Strasbourg, 16 January 2007

CCJE REP(2007)17
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary : Reply submitted by the delegation of Turkey


questionnaire for 2007 Opinion concerning the Councils for the Judiciary

Introduction

In 2007, the CCJE is called to investigate the institutional roles of Councils for the Judiciary or analogous bodies that have been or are being created – sometimes at a constitutional level – in several European countries with the tasks of protecting judicial independence, taking measures concerning courts’ administration and judges’ careers, and ensuring in general a smooth functioning of the principle of separation of powers, which is a cornerstone of modern democratic States based on the rule of law.1

The composition and functions of such bodies vary from country to country2, as do their relationships with governments (especially with the Ministry of Justice), but the concept is essentially the same.

Responding delegations, whose countries institutional frameworks do not include a Council for the Judiciary as such should not hesitate to reply to the questionnaire making reference to the body or the bodies performing similar functions, in the judiciary or outside of it, in order for the CCJE to obtain as far as possible the clearest description of the situation in these countries. In any case, at the end of the present document, there is a specific part for countries without Council for the judiciary.

For the purpose of this questionnaire, and at this stage of the discussion, the expression “Councils for the Judiciary or other analogous body” (in French “Conseil Supérieur de la Magistrature ou autre organe équivalent”) has been chosen. The work of the CCJE on the Opinion on this subject will be the occasion to justify this choice. In the questions below the terms “Councils for the Judiciary” or “Council” will be used: if it is not the term used in your country, please just indicate it but reply as far as possible to the questionnaire.

Part I - General context concerning the judiciary

1. Is there possible interference of the legislative power concerning judges? If yes, please specify.
No.
- The Constitution clearly sets out that the Republic of Turkey is a state governed by the rule of law.
Article 2 of the Constitution is as follows:
The Republic of Turkey is a democratic, secular and social state governed by the rule of law.
The Principle of Separation of Powers
- The principle of separation of powers has been accepted in the Constitution.
- The general principles of the Constitution outline the exercise of Legislative Power, Executive Power and Judicial Power.
Judicial power
Judicial power shall be exercised by independent courts on behalf of the Turkish Nation. (Article 9 of the Constitution)
In line with these provisions Part Three of the Constitution is entitled Fundamental Organs of the Republic and includes three chapters:
- Legislative Power (Art. 75-100)
- Executive Power (Art 101-137) and
- Judicial Power (Art 138- 160).
Judges are independent in discharging their duties.
Article 138 of the Constitution is as follows:
Judges shall be independent in discharging their duties; they shall give judgment in accordance with the Constitution, law, and their personal conviction conforming with the law.
No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power,
No organ, authority, office or individual may send them circulars, or make recommendations or suggestions.
No questions shall be asked, debates held, or statements made in the Parliament relating to the exercise of judicial power concerning a case under trial.
Legislative and 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.
(Art 138 of the Constitution)
The same principle is also repeated in the Law on Judges and Public Prosecutors No: 2802 (O.G.: 26/2/1983 no: 17971).
- Judges shall discharge their duties in accordance with the principles of independency of courts and guarantees of judges.
- No organ, authority, office or individual may give orders or instructions to courts and judges to exercise of judicial power, send them circulars or make recommendations or suggestions.
- Judges shall be independent in discharge of their duties. They shall give judgment in accordance with the constitution, law and their personal conviction. (Article 4 of Law No: 2802)
Guarantees of Judges and Public Prosecutors
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. (Article 139/I of the Constitution)  
Exceptions to that guarantee which shall be indicated in law:
- those convicted for an offence requiring dismissal from the profession,
- those who are definitely unable to perform their duties on account of ill-health, and
- those determined as unsuitable to remain in the profession. (Article 139/II of the Constitution)
The same provisions have been provided in the Law on Judges and Public Prosecutors.
- 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.
- Exceptions which shall be indicated in law relating to those convicted for an offence requiring dismissal from the profession, those who are definitely established as unable to perform their duties on account of ill-health, and those determined as unsuitable to remain in the profession, are reserved. (Article 44, Law No: 2802)
Establishment of Courts
Establishment of courts, their functions and competence can only be regulated by law. (Art 142 of Constitution)
- Law on Establishment of First Instance Courts and Courts of Appeal, No: 5235 (Official Gazette: 7 October 2004 no: 25606)
regulates establishment of all civil and criminal courts and Courts of Appeal.
Competence of the Courts
The judiciary has jurisdiction over all issues of a judicial nature and has exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
A judgment given by a court cannot be reviewed by executive or legislative power.
A judgment given by a court can only be reviewed upon appeal to the High Courts; Court of Cassation or Council of State where appropriate in line with the relevant Laws stated below:
- Criminal Procedure Code, Articles 260-310
- Civil Procedure Code, Articles 426-444
- Administrative Adjudication Procedure Law, Articles 45-55

