Strasbourg, 14 February 2002
CCJE (2002) 19
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Turkey
Questionnaire on the conduct, ethics and responsibility of judges
l. What are the statutory obligations by which judges are bound?
Judges shall give judgement in accordance with the Constitution, law and their personal conviction conforming with the law (Article l38/l of the Constitution of the Republic of Turkey).
Judges shall discharge their duties in accordance with the principles of the independence of the courts and the security of tenure of judges (Article l40/2 of the Constitution).
Judges (and public prosecutors) shall not assume official or public functions other than those prescribed by law (Article l40/5 of the Constitution).
Judges and (public prosecutors) shall be attached to the Ministry of Justice where their administrative functions are concerned (Article l40/6 of the Constitution).
2. Is there a judge’s code of conduct?
2.l If so, who drafted it and who adopted it?
We have a special Law concerning judge’s code of conduct. It is the Law on Judges and Public Prosecutors numbered 2802.
This Law was adopted by the Parliament (the Turkish Grand National Assembly) following the preparation of the draft law by special commission.
2.2. What are the obligations imposed upon judges?
Provisions of Article 4 of the Law on Judges and Public Prosecutors are similar to the provisions of the Article l38 of the Constitution. According to the Article l38 of the Constitution, judges shall be independent in the discharge of their duties; they shall give judgement in accordance with the Constitution, law and their personal conviction conforming with the law.
Judges shall not give advice or guide either of the parties and reveal his opinion during the suit (article 29 of the Turkish Code of Civil Procedure)
When judges are prohibited from suits stipulated in Law, they are obliged to reject personally even if it is not demanded (Article 28 of the mentioned Code and Article 2l of the Turkish Code of Criminal Procedure).
2.3. Is there provision for sanctions in the event of violation by judges?
There is a provision relating to the supervision of judges in Article l44 of the Constitution. According to the mentioned Article, supervision of judges with regard to the performance of their duties in accordance with laws, regulations, by-laws and circulars (administrative circulars, in the case of judges), investigation into whether they have committed offences in connection with, or in the course of their duties, whether their behaviour and attitude are in conformity with their status and duties and if necessary, inquiry and investigations concerning them shall be made by judiciary inspectors with the permission
of the Ministry of Justice. The Minister of Justice may request the investigation or inquiry to be conducted by a judge or public prosecutor who is senior to the judge or public prosecutor to be investigated.
In cases of intentional failure to carry out his responsibilities or commitment of disciplinary offences, the Supreme Council of Judges and Public Prosecutors initiates an investigation and takes appropriate measures, including a proceedings against him at the competent court.
3. What incompatibilities are there between the duties of judge and other functions or professions?
In accordance with the paragraph 5 of the Article l40 of the Constitution, judges shall not assume official or public functions other than those prescribed by law. Judges shall not participate profit-gaining activities (Article 48 of the Law on Judges and Public Prosecutors). In this meaning, they can not be member of the board of directors of joint stock company and another legal company or association.
4. In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case-law?
This issue is provided under different laws pertaining to criminal law and civil law. Due to this reason, the information about these regulations is set forth in two different branches: in the criminal law and the civil law.
With respect to criminal law:
Article 2l of the Turkish Code of Criminal Procedure stipulates conditions under which the judge absolutely disqualified to discharge his duty.
According to the mentioned Article, in the following situations a judge is not qualified to discharge his duties:
1) If the judge himself has been affected by the crime.
2) If the relation of marriage or guardianship exists or previously existed between the judge and the accused.
3) If between the judge and either the accused or the injured party there exists kinship in the direct line (descendants and accendants) including adopted persons, or if between the judge and either the accused or an injured party there exists a direct relationship including the third degrees relationships, or kinship to the second degree even in the collateral line, including relationships resulting from dissolved marriages.
4) If in the same suit the judge has acted as Public Prosecutor, criminal officer, or counsel for an injured party.
5) If in the same suit the judge has acted as a witness or an expert.
