testify. The
1194 personal data about the witness shall be kept with the public prosecutor, judge or the court,
to keep his/her identity a secret. If there is a probable grave danger for the witness in being
heard in the presence of others, and if there is no other means of preventing this danger, or if
other measures would endanger the aim of revealing the factual truth, the judge is
empowered to hear the witness in the absence of others who would have the right to be
present. However, this confidentiality is only applicable for crimes committed within the
activities of an organised crime gang.
The Anti Terror Act, the Prevention of Offences Against Law and Order Act and the
Witness Protection Act (No.5726) includes some protection for whistle-blowers and
witnesses. However, this protection is used only in extreme circumstances. The Anti-Terror
Act and Prevention of Offences Against Law and Order Act provide protection for the
identity of the whistle-blowers. The Witness Protection Act provides protection for
witnesses to crimes if they appear as a witness in a criminal prosecution. Measures include
having correspondence sent to a different address, a change of identity (both in
identification and physical appearance) and other witness protection mechanisms. It may
only apply during the duration of the criminal proceedings.
On the other hand the Regulation on the Principles of Ethical Behaviour of Public
Officials and Application Procedures and Essentials states that “Senior officials of
institutions and organisations should keep confidential the identity of the public official
whistle-blowers and take necessary steps to avoid any harm” (Article 12/2).
OmA Article 17 provides that applications to the Ombudsperson shall be kept
confidential upon the request of applicants.
Under the Turkish Constitution, PPDA and the CA both public and private law
employers are under the obligation to protect the personal data of the workers.
Although there is no express confidentiality clause for private sector internal reporting in
terms of the EA, under the general provisions of the Turkish Constitution, civil laws,
criminal laws, PPDA and the employer’s obligation to safeguard/care for his/her employees
an employer is required to avoid causing stress or the violation of the personality rights of
employees by revealing the allegation and identity of the reporting person.
The Proposed Directive also requires the confidentiality of reporting persons when they
use the reporting channels. Although in principle it is up to each individual private and
public legal entity to define the kind of reporting channels to set up, reporting channels
should not be limited to in-person reporting and complaint box(es), which do not guarantee
confidentiality of the identity of the reporting person[65].
Under Turkish law all disclosures or complaints either for public or private interest
should include the identity of the applicant. Unless the information given is credible and
supported by the evidence an anonymous application will not be processed[66].
4.3.5 Reversal of the burden of proof. Retaliatory measures are likely to be made
indirectly and it can be very difficult for reporting persons to prove the link between
informing and retaliation. Retaliators may have greater power and resources to document
the action taken and the reasoning. Therefore, Recommendation (Principle 25) and the
Proposed Directive (Article 15) require that once the reporting person demonstrates prima
facie that he/she made a report or disclosure and suffered a detriment, the burden of proof
should shift to the person who took the detrimental action. They should then demonstrate International,
that their action was not linked in any way to the reporting or the disclosure. EU and
In legal proceedings about damage suffered by a whistle-blower, is for the employer to
prove that any measures taken to the detriment of a whistle-blower were motivated by
Turkish law
reasons other than the whistle-blower’s disclosure. The reversal of the burden of proof is
important for a whistle-blower to show that he/she has suffered retaliation.
Under the CC unless a contrary provision is stipulated in the law, every one of the parties
has to prove the existence of the facts upon which he/she bases his/her right (Article 6). 1195
This provision applies in the case of a civil claim, and an unjustified or abusive dismissal
claim.
To claim abusive dismissal the employee must not only prove that a disclosure of
wrongdoing was made, but also that the employer terminated the employment relationship
because of this – something that may be difficult to establish in practice. This is an
important obstacle in Turkish Law (Bakirci,2010/2011).
To claim unjustified dismissal the employee must prove that the disclosure was based on
the truth.
However, the burden of proof in discrimination and invalid dismissal cases has been
reversed in the EA.
Article 5 of the EA states that the burden of proof in regard to the violation of the equal
treatment provision rests on the employee. However, if the employee shows a strong
likelihood of such a violation, the burden of proof that the alleged violation has not taken
place shall rest on the employer.
To claim invalid dismissal the EA Article 20/2 states that the burden of proving that the
termination was based on a valid reason shall rest on the employer. However, the burden of
proof shall be on the employee if he/she claims that the termination was based on a reason
different from the one presented by the employer.
