The Constitution of the Republic of Turkey

PART THREE

FUNDAMENTAL ORGANS OF THE REPUBLIC

CHAPTER THREE

JUDICIAL POWER

I. General Provisions

A. Independence of the Courts

No organ, authority, office, or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, or send them circulars, make recommendations or suggestions.

No question shall be asked, debated held, or statement made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.

Legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution.

B. Security of Tenure of Judge and Public Prosecutors

Exceptions indicated in law relating to those convicted for an offence requiring dismissal from the profession, those who are definitely established as unable to perform their duties on account of ill health, and those determined unsuitable to remain in the profession, are reserved.

C. Judges and Public Prosecutors

Judges shall discharge their duties in accordance with the principles of the independence of the courts and the security of tenure of judges.

The qualifications, appointment, rights and duties, salaries and allowances of judges and public prosecutors, their promotion, temporary or permanent change of their duties or posts, the initiation of disciplinary proceedings against them and the subsequent imposition of disciplinary penalties, the conduct of investigation concerning them and the subsequent decision to prosecute them on account of offences committed in connection with, or in the course of, their duties; the conviction for offences or instances of incompetence requiring their dismissal from the profession, their in-service training and other matters relating to their personnel status shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges.

Judges and public prosecutors shall exercise their duties until they complete the age of sixty-five; the age limit, promotion, and the retirement of military judges shall be prescribed by law.

Judges and public prosecutors shall not assume official or public functions other than those prescribed by law.

Judges and public prosecutors shall be attached to the Ministry of Justice insofar as their administrative functions are concerned.

Those judges and public prosecutors working in administrative posts of the justice service shall be subject to the same provisions as other judges and public prosecutors. Their categories and grades shall be determined according to the principles applying to judges and public prosecutors, and they shall enjoy all the rights accorded to judges and public prosecutors.

D. Publicity of the Hearings and Verdict Justification

Special provisions shall be provided in the law with respect to the trial of minors.

The decisions of all courts shall be made in writing with a statement of justification.

It is the duty of the judiciary to conclude trials as quickly as possible and at the minimum cost.

E. Organisation of Courts

F. Courts of the Security of the State

The Court of the Security of the State shall consist of a President, two regular and two substitute members, one public prosecutor, and a sufficient number of deputy public prosecutors.

The President, one regular and one substitute member and the public prosecutor from among first category judges and public prosecutors; one regular and one substitute member from among first category military judges; and deputy public prosecutors from among public prosecutors of the Republic and military judges, shall be appointed in accordance with procedures prescribed by their special laws.

The President, members and substitute members, and public prosecutors and deputy public prosecutors of the Court of the Security of the State shall be appointed for four years; those whose term of office expires may be reappointed.

The High Court of Appeals is the competent authority to examine appeals against the verdicts of the Court of the Security of the State.

Other provisions relating to the functioning, the duties and jurisdiction and the trial procedures of the Court of the Security of the State shall be prescribed by law.

In the event of declaration of martial law within the regions under the jurisdiction of a Court of the Security of the State, the latter may be transformed, in accordance with the provisions prescribed by law, into a Martial Law Military Tribunal with jurisdiction restricted to these regions.

G. Supervision of Judges and Public Prosecutors

H. Military Justice

Military courts also have jurisdiction to try nonmilitary persons for military offences specified in the special law; and for offences committed while performing their duties specified by law, or against military personnel on military places specified by law.

The offences and persons falling within the jurisdiction of military courts in time of war or under martial law, their organisation and the appointment, where necessary, of judges and public prosecutors from courts of justice to military courts shall be regulated by law.

The organisation of military judicial organs, their functions, matters relating to the status of military judges, relations between military judges acting as military prosecutors and the office of commander under which they serve, shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and with the requirements of military service. Relations between military judges and the office of commander under which they serve, regarding the requirements of military service apart from the judicial functions, shall also be prescribed by law.

II. Higher Courts

A. The Constitutional Court

1. Organisation

The President of the Republic shall appoint two regular and two substitute members from the High Court of Appeals, two regular and one substitute member from the Council of State, and one member each from the Military High Court of Appeals, the High Military Administrative Court and the Audit Court, three candidates being nominated for each vacant office by the Plenary Assemblies of each court from among their respective presidents and members, by an absolute majority of the total number of members; the President of the Republic shall also appoint one member from a list of three candidates nominated by the Higher Education Council from among members of the teaching staff of institutions of higher education who are not members of the Council, and three members and one substitute member from among senior administrative officers and lawyers.

To qualify for appointments as regular or substitute members of the Constitutional Court, members of the teaching staff of institutions of higher education, senior administrative officers and lawyers shall be required to be over the age of forty and to have completed their higher education, or to have served at least fifteen years as a member of the teaching staff of institutions of higher education or to have worked actually at least fifteen years in public service or to have practiced as a lawyer for at least fifteen years.

