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2008 Assessment

Turkey: Integrity Indicators Scorecard

Turkey: Integrity Scorecard Report > Sub-Category: Judicial Accountability
Indicators		Score
36	Are judges appointed fairly?	25
37	Can members of the judiciary be held accountable for their actions?	92
38	Are there regulations governing conflicts of interest for the national-level judiciary?	61
39	Can citizens access the asset disclosure records of members of the national-level judiciary?	0

Indicator and sub-Indicator Details

Are judges appointed fairly?

36a: In law, there is a transparent procedure for selecting national-level judges.

Score:

YES

Comments: Although the procedure for the selection of national level judges and prosecutors are constitutionally and legally defined, there is no public oversight or confirmation stage. Every year, the Ministry of Justice, in consultation with the opinion of the Justice Academy of Turkey, announces the number of judges and prosecutors to be recruited.

Eligible candidates take a professional written and oral examination and are ranked according to their performances and appointed by the Ministry of Justice in proportion to the needs of the judiciary. Those candidates who hold a doctoral degree in the field take the oral exam only. The conditions, requirements, application and exams are advertised in one of the five highest-circulation newspapers at least 15 days before the application deadline. Those candidates who are not appointed have no right to appeal the decision.

References: 1982 Constitution, Article 140: [ LINK ].

Law No. 2802 on Judges and Prosecutors, Articles 7-14: [ LINK ]

36b: In practice, professional criteria are followed in selecting national-level judges.

Score:

100

Comments: According to the Law No. 2802, Article 8, candidates must have a B.A. degree in law (for the civil and the administrative judiciary) or in political science, administrative science, economics and finance (for the administrative judiciary, but not in excess of 20 percent of total recruitment). Candidates must pass general aptitude and professional tests, both written and ora. Lawyer candidates must have completed at least five years in the profession.

However, it is widely agreed that the High Board of Judges and Prosecutors, which is a unit of the Ministry of Justice, influences the appointment process, especially at the stage of oral examination. The Transparency International Global Corruption Report 2007 emphasizes that Turkey falls into the category of countries where judicial appointments are made on the basis of clientelist ties, not legal qualifications.

References: Ibrahim Okur, Türkiye'de Yargisal Etik, [ LINK ]

Transparency International, "Corruption and Judicial Systems," Global Corruption Report 2007, [ LINK ]

Türkiye Cumhuriyetinde Yargi Sisteminin Isleyisi, Istisare Ziyaret Raporu, 28 Eylül - 10 Ekim 2003, Avrupa Birligi Komisyonu, Brüksel, [ LINK ]

Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Turgut Tan, Professor of Law, Bilkent University, Ankara, September 2008.

Atilla Sav, member of Ankara bar, Ankara, September 2008.

Law No. 2802, Article 8

36c: In law, there is a confirmation process for national-level judges (i.e. conducted by the legislature or an independent body).

Score:

YES

Comments: There is no confirmation process conducted by an independent body, but following the written and oral entrance exams, successful candidates are subject to training at the Justice Academy of Turkey for two years (Article 28 of Law 4954). Those who pass the written exams at the end of the training period are appointed by the High Board of Judges and Prosecutors. (Article 13 of Law 2802 and Article 4 of Law 2461). This Board is composed of three principal and three substitute members from the Court of Cassation (High Court of Appeals), two principal and two substitute members from the Council of State (High Administrative Court) and the undersecretary of the Ministry of Justice under the chairmanship of the Minister of Justice. Three candidates for each judicial membership are nominated by the general assembly of the relevant higher courts and the president of the Republic appoints the members.

References: Law No. 2802 on Judges and Prosecutors, Article 9: [ LINK ] Metin.Aspx?MevzuatKod=1.5.2802&MevzuatIliski=0&sourceXmlSearch=;

Law No. 4954 on Justice Academy of Turkey, Articles 26-29: [ LINK ];

Law No. 2461 on High Board of Judges and Prosecutors, Article 4: [ LINK ]

Can members of the judiciary be held accountable for their actions?

37a: In law, members of the national-level judiciary are obliged to give reasons for their decisions.

Score:

YES

Comments: In addition to the constitutional and legal requirements for a statement of reason for a judicial decision, a court decision that does not provide a reason can be overturned by the Court of Cassation (appeal). Higher courts, including the Constitutional Court, gives reasons for their abrogation decisions.

References: 1982 Constitution Article 143: [ LINK ]

Law No. 5271 on Penal Trial, Article 34, [ LINK ]

Law No. 1086 on Lawsuit Trial Articles 149, 281, 388, 426 T, 436, 437, 489: [ LINK ]

37b: In practice, members of the national-level judiciary give reasons for their decisions.

Score:

100

Comments: However, these reasons given for decisions may not be in pursuant to trial procedures. Court decisions are subject to review by the Court of Cassation (Court of Appeal).

References: Türkiye Cumhuriyetinde Yargi Sisteminin Isleyisi, Istisare Ziyaret Raporu, 28 Eylül - 10 Ekim 2003.

