TURKISH JUDICIAL SYSTEM
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BY MIAN ASHRAF ASMI ADVOCATE HIGH COURT
CHAIRMAN MUSTAFAI JUSTICE FORUM
TURKEY IS STRONG MUSLIM COUNTRY IN RESPECT OF HER ROLE IN THE UMAH. WE MAY SAY THAT Turkey is a strong in economy. Its political system is also being established. Even Now, turkey is playing role as a leader of muslim umah.so turkish govt is also striving to get its economic role in the Muslim countries , especially in pakistan, Turkey is paying more attention,many welfare projects are being carried by Turkish govt in pakistan. Turkish people are also working in education sector of pakistan. Actually , turkish people have learn lesson from the history, but we , pakistanis are still living in 18th century, it is the reason we have not such emotions as a nation because in our society there is lack of contentment. we only look for money. we have no curiosity about our social set up. Pakistan has very important strategic geographical condition but we are unfortunately only BEGGARS. our agricultural sector , industry suffering a lot. the acute thing of mercy is that there is no middle class . here is acute level OF class difference , HERE is only 5% PEOPLE are main players of the economy. These 5% people have strong grip over the social, economical, POLITICAL ,cultural sectors of the society.In our society, people laugh at our judicial system, the strange thing is that people are looking towards the judicary TO conrol the high prices , law and order situation, administrative policeis of the govt. The thing is that pakistani state has no pain about its citizenS, the common person which includes 60% of youth suffering a lot, due to lack employment opportunities.The true thing is that , in the present sceniro our govt is fulfilling the agenda of enemies of the pakistan. pakistani nation is now bent upon to get more and more money on the cost of dear homeland for which thousands people were mayrtered in the partion of subcontinent. But now it seems the pakistani country is in the hands of such people those have no intrestIN IT. Pakistani army is being suffered a lot due to war of terrorism, which ex general perwaiz musharef has bought for some coins. Here we only review the Judicial system of turkey. because judicial system is the main pillar of the strength of any country. here is brief sketch of judicial system of turkey.
The legal profession:
The general term for members of the legal profession in Turkey is hukukçu.
In Turkey,
any man or woman, after having graduated from a law faculty at a university,
can become avukat (attorney-at-law or barrister), hâkim or yargıç
(judge), savcı (prosecutor) or noter (notary or public notary)
after terms of internship specified in separate laws.
Lawyers (Attorneys-at-Law) :
Private lawyers spend one year of internship and then join a bar association (baro) and the Union of
Turkish Bars. All Turkish lawyers are required to wear black robes in court.
Judges
The Turkish court system does not recognize the concept of a jury.
Verdicts for both criminal and civil trials are
reached by a judge or a panel of three judges, who have to
base their verdicts on the law and their conviction. A judge is also a law
school graduate and can be one of the following:
- criminal judge (wears a black robe with a red collar),
- civil judge (wears a black robe with a green collar),
- administrative judge (wears a black robe with a light brown collar).
The first judge is serving at a penal court. These courts (mahkeme(ler))
are separated into ağır ceza (assize court), asliye ceza (penal
court of first instance), and sulh ceza (penal court of peace). The
second kind of judge serves at civil courts of first instance or at civil
courts of peace (sulh or asliye hukuk mahkemeleri), while the
last serves in administrative courts (idari mahkemeler). The Supreme
Council of Judges and Public Prosecutors (Hâkimler ve Savcılar Yüksek Kurulu)
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 rem[1]oval
from office. The General Directorate of Personnel Affairs of the Ministry of
Justice works as the secretariat of the Supreme Council of Judges
and Prosecutors.
Prosecutors
Public charges are brought by prosecutors (savcı). Their full title is
Prosecutor of the Republic (Cumhuriyet savcısı) and they have a chief
office of prosecution (Cumhuriyet Başsavcılığı). Prosecutors are also
divided into branches regarding their area in laws, similar to that of the
judges. The Supreme Council of Judges and Public Prosecutors deals with
administrative matters concerning judges of the Administrative and Judicial
Courts and Public Prosecutors who are not members of the Court of Cassation or
the Council of State.[4] In the Country Report on Human
Rights Practices in Turkey
in 2006 (released by the Bureau of Democracy, Human Rights, and Labor in
the US State Department on March 6, 2007) it was stated:
The High Council of Judges and Prosecutors
was widely criticized for undermining the independence of the judiciary. The
minister of justice serves as chairman of the seven-member high council, and
the justice ministry undersecretary also serves on the council. The high
council selects judges and prosecutors for the higher courts and is responsible
for oversight of the lower courts. The high council is located in the Ministry
of Justice and does not have its own budget. While the constitution provides
for job security through tenure, the high council controls the careers of
judges and prosecutors through appointments, transfers, promotions, reprimands,
and other mechanisms.