On the other hand in public (administrative) personnel law the burden of proof is on the
state or public employer (public legal entity). Therefore, if a public official proves that a
disclosure of wrongdoing was made and he/she was subjected to retaliation because of this
claim it will be for the public employer to show that the retaliation was not because of the
whistle-blowing.
In criminal proceedings, the burden of proof always rests with the state prosecutors.
4.3.6 Financial assistance to whistle-blowers. Whistle-blowers and employers are not
on an equal footing (in terms of financial resources, the availability of advisers,
leverage, etc.). A significant cost for reporting persons is incurred in contesting
retaliation measures taken against them in legal proceedings. Although they could
recover legal fees at the end of the proceedings, they might not be able to cover them up
front, especially if they are unemployed and blacklisted. Therefore it might be useful to
set up a mechanism for providing compensation or financial assistance to whistle-
blowers to help them pay legal fees and more generally to help them protect themselves
against possible reprisals.
There is no special regulations to provide financial assistance to whistle-blowers in legal
proceedings in Turkish law.

4.4 Protection of concerned persons and consequences of groundless or deliberate false

disclosures
4.4.1 Protection of concerned persons. Although action taken against reporting persons
outside of the work-related context, such as proceedings, for defamation, breach of
copyright, trade secrets, confidentiality and personal data protection, can pose a serious
JFC deterrent to whistle-blowing; groundless or deliberate false disclosures can violate
26,4 personality rights (the right to respect for the private and family life, human dignity, the
protection of personal data) of the concerned persons; the right to work, the right to fair and
just working conditions of the concerned worker. Therefore the concerned person should be
protected against groundless or deliberate false disclosures.
“Concerned person” is defined as a natural or legal person who is referred to in the report
1196 or disclosure as a person to whom the breach is attributed or with which he/she is associated
(Proposed Directive Article 3/11).
Principle 10 of the Recommendation CM/Rec(2014)7 protects the position of anyone
who suffers loss or injury as a result of someone who deliberately and knowingly
reports or discloses false information. Also, a person who makes such reports or
disclosures should not be protected by the law. It recommends that any person who is
prejudiced, whether directly or indirectly, by the reporting or disclosure of inaccurate
or misleading information should retain the protection and the remedies available to
him/her under the rules of general law.
The Proposed Directive pursues a balanced approach to ensure the full respect of further
rights that may be affected, such as the right to private life and to the protection of personal
data (CFREU Articles 7, 8) of whistle-blowers but also of the people concerned by the
reports, as well as the presumption of innocence and the rights of defence of the latter
(CFREU Articles 47, 48).
Article 16 of the Proposed Directive provides measures for the protection of concerned
persons. If an inaccurate or misleading report or disclosure was made deliberately and
knowingly, the concerned person should be entitled to compensation in accordance with
national law (Preamble Paragraph 77).
Article 17/2 provides that Member States shall provide for effective, proportionate and
dissuasive penalties applicable to persons making malicious or abusive reports or
disclosures.
Confidentiality, should also be provided for the concerned persons to protect their
fundamental rights against groundless or false disclosures. However without express
legislative provisions on confidentiality and lack of understanding of it is importance it is
difficult to provide confidentiality during reporting procedures.
The Proposed Directive states that Member States should ensure that internal and
external reporting channels and procedures should ensure that the identity of every
reporting person, concerned person, and third persons referred to in the report (e.g.
witnesses or colleagues) is protected at all stages of the procedure. This obligation should be
without prejudice to the necessity and proportionality of the obligation to disclose
information when this is required by EU or national law and subject to appropriate
safeguards under such laws, including in the context of investigations or judicial
proceedings or to safeguard the freedoms of others, including the rights of defence of the
concerned person (Preamble Paragraphs 55, 58).
Where the identity of the concerned person is not known to the public, competent
authorities shall ensure that their identity is protected for as long as the investigation is
ongoing. The procedures set out in Articles 9 (procedures applicable to external reporting)
and 11 (record-keeping of reports received) of the Proposed Directive shall also apply for the
protection of the identity of the concerned persons.
