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The Judiciary

The Judiciary. The Judiciary. The judiciary in 1876 Constitution: - Art.81: The judges cannot be dismissed. - Art.83: The right to use all legitimate means in self-defense. - Art.84: The prohibition of denial of justice - Art.85: The principle of legal judge

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The Judiciary

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  1. The Judiciary

  2. The Judiciary • The judiciary in 1876 Constitution:- Art.81: The judges cannot be dismissed. • - Art.83: The right to use all legitimate means in self-defense. • - Art.84: The prohibition of denial of justice • - Art.85: The principle of legal judge • - Art.86: The prohibition of interference in court proceedings from outside. • - Art.89: Prohibition of establishing extraordinarycourts or commissions with judicial powers.

  3. The Judiciary • The judiciary in 1924 Constitution:- Art.54: The judges are independent and free from any kind of intervention in the proceedings and judgement of all cases, and subject only to the provivions of law. • - Art.55: Judges cannot be dismissed except for cases and procedures defined by law. • - Art.56: The qualifications, rights and duties, salaries, and the method of their appointment and dismissal are to be regulated by a special law.

  4. The Trple-Headed Judiciary • General Courts • Administrative courts • Military Courts • Court of Accounts;(4th) • - to render final decisions concerning the responsibility of public accountants

  5. General (Civil and Ciminal) Courts • Court of Cassation; (Yargıtay) • - is the highest level court deciding the legality of civil and criminal lower court judgements. • - Its members are chosen by the High Council of Judges and Public Prosecutors (HCJPP) from civil and criminal judges and public prosecutors who are promoted to the first degree. • - Chief public prosecutor and his deputy are chosen by President among 5 candidates nominated by the plenary session of the Court of Cassation.

  6. General (Civil and Ciminal) Courts • The work; • - is under way to establish courts of appeal between the first instance courts and the Court of Cassation.

  7. Administrative Judicial Courts • Council of State (Danıştay) • - has administrative and judicial functions. • - It gives advisory opinion on government bills, regulatory acts of CoM, and public service contracts. • In its judicial capacity; -It is final court of appeal concerning the decisions of lower-level administrative courts (regional courts, tax courts) and first and last instance court in the others. • - ¾ of its members are chosen by HCJPP. • - ¼ are appointed by President from qualified public servants defined by law.

  8. Court of Conflicts • Dividing line between two categories; • - are not very clear. • Court of Conflicts; (Uyuşmazlık Mahkemesi) • - has the power to resolve conflicts of competence and judgements among civil, administrative and military courts. • - It is composed of judges chosen by the HCJP, from the candidates of Court of Cassation and Council of State, and those appointed by President. • - It is presided by a judge chosen by Constitutional Court among its own members.

  9. Administrative Judicial Review • Administrative courts; • - exercise the judical review over the acts and actions of administrative bodies, through suits of annulment or suits of compensation. • The competence of administrative courts; • - is limited to the review of legality, and shouldn’t extend to the review of expediency.

  10. Administrative Judicial Review • The review of expediency? - No judicial decision can be taken that will restrictthe performance of the executive function in accordance with the principles and procedures specified in laws. • However; - The court have a tendency to exercise a review of expediency.

  11. Military Courts • Art.145 of the 1982 Constitution; • - Military justice is administered by military courts and disciplinary courts. • These courts; • - are competent for military offences committed by military persons, committed in military locations, or connected with their military services and duties. • - They were also competent for military offences committed by non-military persons.

  12. Military Courts • The competence of military courts for civilians; • - was completely abolished in 2009. • - The competence to try military persons for non-military offences was also restricted. • The constitutional amendments in 2010; • - deleted the phrase “committed in military locations”. • - The competence of military courts on civilians was totally abolished, except in cases of war.

  13. Military Courts • The final court of appeal for military judiciary; • - is the Military Court of Cassation. • The judges; - are appointed by President from three candidates for each vacant seat, nominated by the plenary of Military Court of Cassation, by secret vote and absolute majority of its full membership.

  14. Military Courts • The High Military Administrative Court; • - is the first and last instance court for military administrative judicary. • - It is an important dimension of the autonomy of the military from civilian control. • The military judges of this court; • - are appointed by the President from three candidates nominated by the Court. • Other members who are not judge; • - are appointed by the Chief of Staff from three candidates nominated by the Court.

  15. State Security Courts • The Constitutional amendment in 1973; • - established the state security courts to deal with the crimes against the security of state. • - They were mixed courts composed of civilian and military judges. • - Civil judges were appointed by HCJ from candidatesnominated by CoM. • - Military judges were appointedby Chief of Staff.