The Constitutional Court shall elect a President and Deputy President from among its regular members for a term of four years by secret ballot and by an absolute majority of the total number of members. They may be reelected at the end of their term of office.

The members of the Constitutional Courts shall not assume other official and private functions, besides their main functions.

2. Termination of Membership

Membership in the Constitutional Court shall terminate automatically if a member is convicted of an offence requiring his dismissal from the judicial profession; it shall terminate by a decision of an absolute majority of the total number of members of the Constitutional Court if it is definitely established that he is unable to perform his duties on account of ill health.

3. Functions and Powers

The verification of laws as to form shall be restricted to consideration of whether the requisite majority was obtained in the last ballot; the verification of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with. Verification as to the form may be requested by the President of the Republic or by one-fifth of the members of the Turkish Grand National Assembly. Applications for annulment on the grounds of defect in form shall not be made more than ten days after the date on which the law was promulgated; nor shall objection be raised.

The President of the Republic, members of the Council of Ministers, presidents and members of the Constitutional Court, of the High Court of Appeals, of the Council of State, of the Military High Court of Appeals, of the High Military Administrative Court of Appeals, their Chief Public Prosecutors, Deputy Public Prosecutors of the Republic, and the presidents and members of the Supreme Council of Judges and Public Prosecutors, and of the Audit Court shall be tried for offences relating to their functions by the Constitutional Court in its capacity as the Supreme Court.

The Chief Public Prosecutor of the Republic or Deputy Chief Public Prosecutor of the Republic shall act as public prosecutor in the Supreme Court.

The judgements of the Supreme Court shall be final.

The Constitutional Court shall also perform the other functions given to it by the Constitution.

4. Functioning and Trial Procedure

The Constitutional Court shall give priority to the consideration of, and to decisions on, applications for annulment on the ground of defect in form.

The organisation and trial procedures of the Constitutional Court shall be determined by law; its method of work and the division of labour among its members shall be regulated by the Rules of Procedure made by the Court.

The Constitutional Court shall examine cases on the basis of files, except where it acts as the Supreme Court. However, when it deems necessary, it may call on those concerned and those having knowledge relevant to the case, to present oral explanations.

5. Annulment Action

6. Time Limit for Annulment Action

7. Contention of Unconstitutionality before Other Courts

If the court is not convinced of the seriousness of the claim of unconstitutionality, such a claim together with the main judgement shall be decided upon by the competent authority of appeal.

The Constitutional Court shall decide on the matter and make public its judgement within five months of receiving the contention. If no decision is reached within this period, the trial court shall conclude the case under existing legal provisions. However, if the decision on the merits of the case becomes final, the trial court is obliged to comply with it.

No allegation of unconstitutionality shall be made with regard to the same legal provision until ten years elapse after the publication in the Official Gazette of the decision of the Constitutional Court dismissing the application on its merits.

8. Decisions of the Constitutional Court

In the course of annulling the whole or a provision of laws or decrees having force of law, the Constitutional Court shall not act as a lawmaker and pass judgement leading to new implementation.

Laws, decrees having force of law, or the Rules of Procedure of the Turkish Grand National Assembly or provisions thereof, shall cease to have that effect from the date of publication in the Official Gazette of the annulment decision. Where necessary, the Constitutional Court may also decide on the date on which the annulment decision shall come into effect. That date shall not be more than one year from the date of the publication of the decision in the Official Gazette.

In the event of the postponement of the date on which an annulment decision is to come into effect, the Turkish Grand National Assembly shall debate and decide with priority on the draft bill or a law proposal, designed to fill the legal void arising from the annulment decision.

The annulment decision cannot have retroactive effect.

Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.

B. The High Court of Appeals

Members of the High Court of Appeals shall be appointed by the Supreme Council of Judges and Public Prosecutors from among the first category of judges and public prosecutors of the Republic of the courts of justice, or those considered to be members of this profession, by secret ballot and by an absolute majority of the total number of members.

The First President, first deputy presidents and heads of division shall be elected by the Plenary Assembly of the High Court of Appeals from among its own members, for a term of four years, by secret ballot and by an absolute majority of the total number of members; then may be reelected at the end of their term of office.

The Chief Public Prosecutor of the Republic and the Deputy Chief Public Prosecutor of the Republic of the High Court of Appeals shall be appointed by the President of the Republic for a term of four years from among five candidates nominate for each office by the Plenary Assembly of the High Court of Appeals from among its own members by secret ballot. They may be reelected at the end of their term of office.

The organisation, the functioning, the qualifications and procedures of election of the President, deputy presidents, the heads of division and members and the Chief Public Prosecutor of the Republic and the Deputy Chief Public Prosecutor of the Republic of the High Court of Appeals shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges.

