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2008 Assessment

Turkey: Integrity Indicators Scorecard

Turkey: Integrity Scorecard Report > Sub-Category: Rule of Law
Indicators		Score
77	Is there an appeals mechanism for challenging criminal judgments?	67
78	Do judgments in the criminal system follow written law?	100
79	Are judicial decisions enforced by the state?	50
80	Is the judiciary able to act independently?	88
81	Are judges safe when adjudicating corruption cases?	100
82	Do citizens have equal access to the justice system?	79

Indicator and sub-Indicator Details

Is there an appeals mechanism for challenging criminal judgments?

77a: In law, there is a general right of appeal.

Score:

YES

Comments: There are exceptions for judicial decisions which cannot be subject to appeal that are described by the relevant laws.

References: 1982 Constitution Articles 154 on Court of Cassation, 156 on Military Court of Cassation and 158 on Jurisdictional Dispute Court: [ LINK ]

Law No. 5271 on Penal Trial Article 260 on Legal Remedy, 267 on Objection, 272 on Appeal against the judgements of first degree courts, and 286 on Appeal: [ LINK ]

Law No. 5237 Penal Code Article 18: [ LINK ]

77b: In practice, appeals are resolved within a reasonable time period.

Score:

100

Comments: Due to heavy workload, insufficient personnel, and the harmonization process through which new trial procedures and the UYAP (National Judiciary Network System) the Court of Cassation completes the appeals late.

References: "Turkish Judicial System Ranks 40th In Europe," Oct. 21, 2008, [ LINK ]

"Türk Hakimi Dava Dosyalari ile Cüzdani Arasinda Sikisti" (Turkish Judge Squeezed Between Case Files and Purse), [ LINK ] The Workload of the Office of the Chief Public Prosecutor, [ LINK ]

COE-CEPEJ, , European Judicial Systems, Efficiency and quality of justice 2008, [ LINK ]

AB Komisyonu, "Turkiye'de Yargi Sisteminin Isleyisi, 2003" (EU Commission, Operation of Judicial System in Turkey, 2003), [ LINK ]

Tesev, Türkiye'de Ceza Adalet Sisteminin (CAS) Etkinligi, [ LINK ]

Late appeals of the Court of Cassation, [ LINK ]

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

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

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

77c: In practice, citizens can use the appeals mechanism at a reasonable cost.

Score:

100

Comments: Some cases result in higher costs for the litigant, such as for expert witnesses and other charges. Charges will be revalued every year in accordance with the revaluation ratio.

References: Zekeriya Yilmaz, "Hukukta Yargilama Harç ve Giderleri ile Vekalet, Hakkin Dava Yolu Ile Aranmasi" (Judicial Charges and Cost in Law and Procuratorship, the Search for Equity by Means of Lawsuit), Ankara: Seckin Yayinlari, 2000.

"4 February 2007," [ LINK ] and 2.

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

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

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

Do judgments in the criminal system follow written law?

78: In practice, do judgments in the criminal system follow written law?

Score:

100

Comments:

References: "Yeni Turk Ceza Adaleti Sistemi" (New Turkish Penal Justice System), [ LINK ]

AB Komisyonu, "Turkiye'de Yargi Sisteminin Isleyisi, 2003" (EU Commission, Operation of Judicial System in Turkey, 2003), [ LINK ]

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

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

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

Are judicial decisions enforced by the state?

79: In practice, are judicial decisions enforced by the state?

Score:

100

Comments: It is widely believed that the government does not enforce many of the administrative judicial decisions for political or other reasons. The government especially does not enforce the decisions of the Council of State (the high administrative court) in relation to privatization, land planning, and restitution to the duty decisions, including stay of executions (See "AKP Danistayi" article in Sources).

References: AIHM tazminatlari siyasilerden alinabilir, [ LINK ]

Emo: "Epdk ve Akenerji Yargi Kararlarn Uygulamyor" (Chamber of Electrical Engineers: of Energy Market Regulatory Authority and Ak-energy Do Not Implement the Judicial Decisions), [ LINK ]

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

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

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

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

"AKP Danistayi kapatti" (AKP Closed Down the Council of State), [ LINK ]

Is the judiciary able to act independently?

