Turkey - The Judiciary
Judicial power in Turkey is exercised by independent courts and supreme judiciary organs. The judicial section of the Constitution, with the principle of a legal state as its basis, is founded on the independence of the courts and the judges, and the guarantee of judges' rights. Judges rule on the basis of Constitutional provisions, law and jurisprudence. The legislative and executive organs must comply with the rulings of the courts and may not change or delay the application of these rulings. Judges also assume the duties of monitoring elections.
Functionally, a tripartite judicial system has been adopted by the Constitution and accordingly, it has been divided into an administrative judiciary, a legal judiciary and a special judiciary.
The Constitutional Court, the Supreme Court of Appeals, the Council of State, the Supreme Military Court of Appeals, the Supreme Military Administrative Court and the Court of Jurisdictional Conflicts are the supreme courts mentioned in the judicial section of the Constitution. The Supreme Council of Judges and Public Prosecutors and the Supreme Council of Public Accounts are also two organizations having special functions in the judicial section of the Constitution.
The basic function of the Constitutional Court, established in the 1961 Constitution, is to examine the constitu-tionality, in both form and substance, of laws, and decrees with the power of law and the Rules of Procedure of the Turkish Grand National Assembly. Other functions of the Court are as follows:
- With the capacity of the High Tribunal, the Constitutional Court judges the following: the President, members of the Council of Ministers, members of supreme courts, the chairman and members of the Supreme Council of Judges and Public Prosecutors and of the Supreme Council of Public Accounts, the Chief Republic Prosecutors and the Deputy Republic Chief Prosecutors for crimes related to their offices.
- It audits the finances of political parties.
- It examines TGNA decisions to revoke the immunities of deputies, or to dismiss members of parliament.
- It chooses the Chairman and Deputy Chairman of the Court of Jurisdictional Conflicts.
The Court of Appeals is the last instance for reviewing rulings and judgments rendered by Judicial Courts, provided that they are not referred by laws to another place of jurisdiction. It is also the first and final authority for specific cases that are defined in the law. The Court of Appeals reviews the rulings rendered by the Justice Courts, the Criminal Courts, the Examination Courts and renders verdicts upon appeal. The opinions rendered by the Court of Appeals are taken as precedents for legal rulings in the lower courts throughout the country, so that uniform application may be achieved. It is also able to modify its own ruling upon request.
The Council of State is the Superior Court for administrative justice and, as such, is the Court of last instance. It reviews all rulings rendered by Administrative Courts, unless the laws specifically refer them to other judicial authorities. Similar to the Court of Appeals, the Council of State is also the court of first and final instance for specific cases as defined by law. It ensures the consistency of rulings among the administrative courts. The Council of State is the highest consultative body of the state, and in this capacity, expresses its opinions on draft legislation upon the request of the Prime Minister or the Council of Ministers. It also examines draft regulations and concession contracts. It is responsible for resolving administrative disputes.
The Supreme Council of Public Accounts shall be charged with auditing, on behalf of the Turkish Grand National Assembly, all accounts related to the revenues, expenditures and property of government departments financed by general and subsidiary budgets. No applications for judicial review of its decisions shall be filed in administrative courts.
The Supreme Military Court of Appeals is the court of final instance for all rulings and verdicts rendered by military courts. It is also a court of first and final instance with jurisdiction over certain military personnel, stipulated by law, with responsibility for any specific trials of these persons. The Supreme Military Administrative Court has jurisdiction over military personnel in administrative or active military service.
The Court of Jurisdictional Conflicts is the final authority to settle disputes concerning the verdicts of the Justice, Administrative or Military Courts. This court is made up of members of the Court of Appeals, the Council of State, the Supreme Military Court of Appeals, and the Military Administrative Court of Appeals.
Military Courts have jurisdiction to try military personnel for military offenses, for offenses committed by them against other military personnel or crimes committed in military places, or for offenses connected with military service and duties.
State Security Courts were established to deal with offenses against the indivisible integrity of the State, against the free democratic order, or against the Republic whose characteristics are defined in the Constitution, and with offenses directly involving the internal and external security of the state. The courts consist of a president, two regular members and one substitute, one chief public prosecutor and a sufficient number of public prosecutors.
The Supreme Court of Appeals is the competent authority to examine appeals against the judgments of the State Security Court. The Supreme Council of Judges and Public Prosecutors, an independent institution, has the dual function of acting as the Supreme Council of Judges and as a reviewing body for objections. It elects the members of the Supreme Court of Appeals, the Council of State and the Court of Jurisdictional Disputes; decides whether any proposal to abolish a Court or judicial post or change the jurisdictional direction of any court is appropriate; deals with administrative matters concerning judges of the Administrative and Judicial Courts and Public Prosecutors who are not members of the Supreme Court of Appeals or the Council of State.
The judiciary is declared to be independent, but the need for judicial reform and confirmation of its independence are subjects of open debate. Internationally recognized human rights, including freedom of thought, expression, assembly, and travel, are officially enshrined in the Constitution but have at times been narrowly interpreted, can be limited in times of emergency, and cannot be used to violate what the Constitution and the courts consider the integrity of the state or to impose a system of government based on religion, ethnicity, or the domination of one social class. The Constitution prohibits torture or ill treatment; the current government has focused on ensuring that practice matches principle. The law provides most but not all workers with the right to associate and form unions, subject to diverse restrictions.
In March 2008 the Constitutional Court agreed to hear a case to close down the AKP because of alleged "anti-secular" activities that contravene the Turkish Constitution. Seventy-one AKP members, including President Gul and Prime Minister Erdogan, were named in the case and could have been barred from politics for five years. On July 30, 2008 the court voted six in favor and five against closing down AKP; seven votes were required to close down the party. The court decided to cut the party's state funding, worth about $58 million, in half. None of the AKP members were banned. On December 11, 2009 the Constitutional Court closed the DTP party for its association with the PKK terrorist organization and imposed a 5-year ban from politics on 37 of its members. The remaining elected officials reunited under the Peace and Democracy Party (BDP).
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