Individual Application

The Facts

The applicant had successfully passed the personnel recruitment examination. However, the recruitment process was terminated for the allegedly unfavourable results of the security investigation conducted against him as part of the procedures for recruitment. The applicant’s challenge before the administrative court as well as his subsequent appeal were dismissed.

The Applicant’s Allegations

The applicant claimed that his right to a fair trial had been violated due to the authorities’ failure to inform him of the confidential information and documents used as evidence against him during the proceedings within the scope of the action for annulment he had brought.

The Court’s Assessment

The applicant had brought an action for annulment of the termination of his recruitment process for the allegedly unfavourable results of the security investigation, although he had successfully passed the examination to be recruited as contracted military officer and regular non-commissioned officer.

The impugned termination had been based on the content of the security investigation. It was of great importance for the applicant to be aware of the content of the security investigation in order to be able to defend himself and make claims. Otherwise, he would be in a weak and disadvantaged position in the face of the acts and defence of the administrations (General Command of Gendarmerie and Ministry of National Defence) which had relied on the content of the security investigation.

It is clear that the applicant had been subjected to a procedure falling foul of the principles of equality of arms and adversarial proceedings. However, in order for such a contradiction to be in breach of the right to a fair trial, it should be evaluated whether the fairness of the proceedings had been impaired as a whole.

In the present case, the administrative court had requested the relevant information and documents from the defendant administrations. Thereupon, the latter submitted the requested information and documents with regard to the applicant, which were classified as confidential. The court, relying on these materials, dismissed the applicant’s case.

As a result of the examination of the case file through the National Judiciary Informatics System (UYAP), no information or document had been found indicating that the impugned documents that were classified as confidential had been notified to the applicant or that he had been provided with the opportunity to examine them.

It has been found that there was no justification as to why the applicant had not been allowed to access the relevant documents and that the applicant had not been informed of these documents. Accordingly, the applicant had not been provided with the opportunity to make a defence against the confidential documents that had been submitted by the defendant administrations and relied on by the administrative court.

Consequently, the Court has found violations of the principles of equality of arms and adversarial proceedings safeguarded by Article 36 of the Constitution.