Cameron Miranda
Turkey has a civil law system, which was adopted with the founding of the Republic, replacing Ottoman law and the Sharia courts. The country's judicial system is defined by Articles 138 to 160 of the Constitution of Turkey. The legislative power of the state is vested in the Parliament, which is comprised of 600 members. The executive branch is the Presidency, with the President being elected by direct national vote for a five-year term. The President has the power to veto legislation and issue presidential decrees, among other powers. In the Turkish judicial system, there are both adversarial and non-adversarial court proceedings, with the role of the judge being important in both civil and criminal trials.
| Characteristics | Values |
|---|---|
| Type of Legal System | Civil law |
| Court Proceedings | Adversarial and non-adversarial |
| Role of Judge | Important in both civil and criminal trials |
| Jury System | No |
| Court Precedents | Provide non-binding guidance |
| Highest Court | Court of Cassation |
| Highest Administrative Court | Turkish Council of State |
| Highest Judge | First President (Mehmet Akarca) |
| Highest Prosecutor | Chief Public Prosecutor (Bekir Şahin) |
| Judicial Independence | Limited |
| Constitutional Amendments | Yes (2017) |
| Legislative Power | Parliament |
| Executive Power | President |
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What You'll Learn
Turkey's civil law system
Turkey has a civil law system, which it adopted upon becoming a republic, replacing Ottoman law and the Sharia courts. The Turkish civil law system is based on the Swiss Civil Code of 1907 and the Swiss Code of Obligations of 1911. While the civil code has been amended, it retains much of the basis of the original Swiss code.
The Turkish civil law system includes both adversarial and non-adversarial court proceedings. Adversarial proceedings involve parties asserting claims and allegations against each other over a dispute, while non-adversarial proceedings involve no dispute, with parties participating as concerned parties only. Civil courts in Turkey generally use the adversarial system, though they also have jurisdiction over some non-adversarial matters, such as appointing a custodian for a child or cancelling a lost share certificate.
There are two forms of civil courts in Turkey: Peace Courts and Civil Courts of First Instance. Peace Courts are the lowest civil courts, with a single judge, and at least one in every district. Civil Courts of First Instance are the basic courts, with one in every city and district, sometimes divided into branches. These courts have jurisdiction over all civil cases, except those assigned to Peace Courts. Within the scope of Civil Courts of First Instance, there are specialised courts for certain legal areas.
In Turkish civil law, the judge plays an important role in both civil and criminal trials. The judge is responsible for conducting and supervising the trial, reviewing and examining claims and evidence, gathering evidence, interrogating witnesses, and requesting further investigations or examinations. Legal counsel assists the judge and can introduce evidence and interrogate witnesses with the judge's permission. There is no jury system in Turkish civil or criminal law proceedings.
In some disputes, parties must exhaust alternative dispute resolution (ADR) processes before applying to court, such as mandatory mediation in employment and commercial disputes. Turkey's highest administrative court is the Turkish Council of State, equivalent to a federal supreme administrative court.
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The role of judges
Turkey has a civil law legal system, which was adopted with the founding of the Republic, replacing Ottoman law and the Sharia courts. The judicial system of Turkey is defined by Articles 138 to 160 of the Constitution of Turkey. The role of judges in Turkey is important in both civil and criminal trials. In civil courts, judges oversee cases related to subjects like ownership, contract violation, divorce, and inheritance. These courts can be either Peace Courts or Civil Courts of First Instance, with the former being the lowest civil courts with a single judge, and the latter serving as the basic courts with jurisdiction over all other civil cases.
In Turkish court proceedings, judges are responsible for conducting and supervising the trial, reviewing and examining claims and evidence, gathering additional evidence if needed, interrogating witnesses, and requesting further investigations or examinations. They may also request expert examinations to assist in their decision-making. In criminal cases, legal counsel defends the accused and can introduce evidence and interrogate witnesses with the judge's permission. It is worth noting that there are no juries in Turkish civil or criminal law proceedings.