2. Is it possible for the legislative power or the Parliament to order investigations or to establish commissions :
§ in general concerning judges? If yes, please specify.
§ concerning judicial performance?
§ concerning facts already submitted to courts?
§ concerning procedural acts (eg. telephonic tapping, police custody)

It isn’t possible for the legislative power or the Parliament to order investigations or to establish commissions concerning judges and the facts already submitted to courts because of as above-mentioned (question 1) the rules that ensure independence of the judiciary.

The rules for the legislative power or the Parliament to order investigations or to establish commissions of the Constitution are as follows:

A. General Provisions
ARTICLE 98. The Turkish Grand National Assembly shall exercise its supervisory power by means of questions, parliamentary inquiries, general debates, motions of censure and parliamentary investigations. A question is a request for information addressed to the Prime Minister or ministers to be answered orally or in writing on behalf of the Council of Ministers.
A parliamentary inquiry is an examination conducted to obtain information on a specific subject.
A general debate is the consideration of a specific subject relating to the community and the activities of the state at the plenary sessions of the Turkish Grand National Assembly.
The form of presentation, content, and scope of the motions concerning questions, parliamentary inquiries and general debates, and the procedures for answering, debating and investigating them, shall be regulated by the Rules of Procedure.
B. Motions of Censure
ARTICLE 99. A motion of censure may be tabled either on behalf of a political party group, or by the signature of at least twenty deputies.
A motion of censure shall be circulated in printed form to members within three days of its being tabled; inclusion of a motion of censure on the agenda shall be debated within ten days of its circulation. In this debate, only one of the signatories to the motion, one deputy from each political party group, and the Prime Minister or one minister on behalf of the Council of Ministers, may take the floor.
Together with the decision to include the motion of censure on the agenda, the date for debating it will also be decided; however, the debate shall not take place less than two days after the decision to place it on the agenda and shall not be deferred more than seven days.
In the course of the debate on the motion of censure, a motion of no-confidence with a statement of reasons tabled by deputies or party groups, or the request for a vote of confidence by the Council of Ministers, shall be put to the vote only after a full day has elapsed.
In order to unseat the Council of Ministers or a minister, an absolute majority of the total number of members shall be required in the voting, in which only the votes of no-confidence shall be counted.
Other provisions concerning motions of censure, provided that they are consistent with the smooth functioning of the Assembly, and do not conflict with the above-mentioned principles are detailed in the Rules of Procedure.
 C. Parliamentary Investigation
 ARTICLE 100. (As amended on October 17, 2001)
 Parliamentary investigation concerning the Prime Minister or other ministers may be requested through a motion tabled by at least one-tenth of the total number of members of the Turkish Grand National Assembly. The Assembly shall consider and decide on this request with a secret ballot within one month at the latest.
In the event of a decision to initiate an investigation, this investigation shall be conducted by a commission of fifteen members chosen by lot on behalf of each party from among three times the number of members the party is entitled to have on the commission, representation being proportional to the parliamentary membership of the party. The commission shall submit its report on the result of the investigation to the Assembly within two months. If the investigation is not completed within the time allotted, the commission shall be granted a further and final period of two months. At the end of this period, the report shall be submitted to the Office of the Speaker of the Turkish Grand National Assembly.
Following its submission to the Office of the Speaker of the Turkish Grand National Assembly, the report shall be distributed to the members within ten days and debated within ten days after its distribution and if necessary, a decision may be taken to bring the person involved before the Supreme Court. The decision to bring a person before the Supreme Court shall be taken by a secret ballot only by an absolute majority of the total number of members.
Political party groups in the Assembly shall not hold discussions or take decisions regarding parliamentary investigations.
According to this information it is possible for Parliament to establish commissions in order to research general aspect of judicial performance and procedural acts.
 