Assigned staff of the competent authority and staff members of the competent
authority who receive access to the information provided by a reporting person to the
competent authority should comply with the duty of professional secrecy and the
confidentiality when transmitting the data both inside and outside of the competent
authority, including where a competent authority opens an investigation or an inquiry International,
or subsequent enforcement activities in connection with the report of infringements EU and
(Proposed Directive Preamble Paragraph 56). Turkish law
According to the Proposed Directive Member States shall also ensure that the concerned
persons fully enjoy the right to an effective remedy and to a fair trial as well as the
presumption of innocence and the rights of defence, including the right to be heard and the
right to access their file, in accordance with the CFREU (Articles 47, 48, 76). 1197
In Turkish law general provisions of the Turkish Constitution, civil laws,
administrative laws, PPDA and criminal laws will apply to the confidentiality of the
concerned persons. However Article 26 of the Turkish Constitution, Article 10 of the
ECHR, ECtHR precedents which are mentioned above and Article 128 of the CA on
freedom of expression are directly applicable in employment. Under the CA, no
punishment is imposed if the written or verbal declarations before the courts or
administrative authorities contain concrete accusations or negative evaluations about
the persons within the scope of plea/defenses. However, in order to achieve such
consequence, the accusations and evaluations should be based on real and concrete
facts and also be related with the dispute between the parties (Article 128).

Notes
1. Democracy needs strong, accountable and transparent institutions of governance, based on
the rule of law, and including an accountable executive, an effective legislature and an
independent and impartial judiciary, efficient and inclusive public administration, as well as
an informed, empowered and politically active civil society and population. See United
Nations, Guidance Note of the Secretary-General on Democracy, www.un.org/en/pdfs/
FINALpercent20Guidancepercent20Notepercent20onpercent20Democracy.pdf
2. The fear of suffering retaliation has a chilling effect on potential whistle-blowers. Answering
to the 2017 Special Eurobarometer on corruption, 81per cent of respondents said that they did
not report the corruption that they had experienced or witnessed. Similarly, 85per cent of
respondents to the Commission’s 2017 public consultation expressed the view that workers
very rarely or rarely report concerns about threat or harm to the public interest. Fear of legal
and financial consequences was the reason most widely cited for that why workers do not
report wrongdoing (See European Commission Directorate General for Justice and
Consumers (2018), Factsheet on Whistleblower Protection, file:///C:/Users/SONY/Downloads/
Factsheet_on_Whistleblower_Protectionper cent20(1).pdf).
3. According to the CFREU Article 52/3 “in so far as this Charter contains rights which correspond
to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as
those laid down by the said Convention. This provision shall not prevent Union law providing
more extensive protection”.
4. ECtHR, Guja v. Moldova, Application No. 14277/04, 12.2.2008.
5. ECtHR, Heinisch v. Germany, Application No. 28274/08, 21.6.2011.
6. ECtHR, Bucur and Toma v. Romania, Application No. 40238/08, 8.1.2013.
7. The Court in Guja v. Moldova noted that in a democratic system the acts or omissions of
government must be subject to the close scrutiny not only of the legislative and judicial
authorities but also of the media and public opinion. The interest which the public may have in
particular information can sometimes be so strong as to override even a legally imposed duty of
confidence.
JFC 8. Disclosures to the public, for example to a journalist or a member of parliament is more likely to
26,4 be seen as reasonable where there are no safe alternative routes to reporting such concerns or
when they do not work and the wrongdoing is on-going or covered up. It is important to recall
that protecting wider public disclosures of wrongdoing to the media, for example, is essential for
accountability and transparency in a democracy based on the rule of law (European Committee
on Legal Co-operation, 2014).
1198 9. See Subsection 3.4.
10. See ECtHR, Steel and Morris v. the United Kingdom, Application No. 6841/01, 15.2.2005; Guja v.
Moldova, Application No. 14277/04, 12.2.2008; Heinisch v. Germany, Application No. 28274/08,
21.6.2011; Bucur and Toma v. Romania, Application No. 40238/08, 8.1.2013.
11. Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities
and equal treatment of men and women in matters of employment and occupation (recast);
Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment
between men and women in the access to and supply of goods and services; Directive 2000/78/EC
of 27 November 2000 establishing a general framework for equal treatment in employment and
occupation; Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin.
