The framework governing the conduct of an archive search and a security investigation in respect of persons to be appointed to public office for the first time or anew is drawn by the Security Investigation and Archive Search Act No. 7315. Accordingly, candidates who are to acquire the status of civil servant or public official must, in addition to satisfying the other conditions required for appointment, not have produced an unfavourable result on the archive search and security investigation form. Any decision given in an unfavourable direction must, however, be established in adherence to the principles of impartiality and objectivity and by following the procedure indicated in the Act.
As with every act of the administration, in the security investigation and archive search process too the public administration is obliged to exercise the discretionary power afforded to it in a manner consistent with the law and the public interest. Where that obligation is not complied with, a decision annulling the appointment or severing the tie with the civil service on the ground of an unfavourable investigation or search becomes unlawful and may be annulled by the Administrative Court.
The Development of the Relevant Legislation
By a supplementary provision introduced in 2016 into the Civil Servants Act No. 657, the criterion of “having been the subject of a security investigation and/or archive search” was added to the general conditions required of those to be recruited into the civil service. That provision was annulled by the Constitutional Court on the ground that it was unlawful. Following that annulment, the Security Investigation and Archive Search Act No. 7315 of 07.04.2021 was adopted and entered into force.
The Act in force sets out clearly the basic principles as to how the search and the investigation are to be conducted, the purposes for which the data obtained may be used, and the persons in respect of whom these processes are to be applied. In the same way, the scope of the information and documents that may be made the subject of the search, the manner of their use and the authorities competent to carry out the search have also been clarified by that instrument. The structure of the Evaluation Commission charged with deciding upon the information obtained, together with the rules on the security of the data collected and on the periods for their retention and deletion, are likewise contained in the same Act.
The Difference Between the Archive Search and the Security Investigation
The archive search consists of scanning the official records relating to a person and is conducted on the basis of concrete documents in respect of the headings indicated on the archive search form. Within that scope the following matters are established from the existing records: the person’s criminal record; whether the person is currently being sought by the law enforcement authorities; whether any restriction is in force in respect of the person; the facts falling within final court decisions and within ongoing or concluded investigations or prosecutions; and whether there is any dismissal from public office or any final penalty of removal from the civil service in respect of the person.
In the security investigation, by contrast, not only concrete data relating to the headings set out on the form but also assessments concerning them form part of the process. Article 5 of the Act No. 7315 defines that process as follows:
Security Investigation and Archive Search Act No. 7315, Art. 5
“It is the establishment, from existing records and by researching on the spot, using methods amenable to review, the matters that will bear upon the person’s duties, of the factual data held by law enforcement and intelligence units concerning the qualities required by the post, of the person’s connection with foreign State institutions and with foreigners, and of whether the person is in unity of action, in contact or in association with terrorist organisations or with organisations established for the purpose of committing offences.”
As can be seen, the information on which each of the two processes is to be conducted is expressly enumerated in the Act. That the giving of an unfavourable decision by going beyond that framework constitutes unlawfulness admits of no dispute. That said, even where information relating to the headings indicated in the Act has been obtained and the candidate civil servant’s investigation has concluded unfavourably, the decision given may still be unlawful. This is because the security investigation, when its elements are taken as a whole, is in the nature of an instrument serving to determine whether a person’s exercise of a public right is to be regarded as “objectionable”. Determining what is to be treated as objectionable, in turn, means the “exclusion” of those who are incompatible with the fundamental assumptions of the democratic State such as impartiality, objectivity, ideological neutrality, adherence to the law and pluralism.
In Respect of Which Persons Is the Search Carried Out?
