Cameron Miranda
The legal systems of countries around the world are divided into two categories: common law systems and civil law systems. Turkey is a civil law country, meaning that codified legislation prevails. Common law systems, on the other hand, are based on case law in the form of published court opinions. While Turkey is a civil law country, its civil proceedings are adversarial, and its legal system has been influenced by various other legal systems.
| Characteristics | Values |
|---|---|
| Type of legal system | Civil law |
| Number of higher courts | 4 |
| Court of last instance for Turkey's judicial courts | Court of Cassation |
| Court of last instance for administrative and tax courts | Council of State |
| Court that reviews constitutionality of laws and decrees | Constitutional Court |
| Court that resolves disputes between other courts for constitutional jurisdiction | Court of Jurisdictional Disputes |
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What You'll Learn
- Turkey's legal system is based on civil law
- The country's judicial system is defined by Articles 138-160 of the Constitution of Turkey
- The Court of Cassation is the highest court in Turkey
- Turkey's civil code is a modified version of the Swiss civil code
- The country's legal system has three types of courts
Turkey's legal system is based on civil law
Civil law systems, like Turkey's, are characterized by the concept of stare decisis not applying. This means that each case is determined on an individual basis, considering its relation to the codified law and the judge's interpretation. Consequently, two cases concerning the same issue may have vastly different conclusions. The laws governing a case are founded on both legal precedents set by judges and statutory laws established by legislators. In an adversarial system, the judge acts as a neutral referee between competing parties in a dispute. Facts may be determined by a jury, but the law is applied by a judge. Prosecutors and defense counsel play an active role, while victims serve as witnesses and have rights to information and limited involvement.
Turkey's legal system has three types of courts: judicial, administrative, and military. The Court of Cassation (Yargıtay) is the final decision-maker in the ordinary judiciary and the court of last instance for Turkey's judicial courts. The Court of Cassation's opinions are considered precedents for legal rulings in the first-instance courts across Turkey, ensuring a uniform application of the law. The Constitutional Court (Anayasa Mahkemesi) is responsible for constitutional adjudication and reviewing individual applications concerning human rights violations. It examines the constitutionality of laws, decrees, and rules of procedure. The Council of State (Danıştay) is the final decision-maker in the administrative judiciary and the court of last instance for administrative and tax courts.
Turkey's civil law system differs from common law systems, where case law in the form of published court opinions takes precedence. Common law systems typically have a legislature that passes new laws and statutes, and they are more commonly found in former British colonies or protectorates. In contrast, civil law, also known as Roman law, is the most widespread by landmass and overall population.
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The country's judicial system is defined by Articles 138-160 of the Constitution of Turkey
Turkey is a civil law country, and its judicial system is defined by Articles 138 to 160 of the Constitution of Turkey. The country's legal system follows the civil law model and has three types of courts: judicial, administrative, and military.
Article 138 of the Constitution ensures the independence of the judiciary by stating that "Judges are independent in the discharge of their duties; they give judgment in accordance with the Constitution, law, and their conscientious opinions in conformity with the law." This article prohibits any external influences or interference in the exercise of judicial power, guaranteeing the autonomy of the judiciary.
Articles 138 to 160 outline the structure and functions of the higher courts in Turkey. The Constitution mentions four organisations as higher courts:
- Constitutional Court (Anayasa Mahkemesi): This court is responsible for constitutional adjudication and reviewing individual applications concerning human rights violations. It examines the constitutionality of laws, decrees, and rules of procedure, ensuring they align with the Constitution and protecting fundamental rights.
- Court of Cassation (Yargıtay): The Court of Cassation is the final decision-maker in the ordinary judiciary. It is the court of last instance for reviewing rulings and judgments rendered by lower courts including justice courts, criminal courts, and examination courts. The Court of Cassation's opinions serve as precedents for legal rulings in the first-instance courts, promoting uniform application across the country.
- Council of State (Danıştay): The Council of State is the final decision-maker in the administrative judiciary. It is the highest authority for administrative and tax courts. At the request of the Prime Minister or the Council of Ministers, it may provide opinions on draft legislation.
- Court of Jurisdictional Disputes (Uyuşmazlık Mahkemesi): This court resolves disputes between the Constitutional Court, the Court of Cassation, and the Council of State regarding their constitutional jurisdiction.
Additionally, Article 160 of the Constitution establishes the Court of Accounts, which is authorised to supervise all public expenditures on behalf of the Turkish Grand National Assembly. This court audits government accounts related to revenues, expenditures, and properties, makes final decisions on the acts and accounts of responsible officials, and exercises inquiry, auditing, and judgment functions as mandated by law.
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The Court of Cassation is the highest court in Turkey
Turkey is a civil law country. Its legal system follows the civil law model and has three types of courts: judicial, administrative, and military. The Court of Cassation, officially called the Supreme Court of Appeals of the Republic of Turkey, is the highest court in Turkey. It is the court of last instance for Turkey's judicial courts. It is also known as 'Yargitay' in Turkish.
