Türkiye Barolar Birliği Dergisi 137.Sayı

12 İfade Özgürlüğü Kışlanın Kapısında Mı? AİHM kararlarına göre düşünce ve ifade özgürlüğü kışlanın kapısında durmamaktadır. Sınır kaçakçılığı, çözüm süreci ve hen- dek savaşları ile zorunlu askerlik ve istihdam politikası askerlerin düşünce ve ifade özgürlüğü konusunda incelenebilecek somut olaylardır. Anahtar Kelimeler: Asker, Silahlı Kuvvetler, Düşünce, İfade Özgürlüğü, Siyaset Abstract: Thinking is the basic feature of a humanbeing which differentiates it from other living beings. Freedom of thought and its reflection to external world, freedom of expression have beco- me one of the rising values in the world, subject of international treaties and part of Turkish Constitution since the 1950s. Freedom of expression which includes having, expressing and dissemina- ting opinion and freedom of information access is not limitless like all other freedoms. It can be restricted without touching its essen- ce and basing on the principle of proportionality if it is envisaged by law, which is one of the reasons for resriction and is necessary in a democratic society. There are various codes regulating personnel, penalty and discipline issues related with military personnel in accordance with exception clauses in Turkish Constitution. The universally recog- nized justification for the existence of these different regulations is based on the vital duty of armed forces for national defence. Military personnel is subject to exceptional clauses in the fields of right to vote and stand for election, right to establish and become a member of trade unions, right to form and become a member of association, immunity from principle of legality, exempting non- judicial punishment from judicial review and inability of turning punishments into alternate measures. Freedom of expression is for everyone without any excepti- on and there is not any direct regulation which exempts military personnel. According to judicial decisions, which is the main guide on this issue, restrictions on military personnel should be based on a legitimate purpose, should be suitable to intended purpose and should not make the freedom meaningless. Military Court of Cassation’s verdicts are in the same way in the case of carrying out political activity. According to decisions of European Court of Human Rights, freedom of thought and expression does not stay at the gates of military quarters. Cross-border trafficking, settlement process, trench warfare, compulsory military service and conscription are concrete cases which can be examined within the context of free- dom of thought and expression of the military personnel. Keywords: Military Personnel, Armed Forces, Opinion, Free- dom of Expression, Politics