C. Council of State

The Council of State shall try administrative cases, give its opinions on draft legislation submitted by the Prime Minister and the Council of Ministers, examine draft regulations and the conditions and contracts under which concessions are granted, settle administrative disputes, and discharge other duties as prescribed by law.

Three-fourths of the members of the Council of State shall be appointed by the Supreme Council of Judges and Public Prosecutors from among the first category administrative judges and public prosecutors, or those considered to be of this profession; and the remaining one-fourth of the members by the President of the Republic from among officials meeting the requirements designated by law.

The President, Chief Public Prosecutor, deputy president, and heads of division of the Council of State shall be elected by the Plenary Assembly of the Council of State from among its own members for a term of four years by secret ballot and by an absolute majority of the total number of members. They may be reelected at the end of their term of office.

The organisation, the functioning, the qualifications and procedures of election of the President, the Chief Public Prosecutor, the deputy presidents and the heads of division and the members of the Council of State, shall be regulated by law in accordance with the principles of specific nature of the administrative jurisdiction, and of the independence of the courts and the security of tenure of judges.

D. Military High Court of Appeals

Members of the Military High Court of Appeals shall be appointed by the President of the Republic from among three candidates nominated for each vacant office by the Plenary Assembly of the Military High Court of Appeals from among military judges of the first category, by secret ballot and by an absolute majority of the total number of members.

The President, Chief Public Prosecutor, second presidents and heads of division of the Military High Court of Appeals shall be appointed according to rank and seniority from among the members of the Military High Court of Appeals.

The organisation, the functioning of the Military High Court of Appeals, and disciplinary and personnel matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges and with the requirements of military service.

E. High Military Administrative Court of Appeals

Members of the High Military Administrative Court of Appeals who are military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the President and members of the Court, who are also military judges, by secret ballot and by an absolute majority of the total number of such members, from among military judges of the first category; members who are not military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the Chief of the General Staff from among officers holding the rank and qualifications prescribed by law.

The term of office of members who are not military judges shall not exceed four years.

The President, Chief Public Prosecutor and head of division of the Court shall be appointed from among military judges according to rank and seniority.

The organisation and functioning of the High Military Administrative Court of Appeals, its procedure, disciplinary affairs and other matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges with the requirements of military service.

F. Jurisdictional Conflict Court

The organisation of the Jurisdictional Conflict Court, the qualifications of its members and the procedure for their election, and its functioning shall be regulated by law. The Office of President of this Court shall be held by a member delegated by the Constitutional Court from among its own members.

Decisions of the Constitutional Court shall take precedence in jurisdictional disputes between the Constitutional Court and other courts.

III. Supreme Council of Judges and Public Prosecutors

The President of the Council is the Minister of Justice. The Undersecretary to the Minister of Justice shall be an ex-officio member of the Council. Three regular and three substitute members of the Council shall be appointed by the President of the Republic for a term of four years from a list of three candidates nominated for each vacant office by the Plenary Assembly of the High Court of Appeals from among its own members and two regular and two substitute members shall be similarly appointed from a list of three candidates nominated for each vacant office by the Plenary Assembly of the Council of State. They may be reelected at the end of their term of office. The Council shall elect a deputy president from among its regular members.

The Supreme Council of Judges and Public Prosecutors shall deal with the admission of judges and public prosecutors of courts of justice and of administrative courts into the profession, appointments, transfers to other posts, the delegation of temporary powers, promotion, and 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 removal from office. It shall take final decisions on proposals by the Ministry of Justice concerning the abolition of a court or an office of judge or public prosecutor, or changes in the jurisdiction of a court. It shall also exercise the other functions given to it by the Constitution and laws.

There shall be no appeal to any judicial instance against the decisions of the Council.

The functioning of the Council and methods of performing its duties, the procedure governing election and working methods, the principles relating to the examination of objections within the Council shall be regulated by law.

The Minister of Justice is empowered to appoint judges and public prosecutors with their consent to temporary or permanent functions in the central offices of the Ministry of Justice.

The Minister of Justice may, in cases where delay is deemed prejudicial, confer temporary powers on judges or public prosecutors to prevent the disruption of services, subject to the approval of the Supreme Council of Judges and Public Prosecutors at its first meeting thereafter.

IV. Audit Court

In the event of a dispute between the Council of State and the Audit Court concerning decisions on matters of taxation or similar financial obligations and duties, the decision of the Council of State shall take precedence.

The organisation, functioning and auditing procedure of the Audit Court, the qualifications, appointment, duties and powers, rights and obligations of its members, other matters relating to their personnel status, and the security of tenure of the President and members shall be regulated by law. The procedure for auditing, on behalf of the Turkish Grand National Assembly, of State property in possession of the Armed Forces shall be regulated by law in accordance with the principles of secrecy required by National Defence.