3. Is there possible interference of the executive power concerning judges?

No.
The reply given to question 1 is also valid for this question.

4. If yes, is it possible for the executive power to interfere:
§ in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)
§ in designation of presidents of courts? (if yes, please specify which authority from the executive power)
§ in management of courts? (if yes, please specify which authority from the executive power)

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5. Is the judicial staff working under the authority of:
§ a judge?
§ the president of the court?
§ the Ministry of Justice?

The judicial staff is working under the authority of judge and the president of the court.

6. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court?
§ to distribute the work between judges?
§ to act as a disciplinary authority vis-à-vis judges?
§ to intervene in the career of judges?

The president of the Court hasn’t competences above-mentioned subjects

§ other? If yes, please specify.

The president of the Court’s competences concerning judges is as follows;

In the emergency situations, the president of the Court can give permission to the Judges for three day if they have an excuse. (Law on High Council of Judges and Prosecutors Art. 56)

Instead of the judge in judicial district not to come to his/her task because of any reason, until this judge begins his/her task or until for this task is authorized by the High Council of Judges and Prosecutors, any judge among the judges in judicial district shall be employed by the president of the Court; (Law on High Council of Judges and Prosecutors Art. 115)

The president of the Court as a senior judge can conduct the investigation or inquiry to the judge or public prosecutor to be investigated if the Minister of Justice request. (Constitution Art. 144)

Part II – General concerning Councils for the Judiciary

7. Is there a Council for the Judiciary in your judicial system?

Yes.

8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)

The High Council of Judges and Prosecutors

9. What is the legal basis for the Council for the Judiciary:
§ the Constitution?
§ the law?
§ other? If yes, please specify.

The High Council of Judges and Prosecutors has been regulated with:
- Article 159 of Constitution,
- Law on High Council of Judges and Prosecutors No: 2461 (O.G.:14.5.1981 No: 17340) and
- By-law on High Council of Judges and Prosecutors which was prepared and put into force by the High Council.

10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)

Firstly, a Council for judges was established by article 143rd of the Constitution (1961) by name High Council of Judges. And also Council for prosecutors was established by the article 137th of the Constitution by the name of High Council of Prosecutors.

The present status of the Council has been regulated with article 159th of the Constitution (1982) by name the High Council of Judges and Prosecutors.

The reason for setting up the Council is explained in 159/1 article of Constitution to ensure the independence of the courts and the guarantees of judges. “The High Council of Judges and Public Prosecutors shall be established and shall exercise its functions in accordance with the principles of the independence of the courts and the guarantees of judges. (Constitution Art. 159/1)”

Part III - Composition

11. What is the composition of the Council for the Judiciary:
§ Number of members?

The composition of the High Council of Judges and Prosecutors is clearly defined in the 159th Article of the Constitution. Under this article it is decided for the Council to have 7 regular and 5 substitute members.

§ Qualification of the members?

High Council of Judges and Prosecutors is composed of:
- Three regular and three substitute members from Plenary Assembly of Court of Cassation appointed by the President of the Republic from a list of three candidates nominated for each vacant office by Plenary Assembly of the Court of Cassation,
- Two regular and two substitute members from Plenary Assembly of the Council of State appointed by the President of the Republic from a list of three candidates nominated for each vacant office by Plenary Assembly of the Council of State,
- The Undersecretary of the Ministry of Justice, ex-officio member of the Council, shall be appointed among the first class judges and public prosecutors qualified to be selected to High Courts. (Law No:2802 Art. 37-38)
- Minister of Justice (Chairman),
- No members from first instance or regional courts.