12. Directive 89/391/EC of 12 June 1989 on the introduction of measures to encourage improvements
in the safety and health of workers at work; Autonomous framework agreements signed by the
European social partners, respectively, on 26 April 2007 on harassment and violence at work and
on 8 October 2004 on work-related stress.
13. Mandatory mediation is not applicable to claims involving pecuniary and non-pecuniary
damages that arise from occupational accidents and illnesses (LCA Article 3/3).
14. See Subsection 1.2.
15. ECtHR, Surek and Ozdemir v. Turkey, Application No. 23927/94, 8.6.1999; See also ECtHR, Steel
and Morris v. the United Kingdom, Application No. 6841/01, 15.2.2005.
16. See Subsection 3.1.3.
17. The CSA prohibits political activity (Article 7) and collective actions and activities (Article 26) of civil
servants because public service requires political neutrality from the staff. Article 7 states that civil
servants shall not become affiliated to political parties, or conduct themselves in any manner aimed at
providing advantage or disadvantage for any political party, person or group; they shall not
discriminate on the basis of language, race, sex, political ideology, philosophical belief, religion or
religious doctrine; they shall not under any circumstances make any declarations and pursue a course
of action with political and ideological aims or participate in such actions.
18. See note 43.
19. Article 40 states that everyone whose constitutional rights and freedoms have been violated has
the right to request prompt access to the competent authorities.
20. Turkish Constitutional Court, Ilter Nur Judgement, Official Journal, 14.6.2016, No.29742.
21. See also CFREU Article 52/2.
22. See Subsections 4.2.1.1 and 3.1.1.2.1.
23. See e.g. Court of Cassation, 9th Division, 2.2.2005, 92049/2901.
24. See Subsections 4.2.1.1 and 3.1.1.2.1.
25. See ECtHR, Guja v. Moldova, Application No. 14277/04, 12.2.2008; Heinisch v. Germany,
Application No. 28274/08, 21.6.2011; Bucur and Toma v. Romania, Application No. 40238/08,
8.1.2013.
26. See Subsections 4.2.1.1 and 3.1.1.2.1. International,
EU and
27. For example the Higher Education Act, No.2547; the Judges and Public Prosecutors Act, No.2802;
the Turkish Armed Forces Personnel Act, No. 926. Turkish law
28. Under the CA disclosure of information relating to public security and political interests of the State
(Article 329); disclosure of confidential information, especially about the public security or domestic
and foreign political interest of the State (Article 330); exploitation of State secrets and disloyalty in
State services (Article 333); disclosure of restricted information (Article 336) constitute crimes. 1199
29. See also ECHR Article 17.
30. See Subsections 1.2.1; 3.1.1.2.1; and 4.2.1.1.
31. See for example Court of Cassation 9th Division, 31.3.1998, 3213/6233.
32. In some laws, reporting a crime (as an obligation or voluntary external disclosure) and giving
testimony by anyone is encouraged, rewards and bonuses are provided for. However, legal
provisions are disparate on this issue. For instance see the Conservation of Cultural and Natural
Property Act (No.2863); the Anti-Smuggling Act (No.5607); the Police Duties and Entitlements
Act (No.2559); the Prevention of Offences Against Law and Order Act (No.1481).
33. See Subsections 1.2.1.2; 2.2; and 2.3.
34. It does not cover independent authorities such as ombudsperson.
35. See Subsections 1.2.1 and 1.2.1.2.
36. See note 28.
37. For example see Court of Cassation 9th Division, 11.6.2007, 2006/32353, 2007/18337.
38. TI suggest that to provide a safe alternative to silence, legal measures should provide effective
legal protection of whistle-blowers against retaliation with full compensation in case of reprisals;
adequate mechanisms in public, private and not-for-profit organisations to ensure that
disclosures are properly handled and thoroughly investigated; public research, data collection,
information and training to inform about the public benefit of whistle-blowing (Transparency
International (2010).
39. See Section 2 (iv); Subsection 1.2.2.
40. See Subsection 3.4.
41. See Subsections1.2.1.1 and 4.2.1.1.
42. See Subsections 1.2.1.1 and 4.2.1.1.
43. Turkish law provides for special dismissal protection for shop stewards, trade union members
and participants of trade union activities. TUCAA Article 24 states that an employer shall not
terminate the employment contract of shop stewards unless there is a just cause for dismissal
and s/he indicates this clearly and precisely. Shop stewards have absolute reinstatement rights.