  16. State Security Courts • Many decisions of these courts; • - were found in violation of Article 6 of ECHR, on the grounds that military judges didnot have the same independence as the civilian judges. • In 1999; -Military judges were eliminated. • In 2004; -These courts were totally abolished.

  17. Martial Law Military Courts (Law 1402) • Offences committed three months ago; • - could also be tried by these courts. • “A clear violation of theprinciple of natural judge.”

  18. Critics for Military Courts • Many European democracies; - have military courts. • - Their competence is normally limited to purely military or disciplinary offenses by military personnel. • - Their decisions are subject to the review of civilian appeal courts. • In Turkey; • - There is no possibility of appeal against their decions before a civilian court.

  19. The Independence of Courts • Art.138 of the 1982 Constitution; • - Judges are independent in their duties. • - They make judgement in accordance with Constitution, law and their opinions in conformity with law. “Any authority or individual cannot give orders or instructions to the courts or judges concerning the exercise of judicial power.” • - No questions can be asked, debate held or statements made in the Parliament, in relation to exercise of judicial power for a case under trial. • - Legislative and executive authorities must comply with court decisions. They cannot alter or delay them.

  20. The Independence of Courts • Art.139 of the Constitution; • - Judges and public prosecutors shall not be dismissed or retired before the age prescribed by the Constitution. • - They shall not be deprived of their salaries,allowances, or other personal rights, even as a result of the abolition of a court or a post. • HCJP; • - is competent for appointments, promotions, transfers, disciplinary actions and dismissals.

  21. High Council of Judges and Public Prosecutors • Art.159 of the Constitution; (5+2=7) • - 3 regularand 3 alternate members by President, from three candidates for each position nominated by the plenary session of Court of Cassation. • -2 regularand 2 alternate members by President, from three candidates for each position nominated by the plenary session of Court of State. • - Minister of Justicewas the head of Council. • - Undersecretary of the MOJwas ex officio member.

  22. New Composition of HCJP • 2010 Constitutional amendment; (22+12) • - Court of Cassation: 3 regular and 3 substitute • - Council of State:2 regular and 2 substitute • - Academy of Justice:1 regular and 1 substitute • - All judges and prosecutors of general courts: • 7 regular and 4 substitute (first degree) • - All judges and prosecutors of administrative courts • - 3 regular, 2 substitute members (first degree) • - President: 4 regular members from law professors and practicing lawyers. • - MoJ andUndersecretary of MOJremained.

  23. New Composition of HCJP • HCJP; • - shall have its own secretariat. • - Justice inspectors shall be attached to the Council. • Minister of Justice; • - remained as the head of Council. • - He can’t take part in work of sections of Council. • - His role has been reduced to a more symbolic and representative one.

  24. New Composition of HCJP • Constitutional Court; • - rejected most of arguments in the opposition request, but invalidated only two phrases. • For theelection of HCJP, each member of electing body could vote for only one candidate, instead of as many votes as the number of vacancies. (???) • President elect members from among professors of economics and political science and high level administors.(law professors and practicing lawyers)

  25. The Abolition of Certain Immunities • The abolition of certain immunities in 2010; • - Dismissal rulings of the Supreme Military Council and HCJP shall be subject to the review of administrative courts. • Supreme Military Council: - is a body of all four-star generals under the chairmanship of PM. - It is authorized to make high-level appointments, promotions, retirements and transfers in the Turkish Armed Forces,and to dismiss military personnel from the service. (28 February?)

  26. The Abolition of Certain Immunities • The abolition of Art.15 in 2010; - The immunity from criminal and civil proceedings for the members of the National Security Council of 1980-1983, the members of Consultative Assembly, the ministers, and all those who acted on the orders of these bodies. - It was an important guarantee for the cadres of military regime. • The abolition of this article; - is likely to discourage future attempts of military coup

  27. Debates on Political Role of Judiciary • The judiciary; - has impeded the development of political liberalism. • The judiciary; - had a self-declared mission to protect the state rather than individual rights and liberties. - This mission inevitablybrought the politicisation of judiciary.

  28. Debates on Political Role of Judiciary • Turkish political development; - has been effected by the “revolution from above”, engineered by the military and civilian elites. • This sense of mission; - is to protect the “supreme military interests of state” • Founding philosophy of the Republic; - The unitary nation-state and principle of secularism have been used by the judiciary as thejustification for their harsh judgements concerning the crimes that undermine or weaken these principles.

  29. Debates on Political Role of Judiciary • The judiciary; - The least dangerous branch in most countries. • But, the judiciary in Turkey; - has become one of the most hotly debated issues. • This can only be understood in the light of the tutelary mentality of the state elites.

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