§ For the “judges” members, do they need specific qualifications or experiences?

No, they don’t.

§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions)

Yes, non-judges can be members of the Council. The Minister of Justice is the president of the Council under 159 article of Constitution.

12. Please describe the whole procedure of appointment:
§ Who designates the members (judges or other institutions or authorities – please specify)?
§ What is the appointment system (voting, individual candidates, designation, etc.)?

The President of the Council is the Minister of Justice. The Undersecretary to the Minister of Justice shall be an ex-officio member of the Council. Three regular and three substitute members of the Council shall be appointed by the President of the Republic for a term of four years from a list of three candidates nominated for each vacant office by the Plenary Assembly of the High Court of Appeals from among its own members and two regular and two substitute members shall be similarly appointed from a list of three candidates nominated for each vacant office by the Plenary Assembly of the Council of State. They may be re-elected at the end of their term of office. The Council shall elect a deputy president from among its elected regular members (Constitution Art. 159/2).
13. How is appointed the President and/or Vice-President of the Council?
The chairman of the Council is the Minister of Justice. The Council shall elect a deputy chairman from among its elected regular members (Constitution Art. 159/2, Law No:2461 Art. 8).
In case of absence of the chairman, deputy chairman presides.

14. What is the term of office for a member of the Council?

Three regular and three substitute members of the Council shall be appointed by the President of the Republic for a term of four years (Constitution Art. 159/2).
They may be re-elected at the end of their term of office (Constitution Art. 159/2, Law No:2461 Art. 8).

15. May a member be removed from office against his/her will and, if so, under what circumstances?

- The High Council of Judges and Public Prosecutors shall be established and shall exercise its functions in accordance with the principles of the independence of the courts and the guarantees of judges. (Constitution Art. 159/1)

Guarantees of Judges and Public Prosecutors
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. (Article 139/I of the Constitution)
 
Exceptions to that guarantee which shall be indicated in law:
- those convicted for an offence requiring dismissal from the profession,
- those who are definitely unable to perform their duties on account of ill-health, and
- those determined as unsuitable to remain in the profession. (Article 139/II of the Constitution)

There is no special regulation for removing the member of the Council from office against his/her will.

Part IV - Resources

16. Where does the Council receive its financial resources?

The High Council of Judges and Public Prosecutors hasn’t a separate budget. The Council receives its financial resources from the Ministry of Justice’s budget.

17. Does the Council have its own staff?

Not.

18. If not, is the personnel provided by:
§ the Ministry of Justice?
§ the Supreme Court?
§ other institution? Please specify
The personnel are provided by the Ministry of Justice.

19. What is the staff number?

The staff number which allocated to the High Council of Judges and Public Prosecutors by the Ministry of Justice is approximately 30. Also judges working at the Directorate General of Personnel of the Ministry are to report to the Council.

20. What are the qualifications of the staff?

The staff provided by the Ministry to the Council consists of judges, assistant and general administrative services class.

21. Must the staff be composed, albeit only in part, by judges?

It will be useful.

22. What are the tasks of the staff of the Council:
§ preparing materials for the Council members?
§ providing them with analysis and evaluation of the courts’ practice?
§ other? Please specify.

The staff provided by the Ministry of Justice, which carries out the secretariat of the High Council, fulfills the tasks given by the Council.

Part V - Tasks

23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):

§ in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?
The High Council has an important role in area of personnel policy. Candidate judges and prosecutors are accepted to the profession by a decision of the Council at the end of their training period. Candidates, who are inappropriate to the profession because of their behavior or other reasons or unsuccessful in the training period, are not accepted to the profession by the Council. Candidates accepted to the profession are appointed as judges and public prosecutors to the local courts.
For both of the civil (civil-criminal) and administrative judiciary draft appointment list of judges and prosecutors is prepared by the Ministry of Justice by taking into account requests, records and previous promotions of the relevant judges and public prosecutors. After submitting the list to the Council, the Council examines the list. Having made the consultation on the Draft, the Council makes its final decision within one month. Decision of the Council on the appointments are directly applied and issued in the Official Gazette.
Law on Establishment of First Instance Courts and Courts of Appeal regulates establishment of all civil and criminal courts and Courts of Appeal. Before establishing a new court, the approval of the Council must be taken by the Ministry of Justice according to this law. Also, the number and location of judges or courthouses are determined by the Council upon the proposal of the Ministry of Justice.
Appointment of the presidents of the courts is in the competence of the Council, but the Council does not have the competence for the appointment of staff of the courts. The staff is appointed by the Ministry of Justice and they are not selected among judges or prosecutors.
The Council has accepted a by-law on Appointment and Transfer, including the objective principles which will be applied on appointment and transfer of judges and prosecutors.

