31.12.2007 - Source: UK Home Office

Judiciary ("Country of Origin Information Report; Turkey") [ID 24511]

"ORGANISATION

10.01 The US State Department Report (USSD) 2006, published on 6 March 2007, noted that:

"The judicial system is composed of general law courts; specialized heavy penal courts; military courts; the Constitutional Court, the nation's highest court; and three other high courts. The high court of appeals hears appeals for criminal cases, the council of state hears appeals of administrative cases or cases between government entities, and the audit court audits state institutions. Most cases were prosecuted in the general law courts, which include civil, administrative, and criminal courts. In 2004 parliament adopted legislation providing for the establishment of regional appeals courts to relieve the high court's caseload and allow the judiciary to operate more efficiently.” [5g] (section 1e)

10.02 The 2006 USSD report noted:

"The Constitutional Court examines the constitutionality of laws, decrees, and parliamentary procedural rules and hears cases involving the prohibition of political parties. If impeached, ministers and prime ministers can be tried in the Constitutional Court. However, the court cannot consider ‘decrees with the force of law’ issued under a state of emergency, martial law, in time of war, or in other situations as authorized by parliament. Military courts, with their own appeals system, hear cases involving military law for members of the armed forces. Military courts can also hear cases involving crimes committed by both civilians and military personnel.” [5g] (section 1e)

10.03 The EC 2007 report further stated that:

"864 judges and 476 prosecutors were appointed during the reporting period (1 October 2006 to early October 2007). The funds for the judiciary have increased from € 409 million in 2005 to € 482 million in 2006 and are planned to reach € 865 million by the end of 2007. In May 2007, nine locations for regional courts of appeal were identified and their geographical areas of jurisdiction defined in line with legal requirements.” [71d] (p10)

INDEPENDENCE

10.04 The US State Department Report (USSD) 2006, published on 6 March 2007, noted that

"The constitution and law provide for an independent judiciary; however, the judiciary was occasionally subject to outside influence. There were reports of judicial corruption. The law prohibits the government from issuing orders or recommendations concerning the exercise of judicial power; however, the government and several high-ranking military officers on several occasions issued announcements or directives about threats to the government, which could be interpreted as general directions to the judiciary.” [5g] (section 1e)

10.05 The 2006 USSD report noted:

"The High Council of Judges and Prosecutors was widely criticized for undermining the independence of the judiciary. The minister of justice serves as chairman of the seven-member high council, and the justice ministry undersecretary also serves on the council. The high council selects judges and prosecutors for the higher courts and is responsible for oversight of the lower courts. The high council is located in the Ministry of Justice and does not have its own budget.” [5g] (section 1e)

10.06 The EC 2007 report recorded that, “As regards the independence of the judiciary, YARSAV filed an application with the Council of State in October 2006 to limit the role of the Ministry of Justice in the process of selecting candidate judges and prosecutors; also, to stop conducting the planned examinations to recruit some 600 candidate judges and prosecutors… However, in August 2007 YARSAV lodged a complaint with the Council of State for the annulment of the new regulation as well. The case is pending before the Council of State.” [71d] (p58)

10.07 Furthermore the EC 2007 report noted that, “According to a court decision of 2006, judges and prosecutors could access their appraisal files. This is no longer possible under a new regulation on judicial inspectors issued by the Ministry of Justice in January 2007. This regulation also extends the responsibilities of the inspectors who now cover, among other things, probation centres and regional courts of appeal to be established. In March, YARSAV filed a lawsuit with the Council of State for the annulment of the regulation, arguing that the inspectors should not be attached to the Ministry of Justice. The case is still pending.” [71d] (p58)

10.08 The EC 2007 report recorded that:

"Efforts to modernise the judiciary through the use of information technology continued. Judges have reported positive results as regards the National Judicial Network Project (UYAP) on court proceedings while the lawyers' portal was integrated into this network in March… However, concerns remain as regards the independence and the impartiality of the judiciary… There have been tensions as regards the appointment of high court judges… Overall, there has been some progress as regards the efficiency of the judiciary through implementation of adopted legislation and continued use of IT. However, tensions in the relations between the government and the judiciary have not been conducive to the smooth and effective functioning of the system. More needs to be done in terms of strengthening the independence and impartiality of the judiciary…[71d] (p10) Training for law enforcement bodies, judges and prosecutors should be stepped up.” [71d] (p18)""

Document(s): Open document

06.11.2007 - Source: European Commission

Judicial system ("Turkey 2007 Progress Report [SEC(2007) 1436]") [ID 22258]

"Some progress has been made in terms of the efficiency of the judiciary, including through amendments to the Turkish Criminal Code (CC) and the Criminal Procedure Code (CPC) adopted in December 2006. These amendments extend the discretion of the prosecutor as regards decisions not to prosecute, while the provisions regarding mediation are simplified. Judicial supervision - introduced in the CPC as an alternative to arrest for offences requiring imprisonment of three years or less - has started functioning satisfactorily. Probation is an EN 10 EN area where progress has been achieved in implementation: 133 probation centres employing 1,298 staff have become fully operational since November 2006.

