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The Judicial System
I. According to Article 9 of the
Constitution, judicial power is exercised by independent
courts on behalf of the Turkish Nation.
The basic principles of the independence of courts and
security of judges and public prosecutors are arranged and
cited separately under the heading of "Judicial Power"
of the Constitution (Articles 138-160). According to these
principles:
a) No organ, authority, office or individual may give orders
or instructions to courts or judges relating to the exercise
of judicial power, or send them circulars, make recommendations
or suggestions. Moreover, no question can be asked, debates
held, or statements made in the Legislative Assembly relating
to the exercise of judicial power concerning a case under
trail period. Legislative and executive organs and the administration
have to comply with curt decisions; these organs and the
administration shall neither alter them in any respect nor
delay their execution (Article 138).
b) According to Article 139 of the Constitution, "Judges
and public prosecutors shall not be dismissed, or retired
before the age described by the Constitution; nor shall
they be deprived of their salaries, allowances or other
right relating to their status, even as a result of the
abolition of court or post." With this Article, the
security of tenure and other rights of judges and public
prosecutors are protected.
c) The Supreme council of Judges and Public Prosecutors
deals with the admission of judges and public prosecutors
of courts of justice and administrative courts into the
profession, appointments, transfers to other posts, the
delegation of temporary powers, 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.
The Supreme Council of Judges and Public Prosecutors is
headed by the Minister of Justice. The Undersecretary to
the Minister of Justice is an ex-officio member of the Council.
Five members of the Council are appointed by the President
of the Republic from a list of candidates, 3 of whom nominated
by the Plenary Assembly of the Council of State. The substitutes
to these regular members are appointed through the aforementioned
method.
d)The provisions of the Constitution are fundamental legal
rules binding upon legislative, executive and judicial organs,
and administrative authorities and other agencies and individuals.
Moreover, laws shall not be in conflict with the Constitution
(Article 11). For the functioning of this Article, the Constitutional
Court was established and was included among the other higher
courts stated in the Constitution. The Constitutional court
examines the constitutionality in respect to both form and
substance of laws, decrees in force of law and the rules
of procedure of the Turkish Grand National Assembly (TGNA).
The President of the Republic, Parliamentary Groups of the
Party in power and of the main opposition party, and a minimum
of one-fifth (90 MPs) of the total members of the TGNA have
the right to apply for annulment action to the Constitutional
Court, based on the unconstitutionality of laws in form
and in substance, of decrees in force of law, of Rules of
Procedure of the TGNA or of specific articles or provisions
thereof. If a court which is trying a case finds that the
law or the decree having force of law to be applied is unconstitutional,
or if it is convinced of the seriousness of a claim of unconstitutionality
submitted by one of the parties, it postpones consideration
of the case until the Constitutional Court decides on this
issue.
II. In the Turkish legal system, civil,
administrative and military justice are regulated separately.
In accordance with Article 143 of the Constitution, the
State Security Courts are established to deal with offenses
against the indivisible integrity of State with regards
to its territory and nation, the free democratic order,
or against the Republic whose characteristics are defined
in the Constitution, and offenses directly involving the
internal and external security of the State. Moreover, the
state Security Courts deal with illegal trafficking, drug
smuggling and kidnapping.
The decisions and judgments given by civil courts and by
State Security Courts are appealed at the High Court of
Appeals.
Military justice is carried out through the military courts
and military disciplinary courts. These courts, unless the
contrary is stated in the law, have jurisdiction to try
military personnel for military offenses, for offenses committed
by them against other military personnel or in military
places, or for offenses connected with military service
and duties.
The Military High Court of Appeals is the last instance
for reviewing decisions and judgments given by military
courts.
Recourse to judicial review is open against all actions
and acts of the administration. The administrative justice
system consists of Administrative Courts, Audit Courts,
and Regional Administrative Courts. The administrative decisions
and judgments of courts can be appealed to the Council of
State.
The High Military Administrative Court of Appeals is the
first and last instance for the judicial supervision of
disputes arising from administrative acts and actions involving
military personnel or relating to military service even
if such acts and actions have been carried out by civilian
authorities.
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