§ in area of initial and/or continuous training for judges and/or courts’ staff3?

Judges and public prosecutors are supported by life-time in-service training programs. These in-service training programs are conducted by three different groups of institutions:
1. Justice Academy
2. Training Department of the Ministry of Justice
3. High Courts of Appeals (Council of State and Court of Cassation)
The Justice Academy has been established by the Law on Justice Academy and started to function as of 31.10.2003 (Law No: 4954). It is autonomous from scientific, administrative and financial points of view. The Justice Academy has the responsibility and role for organizing and implementing candidacy programs and pre-service training among other tasks (Articles 5 and 26 of the Law on Justice Academy).
Organization of pre-service and in-service training programs for civil, administrative and military judges is among the main tasks of the Justice Academy. The in-service training programs had been mostly implemented by the Training Department until the Justice Academy has been set up. The Justice Academy has undertaken the responsibilities of the Training Department partially and broadens its activities step by step.
Having broad experience in the field of training organizations, the Training Department continues to organize some training activities together with the Justice Academy. Despite the fact that the Training Department is a unit under the Ministry of Justice, all of the in-service activities organized for judges and prosecutors are subject to the approval of the Council.
The Council does not have any task in area of initial and/or continuous training for courts’ staff. This task is carried out by the Ministry of Justice.

§ in area of courts’ performance in general (assessment of quality of court performance4, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?

    The Council does not have any task in assessment of courts’ performance in general.

§ in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements5)?

The Council has an important role in area of the individual work of a judge, as being the competent authority for promotion of judges and public prosecutors.
The fundamental principles for promotion of judges and public prosecutors are; qualification in the profession, seniority and judicial ethics. The profession of judges and public prosecutors is composed of four classes. From higher to lower, these classes are, first class, designated as first class, second class and third class.
The seniority of judges and public prosecutors is designated in accordance with their degrees and grades. Judges and public prosecutors get one grade every year and get one degree in two years if they are qualified.
There are three types of promotion which are, distinguished (the best promotion), preferential (the medium promotion) and ordinary (the minimum type of promotion).
The main criteria for promotion of judges and public prosecutors are; accuracy in the judgments and rapidity in finalizing a case. The evaluation is based on number of cases reviewed by High Courts (Court of Cassation or Council of State) and the assessment is also made by the High Courts.
For all cases reviewed by the High Courts a mark is given by filling a form in respect of Accuracy of the judgment, rapidity in finalizing the case, including not causing unnecessary delays, implementing procedural provisions in full and on time, comprehension ability regarding the subject of the case, success in the reasoned opinion, taking into account precedent cases, qualification and content of the prosecution (For public prosecutors only). The marks given by the High Courts are; very good, good, medium or poor.
Ratio of incoming and finalized cases by a judge or public prosecutor is a criterion for promotion. However, the ratios are at the discretion of the High Council of Judges and Public Prosecutors. The principles set out by the High Council for judges are; for distinguished promotion %80 of the incoming cases, for preferential promotion %70 of the incoming cases, for ordinary promotion %50 of the incoming cases should be finalized in the period of promotion of judges. Certain exceptions are foreseen for special conditions and for specialized courts to ensure equal promotion opportunity.

