Constitutionality Review

Contested Provisions

The contested provisions lay down regulations concerning the persons in respect of whom archive research and security clearance investigation will be carried out, the scope of such research and investigation, the authorities competent to conduct these procedures and to assess the data obtained, as well as the protection of the data collected in this framework.

Ground for the Request for Annulment

It was maintained in brief that the impugned provisions entrusted the executive with the authority to make regulatory arrangements on the procedures of security clearance investigation and archive research; that the provisions, which allow for limitations on the right to enter public service, the right to protection of personal data, and the right to work, failed to satisfy the principle of legality and violated the presumption of innocence; and that the said regulations did not serve the public interest. Therefore, the contested provisions were claimed to be unconstitutional.

The Court’s Assessment

Archive research and security clearance investigation serve to determine whether individuals to be recruited into public service possess the qualifications required for such service; however, they impose restrictions on the right to enter public service and the right to request the protection of personal data. The general framework of the restrictions regarding against whom such measures will be implemented, the categories of data to be collected, the authorities responsible for conducting the research and investigation, and the assessment and protection of the data has been laid down by law, while the executive has been entrusted with regulatory authority in respect of certain matters within this scope. In this regard, the Court has found that the authority conferred upon the executive was compatible with the principle of legality, and that the relevant provisions were sufficiently precise, accessible, and foreseeable, thereby satisfying the requirement of legality.

The legislature has discretionary power in determining the public offices and services for which archive research and security clearance investigation are required. Furthermore, it has been considered that for the maintenance of the constitutional order, as well as public order and security, it is necessary in a democratic society to collect certain personal data within the scope of archive research and security clearance investigation conducted in respect of individuals to be recruited into specific public services, and that, therefore, the contested provisions pursue a constitutionally legitimate aim. Considering the obligation of civil servants and other public officials to perform their duties in loyalty to the Constitution and the laws, the Court has concluded that the requirement of security clearance investigation as a condition for appointment to certain public services to which the legislature attaches particular importance does not impose an excessive burden on the individuals concerned. Accordingly, the impugned restriction imposed on the right to enter public service has been found to be proportionate.  

Pursuant to the contested provisions, subjecting the individuals to archive research and security clearance investigation serves the purposes of maintaining public order and national security. The provisions do not encompass all individuals to be employed in public institutions and organisations; rather, they establish a limited framework by covering only those to be employed in institutions and organisations designated by law and in certain units of specific services. Moreover, it has been observed that special safeguards are provided for the protection of ordinary personal data obtained within the scope of archive research and security clearance investigation, and that the exceptions introduced with regard to safeguards for intelligence-related data are not disproportionate.

It is also clear that decisions regarding the appointment of individuals to public service as a result of security clearance investigation are subject to judicial review. Accordingly, the grounds relied on by the public authorities may be examined by judicial authorities.

In addition, it has been noted that no criminal charge is brought against individuals on the basis of data obtained through security clearance investigation and archive research, and that these procedures are intended solely to determine whether the persons concerned possess the qualifications required for public service. Furthermore, considering that all such data recorded in respect of an individual may be assessed by judicial authorities, the Court has concluded that taking action against an individual based on the data obtained does not violate the presumption of innocence.

Consequently, the contested provisions have been found constitutional and therefore the request for their annulment has been dismissed.