According to the Article 22 of the same Law, a judge who had been participated in the decision against which an appeal is made can not participate in the decision given by the Superior Court. Neither the investigating judge nor any judge who previously gave any decision in the case can participate in the final investigation.
Article 23 of the Turkish Code of Criminal Procedure provides conditions permitting a party to apply for recusation of judge and those entitled to so apply.
According to the mentioned Article, disqualification of a judge may be requested in those instances where he is not qualified to discharge his judicial functions and also where there exist circumstances which raise doubts concerning his impartiality. The Public Prosecutor, the accused, or the plaintiff are entitled to apply for disqualification. The names of the judges who will participate in the judgement will be furnished to either of the aforesaid parties when requested.
Article 24 of the same Law stipulates timeliness of motion to disqualify judge on grounds which raise doubts concerning his impartialitiy.
Article 25 of the same Law provides how a motion for disqulification should be made and its procedure.
With respect to civil law:
Article 28 of the Turkish Code of Civil Procedure stipulates conditions under which the judge absolutely disqualified to discharge his duty.
According to the this Article, the judge is obliged to reject personally even if it is not demanded and in the following situations a judge is not qualified to discharge his duties:
l. In the suit pertaining to him or he is concerned directly or indirectly.
2. In the suit of his wife even if the marriage bond is removed and in the suits of his ascendants and descendants by family or by other means or of his relatives upto third degree (including this degree) by family or upto second degree (including this degree) by means of marriage even if the relationship by marriage established with him/her and is removed and of people with whom a child connection is present.
3. In the suits he acted as proxy or curator or trustee of either of the parties,
Article 29 of the mentioned Code stipulates reasons for recusation of judge.
The judge can recuse himself personally or on the part of either parties in the following cases:
l. If he gave advice or guided either of the parties,
2. If he reveal his vote during the suit in the presence of either of the parties or a third entity without a legal necessity.
3.If he was listened or acted as a witness or expert or an arbitrator during the suit,
4. If the suit is pertaining to his/her close relatives up to fourth degree (including this degree),
5. If he has a suit with either of the parties or there is a hostility between them during the suit,
6. If there is a doubt raised about impartiality of the judge.
5. Can judges incur criminal or civil liability for acts committed in the performance of their duties? If so,
In Turkey, judges incur criminal and civil liability for acts comitted in the performance of their duties.
5.l. In what circumstances?
With respect to criminal liability:
A Judge who for the purpose of procuring benefits for himself or for another person or for satisfying his prejudicial and hostile feelings or his passions or zeal, intentionally sentences an innocent and guiltless person to an unjust punishment, even if the judgment is rebuttable or amendable or reversible, or aggravates the legal status, or the punishment of an offender by intentionally changing or altering the aspects or title of the offense the accused is charged with, or maliciously determines the punishment for the offense erroneously, and a public prosecutor who, so charging or recommending, affects the judgment of the court, shall be punished by heavy imprisonment for not less than five years (Article 2l6 of the Turkish Criminal Code).
The offense of receiving a bribe by judges, public prosecutors or their assistants or investigation judges, even through an agreement not violating their legal duties and for performance of a legal and rightful activity, is punishable by heavy imprisonment for five to ten years.
In the case of receiving a bribe for performance of an unlawful act, the punishment shall not be less than six years’ heavy imprisonment (Article 2l4 of the same Code).
If an unlawful judgment is rendered as a result of such intervention the punishment shall be increased by not more than one-third (Second paragraph of the Article 232 of the Criminal Code).