§ in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?
The Constitution provides that investigations of judges or public prosecutors may be possible in the following conditions:
- If they have committed offences in connection with, or in the course of their duties,
- Whether or not their behavior and attitude are in conformity with their status and duties.
Initiating disciplinary investigation on behavior and conduct not conforming with profession and initiating criminal investigation on offences in connection with the profession is subject to the permission of the Ministry of Justice (Law on Judges and Prosecutors, Law No: 2802, Article 82).
Disciplinary investigation or criminal investigation may be initiated upon a complaint or denunciation. The denunciation or complaint petitions on judges/prosecutors are submitted to the Directorate General for Criminal Affairs. In the DG for Criminal Affairs a judge is appointed to examine the complaint and make an assessment on whether to investigate or not.
The denunciations and complaints shall not be processed unless they include definite event or concrete evidence, name, address, signature, etc. and new evidence on the event which was investigated before. Also subjects which take part in the jurisdictional and appraisal competence of judges and can be claimed in objection or appeal phases and denunciation or complaint petition given by mentally ill persons shall not be processed (Law no:2802, Article 97).
On complaints which are processed, a senior judge/prosecutor or judicial inspector conducts a preliminary investigation (Law no: 2802, Article 82). According to the report prepared after the preliminary investigation; if the events claimed against the judge/prosecutor cannot be proved, it is decided not to proceed further. If the events are proved, it is decided to give permission for initiating investigation.
Upon permission for investigation, a senior judge/prosecutor or judicial inspector leading the investigation, takes the statement of judge/prosecutor and prepares a report. This report is submitted to the DG for Criminal Affairs and examined therein. Upon assessment of this unit; if it is necessary to impose disciplinary sanction, the investigation file is sent to the High Council of Judges and Prosecutors. If it is decided to open a criminal investigation, the investigation file is sent to Prosecution Office concerned.
If the choices mentioned above are not applied, the investigation file is finalized and after this phase Ministry of Justice shall not intervene in investigation (Law no: 2802 Article 87). At this phase all transaction relating to disciplinary or criminal investigation are conducted by a judge discharged in Ministry of Justice. It is possible to object or appeal to Administrative Courts against the transactions conducted during the investigation.
The right to impose disciplinary sanctions against judges and public prosecutors is vested in the High Council of Judges and Public Prosecutors (Constitution Article 159/3; Law No.2461, Article 4/1; Law No: 2802, Article 62/1). The report, prepared as a result of an investigation is examined by the High Council of Judges and Public Prosecutors and a decision is taken on disciplinary matter. The report is not binding for the High Council.
The conditions under which judges may be subjected to disciplinary sanctions are prescribed in Law No 2802 Article 62-69. Accordingly, these disciplinary sanctions may be applied depending on the nature and gravity of disciplinary actions: warning, deduction from salary, condemnation, suspension of grade development, suspension of degree promotion, change of location and dismissal from profession.
Judges and public prosecutors can request re-examination of the case from the High Council. Furthermore an objection can be made to the Council of Examination of Objections (Law No 2802 Art 73). But, no objection or appeal may be made to any court against decisions of the High Council.
Even if the offense is not one of the offenses mentioned in the above paragraphs, The High Council have the right to discretion that the offense gives harm to the prestige or honor to profession or terminate the confidence (Law no:2802 article 69/4).
Judges and Prosecutors shall not be subjected to disciplinary sanctions without being granted the right of defense (Law No:2802 Article 71).
The power of the Council in disciplinary matters respects the provisions of Article 6 of the ECHR.

§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?

The Council does not take part in the budget negotiations with the Government or Parliament and it does not have competences for the subdivision of financial resources allocated to the courts and for the deployment of funds by individual courts. The Council does not have its own budget.

§ in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify

The Council does not have any task of participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system.

24. Does the Council have investigation powers? If yes, please specify

The Council does not have investigation powers.

25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analyzed) Please describe

The members of the Council can have information on the concrete functioning of courts by means of the Ministry of Justice.

26. What are the types of norms that the Council can issue:
§ opinions on the functioning of the judiciary?
§ recommendations?
§ instructions to the courts?
§ decisions?