The High Council of Judges and Prosecutors selects and oversees judges and prosecutors for the higher and lower courts, respectively. This council has been criticised for undermining the independence of the judiciary, as the minister of justice serves as its chairman. The council controls the careers of judges through appointments, transfers, promotions, and reprimands.
To become a judge in Turkey, individuals must undergo a rigorous process. They must be Turkish citizens, under the age of 35, and possess the mental and physical capabilities to perform the duties of a judge. After graduating from a law faculty at a university, they must pass the internship exam and interview to become qualified as intern judges. They then complete a two-year internship at the Judiciary Academy of Turkey before becoming full-fledged judges.
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Court proceedings
Turkey is a civil law jurisdiction, commonly said to follow an "inquisitorial model" as opposed to the adversarial model followed by common law jurisdictions. The Turkish legal system has three types of courts: judicial, administrative, and military. The adversarial system is generally used by civil courts in Turkey, though there are some non-adversarial proceedings.
In Turkey, there is no "trial" as it is known in common law jurisdictions. Instead, there are a series of hearings held through the issuance of a final judgment. During this series of hearings, evidence and legal arguments are presented, primarily in writing. Witnesses can be called to give live testimony, but this is rare.
In criminal proceedings, the indictment is read out at the beginning of the trial by the public prosecutor. All evidence is examined, and the accused is questioned. The court can only rely on the evidence that is presented and discussed at the trial in the judge's presence. On presentation of evidence or hearing a witness, the public prosecutor, the defence lawyer, and/or the lawyer representing the victim can directly ask questions to the accused. The accused always has the right to have the last word.
The Turkish court system does not recognize the concept of a jury. Verdicts for both criminal and civil trials are decided by a judge, or usually a panel of three judges, who have to base their verdicts on the law and their conviction. Judges are protected from arbitrary removal by life tenure (until the mandatory retirement age of sixty-five). The Minister of Justice serves as the High Council's president, and council members are appointed by Turkey's president and parliament.
In certain disputes, the parties are not permitted by law to apply to court before exhausting alternative dispute resolution (ADR) processes. For instance, it is required to undergo mediation in disputes between an employee and an employer before filing a lawsuit in the matter. Likewise, it is mandatory to undergo a mediation process in relation to commercial disputes before initiating litigation proceedings before the relevant court.
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The constitution
The 1982 Constitution maintains the principle of the separation of powers, with legislative power vested in the Grand National Assembly, executive power in the President of the Republic and the Council of Ministers, and judicial power in independent courts. It also contains fundamental rights and liberties, including freedom of expression, freedom of training and education, and equality of citizens. The Constitution grants compulsory and free primary education for all citizens of both sexes in state schools. However, neither private nor public schools are allowed to use any language other than Turkish as the first language.
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The Court of Cassation
Turkey operates under a civil law system, having abolished Ottoman law and the Sharia courts with the founding of the Republic. The Court of Cassation, officially the Supreme Court of Appeals of the Republic of Turkey, is the highest court in the land for reviewing verdicts given by courts of criminal and civil justice. The Court of Cassation is divided into civil law and penal law chambers, with 20 civil and 20 criminal chambers at present. However, after the amendment of the Yargitay Act in 2016, the number of chambers will be decreased to 12 civil and 12 criminal chambers, with a total of 210 members by the end of 2018. The Court of Cassation also has a Chief Public Prosecutor, who appears before the Constitutional Court in the case of indictments against political parties.
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Frequently asked questions
No, Turkey uses a civil law system.
Common law systems rely on past court decisions (precedents) to guide future ones, whereas civil law systems rely more on a written set of rules and laws.
The role of the judge in Turkey is important in both civil and criminal trials. The judge is responsible for conducting and supervising the trial, reviewing and examining the claims and evidence presented by the parties, gathering further evidence if needed, interrogating witnesses, and resolving the matter.
There are both adversarial and non-adversarial court proceedings in Turkey. Adversarial proceedings involve disputes where parties assert claims and allegations against each other, while non-adversarial proceedings do not involve disputes, and parties participate as concerned parties only.
No, Turkey does not have a jury system. The judge plays a central role in both civil and criminal trials, and legal counsel assists the judge in establishing the facts and determining the applicable legal provisions.