Any judge who renders a judgement or a decision under the influence of the above-defined order or favoritism, shall be, depending upon the nature of the judgment or decision or its effect on the rights of the convicted person, punished by imprisonment for two to five
With respect to civil liability:
Action for damages can be commenced against the judge due to the following reasons (Article 573 of the Turkish Code of Civil Procedure):
l. If a sentence and decision contrary to law and justice is pronounced against one of the parties due to acquisition of property and favour or grudge and malignance against the other,
2. If a decision which is clearly and explicitly contrary to the law in an indisputable way is imposed,
3. If a sentence is imposed due to a reason which is not present in the record of trial.
4. If the decisions and records of trial are altered and changed, and a word that is not said and can affect the decision is presented as to have been said,
5. If a sentence contrary to the law is imposed due to a payment or procurement or an interest promised,
6. Refusal of enforcement of a right.
7. Neglegtion and postponement of official duties or non-performance of duties without an acceptable reason.
5.2. What is the procedure involved?
Making an inquiry or investigation against judges (and puplic prosecutors) for their crimes commited on duty and for their manners and attitudes which are not suitable for their titles and professions is subjected to the permission of the Ministry of Justice. The Minister of Justice appoints the judicial inspectors or judges and public prosecutors who are senior to the ones being investigated to carry out the investigation and inquiry.
The investigation documents about judges and public prosecutors are sent to the General Directorate of Penal Affairs of the Ministry of Justice. An opinion paper is prepared after the examination made by this Department and subsequently The Ministry of Justice decides whether a disciplinary punishment is required or not and sends the documents to the concerned authorities or the proceedings are closed (Article 87 of the mentioned Law).
Judges and public prosecutors who are claimed to commit crimes can not be apprehended and inquired. They and their houses can not be searched unless they are caught for the crimes penalized by heavy punishments. However, Minister of Justice is immediately notified about this situation (Article 88 of the Law).
In cases where it is deemed necessary to conduct an inquisition on judges and public prosecutors related to the crimes they committed due to their positions or during jurisdiction, the document is issued to the relevant criminal court and from the nearest aggravated felony court to Office of the Public Prosecutor by the Ministry of Justice.
The Public Prosecutor prepares the indictment within five days and submits the document to aggravated felony court to make a decision whether the final inquisition will be launched or not (Article 89/2 of the Law).
Final investigations of other judges and public prosecutors are conducted at the aggravated felony court of their Judicial district (Article 90 of the Law).
The court file is sent to the Ministry of Justice after judgment becomes definite (final) for the purpose of investigation and returning for the evaluation of the procedure in terms of discipline (Article 96 of the Law).
If it is considered that the continuation of the judge (or public prosecutor) who is being investigated, would be harmful to the safety of the investigation and to the prestige of judicial authority, Supreme Council of Judges and Prosecutors may decide to dismiss them provisionally or assign them to another place until the end of the investigation.
5.3.What is the competent institution or authority?
There is an inspection board in the Ministry of Justice consisting of a chairman under Minister, a vice Chairman and sufficient judicial inspectors.
Justice inspectors are to supervise whether judges and public prosecutors carry their duties according to laws, regulations, legislations and circulars (administrative circulars for judgeship) and judgment offices with administration decision offices; are to investigate whether judges and public prosecutors and personnel of judgment offices commit any offenses because of or during their work or not and whether their situation and behaviors fulfill the requirements investigating and inquiry procedures when required or not (Article l00 of the Law).
5.4. See answer 5.1 and 6.1
6.Can judges be subject to disciplinary proceedings?
6.1 In what circumstances?
Warning penalty is imposed on the following occassions (Article 63 of the Law on Judges and Prosecutors):
a) Indifference and misconduct of duties.
b) Insulting colleagues, subordinates and people in connection for work or employers,
c) Being late for work or leaving early for no reason,
d) Prolonging the work related to the subjects clearly stated in laws, by-laws,
regulations, decisions and instructions, not replying letters and reiterations on time,
e) Related to quality and degree, performing actions similar to the ones mentioned above.