The Council can issue decisions, principle decisions and by-laws in the area which law gives competence. According to the article 24th of the Act which is numbered 2461, the Council regulates its working procedure and the rules which must be obeyed when carrying out its duties by an interior by-law.

27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.

Formation, working procedure and functions of the Council has been regulated with; article 159th of Constitution, Law on High Council of Judges and Prosecutors No: 2461 (O.G.:14.5.1981 No: 17340) and by-law on High Council of Judges and Prosecutors which was prepared and put into force by the Council.

28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

The formulation of these tasks by legislation is general.

29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?

In our country there is not a code of ethics for judges. But candidate judges and prosecutors have to take a 4 hours course on judicial ethics during their compulsory training at Turkish Justice Academy. The judicial ethic course include; subjects on definition of ethic, national and international documents on ethic, relations of judges/prosecutors with their colleagues, court clerks and other persons.
Judges and public prosecutors are exempted from the Law on Ethical Board taking into account principles of independence and impartiality of the judiciary. Ethical Board is composed of public servants functioning within the organizational structure of the Prime Ministry. If judges/prosecutors were subject to the Law on Ethical Board, the Ethical Board would have a power to affect judges and judicial procedure. This harms the independency and impartiality of judiciary.
Besides, the Council functions as an Ethical Board because of its duties. The Bangalore Principles of Judicial Ethics are accepted by the Council and announced to all judges.

30. Does the Council handle external relationships of the courts:
§ has it a public relations department?
§ how does it ensure the transparency of its functioning and organization?

The Council does not handle external relationships of the courts. It does not have public relations department.
All the decisions of the Council about appointment, promotion and transfer of judges and public prosecutors are issued in the Official Gazette. So everyone can learn which judge or public prosecutor is appointed to which court.
But the proceedings and the meetings of the Council are concealed. The information and documents which are got for the official work can not be revealed even after leaving the work. (Article 29 of By-law on High Council of Judges and Prosecutors)

31. Are decisions of the Council published and available to all?
The by-laws issued by the Council and the principle decisions of the Council are published in the Official Gazette and available to all. But the other decisions of the Council are not published; they are only notified to those concerned.

Part VI – Assessment of the self-governance and the independence of the judiciary

32. To what extent is the work of the Council influenced by:
§ the executive power?
§ the legislative power?

The Council is not influenced by the executive and the legislative powers.

33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?

Independence of the High Council of Judges and Prosecutors is guaranteed by the Constitution and law.
The Council shall be established and shall exercise its functions in accordance with the principles of the independence of the courts and the guarantees of judges (Constitution Art. 159/1).
The Council is independent (Law No:2461 Art. 3).

34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?

The task of the Ministry of Justice is to solve administrative and financial problems. The High Council of Judges and Public Prosecutors has a right to change the positions and duties, initiation of disciplinary proceedings and conducting sanction, initiation of judges and prosecutors.

35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?

The Council has rights to change the positions and duties, initiation of disciplinary proceeding and conducting sanction, initiation of judges and prosecutors. The Presidents of the Courts has administrative tasks about courts’ staff except for judges and prosecutors.
The Council is composed of the members from the Court of Cassation and the Council of State.
The members of the Court of Cassation and the Council of State are selected among the first class judges and public prosecutors by the High Council of Judges and Prosecutors.

36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?

No, the Court of Cassation is subject to Law no:2797

37. Who decides which the priorities of actions of the Council are?

    By the Ministry of Justice.

38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?

The decision of the Council cannot be appealed at any court. However, re-examination can be requested from the Council within ten days after servicing of the Council’s decision. Minister of Justice or those concerned may demand examination of a decision. In this case, the Council, composed by 7 members, renders a decision, carrying out the necessary examination (Law No: 2461 Art. 11).
Within ten days after the date of servicing the decision, those concerned may object to the re-examination decision taken by the Council. The objection plea is concluded by the Council for Examining the Objections, composed by 7 regular members and 5 substitute members. (Attendance of at least eight members except for the chairman is compulsory for taking a decision.) The decision taken is final and directly applicable, and cannot be appealed before a court (Law No:2461 Art. 12).

