Individual Application

The Facts

The applicant successfully passed the exam held by the Ministry of Justice for the position of guardian. Thereafter, the Presidency of the Justice Commission of the First Instance Court (“the Commission”) initiated a security investigation into the applicant intended to be placed in this position.

In the letter submitted by the relevant security directorate to the Commission, it was noted that as a result of the security investigation and archive research, the applicant had been previously subject to a sanction for robbery. The applicant, who was under 18 years of age at the time of the offence, was sentenced to 5 months’ imprisonment for his criminal act. His imprisonment sentence was then commuted to a heavy fine and suspended.

The Commission accordingly informed the Directorate General of Prisons and Detention Houses under the Ministry of Justice that the applicant did not satisfy the conditions required to take office as a civil servant and was not therefore fit for public office.

The applicant brought an action for annulment before the incumbent administrative court for his non-appointment. However, his action was dismissed. The applicant’s appeal request was dismissed by the Council of State, and the decision ultimately became final.

The Court asked the Provincial Security Directorate how and from which authority they had obtained the court decision in respect of the applicant. In reply, it was informed that as a preliminary investigation had been conducted against him for robbery, the said court decision had been obtained through the correspondence exchanged with the chief public prosecutor’s office conducting the preliminary investigation.

The Applicant’s Allegations

The applicant maintained that his right to respect for private life had been violated, indicating that the administration had unlawfully had access to the records of the offence he had committed under 18 years.

The Court’s Assessment

One of the legal interests safeguarded within the scope of the right to respect for private life, which is enshrined in Article 20 of the Constitution, is the right to privacy afforded to individuals.

It is surely possible for the administration to introduce rules forming the basic framework with respect to security investigation and archive research to be conducted in respect of those who will be appointed to positions of great importance for national security. However, the legislation embodying provisions in this field must be formulated in an adequately explicit manner whereby individuals will know under which conditions and within which limits the public authorities are entitled to take certain confidential measures and to potentially interfere with the privacy of the private life.

Law no. 4045 forming a basis for the security investigation and archive research procedures to be conducted in respect of officers to hold certain public positions does not contain any information as to the types of information and documents to be subject to such investigation and research, the authority from which such information may be obtained, as well as the manner and period how and how long such information and documents will be reserved. It cannot be therefore said that the Law embodies basic rules, principles and framework with respect to the issue imposing a restriction on fundamental rights and freedoms. It has been accordingly concluded that the provision of law forming a basis for the impugned interference does not satisfy the lawfulness requirement.

It has been also observed that the relevant laws do not contain any provision making a reference to Law no. 5352, the legal instrument required to be implemented in respect of the final criminal convictions, and protecting individuals from arbitrariness. Nor does the Regulation on Security Investigation and Archive Research include any provision affording safeguards inherent in the right to respect for private life.

It appears that the State has introduced certain legal arrangements within the scope of its positive obligations to protect children. One of these obligations is the principle that children cannot be permanently banned from public office due to any offence they have committed. In Law no. 5237, it is set forth that an individual who was sentenced to imprisonment for having committed an intentional offence cannot be, on condition of being under 18 years of age at the time of offence, permanently deprived of holding a public office.

Likewise, it is set out in Law no. 5352 that criminal records and archive records of those who are under 18 may be sought by the chief public prosecutor’s offices, judge’s offices or courts only if required for an investigation and prosecution. Accordingly, it is legally impossible to submit to the administrative authorities an individual’s criminal record pertaining to an offence that he committed when he was under 18 years of age.

Besides, regard being had to the facts that the applicant’s success both in the written and oral exams was announced and that the criminal record pertaining to the offence he committed when he was under 18 was notified to the administrative authorities, which was a manifest breach of the relevant provision in Law no. 5352, it has been concluded that, also in this respect, the interference with the applicant’s right to respect for private life was devoid of a legal basis.

Consequently, the Court found a violation of the right to respect for private life safeguarded by Article 20 of the Constitution.