The ground for the annulment of the provision in the Act No. 657 was that the arrangement covered the entirety of persons to be appointed to public office for the first time or anew. The Constitutional Court had found it contrary to the Constitution for everyone to be brought within the scope of the security investigation and archive search without distinction. The Act No. 7315, which subsequently entered into force, has confined that condition to persons to be appointed to certain posts only. Accordingly, the archive search is carried out in respect of the persons listed below and only at the stage of appointment to the civil service or to public office for the first time or anew:
- Personnel to serve in penal execution institutions and detention houses
- Public personnel to be employed in the Ministry of National Defence, the General Staff, the gendarmerie, the police, the coast guard and the intelligence organisations
- Senior public administrators
- Teachers to be assigned in public institutions and organisations
- Those serving, irrespective of their status or manner of employment, in units, projects, facilities and services of strategic importance in terms of national security
- Those who are subject to a security investigation and archive search pursuant to their own special legislation
- Public personnel to be employed in classified units holding information and documents whose disclosure to unauthorised persons may cause harm or danger to State security, to national existence and integrity, and to internal and external interests
Competent Units and the Evaluation Commission
The authorities charged with conducting the security investigation and the archive search are the Presidency of the National Intelligence Organisation, the General Directorate of Security and the local civil administration authorities. In performing their duties these units may obtain from ministries, from the archives of public institutions and organisations and from electronic data processing centres the information, documents, decisions and records they need. That power is not, however, absolute; it may be exercised only within the limits of the scope of the request transmitted to them.
The task of assessing the data collected as a result of the work carried out belongs to the Evaluation Commission established pursuant to Article 7 of the Act. The Commission examines by objective criteria the data forwarded by the Presidency of the National Intelligence Organisation, the General Directorate of Security and the local civil administration authorities, forms its reasoned assessment, and transmits it to the superior authorised to make the appointment. That assessment must be submitted in writing. The final decision, that is to say the choice whether or not to make the appointment, is given by the superior authorised to make the appointment, having regard to the Commission’s opinion.
Judicial Remedies Against an Unfavourable Decision
Because the results of the assessment are confidential, it is in practice rarely possible for individuals to bring an independent action against the security investigation and archive search assessment concerning them. Those concerned mostly learn of the unfavourable result about them when they are faced with a decision not to appoint them.
Decisions to the effect that an investigation has concluded unfavourably, and the profiling records that figure among the bases of such decisions, are among the acts that the administration establishes unilaterally in reliance on public power and that produce effects in the legal order. They are in the nature of “effective preparatory acts” that impair the interests of the candidate civil servant. By reason of those characteristics, they may be made the subject of an action for annulment, provided that the procedure and conditions are complied with. For detailed information on objections to administrative acts and their annulment, reference may be made to the study entitled Objection to Administrative Acts and the Action for Annulment.
Those who are not appointed, who are not transferred to permanent civil servant status, or whose tie with the civil service is severed because the security investigation or archive search has concluded unfavourably have the right to bring an action for annulment within the statutory period. That period is 60 days, running from the day following service of the decision.
In addition, compensation for the losses relating to salary and other personal entitlements that could not be received during the period between the date on which the tie with the civil service was severed and the date on which a fresh appointment was made may also be sought by way of a full remedy action. Detailed information on that type of action is contained in the article entitled The Compensation (Full Remedy) Action to Be Brought Following an Action for Annulment of an Administrative Act.
Candidate civil servants whose tie with the civil service has been severed have the right to bring both an action for annulment and a full remedy action, and those rights may be exercised in three different ways.
In the first option, a person whose rights have been infringed by the severance of the tie with the civil service brings a full remedy action directly on account of the administrative act that led to that outcome.
In the second option, both the annulment of the decision infringing the right and compensation for the loss arising are sought in a single action; that is, the action for annulment and the full remedy action are brought together.
In the third option, an action for annulment is brought first and, once that action has been decided, compensation for the loss suffered on account of the annulled decision is made the subject of a separate full remedy action. In that eventuality the period for bringing the full remedy action is 60 days from service of the annulment decision or, where losses arising from the execution of the act are in issue, from the date of execution.
Moreover, civil servants or public officials may be dismissed from their posts in the various ways illustrated in this article. A person who considers the decision given to be unlawful retains the right to bring an Objection to and Action for Annulment of a Decision Rejecting a Request for Reinstatement.