According to the Article 25 of the TUCAA no employee shall be dismissed or discriminated
against on account of his/her membership or non-membership in a trade union, his/her
participation in the activities of trade unions or employees’ organisations outside his/her hours of
work or during hours of work with the employer’s permission. Where it has been determined
that the contract of employment has been terminated for reasons related to trade union
activities, anti-union compensation [not less than an employee’s annual wages) shall be
ordered (See note 18; See also EA Articles 5 and 18(3)(a)]. The PTUCA provides protection for
trade union members and trade union officials. Public officials cannot be subjected to
different treatment or cannot be removed from the office due to participation in the activities
of trade unions or confederations, outside the working hours or within the working hours
JFC with the permission of the employer. Public employers cannot discriminate between members
or non-members of trade unions. A public employer cannot relocate a workplace trade union
26,4 representative, provincial and district representative and branch manager unless the reason
is clearly and precisely indicated (Article 18).
44. See Subsections 1.2.1.1 and 4.2.1.1.
45. See e.g. Court of Cassation, 9th Division, 13.12.2006, 14045/32850; 11.06.2007, 2006/32353, 2007/
1200 18337; 01.02.2007, 2006/17547, 2007/1767; 16.01.2012, 2011/25631, 2012/193.
46. For example see Court of Cassation 9th Division, 30.9.2004, 4860/21081.
47. See Subsections 3.1.1.3; 3.1.1.3.3; 4.2; and 4.2.1.2.
48. See Subsections 3.1.1.3; 3.1.1.3.3; 4.2; and 4.2.1.2.
49. See Subsections 1.2.1.1 and 4.2.1.1.
50. See Court of Cassation 9th Division, 8.4.1988, 2513/3945; 2.5.1989, 2074/4174.
51. See Section 2(i).
52. See Subsection 3.1.1.3.4.
53. See Subsection 1.2.1.
54. See Subsections 3.1.1.2.1; 3.1.1.3.3; 4.2 and 4.2.1.2.
55. See Subsection 3.1.1.3.2.
56. See Subsections 3.1.1.4.
57. See Subsections 3.1.1.3; 3.1.1.2.1; 4.2; and 4.2.1.2.
58. See Subsections 3.1.1.3; 3.1.1.2.1; 4.2; and 4.2.1.2.
59. See Subsection 3.1.1.2.3.
60. See Subsections 3.1.1.3 and 3.1.1.4.
61. Relevant article of the TUCAA is reserved. See notes 18 and 43.
62. See Subsection 3.1.1.3.1.
63. See Subsection 3.1.1.3.2.
64. See Subsection 4.1.
65. See Subsection 4.1.
66. See The Turkish Prime Ministry Circular Concerning the Exercise of Right to Petition and
Access to Information, No. 2004/12, Official Journal, January 2004, No.25356.

References
Bakirci, K. (2010/2011), “Gender equality in employment in Turkish legislation with comparisons to EU
and international law”, Journal of Workplace Rights, Vol. 15 No. 1, pp. 3-25.
Bakirci, K. (2016), “New forms of employment in Turkey”, in Blanpain, R., Hendricx, F. and Waas, B.
(Eds), New Forms of Employment in Europe, Bulletin of Comparative Labour Relations 94,
Wolters Kluwer.
Bakirci, K. (2017), “The concept of employee: the position in Turkey”, in Waas, B., van Voss, G.H.
(Eds), Restatement of Labour Law in Europe: Vol I: The Concept of Employee, 1st Ed., Hart
Publishing.
Bowers, J., Fodder, M., Lewis, J. and Mitchell, J. (2010), Whistle-blowing: Law and Practice, Oxford International,
University Press, Oxford.
EU and
CAECR (1988), “Report III, equality in employment and occupation, general survey of the reports on the Turkish law
discrimination (employment and occupation) convention (no 111) and recommendation (no 111)
1958”, International Labour Conference, ILO, Geneva.
