Press Release No: Plenary Assembly 27/21
Press Release concerning the Decision Annulling the Provision of the Former Law no. 4045
The Constitutional Court, at its session dated 3 June 2021, found unconstitutional and annulled the phrases “…Ministry of National Defence, gendarmerie, …” and “… the personnel to be employed in penitentiary institutions and detention houses …” included in Article 1 § 1 of the Law no. 4045 on Security Investigation and Reinstatement of Rights of Those Dismissed from Office for Certain Reasons and Those not Admitted to Public Service and Making Amendments to the Martial Law no. 1402 (file no. E.2020/24).
The contested phrases in the relevant provision stipulate that the personnel to be employed in the Ministry of National Defence, gendarmerie, penitentiary institutions and detention houses shall be subjected to security investigation and archive research processes and that the relevant procedures and principles as well as the authorities to conduct such processes shall be determined through a regulation.
Ground for the Request for Annulment
It was maintained in brief that the contested provision was unconstitutional since the public officials to be subjected to security investigation and archive research processes were enumerated therein, whereas the other issues regarding such processes were to be determined through a regulation.
The Court’s Assessment
Law no. 4045 embodying the contested provision was repealed on 7 April 2021 by Law no. 7315 on Security Investigation and Archive Research. The impugned processes were conducted in accordance with the relevant provision when it was in force.
Law No. 7315 contains no special retrospective provision regarding the legal effects of the processes conducted in accordance with the contested provision. The judicial review of administrative acts enjoying the presumption of legality and continuing to exist and bear effects in legal terms as long as they are not annulled or repealed is carried out within the framework of the legal provisions applicable at the material time. In this scope, the court requesting a concrete review has to consider the repealed provisions as supervisory norms while exercising the judicial review of the impugned administrative acts.
The relevant provisions are still applicable to the disputes in pending cases. Thus, the fact that the relevant provisions have been repealed does not preclude an examination on their merits.
In its decisions no. E.2018/73 and no. E.2018/163, the Court reviewed the provisions regarding the conduct of security investigation and archive research. In the relevant decisions, it is stated that certain conditions are necessarily sought in the appointment of civil servants and public officials who are obliged to act in accordance with the Constitution and the laws, and that in this context, the provisions stipulating the conduct of security investigation and archive research in respect of individuals before their appointment to public service are at the discretion of the legislator. However, it is also stated therein that the basic principles regarding the conduct of security investigation and archive research and the use of the data to be obtained should be regulated by the law.
The contested provision necessitates the conduct of security investigation and archive research in respect of the personnel to be employed in the Ministry of National Defence, gendarmerie, penitentiary institutions and detention houses. However, it contains no specific clause as to how the collected personal data shall be processed, which authorities shall conduct the relevant processes, how and how long the collected data shall be stored, whether the persons concerned shall be able to object to the said data, whether the data shall be deleted after a while, which procedure shall be followed in this sense and the type of inspection to be conducted so as to prevent any abuse of authority.
Without the specific and foreseeable legal guarantees being defined so as to prevent arbitrariness in conducting security investigation and archive research and using the collected data, the procedures and principles regarding the security investigation and archive research, as well as the authorities and executives to conduct such processes have been envisaged to be determined by a regulation.
Besides, the collection, use and processing of the personal data obtained through security investigation and archive research processes, without the respective guarantees and basic principles being laid down in the law, run counter to Articles 13 and 20 of the Constitution.
Consequently, the contested provision has been found unconstitutional and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.