80a: In law, the independence of the judiciary is guaranteed.

Score:

YES

Comments: However, the organization of the High Board of Judges and Prosecutors where the Minister of Justice is the head of the Board, constitutes the major obstacle for the judicial independence.

References: 1982 Constitution, Articles 138-142: www.byegm.gov.tr/mevzuat/anayasa/anayasa-ing.htm

Law No. 2802 on Judges and Prosecutors, Article 4: [ LINK ]

80b: In practice, national-level judges are protected from political interference.

Score:

100

Comments: See Assessment Home, III-3, 36a: 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.

From III-3 36b: 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: AB Komisyonu, "Turkiye'de Yargi Sisteminin Isleyisi" (EU Commission, Operation of Judicial System in Turkey), 2003, [ LINK ] abhukuku/AB/rapor.pdf

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

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

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

80c: In law, there is a transparent and objective system for distributing cases to national-level judges.

Score:

YES

Comments: According to the National Judiciary Network System (UYAP), cases have been distributed automatically and electronically among the relevant courts and judges after the registration of cases since 2003.

Special provisions of special laws apply in distributing cases to the judges, too (See also Komisyonu article in Sources).

References: 1982 Constitution, Article 114: [ LINK ]

Law No. 1086 on Civil Trial Procedure: [ LINK ]

Law No. 5271 on Penal Trial: [ LINK ]

Law No. 2577 on Administrative Trial: [ LINK ]

Law No. 2247 on Disputes Tribunal: [ LINK ]

AB Komisyonu, "Turkiye'de Yargi Sisteminin Isleyisi, 2003" (EU Commission, Operation of Judicial System in Turkey, 2003), [ LINK ]

Special provisions of special laws in distributing cases to the judges, [ LINK ]

80d: In law, national-level judges are protected from removal without relevant justification.

Score:

YES

Comments:

References: 1982 Constitution Aticle 139, [ LINK ]

Law No. 2802 on Judges and Prosecutors Articles 44, 53, and 69: [ LINK ]

Are judges safe when adjudicating corruption cases?

81a: In practice, in the last year, no judges have been physically harmed because of adjudicating corruption cases.

Score:

YES

Comments: There are no reported cases of judges being physically harmed because of adjudicating corruption cases. However, there are no official statistics publicly available.

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

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

81b: In practice, in the last year, no judges have been killed because of adjudicating corruption cases.

Score:

YES

$Scoring Criteria :: YES: A YES score is earned if there were no documented cases of judges being killed related to their involvement in a corruption case during the study period. YES is a positive score. NO: A NO score is earned if there were any documented cases where a judge was killed because of his/her participation in a corruption trial. The relationship between a mysterious death and a judge\'s involvement in a case may not be clear, however the burden of proof here is low. If it is a reasonable assumption that a judge was killed in relation to his or her work on corruption issues, then the indicator is scored as a NO. Corruption is defined broadly to include any abuses of power, not just the passing of bribes.$

Comments:

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

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

Do citizens have equal access to the justice system?

82a: In practice, judicial decisions are not affected by racial or ethnic bias.

Score:

100

Comments: Although Turkey does not accept any ethnic minority, except for Armenian, Greek and Jewish religious minorities in accordance with the Lausanne Treaty, it is set forth in its legislation that all forms of discrimination are prohibited by law.

According to the Report of the European Commission against Racism and Intolerance (ECRI), which was published in 2005, Turkey has made progress in a number of the fields, including the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination. Additionally, several constitutional and legislative reforms have been introduced, aimed at reinforcing fundamental rights and freedoms and combating racism and racial discrimination more effectively. Despite inconsistent treatment of various people -- including the Roma, ethnic and religious groups, asylum seekers, refugees and victims of human trafficking, and other similar groups by law enforcement agencies, the court system does not adopt a racial stance in practice.