Frequently Asked Questions
Is representation by a lawyer compulsory in the action?
Turkish law allows parties to defend and represent themselves in person before the courts; save for certain exceptions, there is no obligation to retain a representative. Nor is representation by an administrative law lawyer compulsory before the administrative courts. That said, the complex structure of administrative law legislation and the fact that the time limits in the Administrative Procedure Act No. 2577 are both short and strict may, where the process is conducted by persons who are not lawyers, lead to errors of form or substance that cannot be remedied. For that reason it is recommended that legal assistance be obtained from lawyers practising in the field of Administrative Law before any step is taken.
May an objection be made to the administration against an unfavourable decision?
A decision to the effect that a security investigation has concluded unfavourably is an administrative act. The objection procedure, which is the alternative avenue of application provided for in respect of administrative acts, may therefore be pursued for this act as well. The person concerned may lodge an objection by a petition submitted to the administration that gave the decision within 60 days from the date of service.
May an action be brought directly without lodging an objection?
Yes. Pursuing the objection procedure against the act concluding the matter unfavourably has not been made compulsory; if the person so wishes, an action for annulment may be brought directly within 60 days from service of the decision, without applying to the administration. If, by contrast, the objection route is chosen first, the 60-day period for bringing an action is suspended and begins to run again upon the administration’s reply or, in any event, upon the expiry of 30 days.
Which court has subject-matter and territorial jurisdiction?
In an action brought seeking the annulment of an unfavourable security investigation, subject-matter jurisdiction lies with the Administrative Court. The court with territorial jurisdiction is that of the place to which the institution that established the act is attached.
May a stay of execution be sought while the action is pending?
In an action for the annulment of an unfavourable security investigation, it is possible to obtain a decision staying execution until the proceedings are concluded. Where such a decision is given, the civil servant in respect of whom there is an unfavourable investigation decision may be appointed and may perform public duties until the action is concluded. It must not be overlooked, however, that a stay of execution is a temporary measure lasting until the court gives a fresh decision. For the Administrative Court to be able to give a decision to that effect, two conditions must be met together: there must be a manifest unlawfulness in the administrative act, and losses that are difficult or impossible to remedy must be liable to arise if the act is implemented. For detailed information the study entitled What Is a Stay of Execution Decision? may be consulted.
Which appellate remedies are available if the decision is unfavourable?
If the action for annulment heard before the Administrative Court is decided unfavourably, an appeal may be brought before the Regional Administrative Court within 30 days from service of the decision. In respect of the judgment given by the Regional Administrative Court, an appeal on points of law may likewise be lodged with the Council of State within 30 days from service.
Independent Legal Assessment
In security investigation disputes, the element determining the fate of the action is most often whether the reasoning of the decision is amenable to review. Reliance on data not enumerated in the Act, the drawing of conclusions from facts that cannot be attributed to the person such as family relationships, or the use as a ground of unfavourability of an investigation in which a decision not to prosecute or an acquittal has been given, are heads capable of producing annulment in terms of the element of cause. Whether the Evaluation Commission’s obligation to submit a written and reasoned opinion has been complied with is also of particular importance in the review of form.
In constructing a concrete file, it is advisable to address the following points from the outset:
- Verifying whether the post to which appointment is sought genuinely falls within the scope of the Act No. 7315
- Testing whether the information used as the basis of the act corresponds to the search headings enumerated in the Act
- Requesting that the Evaluation Commission’s opinion and the decision of the superior authorised to make the appointment be brought into the case file
- Submitting from the outset the documents establishing the outcome of any judicial proceedings relied upon as grounds
- Giving separate reasons in the petition for the request for a stay of execution, with the condition of loss difficult to remedy set out in concrete terms
- Deciding at which stage the full remedy claim is to be raised where a loss of income has arisen
Independent Legal provides legal advice and conducts litigation throughout the entire process in disputes falling within public personnel law, from the review of security investigation acts to the pursuit of actions for annulment and full remedy actions.