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(Mar 01, 2011) Turkey's Parliament passed a controversial judicial reform bill on February 9, 2011. Under the Law on the Amendment of Certain Laws, the highest level of the judiciary will be restructured. The Court of Appeals (Court of Cassation, Yargıtay, the highest court for civil and criminal cases) will have the number of its chambers increased to 38 from 32, and the Council of State (or Supreme Administrative Court, Danıştay, the country's highest administrative court) will have 15 divisions instead of the current 13. ("Judicial Reform Bill" Passed Through Parliament, BIANET (Feb. 11, 2011), http://bianet.org/english/politics/127829-judicial-reform-bill-passed-th
rough-parliament; Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun, Law No. 6110, Turkish Grand National Assembly website (Feb. 9, 2011), http://www.tbmm.gov.tr/kanunlar/k6110.html.)
The Law gives the Court of Appeals and the Council of State the authority "to allocate procedures to other chambers in case the workload exceeds the normal amount." (BIANET, supra.) The amendment law stipulates a total of 722 staff members (this figure includes non-professionals) to be assigned to the Court of Appeals (137 judges), the Council of State (61 judges), and the Forensic Medicine Institution, thereby significantly increasing employment opportunities in the two high courts. Another amendment, on compensation claims, stipulates that only the state, no longer judges and prosecutors, is authorized to open compensation cases. The new Law also facilitates the use of compromise instead of the application of criminal procedures and provides for mediators to handle certain legal conflicts. (Id.; Kazim Canlan, High Judiciary Burden to Ease as Parliament Passes Judicial Reform, TODAY'S ZAMAN (Feb. 11, 2011), http://www.todayszaman.com/newsDetail_getNewsById.action?newsId=235238.)
In a speech thanking the Members of Parliament for adopting the Law, Justice Minister Sadullah Ergin stated, "[t]he strengthening of the high courts was an important step to prevent long trial procedures in Turkey" and contended that the workload of the high courts would be decreased by the addition of new chambers in the Court of Appeals." (BIANET, supra.) In signing the bill into law on February 14, Turkish President Abdullah Gul remarked that had he not approved it, "200,000 cases could have faced the statute of limitations." (Turkish Judiciary Expresses Concern over New Law, HÜRRIYET DAILY NEWS (Feb. 14, 2011), http://www.hurriyetdailynews.com/n.php?n=judiciary-expresses-concern-ove
The heads of the two supreme judicial bodies are less sanguine about the likelihood of the new legislation's solving the problems of the judiciary, and they had visited Gul to urge him to veto the bill. Hasan Gerçeker, Chief Judge at the Supreme Court of Appeals stated that he hoped it would be beneficial and prevent the triggering of the statute of limitations of cases before the courts, "[b]ut we've already expressed our view that the problem can't be overcome by increasing the number of members and departments in the courts." He considers the bill's measures only a temporary solution to the statute of limitations issue in many cases, given that "[d]eep-rooted reforms are needed." According to Gerçeker, "[p]riority should be given to the establishment of regional courts of justice," or else "you have to add six other chambers to the court next year in addition to the six departments set up this year." (Id.) In his view, with the establishment of regional courts, there would be no need for expansion of the number of chambers in the Court of Appeals. Mustafa Birden, President of the Council of State, echoed Gerçeker's concerns. He stated that the Law would not decrease the Council's workload and that the Council did not face the problem of the statute of limitations being triggered due to the backlog of cases.
Turkey's regional bar associations were split into two camps over the judicial reform bill, although 20 associations did not sign on to either side. On January 31, 24 bar associations released a joint statement against the changes to the composition of the two high judicial bodies. In their view, the reforms would harm the independence of the judiciary. In particular, they fear that government control of the Court of Appeals, effected by a constitutional referendum held on September 12, 2010, would be strengthened, because the Court "will elect the new members from among pro-government judges and prosecutors who will not be independent and unbiased." (Bar Fight Brewing over Details of Turkish Court Reform, HÜRRIYET DAILY NEWS (Feb. 2, 2011), http://www.hurriyetdailynews.com/n.php?n=bars-go-to-war-over-judicial-re
form-2011-02-02.) One bar association head was quoted as saying that "a high court with so many members [with the increase of Court of Appeals members to 387 from 250] would be unique in the world." (Id.)
On February 1, 37 other bar associations made public a joint statement supporting the reforms, based on the judiciary's heavy workload. About 1.7 million case files await final determination by the Court of Appeals, the statement says, "50,000 of them waiting in sacks and 400,000 more held at various post offices in Ankara because there is no room in the court building to store them." (Id.) It cites the figure of 18,500 cases being dropped as a result of the statute of limitations being triggered. In the bar associations' view, moreover, "it is 'meaningless' to distrust the judges and prosecutors to be assigned to the new positions because 'they have the right to be there' as much as the existing personnel." (Id.)
Part of the impetus for the adoption of the Law was the heightened scrutiny of the high courts' "cumbersome workings" resulting from the implementation of an amendment to Turkey's Code of Procedure that restricts the length of time a suspect can be held in detention pending or during trial. Article 102 of the Code now provides that "the maximum detention period will be three years for crimes under the jurisdiction of high criminal courts, while the maximum period of detention will be one-and-a-half years for most crimes not under their jurisdiction." (Canlan, supra.)
In the meantime, the leader of the Republican People's Party (CHP), Kemal Kilicdaroglu, announced on February 14 that the CHP would ask the Constitutional Court to annul the new law on judicial reform. (Turkish Judiciary Expresses Concern over New Law, supra.)
|Author:||Wendy Zeldin More by this author|
|Topic:||Courts More on this topic|
|Jurisdiction:||Turkey More about this jurisdiction|
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Last updated: 03/01/2011