A new series of criticisms in the field of “judiciary”, the bleeding wound of the country in recent days, has been added to a series of developments that concern all of us and envision vaguely “being blacked out”, “stigmatized” and “not involving people who are considered objectionable to public activities”. According to a new regulation, security investigation and archive research will be carried out on many people, including those who will apply for jobs considered to be of public interest, as well as those who will be appointed for the first time to a civil service or public office. Unfortunately, this investigation and research is not based on objective evaluations and criteria as we are used to.
Law No. 7315 on Security Investigation and Archive Research was published in the Official Gazette on April 17, 2021, to enter into force on the date of publication. When the content of this law, which consists of 16 articles in total, is evaluated, first of all, it is striking that the security investigation and archive research are foreseen not only for civil servants or public officials, but much more broadly than that. Pursuant to paragraph 2 of Article 3 of the Law, which explains the persons to be subject to security investigation and archive research, individuals who are employed in units, projects, facilities, services that have strategic importance in terms of national security, regardless of their status or type of employment, will also be subject to security investigation and archive research. In this context, if any project to be carried out by the state is evaluated within the scope of a “project that has strategic importance in terms of national security”, the provisions of this law can also be applied to every person to be employed in this project.
What about the presumption of innocence?
Archive research, as regulated in article 4 of the law, includes the criminal records, the prosecutions and investigations carried out by court decisions, whether the person has been searched by the law enforcement and the examination of some other information. A fundamental problem that first comes to mind here is how to protect the “presumption of innocence”. Because, in accordance with Article 38 of the Constitution, ” No one shall be considered guilty until proven guilty in a court of law.” In this context, no other record or current trial other than final convictions should constitute a negative judgment on individuals. However, it should be noted that the law does not include a regulation that can protect the presumption of innocence, and on the contrary, the existing investigation or prosecution procedures are also regulated to be examined within the scope of archive research.
What should be understood from the concept of security investigation is regulated in Article 5 of the law. This arrangement is particularly problematic. In this context, it will be investigated whether (i) factual data in law enforcement and intelligence units related to the qualifications required by the task, (ii) their relationship with foreign government agencies and foreigners, and (iii) action union, liaison and affiliation with terrorist organizations or organizations established to commit crimes will be investigated. First of all, the ends and content of concepts such as “connection” and “relation” are rather ambiguous.
I criticize such concepts because they are also used in the criminal law legislation. A state of law is expected to bring regulations in accordance with the principle of certainty. Likewise, it is difficult to understand what the relationship with strangers is. Although it is stated in the justification of the law that these concepts are explained, it should be noted that these concepts are not defined in a way to define them in the regulations to which the justification refers. It is true that the concepts are not used with this law for the first time, but will we continue to make legal arrangements over an undefined and ambiguous concept because this is not the first use? Although the Constitutional Court has tried to explain these concepts in the applications regarding the annulment of the concrete legal regulations in which the said concepts are included, I think that this is not sufficient in terms of the provisions that regulate fundamental rights and freedoms.
How objective are evaluation commissions?
In accordance with Article 7 of the Law, an evaluation commission will be established in the relevant institutions in order to evaluate the data obtained as a result of the security investigation and archive research. The information submitted to the evaluation commission will be prepared by the National Intelligence Organization (MİT), the General Directorate of Security (the police department) and the local civil administration authorities. Non-factual information in the form of “hearsay” or comments can also be conveyed to the evaluation commissions. In this case, there are reservations about whether the evaluation of the commission will be made based on objective criteria.
On the other hand, it is regulated that the personal data collected within the scope of the research and investigation will be protected in accordance with the Personal Data Protection Law No.6698, necessary measures will be taken regarding data security, and in any case, it will be deleted and destroyed by the evaluation commissions at the end of two (2) years. In this respect, it should also be reminded that in case of misconduct in the security investigation and archive research and evaluation, they will be liable in accordance with Article 17 of Law No. 6698 and Articles 135-138 of the Turkish Penal Code regarding personal data.
Was the law necessary?
As a result, I anticipate that the Security Investigation and Archive Research Law No. 7315 brings along many legal problems. In certain institutions, positions, projects, etc. of the state. Is it necessary to undergo certain investigations and investigations for security reasons? Of course it should by me. Because if a state does not do this, it becomes unprotected against all threats to and / or to itself. However, what is more important than this requirement is how to do this. As a matter of fact, I think the law in question should be criticized precisely in this respect.
Although the general justification of the law states that such a regulation is mandatory and as a matter of fact, a legal gap is mentioned in the decisions of the Constitutional Court, the decisions of the Constitutional Court should be carefully read. Because the Constitutional Court says that there is a legal gap, but it does not say that this gap is filled with bigger questions and problems. On the contrary, the Constitutional Court says that the legal regulations in the rule of law should be clear, understandable, applicable and objective without any doubt; they should contain protective measures against arbitrary practices by public authorities; these qualifications are essential to ensure legal security. These are the qualities that should be in the regulation that the Court says “There is a gap here, fill this gap.” Reading these decisions as they work and making them a tool or material to achieve our main goals is a simple game that has become commonplace in the face of law.
It is an inevitable and undeniable obligation for a state claiming that it is a state of law that the regulations imposing provisions on the fundamental rights and freedoms of human beings must have these qualities. For this reason, I think that the law should be regulated in a way that does not risk harming the fundamental rights and freedoms of individuals from this point of view.
In the rule of law, the legal regulations should be clear, understandable, applicable and objective without any doubt, and should also contain protective measures against arbitrary practices of public authorities. These qualifications that must be present in the law are a necessity in terms of ensuring legal security.
The procedure is open to criticism
The “Law Proposal for Security Investigation and Archive Research” (“Law Proposal”) came to the agenda of the Turkish Grand National Assembly on March 31, but was rejected by the votes of the opposition parties. The same law proposal, which was rejected, was submitted to the General Assembly of the Turkish Grand National Assembly a week later and this time it was accepted and became law. However, in accordance with Article 76 of the Rules of Procedure of the Turkish Grand National Assembly titled ” Prohibition of Reintroduction of Rejected Bills,” it is forbidden to submit the rejected bills within the same legislative period of the Turkish Grand National Assembly, unless one full year has passed from the date of rejection. Therefore, the law numbered 7315 is open to criticism by violating the Internal Regulations of the Turkish Grand National Assembly in terms of the procedure of enactment.