CAECR. (1996), “Report III (part 4/B), special survey on equality in employment and occupation in
respect of convention no 111”, International Labour Conference, ILO, Geneva. 1201
Chêne, M. (2009), “Good practice in whistle-blowing protection legislation”, available at: www.u4.no/
helpdesk/helpdesk/query.cfm?id=207
COE (2015), “Protection of whistleblowers: a brief guide for implementing a national
framework”, available at: https://rm.coe.int/16806fffbc
Commission Communication on Safer and Healthier Work for All (2017), “Commission communication
on safer and healthier work for all – modernisation of the EU occupational safety and health
legislation and policy (COM) 12 final”, available at: https://osha.europa.eu/sites/default/files/
seminars/documents/2%20D%C2%B4Agostini.pdf
Dworkin, T.M. and Baucus, M.S. (1998), “Internal vs. external whistleblowers: a comparison of
whistleblowing processes”, Journal of Business Ethics, Vol. 17 No. 12.
European Commission Directorate General for Justice and Consumers (2018), “Factsheet on whistle-
blower protection”, available at: https://europa.eu/rapid/attachment/IP-18-3441/en/Factsheet_
on_Whistleblower_Protection.pdf
European Committee on Legal Co-operation (2014), “Recommendation CM/rec(2014)7 of the committee
of ministers to member states on the protection of whistle-blowers: explanatory memorandum’,
ministers’ deputies CM documents, CM(2014)34 addfinal, 30 April”, available at: www.coe.int/
en/web/cdcj/activities/protecting-whistleblowers
Levine, S. (2016), “Whistle blowing: too much of a good thing?”, available at: www.psychologytoday.
com/gb/blog/our-emotional-footprint/201604/whistle-blowing-too-much-good-thing
Oh, L.B. and Teo, H.H. (2010), “To blow or not to blow: and experimental study on the intention to
whistle-blowing on software piracy”, Journal of Organizational Computing and Electronic
Commerce, Vol. 20 No. 4.
Park, H., Blenkinsopp, J., Oktem, M.K. and Omurgonulsen, U. (2008), “Cultural orientation and attitudes
toward different forms of whistle-blowing: a comparison of South Korea, Turkey and the UK”,
Journal of Business Ethics, Vol. 82 No. 4, pp. 929-939.
Puppinck, G. (2012), “Status of the recommendations of the committee of ministers in the legal field of
the council of Europe – synthesis, document prepared in connection with the discussion of the
draft recommendation of the committee of ministers on the rights and legal status of children
and parental responsibilities”, available at: http://eclj.org/PDF/status-of-the-recommendations-
of-the-committee-of-ministers-in-the-legal-field-of-the-council-of-europe%E2%80%93synthesis-
english.pdf
Transparency International (2009), “Recommended draft principles for whistle-blowing legislation”,
available at: www.right2info.org/resources/publications/publications/09_12_02%20ti-draft%
20principles%20WB%20legislation.pdf
Transparency International (2010), “Whistle-blowing: an effective tool in the fight against corruption”,
available at: www.transparency.org/whatwedo/pub/policy_position_01_2010
Transparency International (2013), “International principles for whistle-blower legislation – best
practices for laws to protect whistle-blowers and support whistle-blowing in the public interest”,
available at: www.transparency-se.org/Whistle-blower-Principles_final_web.pdf
Vandekerckhove, W. (2006), Whistle-blowing and Organizational Social Responsibility a Global
Assessment, Ashgate Publishing, Farnham.
JFC Further reading
26,4 Fasterling, B. and Lewis, D. (1999), “Leaks, legislation and freedom of speech: how can the law
effectively promote public-interest whistle-blowing?”, International Labour Review, No. 1, p. 153.
Jubb, P.B. (2014), “Whistle-blowing: a restrictive definition and interpretation”, Journal of Business
Ethics, Vol. 21 No. 1.
United Nations (2019), “Guidance note of the secretary-general on democracy”, available at: www.un.
1202 org/en/pdfs/FINAL%20Guidance%20Note%20on%20Democracy.pdf

Corresponding author
Kadriye Bakirci can be contacted at: kadriy_e@yahoo.co.uk

For instructions on how to order reprints of this article, please visit our website:
www.emeraldgrouppublishing.com/licensing/reprints.htm
Or contact us for further details: permissions@emeraldinsight.com