Strasbourg, 12 February 2001
CCJE (2001) 17
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Turkey
I. THE INDEPENDENCE OF JUDGES
1. The independence of judges is guaranteed by Turkish Constitution. In the relevant chapter of the Constitution, under the title “Judicial Power”, the independence of the courts and judges is explicitly defined as “Judges shall be independent in the discharge of their duties” (Article 138). This principle is set forth also in the Code of Judges and Public Prosecutors (Act No: 2802).This status enables the judges to resist improper external pressures and render their decisions without fear or penalty with impartiality and neutrality.
2. The basic safeguards granted in the Constitution are based mainly on three points:
“No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestion.” (Article 138/II)
“No questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.” (Article 138/III)
“Legislative and the executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution.” (Article” 138/IV)
3. Yes. In recognition of the proper function of the judiciary, protection from unjustified removal from office for judges and public prosecutors has also been recognised. Article 139 of Turkish Constitution, reads “.... Judges and public prosecutors shall not be dismissed or retired before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status even as a result of the abolition of court or post.” Thus, the Constitution grants judges and public prosecutors a status highly superior to that of other civil servant. In this connection it should be added that the status of the Turkish public prosecutors completely differs from that of their colleagues in most of the European Countries where they are regarded more or less as civil servants and bound by the instructions of the government. In Turkey they have almost the same status as judges and are subordinated in principle to the Supreme Council of Judges and Prosecutors.
4. No. The decisions of judges can only be reviewed by other competent courts prescribed by law and High Court of Cassation (See above, the answer of 3rd question).
5. A case under trial can’t be withdrawn from a judge. But there is only one exception to this principle. That is to say; if the trial of case causes a serious danger to public security, The High Court of Cassation may decide, upon the request of Ministry of Justice and after the consent of local court, to transfer the case to another competent court (See Article 14 of Criminal Procedural Code).
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. Appointment as judicial and administrative justice judge candidate is contingent upon the following conditions:
a) Turkish citizenship,
b) A maximum age of thirty for those with a graduate or masters’ degree and thirty-five for those holding a PhD degree as of the last day of the month of January of the year during which the admission exams are held,
c) For the candidates of judgeship in judicial system, graduation from a faculty of law in Turkey or possession of a success certificate on subjects not taken in foreign faculties of law for attaining equivalency of graduate degree in the former.
As for those applying for administrative judgeship, the requirement is graduation from a 4 year faculty of political, administrative, economic or financial sciences or from a foreign educational institution of which the equivalency is accepted by the Ministry of National Education,
d) Non-disbarment from exercising civil rights,
e) Prohibition of marriage with foreign national,
f) Absence of any commitment of military service or compulsory military service or transferred to reserve cadres or postponement of service obligations,
g) Absence of physical or mental disablements likely to impair the performance of judgeship or prosecutorship functions and of spastic symptoms such as abnormal speech likely to draw undue attention by the public and of difficulties of controlling the movements of body organs,
h) Non-conviction to heavy imprisonment or imprisonment for more than three months excepting the crimes with malice aforethought or, regardless of whether amnestied later, for crimes committed against the State, embezzlement, corruption, bribery, theft, larceny, fraud, falsification, abuse of right and such other derogatory crimes as fraudulent bankruptcy, smuggling, introduction of fraud to public adjudications and revelation of national secrets or absence of investigation for any act or action which, when proven, is punished by a sentence of more than three months of freedom restriction.
i) Success in oral and written examinations,
j) Absence of behaviour and attitude not compatible with the functions of a judge or prosecutor.
2. Those fulfilling the above conditions and registering success in a competitive written examination and in an interview conducted by the Ministry of Justice are appointed as candidate judges or prosecutors and admitted to the Training Center for Judges and Prosecutors.
3. Those accomplished in written and oral examinations and appointed as candidate judges have to be successful in two-year lasting training programme. Training programme of candidate judges is divided into three periods:
1. Preparatory training
During this 3-month training, general and basic concepts of legal practice is taught to
the candidates and rules and procedures of writing the texts relevant to jurisprudence and trial services. Attention is given to indoctrinating the candidates in conformity with the ethics of justice service and problems encountered in practice.
The practice period lasts eighteen months.
a)Candidates of ordinary court judgeship and prosecutorship use one year of this period in ordinary courts, three months in offices of prosecution and three months in other judicial offices.
b)Candidates of administrative court judgeship spend one year of this period at the Supreme Council of State and the remaining six months at the regional administrative courts.
3. Final training
This training lasts three months during which the trainees make group discussions on the basis of the knowledge gained during the previous period, with problem-solving sessions in public, private and administrative law fields and practice of writing verdicts.
The preparatory and final training are given at the Training Center.
At the end of this training programme, the candidates are admitted to a written examination on the subjects taught to them and those registering success are admitted to the profession by the Supreme Council of Judges and Prosecutors. Their duty stations are determined by drawing of lots.
