Archive Investigation
COURT OF AUDIT OF THE REPUBLIC OF TURKEY
12th Chamber
Case No.: 2015/1008
Decision No.: 2015/4473
Date of Decision: July 2, 2015
REQUEST FOR CANCELLATION OF THE ADMINISTRATIVE ACT – THE PLAINTIFF HAS NOT COMMITTED ANY ACT THAT WOULD CONSTITUTE A BAR TO PUBLIC SERVICE, AND NO OTHER FINDINGS EXIST – THE ADMINISTRATIVE ACTS IN QUESTION ARE NOT IN ACCORDANCE WITH THE LAW
SUMMARY: Given that the plaintiff did not commit any act that would constitute an obstacle to public service, and that there were no other legally acceptable findings that could justify the negative evaluation of the archive investigation results, it was concluded that the subject proceedings regarding the failure to appoint the plaintiff on the grounds that the archive investigation result was unfavorable lacked legal compliance; therefore, the appellate decision dismissing the case was found to lack legal merit.
(Law No. 2709, Art. 128) (Law No. 657, Art. 48)
Summary of the Claim: It is requested that the decision dated October 31, 2014, numbered E:2013/1899; K:2014/2068, issued by the Istanbul 2nd Administrative Court, be reviewed on appeal and overturned pursuant to Article 49 of the Administrative Litigation Procedure Law No. 2577, based on the reasons stated in the petition.
Summary of the Ministry of Justice’s Defense: It is argued that the request should be dismissed.
Summary of the Defense by the Presidency of the Justice Commission of the Istanbul Anatolia First Instance Court of General Jurisdiction: No defense was submitted.
Council of State Investigating Judge: Mustafa Kuş
Opinion: It is considered that the appeal should be accepted and the decision subject to appeal should be overturned.
IN THE NAME OF THE TURKISH NATION
Since the case file has been completed by the Twelfth Chamber of the Council of State, which rendered the judgment, it was deemed unnecessary to issue a decision regarding the request to suspend execution, and the matter was considered as required:
The case was filed seeking the annulment of the Commission’s decision dated July 29, 2013, No. 1389201331, and the Ministry of Justice’s undated decision No. 32992892, which served as its basis.
The Administrative Court noted that Article 6, Paragraph 5/d of the Ministry of Justice Regulation on Civil Servant Examinations, Appointments, and Transfers stipulates that for appointment to correctional officer positions, the “security clearance must be favorable,” that the plaintiff was prosecuted in Case No. E:2012/856 of the Istanbul 14th Criminal Court of First Instance for the offense of “preventing entry into or staying in buildings where students are gathered, or obstructing education and instruction through the use of force or threats,” and that, regarding personnel employment, the defendant administration possesses discretionary authority; considering the unit where the plaintiff worked and his position within that unit, it was concluded that the discretionary authority exercised in employing personnel not subject to criminal prosecution was used in accordance with the public interest, service, and requirements; therefore, the court ruled to dismiss the case on the grounds that no legal violation was found in the subject administrative action.
The plaintiff argues that the court’s decision is contrary to the law and requests that the decision be reviewed on appeal and overturned.
Article 128 of the Constitution states: “The qualifications, appointments, duties and authorities, rights and obligations, salaries and allowances, and other personnel matters of civil servants and other public officials shall be regulated by law.” Additionally, Paragraph 2 of Article 70 states: “In recruitment, no distinction shall be made other than those required by the nature of the position.”
Article 48 of the Civil Servants Law No. 657 lists the general and specific conditions required for appointment to civil service positions; in Section (B), Paragraph 2, which addresses specific conditions, it is stipulated that candidates must meet the conditions specified in the relevant institution’s special laws or other regulations.
Based on the aforementioned legal provision, Article 6 of the Ministry of Justice Regulation on Civil Service Examinations, Appointments, and Transfers states: after stating that, in addition to the general conditions required for appointment, the following conditions shall be sought depending on the nature of the positions to be filled, Paragraph 19 of the article stipulates that “the archive investigation conducted regarding all personnel to be appointed to serve in the judicial and administrative courts must be favorable.”
In Article 4, titled “Definitions,” of the Security Investigation and Archive Inquiry Regulation, “archive inquiry” is defined as “determining from existing records whether the individual is currently being sought by law enforcement agencies, their affiliation with law enforcement and intelligence units, their criminal record, and whether any restrictions apply to them”; Article 8, titled “Personnel Subject to Security Investigations and Archive Research,” further stipulates that security investigations and archive research shall be conducted regarding personnel to be employed in classified units and sections, as well as in military, police, and intelligence organizations, and in correctional institutions and detention centers.
