Strasbourg, 20 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Turkey
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
Yes, there is a specific model to be followed in drafting judicial decisions as follows:
In the beginning of the judicial decision, it is stated that the decision is given “On Behalf of the Turkish Nation”.
Then in turn;
- The name of the Court,
- The full names of the court president and members or judge, public prosecutor and clerk, intervener, victim, assignee, legal representative and lawyer and the identification of accused,
- Except the acquittal decisions; the place, date and time of the offence,
- The date and duration of the arrest and probation of accused and currently arrested or not,
Are written in the decision.
After the points stated in the decision above, if the legal basis of the judicial decision is not written, it must be added to the file within 15 days at the latest.
At the end of the judicial decision,
- The decision given, the provisions of the Code implemented, the penalty given, the possibility of the application to appeal or other course of law and if possible time period of the application and relevant judicial authority
Must be explained clearly.
At last, the judicial decision is signed by the President of the court and other members and clerk.
In the framework of the general rules stated above, each individual judge can choose his own style of drafting his or her decision.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
Where the court is composed of more than one member, judicial decisions do not have to be taken unanimously. A majority decision is equally effective and binding.
In a two or even more member panel, the president or most senior judge do not have a second or casting vote. If the votes are dispersed, the most opposite vote against the accused is added to the vote which is closer to itself until the majority is occurred.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
Judicial decisions have to deal with all points raised by the parties or their lawyers for the explanation of their legal grounds.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
The decision states first the factual background. In this context, all points raised by indictment and defence are put forth for consideration. Then after the evidences are discussed and evaluated, the basis of the decision according to the legal principles is explained clearly.
How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?
If Supreme Court approves the decision of the court, there is no need to state the legal principles applied to the accepted facts. But on the other hand, if the Supreme Court overrules the decision, it has to show the legal grounds in detail. In our country, depending to the conditions regulated in legislations, the Supreme Court sometimes rehears but in general the appeal is done by examining the files only.
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
There is no distinct difference in the way a judgement is drafted according to the subject matter.
Could you describe precisely how the decision is transmitted to the parties?
If the parties are not in trial when the decision is given, the decision should be transmitted to them under the Law of Service numbered 7201 at their last known address. If the address is not known or determined, the service is done by announcement.
On the other hand if a party is represented by an attorney, the service should be done to his/her legal representative and if a party is under a care or guardianship, the service should be done to his/her curator or guardian. For the legal entities, the service is done to their representatives and if there are more than one representative, the service done to one of them is sufficient.
In case of avoiding from the service although the notified party is at his/her address, the service is done to the headman of the neighborhood or village council or the minions of the law.
If the notified party is death or leave his/her address permanently and new address couldn’t be found, the service is sent back to the judicial authority.
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
Although the judicial decision is binding only on the specific litigants, it may also set a pattern for the similar cases which affect the third parties.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
Yes, our country acknowledges a difference in judicial decisions in personam and in rem.
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
Civil Law decisions are enforced by bailiffs’ offices. Criminal law decisions are enforced by public prosecution offices as an enforcement authority. If a litigant does not comply with the decision/order of the court, penal measures are applied by relevant judicial authorities according to the legislation to make them comply with the judicial decisions.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
Where it is strictly necessary in respect of public morality or public security, the court may rule that all of the hearing or a part of it could be handled in a closed hearing. But judicial decisions are always handed down/announced in open court.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
In Turkey, there is a draft law regarding data protection. In this draft law, it is aimed to provide the balance between recording data and the fundamental rights of individuals. But for present, judicial decisions do not take into account personal data protection legislation as the draft law does not come into force.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
In principle, judicial decisions are not available to persons or authorities other than the litigants themselves. But in the framework of an investigation or a prosecution or a trial, relevant authorities are able to reach to the judicial decisions given before if it is necessary to examine them.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
The majority of decisions of the Supreme Court are available on the internet web site of Ministry of Justice. However, the decisions other than given by the Supreme Court are not published on the net.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
Yes, there is a system of evaluation of quality of justice in force in our country.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
Yes, this evaluation includes only the evaluation of the quality of appealed decisions.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
The Law of Judges and Prosecutors no 2802.
The members of the Supreme Court.
The compatibility of the decisions to the provisions of the internal legislation, case law and the basic principles of law.
Giving marks to decisions as; very good, good, average and poor.
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
The quality of the decisions may be increased.
Not all the decisions but only the decisions appealed may be evaluated.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
If the workload of the judiciary is decreased and more time is spared on each case, the quality will increase.
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? yes x no □
· professional performance of public prosecution services? yes x no □
· professional performance of lawyers? yes □ no x
· enforcement of judgements? yes x no □
· efficiency of ministry of justice services in general? yes □ no x
· quality of legislation? yes □ no x