The Court of Cassation is the final decision-maker in ordinary judiciary and is the last instance for reviewing verdicts given by courts of criminal and civil justice in Turkey. The Court of Cassation hears appeals for criminal cases and renders verdicts upon appeal. It is divided into civil law and penal law chambers. The Court of Cassation's opinions are taken as precedents for legal rulings in the first instance courts throughout the country. The Court can also modify its own ruling upon request.
The Court of Cassation was previously known as the Court of Appeals or 'Divan' during the Ottoman Empire until the 19th century. The first modern court of appeals, Divan-i Ahkam-i Adliye, was established during the reign of Abdülaziz on 6 March 1868. The Court of Appeals was renamed the Court of Cassation on 10 January 1945. The latest act related to the Court of Cassation was passed on 4 February 1983.
The Military Court of Cassation is the court of final instance for all rulings and verdicts rendered by military courts. It has jurisdiction over specific trials of certain military personnel, stipulated by law.
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Turkey's civil code is a modified version of the Swiss civil code
Turkey is a civil law country, and its civil code is a modified version of the Swiss Civil Code. In 1926, Turkey adopted the Swiss Civil Code and the Swiss Code of Obligations, marking a significant shift in the country's legal landscape. This adoption was part of a broader programme of revolutionary modernisation under the leadership of Mustafa Kemal Pasha, later known as Atatürk.
The Swiss Civil Code, first adopted in Switzerland in 1907 and effective since 1912, was considered modern, concise, and simply formulated. It was created by Eugen Huber and influenced by the German and French civil codes. The transplantation of the Swiss Civil Code into Turkish law signalled a departure from the country's Ottoman legacy and the Sharia law system. The abolition of Sharia law, which was inspired by the Koran, had a profound impact on Turkish society and its relationship with the Islamic world.
The Turkish Civil Code, also known as the Civil Code of 1926, underwent modifications and changes over time. While it retains much of the basis of the original Swiss Code, it was updated in 2002 to align with modern needs and expectations. The Swiss federal court's decisions and commentaries were translated into Turkish during the revision process, demonstrating the influence of Swiss legal principles on the development of Turkish law.
The adoption of the Swiss Civil Code in Turkey is considered an intriguing example of legal transplants. It challenges the traditional notion that law simply mirrors socio-economic factors. Instead, the transplantation of the Swiss Civil Code into Turkish law highlights the complex interplay between legal systems and societal transformation.
In conclusion, Turkey's civil code, while based on the Swiss model, has been adapted and modified to suit the country's specific needs and cultural context. The adoption of the Swiss Civil Code played a pivotal role in shaping modern Turkey's legal framework and contributed to the country's ambitious programme of revolutionary modernisation.
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The country's legal system has three types of courts
Turkey is a civil law country. Its legal system follows the civil law model and has three types of courts: judicial, administrative, and military. The judicial system of Turkey is defined by Articles 138 to 160 of the Constitution of Turkey.
The Constitution mentions the following four organizations as higher courts in the country:
- Constitutional Court (Anayasa Mahkemesi) for constitutional adjudication and review of individual applications concerning human rights violations
- Court of Cassation (Yargıtay), the final decision-maker in ordinary judiciary
- Council of State (Danıştay), the final decision-maker in administrative judiciary
- Court of Jurisdictional Disputes (Uyuşmazlık Mahkemesi), for resolving disputes between these courts for constitutional jurisdiction
The Constitutional Court reviews the constitutionality of laws and decrees. It also reviews the constitutionality of rules of procedure at the request of the President or National Assembly. After exhausting other legal remedies, individuals can file cases with the Constitutional Court alleging a violation of the European Convention of Human Rights.
The Court of Cassation is the court of last instance for Turkey's judicial courts. It is the last instance for reviewing rulings and judgments rendered by justice courts, criminal courts, and examination courts, and it renders verdicts upon appeal. The Court of Cassation is divided into civil law and penal law chambers. The opinions rendered by the Court of Cassation are taken as precedents for legal rulings in the first instance courts throughout the country.
The Council of State is the court of last instance for the administrative and tax courts. At the request of the Prime Minister or Council of Ministers, it may issue an opinion on draft legislation.
Civil courts in Turkey look at cases related to subjects like ownership, contract violation, divorce, and inheritance. There are two forms of civil courts: the Peace Courts and the Civil Courts of First Instance. The Peace Courts are the lowest civil courts in Turkey, with a single judge, and there is at least one in every district. The Civil Courts of First Instance are the basic courts, with one in every city and district. Within the scope of Civil Courts of First Instance, there are specialized courts for certain legal areas.
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Frequently asked questions
No, Turkey is a civil law country.
Common law systems are based on case law in the form of published court opinions, whereas civil law countries' legal systems are based on codified legislation.
Countries that use the common law system are usually former British colonies or protectorates, such as India and Canada.
