Constitutionality Review

Contested Provision

The contested provision stipulates that the units entrusted with conducting security investigation and archive research are authorized to receive information and documents from the archives and electronic data processing centres of the ministries and public institutions as well as to access the records and court decisions.

Ground for the Request for Annulment

It was maintained in brief that the contested provision granted an unlimited opportunity to access, collect, classify, process and evaluate the personal data of those wishing to enter public service, which might take away the concerned persons’ chance to enter public service or the dismissal of those who had already been holding public office. In this regard, it was claimed that the impugned provision imposed an unforeseeable restriction on the right to enter public service, in breach of the Constitution.

The Court’s Assessment

Article 20 of the Constitution provides that “Personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law. “. Thereby, protection of personal data is safeguarded within the scope of the right to respect for private life.

The right to protection of personal data is a special aspect of the right to protection of human dignity and to free development of personality. As set out in previous decisions/judgments of the Court, “… not only the personal identifying data such as name, surname, date and place of birth, but also any data such as phone number, motor vehicle plate number, social security number, passport number, cv, photo, footage, voice records, fingerprints, IP address, e-mail addresses, hobbies, preferences, persons interacted with, group memberships, family information and health-related information, which may also lead to direct or indirect identification of the person“, are classified as personal data.

In this context, the data obtained through security investigation and archive research are of personal nature. The impugned provision allows the units entrusted with conducting security investigation and archive research to obtain, within the scope of the security investigation and archive research procedures, the data related to individuals’ private, business and social lives, which can be classified as personal data, to access the records of the decisions issued by the chief public prosecutor’s offices, judges or courts, where the allegations against the individuals concerned were examined, and to use these records. The contested provision therefore imposes a restriction on the right to protection of personal data.

In accordance with Article 20 of the Constitution, personal data can only be processed in cases prescribed by the law or with the explicit consent of the individual. Pursuant to Articles 13 and 20 of the Constitution, the formal existence of a legal regulation which intends to limit the right to protection of personal data is not sufficient, and the legal rules must be definite, accessible and foreseeable, preventing any arbitrariness.

In a state governed by the rule of law, the legal regulations must be clear, definite, comprehensible, applicable and objective, without creating any doubt, as well as including protective measures against any potential arbitrary practices by the public authorities. Such qualifications that must be inherent in the law are also necessary for ensuring legal certainty.

Article 129 of the Constitution provides that civil servants and other public officials are obliged to carry out their duties with loyalty to the Constitution and the laws. It is at the discretion of the legislator to introduce regulations stipulating that security investigation and archive research be conducted prior to entering into public service. However, such provisions must clearly set forth the circumstances in which the public authorities shall be granted an authority to take measures, as well as the limits of the authority to be granted, and they must also provide sufficient safeguards against any possible abuse of authority.

Although the impugned provision specifies that those who are authorised to conduct security investigation and archive research may access personal data, the Law contains no regulation regarding the use of such data, the authorities that will conduct investigation and research, how the accessed data will be stored, whether those concerned are entitled to challenge the said data, whether the data will be deleted after a while, the procedure to be followed if they are to be deleted, and the control mechanism to be applied in order to prevent any abuse of authority.

Therefore, allowing for the collection, use and processing of personal data through security investigation and archive research, in the absence of the respective legal safeguards and basic principles, is in breach of Articles 13 and 20 the Constitution.

Consequently, the contested provision has been found unconstitutional and therefore annulled.