Security Investigation and Archive Research: What Are They?
Security Investigation and Archive Research were made mandatory for public recruitments through a regulation introduced in 2016 to the Civil Servants Law. However, the Constitutional Court cancelled the regulation stating that a significant subject like Security Investigation that governs a person's fundamental rights and is based on personal data should be detailed in the law, and found the legislation lacking and insecure regarding the individual's fundamental human rights. Subsequently, in 2021, the Law No. 7315 on Security Investigation and Archive Research was accepted.
Archive Research, as the name suggests, is the identification and compilation of official records about a person. As per the law;
Archive research includes:
a) A person's criminal record,
b) Whether the person is currently sought by law enforcement,
c) Whether there are any restrictions regarding the person,
d) Finalized court decisions and ongoing or concluded investigations or prosecutions concerning the person,
e) Whether there are records of dismissal from public duty or finalized dismissal penalties.
On the other hand, Security Investigation also involves factual evaluations about the person, contrary to the official records. Security Investigation, in addition to the subjects in archive research, includes;
a) Factual data in law enforcement and intelligence units regarding the qualities required by the duty,
b) The person's relation with foreign state institutions and foreigners,
c) Whether the person is in action unity, contact, and connection with terrorist organizations or organizations established to commit crimes.
Units Conducting Security Investigation-Archive Research and Evaluation Commission
Security Investigation and Archive Research are carried out by the National Intelligence Organization, General Directorate of Security, and local administrative authorities within the limits of the requests sent to them. An evaluation commission is established in the appointing institution to evaluate this information and documents.
Evaluation Commission:
a) In the Presidency, a senior executive appointed by the Administrative Affairs President,
b) In the Grand National Assembly of Turkey, the deputy general secretary,
c) In the Ministries, the deputy minister,
ç) In other public institutions and organizations, a senior executive appointed by the top manager,
d) In universities, the deputy rector,
e) In governorates, the deputy governor,
with the participation of one member from the inspection/audit, personnel, and legal units, and other units deemed appropriate, is established with at least five members, including the chairman, in odd numbers.
Persons Subject to Security Investigation and Archive Research:
Archive research is conducted for those who will be appointed to civil service or public duty for the first time or reappointed, regardless of their status or mode of employment.
However, in institutions and organizations, in units with confidentiality degrees where, in case unauthorized persons become informed, state security, national existence and integrity, and internal and external interests may be harmed or endangered, and, In the Ministry of National Defense, General Staff, Gendarmerie, Police, Coast Guard, and intelligence organizations for public personnel to be employed, Personnel to work in penal execution institutions and detention houses, Teachers to work in public institutions and organizations, Senior public administrators, Persons subject to security investigation and archive research in accordance with their special laws, and those employed in units, projects, facilities, services of strategic importance in terms of national security, regardless of their status or mode of employment, security investigation and archive research are conducted together.
Right to File a Cancellation Lawsuit for Negative Result of Security Investigation and Archive Research
The outcome of the Security Investigation and Archive Research can only be learned if the appointment decision for an individual is negative. Due to this, individuals learn about the negative result of the security investigation along with the negative appointment decision. However, they cannot learn the reasons for the negativity. To learn this, it's necessary to file a lawsuit, and the reason can be learned from the response received when the court asks the administration that made the non-appointment decision. The time limit to file this cancellation lawsuit is 60 days from the notification of the decision. It's possible to file either just a cancellation lawsuit, or a full adjudication lawsuit along with the cancellation lawsuit to demand compensation for the financial losses due to non-appointment decision. However, since this situation could work either in your favor or against you, it's definitely beneficial to consult a lawyer and proceed with the lawsuit accordingly. Before filing a lawsuit, it's not mandatory to follow the objection procedure to the administration. Generally, the administration leaves these applications unanswered or responds negatively.
Competent Court in Cancellation Lawsuit
Güvenlik soruşturmasının olumsuz olması sebebiyle iptal davasında görevli mahkeme idare mahkemesi olup, yetkili mahkeme ise atamama kararını veren kurumun olduğu yer mahkemesidir.
Güvenlik Soruşturmasının Olumsuz Olması Sebebiyle İptal Davasında Yürütmeyi Durdurma Kararı Talebi
For the acceptance of the request for a stay of execution in the cancellation lawsuit, two conditions set by the law need to be met. It is necessary that the administrative action is clearly against the law, and in case of the implementation of the administrative action, irreparable and impossible damages should occur. If a stay of execution decision is given, the person is appointed and starts their duty while the lawsuit continues.
Frequently Asked Questions
Are Moral Issues and Private Life Investigated in Security Investigation?
One of the most asked questions is whether personal information, hotel registrations, and phone records are investigated during the security investigation. Incidents not officially recorded are not investigated in security investigations. However, any connections to organizations and institutions working against the state are investigated. For high-level public administrators, the scope may be broadened to investigate whether the individual is morally competent to perform the duty.
Is Security Investigation Conducted After Appointment?
The timing of the security investigation varies depending on the institution conducting it. Some institutions initiate the security investigation when the parties apply, while others start it after a positive result in the examination. Therefore, a definite answer cannot be given to this question.
Can We Learn the Reason for the Negative Outcome of the Security Investigation Without Filing a Lawsuit?
Even if individuals learn that the security investigation is negative, there is no information regarding the reason in the result or the notification received. They cannot learn why it was negative when they learn the result. Even if a request for information to learn the reason is made to the institution, in practice, the institution does not provide an answer explaining the reason. To learn this, it is necessary to file a lawsuit and learn the reason from the response given by the administration that made the non-appointment decision when asked by the court.
Can I Conduct the Annulment Lawsuit by Myself?
The annulment lawsuit is a case conducted according to the Administrative Litigation Procedure Law. It is very difficult to achieve a successful result in a case conducted without knowing the procedural rules. Moreover, administrative case files are not tied to a single law. They have a very comprehensive and diverse legislation. All laws, regulations, circulars, special circulars, and high court decisions issued on administrative matters are within the scope of administrative cases. Therefore, it would be the best option for your life and your rights to consult a competent lawyer in this matter and have the lawyer conduct the case.
Can I Apply to the Constitutional Court Concerning the Security Investigation?
As the Constitutional Court is a special court, certain conditions must be met to make an individual application. An individual application cannot be made to the Constitutional Court without exhausting domestic legal remedies. However, if you cannot get a favorable result from the domestic legal avenues and it becomes final, you can make an individual application to the Constitutional Court within its time frame if you think that one of your fundamental rights, which could be the subject of an individual application, has been violated. As the Constitutional Court is a court that bases more on fundamental rights compared to other courts, making an application increases your chances of getting a positive result.
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