In addition to the above, professors and associate professors teaching material law and procedural law may be appointed ex officio to judgeships and prosecutorships in the judicial system while those teaching administrative law, finance and economics at the faculties of law, political and administrative sciences, economics and business administration, lawyers with at least five years of experience and reputed with their scientific knowledge and ethical conduct have access to judicial and administrative judgeships and prosecutorships.
Their admission to the profession and appointment is subject to the decisions of the Supreme Council of Judges and Prosecutors.
4. For candidate judges, a professional training lasting at least two years is compulsory (see above). For those who may be appointed ex officio to judgeship such as tutors and lawyers, five years of previous professional experience is required.
5. Yes,(See answer 1)
6-7-8.In principle, judges are appointed by Supreme Council of Judges and Public Prosecutors. But there is a sui generis system of Turkey on appointing some High judges. Majority of the members of Constitutional Court and all members of Supreme Council of Judges and Public Prosecutors are determined by High Courts in result of elections held by high judges and public prosecutors. The candidate members of those important posts which are determined by cooptational elections are appointed by the President of Republic.
9. The Ministry of Justice determines and recruits the judge candidates, But the candidates are accepted to the profession upon the approval of The Supreme Council of Judges and Public Prosecutors,
10. The Supreme Council of Judges and Public Prosecutors, an authority independent of government, is the only body on selection and promotion of judges and public prosecutors. In order to secure the independence of the judiciary, the Constitution makes the initial appointments of judges and public prosecutors and their subsequent promotions to the Supreme Council of Judges and Public Prosecutors. According to Article 159, The Supreme Council is composed of seven members. The president of the Council is the Minister of Justice. The Undersecretary of the Minister of Justice is also an ex-officio member of the Council. The remaining five members, constituting the majority of the Council are members of either the High Court of Cassation or the Council of the State.
11-12. Judges and prosecutors receive a step increase once a year and a promotion every two years.
The step increases require
a)a minimum work of one year in the previous step,
b)obtaining of a favourable service record, and
c)possession of other conditions announced in the resolution of rules of the aforesaid Supreme Council.
The promotions necessitate
a)a two-year service in the previous degree and actual receipt of the salaries of second step of that degree for a full year,
b)absence of a court verdict or disciplinary action precluding the possibility of promotion, and
c)in the light of their ethical behaviour, professional knowledge and attitudes, zeal and comprehension, number of cases successfully completed and finalised, devotion to
work and attendance record, performance rating granted to them by their superiors and inspectors, scores assigned by the High Court of Cassation and/or Supreme State Council, exemplary verdicts and comments and professional publications and works written, possession of conditions defined by the promotion statements of the above mentioned Supreme Council.
Those successfully obtaining a master’s degree in a branch dealing with their profession while in service, completing training at the Public Administration Institute for Turkey and Middle-East are given one step increase and those obtaining a Ph degree in the same manner are granted the one higher degree.
13. A Judge and a public prosecutor can be removed from office, only if he/she
a) commits a crime which is incompatible with the honour and dignity of judge profession,
b) commits a crime which requires a disciplinary sanction of removal,
c) was found guilty of crimes prescribed in the Code of judges and Public Prosecutors with a final judgement.
d) reaches the age of sixty-five.
The decision of removal from office is rendered by Supreme Council of judges and
Public Prosecutors, against which is objection possible.
III. THE FUNDING OF COURTS
1.The courts activities are funded from General Budget of the State.
2.The expenses of courts and public prosecutors offices are reimbursed from the portion of State Budget allocated to Ministry of Justice. Ministry of Justice uses budgetary means by public prosecutors offices. That is to say, when the budget of the new year is being prepared, a special department of Ministry of Justice determines the allocations of every court and public prosecution office according to the needs. This allocation draft is finally judged and fixed by the legislative organ. The budgets of High Courts are independently drafted and determined by the same way. After the Code of Budget enters into force, The Ministry of Finance transmits the allocations of courts and public prosecutors offices every three months.
3.Yes. Judges are responsible for spending the allocation to the court.
4.Unfortunately, judges don’t have adequate support staff and equipment, since the portion of budget allocated to judiciary is not sufficient (approximately %0.8). But there is a new draft of Ministry of Justice, which allocates automatically %35 of some court fees to courts and public prosecution offices. Besides, a national net project for judiciary was put on the floor last year and it is expected that this project will fill a gap on automation and data processing facilities.
5.The salaries of judges, especially of the beginners are not sufficient, although they are payed relatively higher than other civil servants. Nevertheless this does not prevent them acting efficiently.
6.Yes. Important administrative tasks of the courts are generally performed by
public prosecutors offices. But the other daily non-judicial works of the courts are maintained by judicial clerks. Besides; administrative managers are appointed by Ministry of Justice in most grand court houses in order to perform non-judicial tasks of the judges and the public prosecutors and facilitate their works.