Avrupa Birligi Komisyonu, Brüksel, [ LINK ]

Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Turgut Tan, Professor of Law, Bilkent University, Ankara, September 2008.

Atilla Sav, member of Ankara Bar Association, September 2008.

37c: In law, there is a disciplinary agency (or equivalent mechanism) for the national-level judicial system.

Score:

YES

Comments: The High Board of Judges and Prosecutors is the sole authority in disciplinary actions. However, there is also an Inspection Board which belongs to the Ministry of Justice and is composed of one chairman, one deputy chairman and a sufficient number of justice inspectors (Law 2802, Article 99)

References: Law No. 2802 on Judges and Prosecutors, Articles 62 and 99: [ LINK ];

37d: In law, the judicial disciplinary agency (or equivalent mechanism) is protected from political interference.

Score:

YES

Comments: The Board of Judges and Prosecutors is composed three principal and three substitute members from each of the Court of Cassation (High Court of Appeals) and the Council of State, and the deputy undersecretary of the Ministry of Justice under the chairmanship of the Minister of Justice. Candidate members from the higher courts are elected by the general assembly of each high court separately and selected by the President of the Republic from among these candidates. In other words, although both the Constitution and the relevant laws underlines independence, in practice, the head of the Board is the minister of justice and the judicial members are selected by the President of the Republic eventually.

There is no confirmation process by the parliament, leaving both the High Board of Judges and Prosecutors and the Inspection Board of the Ministry of Justice open to political influence.

References: 1982 Constitution Articles 138, 139 and 140: [ LINK ]

Law No. 2461 on High Board of Judges and Prosecutors, Article 3, 5: [ LINK ]

Law No. 2802 on Judges and Prosecutors, part 6: [ LINK ]

37e: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) initiates investigations.

Score:

100

$Scoring Criteria :: 100 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) aggressively starts investigations -- or participates fully with cooperating agencies\' investigations -- into judicial misconduct. The judicial disciplinary agency (or equivalent mechanism) is fair in its application of this power. 50 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) will start or cooperate in investigations, but often relies on external pressure to set priorities, or has limited effectiveness when investigating. The judicial disciplinary agency (or equivalent mechanism), though limited in effectiveness, is still fair in its application of power. 0 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) rarely investigates on its own or cooperates in other agencies\' investigations, or the judicial disciplinary agency (or equivalent mechanism) is partisan in its application of this power.$

Comments: Both the disciplinary investigations and the final decisions on the investigations may not be fair and impartial. The Turkish judicial system is enclosed and controlled by the executive and this, in turn, harms judicial independence.

References: "Turkey: No Impunity for State Officials Who Violate Human Rights," Briefing on the Semdinli bombing investigation and trial, [ LINK ]

Türkiye Cumhuriyetinde Yargi Sisteminin Isleyisi, Istisare Ziyaret Raporu, 28 Eylül - 10 Ekim 2003, Avrupa Birligi Komisyonu, Brüksel, [ LINK ]

Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Turgut Tan, Professor of Law, Bilkent University, Ankara, September 2008.

Atilla Sav, member of Ankara Bar Association, September 2008.

37f: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) imposes penalties on offenders.

Score:

100

Comments: These penalties imposed by the judicial disciplinary agency may not be fair, impartial and timely. Recently, the public prosecutor of Semdinli, a town in eastern Turkey, was dismissed from his office by the disciplinary committee (Supreme Board of Judges and Prosecutors).

References: "Turkey: No Impunity for State Officials Who Violate Human Rights," Briefing on the Semdinli Bombing Investigation and Trial, [ LINK ]

Türkiye Cumhuriyetinde Yargi Sisteminin Isleyisi, Istisare Ziyaret Raporu, 28 Eylül - 10 Ekim 2003, Avrupa Birligi Komisyonu, Brüksel, [ LINK ]

Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Turgut Tan, Professor of Law, Bilkent University, Ankara, September 2008.

Atilla Sav, member of Ankara Bar Association, September 2008.

Story re dismissal of prosecutor, [ LINK ]

Are there regulations governing conflicts of interest for the national-level judiciary?

38a: In law, members of the national-level judiciary are required to file an asset disclosure form.

Score:

YES

Comments: However, the asset disclosure forms are kept confidential unless the judiciary member becomes subject to an investigation.

References: 1982 Constitution, Article 71: [ LINK ]

Law No. 3628 on Asset Declaration, Struggle against Bribery and Corruption, Article 2/d: [ LINK ].

Regulation No. 90/748, Article 3/d: [ LINK ] bildiriminde.

38b: In law, there are regulations governing gifts and hospitality offered to members of the national-level judiciary.

Score:

YES

Comments: Gift-giving and hospitality are cultural components of Turkish society. Therefore, rules on banning or restricting gifts received or given by public officials are generally bypassed or violated.

However, a member of the national-level judiciary violated the rules regarding gift and hospitality and was dismissed from her office. Because of this action, she also cannot serve as a lawyer in the future.