[...] However, concerns remain as regards the independence and the impartiality of the judiciary. In the context of the election of the new president in April, the Constitutional Court ruled by a majority of seven to four that a quorum of two thirds (367 deputies) is necessary for the first and second rounds of presidential elections in Parliament, and annulled the first round of voting. This decision led to strong political reactions and allegations that the Constitutional Court had not been impartial when reaching this decision. In the event, and as regards the election of the President of the Republic by Parliament, the Court introduced a one-third blocking minority.

[...] Overall, there has been some progress as regards the efficiency of the judiciary through implementation of adopted legislation and continued use of IT. However, tensions in the relations between the government and the judiciary have not been conducive to the smooth and effective functioning of the system. More needs to be done in terms of strengthening the independence and impartiality of the judiciary. Finally, there is no overall National Reform Strategy for the Judiciary or a plan to implement it (See also chapter 23 - Judiciary & fundamental rights)."

Document(s): Open document

06.11.2007 - Source: European Commission

Judiciary - impartiality, professionalism, efficiency ("Turkey 2007 Progress Report [SEC(2007) 1436]") [ID 22487]

"Concerns remain as regards impartiality of the judiciary. In the context of the election of the new president in April, the Constitutional Court ruled by a majority of seven to four that a quorum of two thirds (367 deputies) is necessary for the first and second rounds of presidential elections in Parliament, and annulled the first round of voting. This decision led to strong political reactions and allegations that the Constitutional Court had not been impartial when reaching this decision. In the event, and as regards the election of the President of the Republic by Parliament, the Court introduced a one-third blocking minority.

In relation to the professionalism and competence of the judiciary, the Ministry of Justice and the Justice Academy have organised training on a wide range of issues for judges, prosecutors and court staff. The training covered, among other things, the new Criminal Code and the Criminal Procedure Code, freedom of expression, courts of appeal, court management, internet crimes and juvenile justice. However, the Justice Academy has still not developed into a strong and independent training provider for the entire magistracy, including at regional level.

In terms of the efficiency of the judiciary, judges have reported positive results of the National Judicial Network Project (UYAP) on court proceedings. With the integration of a lawyers' portal into the network in March, lawyers are now in a position to follow their on-going court cases electronically, file new lawsuits, send documents related with their cases to the courts and deposit trial fees and charges. In May the Ministry of Justice signed two protocols with the Telecommunications Institution and the Union of Notaries for sharing of information."

Document(s): Open document

08.11.2006 - Source: European Commission

Independence of the judiciary ("Turkey 2006 Progress Report") [ID 19022]

"With regard to the independence of the judiciary, various provisions of the Turkish Constitution and of domestic law guarantee this principle. However, a number of factors are perceived as undermining it. Judges and public prosecutors are attached to the Ministry of Justice as far as their administrative functions are concerned. The High Council of Judges and Prosecutors, the supreme governing body of the judiciary, does not have its own secretariat, separate premises and budget. The judicial inspectors, who are responsible for evaluating the performance of judges and prosecutors, are attached to the Ministry rather than to the High Council. The Minister and the Undersecretary of the Ministry of Justice are two of the seven members of the Council with voting rights. The remaining five are appointed among judges of the Court of Cassation and the Council of State. This composition does not seem to be representative of the judiciary as a whole and, together with the other issues listed above, may create the potential for the executive to influence decisions relating to the careers of judges in Turkey, provided that the executive is present.

Questions were raised on the independence of the High Council of Judges and Prosecutors in the aftermath of the publication in March 2006 of the indictment on the ªemdlinli bombing [...], which included accusations against the Land Forces Commander and other high-ranking military commanders. The General Staff criticised the indictment in a press statement and urged those bearing constitutional responsibility to take action. In April the High Council of Judges and Prosecutors reviewed charges against the prosecutor and applied the highest disciplinary sanction, i.e. dismissal from office. The final review by the High Council on this matter is scheduled for November."

Document(s): Open document