Annulment Actions Arising From The Unlawful Processing Of Personal Data By The Administration

Actions for the Annulment of Administrative Acts

Article 2 of the Administrative Procedure Law defines types of administrative cases as annulment actions, full remedy actions, and disputes arising from all administrative contracts concluded for the performance of public services. The subject of annulment actions is administrative acts. In its Decision of Unification of Case Law, numbered 1972/2 E. and 1973/10 K., the Council of State defined an administrative act as a unilateral executive decision taken by administrative authorities concerning administrative functions, whereas an administrative act in the form of conduct refers to an act, event, or attitude during the exercise of administrative functions. “Administrative acts are unilateral legal transactions carried out by the administration within the field of administrative law. For an administrative act to be subject to annulment proceedings, it is not sufficient that the act is administrative; it must also be effective, in other words, executory within the meaning of the Administrative Procedure Law, namely, an act that must be executed.”^[1]

It is not sufficient for an administrative act to be merely executory to be subject to annulment proceedings; the act must also be final. Sometimes the laws explicitly provide appeal procedures and deadlines for administrative acts to become final. For instance, pursuant to Article 23 of the Municipal Law No. 5393, “decisions not referred for reconsideration and those insisted upon by an absolute majority of the total number of members of the municipal council shall become final.” Accordingly, municipal council decisions become final if adopted by the absolute majority of members. What must be emphasized here is that the administrative remedy specified by law for the finalization of an act is mandatory.

For example, under Article 41 of the Disciplinary Law of the Turkish Armed Forces No. 6413, “disciplinary sanctions imposed by disciplinary superiors may be appealed within two working days from notification of the sanction. Appeals shall be submitted in writing to the superior disciplinary authority. If no appeal is lodged within the prescribed period, the sanction becomes final.” Thus, in order to pursue administrative judicial remedies, the administrative act must either become final due to lack of appeal or become final following the rejection of the appeal. Acts which are not final and executory in nature, such as advisory opinions, preparatory acts, or explanatory statements, cannot be the subject of an annulment action.

Furthermore, for an individual to be entitled to challenge a final and executory administrative act, they must also demonstrate that such an act affects their legitimate, personal, and current interest. The Council of State has held that “in order to file an action for annulment of a final and executory administrative act, the claimant must have a legitimate, personal, and current interest.”^[2] What is meant here is not a violation of rights but an infringement of interest, indicating a connection between the claimant and the act. Such interest may be either material or moral.

Grounds for Annulment

Article 2/1-a of the Administrative Procedure Law stipulates that annulment actions may be brought against administrative acts on the grounds of unlawfulness in terms of competence, form, reason, subject matter, and purpose. Unlawfulness in terms of competence generally arises from acts adopted by an unauthorized authority with respect to place, time, or person. Unlawfulness in form arises when the act is not carried out in the manner prescribed by law, when the principle of procedural parallelism is violated, when the act lacks reasoning, or when the right to defense in disciplinary proceedings is denied. Unlawfulness in terms of reason occurs when the reason put forward by the administration is factually incorrect, not recognized in law, or inconsistent with public interest.

Unlawfulness in subject matter corresponds to violations of substantive legal rules—for example, when the administration fails to apply a clear rule, when a rule meant for specific circumstances is applied broadly, when obligations are imposed without legal basis, or when rules are misinterpreted. As for purpose, the objective of administrative acts is the public interest. If administrative acts are carried out for private interests, protection of third parties, personal gains, or political purposes, then they are unlawful in terms of purpose.

Case Law on Personal Data Protection in Annulment Actions

When annulment actions concerning personal data protection in administrative jurisdiction are examined, several decisions draw attention. For example, in the case concerning the annulment of the rejection of a union’s request to abolish the practice of using fingerprint scanning for attendance at Konya Training and Research Hospital, the administrative court annulled the decision of the Hospital’s Chief Physician. The Council of State’s Administrative Chambers ruled that both the Constitution and international conventions, which under Article 90 of the Constitution have the force of law, enshrine the right to privacy of private and family life and the confidentiality of personal data, and prohibit interference unless justified by national security, public order, or other compelling reasons prescribed by law. Since fingerprint scanning constitutes personal data collection, lacked a statutory basis, and did not guarantee against misuse, the court found the contested measure unlawful.^[3]

Similarly, in its decisions numbered 2013/1286 E. and 2013/9524 K., the Council of State 5th Chamber found the use of facial recognition systems in hospitals for attendance tracking unlawful. In decisions numbered 2013/5730 E. and 2013/9526 K., the same Chamber found fingerprint-based attendance tracking unlawful for civil servants, and iris-based attendance tracking systems were also found unlawful.^[4]

In another case, the Council of State 15th Chamber, in its decision numbered 2015/2900 E., granted a stay of execution concerning the Ministry of Health’s Circular on the “e-Nabız Project,” citing the lack of statutory basis for processing sensitive health data. The Council of State Administrative Chambers upheld the decision in 2016/186 E.

In its decision numbered 2016/10488 E., the Council of State 15th Chamber annulled provisions of the Regulation on the Processing and Protection of the Privacy of Personal Health Data, citing that the Personal Data Protection Board had not yet been established at the time, and therefore necessary safeguards had not been determined as required under Law No. 6698.

Likewise, in its decision numbered 2015/5331 E. and 2019/2829 K., the Council of State 10th Chamber annulled provisions of the Regulation on the Procedures and Principles Governing Administrative Courts, Regional Administrative Courts, and Tax Courts regarding the inspection of files containing confidential or personal data, on the ground that the administration lacked legislative authority.

Another significant area where personal data is litigated in administrative courts is security clearances. The Council of State 12th Chamber, in its decision numbered 2019/7364 E. and 2020/3108 K., held that criminal records of minors constitute personal data within the meaning of the right to respect for private life, and using such data in security clearances constitutes an unlawful interference with this right. Accordingly, it annulled the termination of a contract based on a negative security clearance grounded on offenses committed by the claimant while under the age of eighteen.

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