Security investigation and archive search within the scope of the presumption of innocence

This study examines the security investigation and archive search within the scope of the presumption of innocence. The presumption of innocence, which is an important element of the right to a fair trial, is important both in terms of ensuring a fair trial and protecting the dignity of the person. In addition, it is a necessity for the conduct of the trial and the realization of the trial in accordance with the human rights of the person. In Turkey, the 1982 Constitution was the first time that the presumption was explicitly referred to in the constitution. Although the European Convention on Human Rights does not go into detail, the presumption has been widely explained in the judgments of the European Court of Human Rights, thus expanding the scope of the presumption. With the approval of the individual application procedure to the Constitutional Court in Turkey in 2012, the Constitutional Court can examine claims of violation of the presumption. In order for public services to be carried out and provided to citizens in accordance with the law, it is necessary to select people who can perform their duties properly. Security investigations and archive searches play an important role in ensuring these conditions. In Turkey, security investigations and archive searches were carried out without any legislation until 1994. Over time, it is seen that the framework of security investigation and archive search has been expanded and started to be applied. However, there are some problems arising from both the legislation and the implementation of the practice. The practice, which limits the fundamental rights and freedoms of individuals, is subject to the decisions of the European Court of Human Rights and the Constitutional Court through individual applications. Within the scope of the study, the presumption of innocence, which has a significant impact and importance in human life, is analyzed from various perspectives with reference to the decisions of the European Court of Human Rights and the Constitutional Court. As a result of the study, it is seen that in the decisions of the European Court of Human Rights and the Constitutional Court, the loss of rights due to the negative results of the security investigation and archive search is evaluated within the scope of the right to a fair trial, which is the most fundamental human right in general, and the presumption of innocence in particular. As a result, it is observed that the cases filed against the non appointment to public office of persons whose security investigation was negative and who made an individual application to the Constitutional Court are generally not related to the security investigation, but rather to the failure to ensure a fair trial environment in the courts, the disregard of the decision to suspend the judgment even if there is no final conviction, and the statements in the reasoned decision that may cause a violation of the presumption of innocence.