Civilian justice
The judicial system is composed of general law courts; specialized heavy
penal courts; military courts; the Constitutional
Court, the nation's highest court; and three other
high courts. The Court of Cassation hears appeals for criminal cases, the
council of state hears appeals of administrative cases or cases between
government entities, and the audit court audits state institutions. Most cases
were prosecuted in the general law courts, which include civil, administrative,
and criminal courts. In 2004 parliament adopted legislation providing for the
establishment of regional appeals courts to relieve the high court's caseload
and allow the judiciary to operate more efficiently.
Judicial courts (courts of justice)
There are two forms of judicial courts. The (civil) peace courts (sulh
mahkemeleri) are the lowest civil courts in Turkey with a single judge. There
is at least one in every district. Its jurisdiction covers all cases assigned
to the court by the Code of Civil Procedure and other laws. The civil courts of
first instance (asliye hukuk mahkemeleri) are the basic courts. Their
jurisdiction covers all civil cases other than those assigned to the peace
courts. There is one in every city and district, and sometimes divided into
several branches according to the need and necessity.
Criminal courts
Even though the penalties are no longer divided into light and heavy
sentences the criminal courts still are named according to the penalties they
were entitled to pass. Penal courts of first instance (or simply penal courts asliye
ceza) are courts with a single judge deciding on minor cases. There
is one in every city and in every district, sometimes divided into several
branches according to the need and population. The heavy penal courts (Interpol
terms them Central Criminal Courts) consist of a presiding judge and two
members with a public prosecutor. Offenses and crimes involving a penalty of
over five years of imprisonment are under the jurisdiction of these courts of
which there is one in every city. But it is sometimes divided into several
branches according to the need and population.
State Security Courts
Under the 1982 Constitution the then military government established State
Security Courts (Devlet Güvenlik Mahkemeleri, DGM) to try cases
involving crimes against the security of the state, and organized crime. It
would also act as a domestic tribunal to try cases involving genocide, crimes
against humanity, and war crimes. The DGMs began to operate from May 1984 and
replaced military courts which had been in operation during the martial law
period. They existed only in eight (of then 67 and now 81) provinces.
In April 1991 the Law to Fight Terrorism (Law 3713) entered into force and
cases involving crimes against the security of the state were now punishable
under this law. The panel of three judges in each DGM included a military
judge. As armed forces officers, such military judges remained dependent on the
military for salary and pension, subject to military discipline and therefore
not independent of military control. In a number of cases the European Court
of Human Rights has found the presence of military judges in the
State Security Courts to be a violation of the fair trial principles set out in
Article 6 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR).
In June 1999 the then Turkish government removed the military judge from
the bench. In the context of a package of reforms to the Constitution passed in
June 2004, the DGMs were formally abolished. The DGMs were transformed into
Heavy Penal Courts, authorized to try only cases involving organized crime and
terrorism. In cases of state security, genocide, crimes against humanity, or
war crimes, the military discipline courts would take over. [6] Since the entering into law of a new
Criminal Procedure Code on 1 June 2005, the official name for these courts has
been "Heavy Penal Courts (competent to examine crimes under article 250 of
the Criminal Procedure Code)". Most of the cases heard in these courts
concern cases of political
prisoners.
Supreme courts
The Constitutional
Court, the Court of
Cassation, the Council of State, the Military Court of Cassation,
the Supreme Military
Administrative Court and the Court of
Jurisdictional Conflicts are the supreme courts mentioned in the judicial
section of the Constitution.
The Constitutional Court
The basic function of the Constitutional Court of the Republic of Turkey
(T.C. Anayasa Mahkemesi), established in the 1961 Constitution, is to
examine the constitutionality, in both form and substance, of laws, and decrees
with the power of law and the Rules of Procedure of the Grand
National Assembly of Turkey (GNAT). 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 GNAT 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 Constitutional Court
is composed of 11 regular and four substitute members. Decisions are made when
the eleven members convene. The decisions of the Constitutional Court are final. These
decisions cannot be amended in any manner and their application cannot be
delayed
Currently, the head of the Turkish
Constitutional Court is Mr. Haşim Kılıç, who holds
the title President of the Constitutional
Court (Anayasa Mahkemesi Başkanı).
The Court of Cassation
The Court of Cassation (Yargıtay) is the last instance for reviewing
rulings and judgments rendered by justice courts, criminal courts, the
examination courts and renders verdicts upon appeal. The opinions rendered by
the Court of Cassation are taken as precedents for legal rulings in the first
instance courts throughout the country, so that uniform application may be
achieved. It is also able to modify its own ruling upon request.The Court of
Cassation is divided into civil law and penal law chambers (hukuk ve ceza
daireleri). As of April 2007 there were 21 civil law and 11 penal law
chambers.The highest judge, who holds the title First President (Birinci
Başkan), is currently Hasan
Gerçeker. The Court of Cassation also has a Chief Public Prosecutor
(Yargitay Cumhuriyet Başsavcısı), who is currently Abdurrahman Yalçınkaya.