39. Which instruments or practices are used by the Council:
§ to guard the independence of judges?

The Constitution and relevant laws are used to guard the independence of judges. In case of such events the relevant authority can initiate legal prosecution.
As the Council compose of members from the Court of Cassation and the Council of State, this situation guarantee of independences of judges.

§ to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?

In case of such events the relevant authority shall initiate legal prosecution. Additionally, the Council responds to such situations via media declaration.

§ to intervene in case of attacks against its own interests6?

The High Council of Judges and Public Prosecutors is able to respond to such challenges or attacks in appropriate cases via media declaration or it may be complaint them to the Prosecutors’ Offices.

§ to improve the working methods of judges?

The High Council of Judges and Public Prosecutors makes decisions about principles of judiciary system.

Part VII – Future trends of Councils for the Judiciary

40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.

No.

41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.

No.

42. Are there relations between the Council for the Judiciary and judges' professional organizations or associations?

No.

43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
§ concerning the national actions of your Council?
§ concerning international co-operation?

During the General Assembly in Wroclaw on 25-26 May 2006, the Republic of Turkey were officially welcomed as a new observer to the Network.

44. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.

No.

Part VIII – Countries without a Council of the Judiciary

45. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?

46. How and by whom are judges appointed and promoted?

47. Does any authority (body) independent7 of the government and the administration take part in the appointment and promotion process:

§ If yes, how is this authority composed? Is a certain share of judges fixed?
§ How are the members selected?
§ what are the detailed competences of the authority with respect to the appointment and promotion of judges?

48. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

49. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?

1 Restructuring of the organisation of courts and introduction of modern management techniques, as well as the balance that needs to be guaranteed as for independence of judges, have been discussed by the CCJE in some of its previous Opinions (See references of these Opinions below in footnotes – For the list and the exact titles of the CCJE’s Opinions, please consult the website: www.coe.int/ccje).

2 The Councils or analogous bodies can be roughly divided between a Northern and a Southern European model. In the Northern European (for example Sweden, Denmark, Norway) model the organisation of the administration of the courts dominates. In these countries, the bodies – whose relationship with the Ministries of Justice is quite close - have extensive powers also in determining the budgets and management of the courts. In Southern Europe (in countries such as Italy, France, Spain, Portugal, Greece, Belgium) the Councils – that are separated from the Ministry of Justice - mostly deal with the recruitment of the judges, and their training, evaluation, transfers, promotion and discipline. Additionally, a Russian model is also identifiable, in which the highest courts of the country are vested also with the powers of their courts’ administration. As to Central and Eastern European countries, Lithuania and Hungary approach to the Northern European model, whereas Romania, Bulgaria and Poland are closer to the Southern European model. The common law countries have specific judicial commissions that perform tasks comparable with the one of the Councils.

3 Please consider the following statements contained in the CCJE’s Opinion No. 4:
- para. 17: "In order to ensure proper separation of roles, the same authority should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judiciary or other independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.";
- para. 18: "Those responsible for training should not also be directly responsible for appointing or promoting judges. If the body (i.e. a judicial service commission) referred to in the CCJE's Opinion N° 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks.".

4 Please consider the following statements contained in the CCJE’s Opinion No. 6: - para 34: “The CCJE strongly emphasises, first of all, that the evaluation of "quality" of the justice system, i.e. of the performance of the court system as a whole or of each individual court or local group of courts, should not be confused with the evaluation of the professional ability of every single judge. Professional evaluation of judges, especially when aiming at decisions influencing their status or career, is a task that has other purposes and should be performed on the basis of objective criteria with all guarantees for judicial independence”.

- para 47: “The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that appropriate procedures allow a ready adjustment of the organisation of courts to changes in the caseloads. In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring should be the independent body (…); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.”

5 Please consider the following statements contained in the CCJE’s Opinion No. 1:

- para 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long-entrenched and democratically proved systems.”

- and para 34 of CCJE’s Opinion No. 6 (see footnote 4 above).
6 Please consider the following statements contained in the CCJE’s Opinion No. 7:

- para 55: “When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases. “

7 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).



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