References: Law No. 3628 on Asset Declaration, Struggle against Bribery and Corruption, Article 3.

Law No. 2803 on Judges and Prosecutors, Article 68: [ LINK ] Regulation 90/748, Articles 13 and 14, [ LINK ] bildiriminde.

38c: In law, there are requirements for the independent auditing of the asset disclosure forms of members of the national-level judiciary.

Score:

YES

Comments: Asset disclosure forms are kept confidential unless a member of the national level-judiciary becomes the subject of a criminal investigation. Otherwise, no monitoring or auditing is required.

References: Law No. 3628 on Asset Declaration, Struggle against Bribery and Corruption, Article 9 and 20: [ LINK ]

Regulation 90/748, Articles 15 and 18: [ LINK ] bildiriminde.

38d: In law, there are restrictions for national-level judges entering the private sector after leaving the government.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned if there are regulations restricting national-level judges\' ability to take positions in the private sector after leaving government that would present a conflict of interest, including positions that directly seek to influence their former government colleagues. NO: A NO score is earned if no such restrictions exist.$

Comments: According to Article 2 of the Law No. 2531, all public servants are not allowed to work at any position, to take any obligation, to act as a broker or representative of any enterprise which is directly or indirectly related to the activities of their former institution for three years following the date of retirement.

In addition to that, the original text of the first paragraph of Article 14 of the Law No. 1136 also prohibited judges and prosecutors to act as lawyers for five years in a judicial district where they served before their retirement, but the Constitutional Court annulled it in 2003.

On January 23, 2008, Article 327 of the Law No. 5728, reformulated this provision, which was annulled by the Court. It was rewritten and was adopted by the GNA of Turkey. According to the new provision (Article 14 of the Law No. 1136) the prohibition period is limited to two years after leaving the judicial district(s) where the judges and prosecutors served during the last five years of their public service. This two-year employment restriction also applies to the judges, prosecutors and rapporteurs of the higher courts and regional courts in relation to the courts and departments where they served during the last five years of their public service.

References: Law No. 2531 concerning the works that cannot be done by those who resigned from public service, Article 2: [ LINK ];

Law No. 1136 on Lawyership, Article 14: [ LINK ]

Annulment of Law No 1136, Article 14: [ LINK ] 91.htm

Law 5728, Article 327: [ LINK ]

38e: In practice, the regulations restricting post-government private sector employment for national-level judges are effective.

Score:

100

Comments: It is commonly agreed that members of the national-level judiciary comply with the legal requirements on post-government private sector employment and that there are only a few violations of this rule.

References: Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Turgut Tan, Professor of Law, Bilkent University, September 2008.

Atilla Sav, member of Ankara Bar, September 2008.

38f: In practice, the regulations governing gifts and hospitality offered to members of the national-level judiciary are effective.

Score:

100

Comments: Gifts and hospitality are Turkish cultural elements. Restrictions are easily bypassed and violated. The scope and amount of gifts and hospitality offered to members of the judiciary cannot be estimated.

References: 'Turan Çevik'in savcisi yargilanacak, Dec. 1, 2006, [ LINK ] Nester -2 (Lancet-2 Operation), [ LINK ]

Rüsvet rüsvet tepelere yargi kurmasinlar, Radikal, Turkish daily, Jan 14, 2004, [ LINK ]

Transparency International Global Corruption Report 2007, www.transparency.org/content/download/18680/255236

Okcesiz, Istanbul Barosu Cevresinde Adli Yargida Yolsuzluk Arastirmasi, Istanbul, 1999.

Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Bulent Tarhan, Chief Inspector, Prime Ministry, Ankara, September 2008.

Atilla Sav, member of Ankara Bar, September 2008.

38g: In practice, national-level judiciary asset disclosures are audited.

Score:

100

Comments: The law does not require an auditing mechanism for national-level judiciary asset disclosures.

References: Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Atilla Sav, member of Ankara Bar, September 2008.

Can citizens access the asset disclosure records of members of the national-level judiciary?

39a: In law, citizens can access the asset disclosure records of members of the national-level judiciary.

Score:

YES

Comments: Asset declarations are kept confidential unless a member of the national-level judiciary becomes the subject of a criminal investigation.

References: Law 3628 on Asset Declaration, Struggle against Bribery and Corruption, Articles 9 and 20: [ LINK ]

39b: In practice, citizens can access judicial asset disclosure records within a reasonable time period.

Score:

100

Comments: According to the Law No. 3628, there is no public access to the asset declarations of members of the national-level judiciary.

References: Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Atilla Sav, member of Ankara Bar, September 2008.

39c: In practice, citizens can access judicial asset disclosure records at a reasonable cost.

Score:

100

Comments: According to the Law No. 3628, there is no public access to asset declarations made by members of the national-level judiciary.

References: Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, Ankara, May 2008.

Atilla Sav, member of Ankara Bar, September 2008.

Law No. 3628.