Article 11 of the aforementioned Regulation, titled “Matters to Be Investigated in Security Clearance and Archival Research,” stipulates that, taking into account the individual’s current environment, the following shall be investigated: a) Identity verification, the accuracy of identity records, nationality, and whether the individual has ever held the nationality of a foreign state, b) Whether the individual is currently being sought by law enforcement, whether information exists in the archives of law enforcement and intelligence units, and whether there is a criminal record or any pending charges against them, c) Whether the individual has engaged in subversive activities and whether they have acted in violation of Law No. 5816 on Crimes Committed Against Atatürk and the principles and reforms of Atatürk, d) Whether they are addicted to gambling, drugs, alcohol, money, or excessively obsessed with personal gain in a manner that violates their honor and dignity and reflects negatively on their duties, and whether they have behaved in a manner contrary to morality and decency, e) The true nature and reason for their level of association with foreigners, particularly officials and representatives of hostile or potentially hostile states, f) whether they possess the ability to maintain confidentiality.
Upon review of the case file, it was determined that the plaintiff, who had passed the contract court reporter examination conducted by the Presidency of the Justice Commission of the Istanbul Anatolia First Instance Court, was subject to disciplinary action as a result of an archival investigation. On June 1, 2012, during the incidents that occurred at the Istanbul University Campus, “preventing entry into or remaining in buildings where students were gathered, and obstructing education and instruction through the use of force or threats,” and that, due to the ongoing criminal case, the Ministry of Justice deemed the appointment inappropriate, resulting in the appointment not being made; Consequently, it is understood that a lawsuit was filed seeking the annulment of the Commission’s decision dated July 29, 2013, No. 1389201331, and the Ministry of Justice’s action serving as its basis, dated [no date] and No. 32992892.
In the present case, as a result of the archival research conducted by the plaintiff, it was determined that the Istanbul 14th Criminal Court of First Instance, in its decision dated November 10, 2014, Case No. E:2012/856, K:2014/284, dated November 10, 2014, the court evaluated the statements of witnesses and complainants, as well as the video footage related to the incident and the expert report on the footage. Since there was insufficient evidence to establish that the defendants, including the plaintiff, had committed the crimes of “Preventing entry into or remaining in buildings where students are gathered en masse, or obstructing education and instruction by using force or threats,” and each was acquitted. The aforementioned decision became final on November 26, 2014, without being appealed.
While it is clear that administrative bodies possess discretionary authority regarding appointments to staff positions, it is explicitly stated in established Council of State decisions that once this discretionary authority is exercised in this manner, the appointment of personnel meeting the conditions stipulated in relevant legislation can no longer be considered a matter of discretion, and in such cases, the administrative bodies are bound by their authority.
Furthermore, there is no dispute regarding the requirement that the defendant administrative bodies must present concrete reasons mandating the contested actions under the provisions of the relevant legislation, and that judicial review must be conducted within the context of these reasons as part of the causal element.
In the present case, the fact that the plaintiff is currently undergoing a trial being accepted solely as a circumstance precluding the subject appointment would undoubtedly amount to disregarding the presumption of innocence—which some scholars view as an element of the right to a fair trial, while others regard it as a specific application of that right.
The presumption of innocence, which the European Court of Human Rights addressed in its John-Murray v. United Kingdom and Mineli v. Switzerland decisions, and which the Constitutional Court emphasized in its decisions numbered Application No. 2012/584, 2012/998, and 2014/682, is regulated in Article 38 of the Constitution and “No one shall be deemed guilty until their guilt has been established by a final judgment.” Similarly, Article 6(2) of the European Convention on Human Rights (ECHR) establishes the principle that “Everyone charged with a criminal offense shall be presumed innocent until proven guilty according to law.”
The presumption of innocence ensures that a person cannot be deemed guilty without a final judicial decision establishing that they have committed a crime. As a manifestation of this guarantee, no one may be labeled as guilty or subjected to treatment as a guilty person by judicial authorities or public authorities until their guilt is established by a final judgment.
In paragraph 26 of the Constitutional Court’s Decision No. 2014/68226, while the presumption of innocence is recognized as a principle applicable in trials where a criminal charge has been adjudicated, in the subsequent paragraph, it is stated that in ongoing administrative disputes arising from acts that are the subject of a criminal case but outside the scope of the criminal proceedings, even if an acquittal has been issued regarding the individual, this decision serves as the basis for