However, some scholars criticize the inactivity of the judiciary against discrimination by saying that there has been no court decision against racism in Turkey.

References: AB Komisyonu, "Turkiye'de Yargi Sisteminin Isleyisi, 2003" (EU Commission, Operation of Judicial System in Turkey, 2003), [ LINK ]

Tesev, Türkiye'de Ceza Adalet Sisteminin (CAS) Etkinligi, [ LINK ]

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

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

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

Report of the European Commission against Racism and Intolerance (ECRI), 2005.

Criticism of judiciary re rulings on racism: [ LINK ]

"Türkiye'de Ayrimcilik Yaptirimsiz Kaliyor" (No Sanction for Discrimination in Turkey), [ LINK ]

82b: In practice, women have full access to the judicial system.

Score:

100

Comments: Social pressure and economic dependence are major obstacles for women seeking justice at the court.

References: Tennur Koyuncuoglu, "Yargi cinsiyetsiz mi?" (Judiciary is Gender-free?), [ LINK ]

Adalet Gözet Projesi (Watch Justice Project), Adalet Gözet Projesi.

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

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

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

82c: In law, the state provides legal counsel for defendants in criminal cases who cannot afford it.

Score:

YES

Comments: However, due to financial burdens, legal support services fail.

References: Law No. 1136 on Lawyership Articles 176-181: [ LINK ]

Tuncel Yazgan, "Adli yardimda baro tekeli kiriliyor mu?" [ LINK ]

82d: In practice, the state provides adequate legal counsel for defendants in criminal cases who cannot afford it.

Score:

100

Comments: Due to financial burdens, the system is faced with difficulties in offering free legal counsel.

References: Tuncel Yazgan, "Adli yardimda baro tekeli kiriliyor mu?" [ LINK ]

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

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

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

Difficulties in providing free legal counsel, [ LINK ]

82e: In practice, citizens earning the median yearly income can afford to bring a legal suit.

Score:

100

Comments: The bringing of lawsuits related to consumer rights are free of charge. However, the cost of a lawsuit in the field of contracts and property is higher. Where the cost of legal services (lawyers) is concerned, it increases even more.

References: Zekeriya Yilmaz, Hukukta Yargilama Harç ve Giderleri ile Vekalet, Hakkin Dava Yolu Ile Aranmasi (Judicial Charges and Cost in Law and Procuratorship, Search for Equity by means of Lawsuit), Ankara: Seckin Yayinlari, 2000.

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

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

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

82f: In practice, a typical small retail business can afford to bring a legal suit.

Score:

100

Comments:

"4 February 2007," [ LINK ] and 2. Omer Faruk Osmaneminagaoglu, Office of the Chief Public Prosecutor, September 2008.

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

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

82g: In practice, all citizens have access to a court of law, regardless of geographic location.

Score:

100

Comments: According to Law No. 5235 on the Establishment, Duties and Authorities of Courts of First Instance in Judiciary and Regional Judicial Courts, Civil Courts of First Instance, Civil Courts of Peace and Penal Courts are established every province in Turkey.

According to the volume of workload, they may be opened in towns too. However, some special courts such as juvenile court, press court etc. can be established in accordance with their own laws. ([ LINK ]).

An equally important issue is how a citizen can gain access to the court system in terms of procedures and processes. This is as important as the easy availability of a court system for a citizen. Another consideration is that sometime cases are tried in another court that may be located quite far from where the citizen lives. Although there are court systems in many districts (towns), both lack of adequate facilities and insufficient personnel delay the timely distribution of justice.

References: Zekeriya Yilmaz, "Hukukta Yargilama Harç ve Giderleri ile Vekalet, Hakkin Dava Yolu Ile Aranmasi"(Judicial Charges and Cost in Law and Procuratorship, Search for Equity by means of Lawsuit), Ankara: Seckin Yayinlari, 2000.

"4 February 2007," [ LINK ] and 2.

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

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

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

Law No. 5235 on the Establishment, Duties and Authorities of Courts of First Instance in Judiciary and Regional Judicial Courts