Condemning is applied for (Article 65 of the mentioned law):
a) Performing actions that will shock the esteem and feeling of confidence required for the official title, on and off service,
b) Not taking care of the appearance required for the esteem of the profession,
c) Private usage of governmental equipment,
d) Treating colleagues, subordinates and people in connection for work or employers badly,
e) Not informing the Ministry of Justice about continuous profitable activities of
spouses, minors or restricted children within fifteen days,
f) Not fulfiling the appropriate instructions by the Ministry of Justice, neglecting the supervision of the offices and clerical offices,
g) Performing activities that will inhibit the progress of the work accordingly,
h) Not attending the work for three days consecutively, without permission or an acceptable excuse,
i) Related to quality and degree, performing actions similar to the ones mentioned above.
Penalty of ceasing of gradual promotion is applied for (Article 66 of the same Law):
a) Getting accustomed to attending work lately and leaving early without excuse,
b) Piling up depts by becoming indepted more than one’s payment capacity or causing the employment of legal means by not paying final dept on purpose
c) Non- declaration of property for determined situations and periods,
d) Not attending the work for 4-9 days consecutively, without permission or an acceptable excuse,
Ceasing of promotion in degree is applied for (Article 67 of the mentioned Law):
a) Not attending to the work (office) totaly l5 days within a year without getting permission or having any acceptable reason.
b) Participating in illegal profit-gaining activities of the employee.
Penalty of displacement is applied for (Article 68 of the same Law):
a) Due to the improper or irresponsible conducts to lose the honour and esteem of the profession.
b) To make someone aware of incompetence in their position because of one’s irresponsible behaviors.
c) To make someone aware of accord preferential treatment using their personal feelings.
d) Inability to get on with each other and colleagues due to their own irresponsible behaviors.
e) Even there is not any evidence, making someone aware of taking the bribe.
f) Asking a gift directly or via mediator and accepting the gift during the position or giving/taking loan from employers.
Penalty of dismissal is applied for in very rare cases.
6.2. What is the procedure involved?
Upon confirmation of inappropriate situations and actions of judges and public prosecutors, they are subjected to the statute discipline penalties of the Supreme Council of
Judges and Public Prosecutors depending on the quality and degree of the situation (Article 62 of mentioned Law).
Disciplinary measures can not be imposed on the judges and public prosecutors without their defence has been taken into consideration. The concerned person, who doesn’t make defence within a defined period by the Supreme Council of Judges and Public Prosecutors shall be assume to abandon the right of defence.
The Minister of Justice or the concerned may require the review of the decision about the disciplinary punishments of judges and puplic prosecutors within ten days after its notification. In this case, the Council makes its decision after making the required review.
The concerned against the decision given after the Council’s review may object within ten days after its notification.
The objection procedure is concluded by a special commission. The decision about the objection is final. There is no administrative and judicial remedy.
The judges (and the public prosecutors) whose discharge from the occupation is required have the right to defend themselves orally or in writing personally or through their lawyer (Article 73 of the Law on Judges and Public Prosecutors).
6.3. What is the competent instutition or authority?
The competent authority is the Supreme Council of Judges and Public Prosecutors.
According to the third paragraph of the Article 159 of the Consitution “The Supreme Council of Judges and Public Prosecutors shall deal with the admission of judges and public prosecutors of courts of justice and of administrative courts into the profession, appointments, transfers to other posts, the delegation of temporary powers, promotion and promotion to the first category, the allocation of posts, decisions concerning those whose continuation in the profession is found to be unsuitable, the imposition of disciplinary penalties and removal from office. It shall take final decisions on proposals by the Ministry of Justice concerning the abolition of a court or an office of judge or public prosecutor, or changes in the jurisdiction of a court. It shall also exercise the other functions given to it by the Constitution and laws.”
There shall be no appeal to any judicial instance against the decisions of the Council.
6.4.What disciplinary sanctions can be imposed?
According to the Article 62 of the Law on Judges and Public Prosecutors, the following disciplinary sanctions can be imposed on judges and public prosecutors:
• Deduction from salary
• Ceasing of gradual promotion
• Ceasing of promotion in degree
• Displacement (changing of the office)
• Dismissal (Penalty of discharging)