This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Güvenlik Soruşturması Olumsuz Geldi: Ne Yapılır?.
When security vetting or an archive search produces a negative result, the first task is to find out the reasons for the decision. The administration is obliged to state the information or record it relied on; an unreasoned act is a ground for annulment. An action for annulment is brought before the administrative court within sixty days of service of the act.
You passed the examination and your appointment was to follow — but the security vetting came back negative and no reasons were given.
Law no. 7315 governs this area and the administrative courts review such decisions. This article explains what information may be processed and how the proceedings work.
What Is the Legal Framework?
Security vetting and archive searches are governed by Law no. 7315 on Security Vetting and Archive Searches.
The Act defines two distinct processes:
- Archive search: establishing from existing records whether the person is sought by the security forces, their judicial record, and whether any restriction applies to them.
- Security vetting: in addition to the matters covered by an archive search, examining information and records held by the security forces and intelligence units concerning the qualities required by the post.
An important limit: the Act specifies for which posts, positions and duties security vetting and archive searches may be carried out. Security vetting cannot be applied to every public post; for many posts only an archive search is provided for.
The first thing to check is therefore whether the act has a statutory basis at all.
Data Protection and the Assessment Commission
Law no. 7315 also contains provisions on the protection of the data obtained. The data may not be used for purposes other than those for which they were processed, and may not be retained except in the cases the Act provides for.
The Act also requires the establishment of an Assessment Commission, formed to evaluate the data obtained from security vetting and archive searches.
The purpose is that data should pass through an institutional assessment before an adverse decision is taken about a person. Whether the Commission's decision was properly taken is a matter that can be examined in an action for annulment.
How Are the Reasons Obtained?
When the act is served it usually says no more than that “the security vetting produced a negative result”; no detail is given.
Yet administrative acts must be reasoned as a requirement of the rule of law, and the basis of the act must be known before proceedings can be brought.
What to do:
- Apply to the institution in writing and ask for the basis and the reasons for the act to be notified to you.
- Make a request for access to your personal data; under Article 11 of Law no. 6698 you may ask for information about the data processed about you.
- Obtain your judicial record and the outcome of any investigation concerning you.
Once proceedings are brought, the court may require the documents underlying the act to be produced even where they are classified, and reviews the lawfulness of the act on the basis of those documents.
| Step | Time | To whom |
|---|---|---|
| Requesting the reasons and the underlying information | As soon as possible | The administration that made the decision |
| Freedom of information request | — | The institution concerned |
| Personal data request | Reply within 30 days | The data controller |
| Action for annulment | 60 days from service | Administrative court |
| Stay of execution | In the statement of claim | Administrative court |
| Claim for damages | With the action or separately | Administrative court |
An application to the administration before proceedings are brought suspends the limitation period; silence counts as a refusal and the period runs afresh from that date.
Within How Many Days Must the Action Be Brought?
A refusal to appoint, or the termination of a post, is an administrative act and may be challenged by an action for annulment before the administrative court.
The period is sixty days and runs from service of the act.
Before bringing the action it is possible, under Article 11 of the Administrative Procedure Act, to apply to the administration asking it to withdraw the act; that application suspends the period. The handling of the period is delicate, however.
The statement of claim must always include a request for a stay of execution; otherwise no appointment is made until the case ends and the post may be given to someone else.
The principal grounds of annulment that may be advanced are:
- that the act has no statutory basis — security vetting not being provided for the post in question
- absence of reasons, and failure to show what concrete fact was relied on
- breach of the principle of proportionality — the fact relied on being unrelated to the duties or very old
- breach of the presumption of innocence — treating as adverse a file that ended in acquittal or a decision not to prosecute
- reliance on data concerning family members — contrary to the personal nature of criminal responsibility
- procedural defects — failure to follow the Assessment Commission process
What Happens If the Act Is Annulled?
If the action succeeds the act is annulled and the administration must give effect to the judgment. Under Article 28 of the Administrative Procedure Act the administration must act within thirty days of service of the judgment.
Damages for the loss caused by the refusal to appoint may also be claimed by a full remedy action. That claim may be advanced together with the action for annulment or after the annulment judgment.
What may be claimed includes the monetary value of the period during which the post could not be taken up and, where the conditions are met, non-pecuniary damages.
Where the judgment is not implemented, further liability in damages arises against the administration and personally against the public official concerned.
An action for annulment does not by itself secure the appointment, and the post may be given to someone else while the case runs. Always ask for a stay of execution in the statement of claim. The period for bringing the action is sixty days from service of the act.