In case of indictments against political parties, the Chief Public Prosecutor
of the Court of Cassation appears before the Constitutional Court.
Turkish Court of Accounts
Turkish Court of Accounts (Sayıştay) is Turkey's Supreme Audit İnstitution
charged with auditing, on behalf of the GNAT, 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. There's a debate on whether Sayıştay
is a supreme court, or even a court in the strictest sense.[10] The Turkish constitution is said to
contradict with itself by not listing Sayıştay amongst supreme courts in
articles 146-159 while allowing no appeals to most of its decisions,
effectively giving it supreme court power.
Administrative justice
Administrative courts (idari mahkemeler) exist at provincial level.
The next instance are regional administrative courts (bölge idari mahkemeler).
Administrative courts solved cases involving probate, bankruptcy, and
citizenship matters. Tax and family law were handled in separate courts. The
highest administrative court in Turkey is the Turkish Council of State (Danıştay
also called Supreme Administrative Court) or, equivalent to a federal supreme
administrative court such as the Conseil d'Etat
in France or the Federal
Administrative Court of Germany (Bundesverwaltungsgericht).Its president
(Danıştay Başkanı) is currently Mr. Mustafa
Birden. The court also has an Advocate General (Danıştay
Başsavcısı or Danıştay Kanunsözcüsü -- actually the word başsavcı
refers to chief prosecutor and it is not appropriate use for an
administrative court), who is currently Mr. Yılmaz
Çimen.
Military justice
The military court system exercises jurisdiction over military personnel
and during periods of martial law. The
duties are described in Article 11 of Law 1402 on Martial Law of May 1971.
Further details are laid out in Articles 11 to 14 of Law 353 on the Foundation
and Criminal Procedures at Military Courts of October 1963 (revised in October
2006).
The military court system consists of
- military courts,
- a supreme military administrative court, and
- the military court of cassation.
Military courts
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. Under martial law military courts are competent to try all
offences that led to the announcement of martial law. Article 14 of Law 353
describes the offences to be tried at military courts in time of war.[13] According to Article 2 of Law 353 the
courts consist of two military judges (askeri hâkim) and an officer. In
cases involving more than 200 defendants the bench has four judges and one
officer. Military prosecutors (askeri savcı) will be appointed according
to the need.[14] Judges and prosecutors hold the title
judge (hâkim or yargıç) along with their ordinary officer's ranks
whether they are on the bench or prosecutors.In military courts, there rarely
are defense lawyers to the accused, although the defendants are entitled to
legal counsel from military personnel with the title askeri hâkim.
Military Court of Cassation
The Military Court of Cassation (Askeri Yargıtay) 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.[4] It has a President, usually a brigadier
general and a Chief Prosecutor usually a colonel.
Military High Court of Administration
The Military High Court of Administration or the Supreme Military Administrative Court (Askeri
Yüksek İdare Mahkemesi) has jurisdiction over military personnel in
administrative cases or active military service. Its organization is similar to
that of the Military Court of Cassation.
Note that military courts and civilian courts do not act as subordinates to
each other. They are independent from each other and should be immune to
political influence. Also note that military courts are exceptional and are
only available in military restricted areas.
Court of Jurisdictional Disputes
The
Court of Jurisdictional Conflicts (uyuşmazlık mahkemesi) is the final
authority to settle disputes concerning verdicts and the competences of the
Justice, Administrative or Military Courts. This court is made up of members of
the Court of Cassation, the Council of State, the Supreme Military Court of
Appeals, and the Military Administrative Court of Appeals.
We may
conclude that a strong judicial system
is guarntee of the economic, social, cultural strenth of any country,if
state activate to serve the nation and
implement the law and whole community of any country is equal in the eyes of
law , then nothing can be done wrong with that nation.We may have differ opnion about judicial system of
any country but the real thing is that
ruling class should consider it necessary that massess are humanbeing
like them and this world is temporary , Mulsims have firm belief in allaha pak
and they have great path of holy prophet muhammad salal laho alehay waselem.
The solution of every problem is in the implementation of the rule of law
according to the will of allah pak.We should understand the problem of the
community,In our society , we have the same problem since four centuries, it is
because of the lust of money and lack of contentment of our rulers as well as
our masses.If rulers of our society think they become successful without delevering to the massess it is
impossible, our survival is only in the history due to the implementation of
quranic laws in the true spirt.
………………………………………………………………………………………………………………….
COMPILER OF ARTILE IS, MIAN MUHAMMAD ASHRAF ASMI, ADVOCATE HIGH
COURT,CHAAIRMAN 1-SHAH CHIRAGH CHAMBERS ADJACENT HIGH COURT,LAHORE.
HE HAS RELATION WITH THE GREAT SUFI SAINT OF SUB CONTINENT HAZRAT MIAN WADA SB,
DARGAA LAHORE,03224482940,
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