Business Law Dersi 5. Ünite Özet

Judiciary as a State Organ

The Republic of Turkey has adopted the principle of separation of powers. Independence of courts, security of tenure of judges and public prosecutors, organization of courts, the profession of judges and prosecutors, supervision of judges and public prosecutors, the powers and duties of high courts are specificly regulated by the Constitution between Articles 138 and 160. Main function of the judiciary is to strengthen the fundamental rights and freedom by the realization of rule of law and respect for human rights.

The Turkish Judiciary refers to the courts which are responsible for the enforcement and the interpretation of Turkish laws. It comprises a system of courts and some administrative bodies, as well as the judges and other judicial officials who preside over them.

The Basic Concepts and Principles Regarding Judiciary

The Basic Concepts Regarding Judiciary

The basic concepts regarding judiciary can be stated as the judge, the court, the trial and the legal action.

The Judge

A judge is a public officer appointed to decide cases in a law court. Judges are the public officials who preside over civil, criminal and administrative trials in relevant courts.

The Court

A court can be defined as a place where trials and other legal cases happen or the people present in such a place especially the officials and those deciding who is right or guilty.

The Trial

Trial is a judicial examination and determination of facts and legal issues arising between parties to a civil, criminal or in some cases administrative action.

The judicial system in Turkey has a multipartite structure at the levels of first instance courts, district courts and supreme courts.

Supreme Courts in the Turkish Judicial System

Turkey has “supreme courts”, rather than one supreme court, because of its above mentioned multipartite structured judicial system. These supreme courts are the final decision-making authorities in the fields of judiciary. Within the Turkish judicial system, there are four higher courts with separate jurisdictions: the Constitutional Court, the Court of Cassation, the Council of State and the Court of Jurisdictional Disputes.

The Constitutional Court and Constitutional Judiciary

The main and the traditional duty of the constitutional court is to examine the constitutionality, in respect of both form and substance of laws, presidential decrees and the Rules of Procedure of the Turkish Grand National Assembly and to examine and verify Constitutional amendments only with regard to their form.

The Court of Jurisdictional Disputes and the Judiciary of Jurisdictional Disputes

The Court of Jurisdictional Disputes has the power to deliver final judgments on disputes between ordinary and administrative courts related to their jurisdiction and judgments.

The Court of Cassation and the Ordinary Judiciary

The main duty of the Court of Cassation is to function as the last instance court for reviewing decisions and judgments given by lower civil and criminal courts.

Council of State and the Administrative Judiciary

The Council of State is the highest tribunal of administrative jurisdiction, with the power to review the decisions and judgments of all administrative courts. The Council of State is a supreme court established as a court of last resort to conduct the appellate review of the decisions given by the courts of administrative judiciary and to make decisions on certain administrative issues as the final decision-making authority.

The actual duty of the Council of State is to conduct the appellate review of the decisions finalized by the lower administrative courts.

Administrative courts are the courts of general jurisdiction in administrative judiciary branch; therefore, they deal with all administrative cases that remain outside the jurisdiction of the Council of State and tax courts.

Turkish Court of Accounts and the Judiciary of Public Accounts

The Court of Accounts is regulated in Article 160 of the Turkish Constitution. According to this provision, the Court of Accounts shall be charged with auditing, on behalf of the Grand National Assembly of Turkey, revenues, expenditures, and assets of the public administrations financed by central government budget and social security institutions, with taking final decisions on the accounts and acts of the responsible officials, and with exercising the functions prescribed in laws in matters of inquiry, auditing and judgment.

In case of conflict between the decisions of the Council of State and the Court of Accounts, regarding taxes, similar financial obligations and duties, the decision of Council of State shall prevail. Auditing and final decision on the accounts and acts of local administrations shall be conducted by the Court of Accounts.

The Court of Accounts is responsible for auditing the revenues, expenditures and property of public administrations on behalf of the Turkish Grand National Assembly. It carries out functions required by law related to inquiry, auditing and judgment.

The Supreme Election Board and the Electoral Judiciary

In Turkey all the elections (whether presidential, parliamentary or local) and referendum are executed with the principles of equal, secret, universal direct suffrage, open counting and tabulating of votes principles under administration and supervision of jurisdiction.

In Turkey the elections are primarily regulated by the Constitution of the Republic of Turkey, The Law on Parliamentary Elections No. 2839, the Law on Presidential Elections No. 6271, the Law No. 298 on Basic Provisions on Elections and Voter Registers, and finally The Law No. 7062 on the Organization and the Duties of Supreme Election Council. Elections in Turkey are organized by four levels of election administration: the Supreme Election Board (SEB), Provincial Electoral Boards (PEBs), District Electoral Boards (DEBs) and Ballot Box Committees (BBCs).

The Supreme Election Board, as the highest legal authority on electoral matters, is responsible for the overall monitoring and management of elections.

Directorates of Enforcement and Bankruptcy

The directorates of enforcement and the directorates of bankruptcy are the justice institutions established to ensure the collection of the claims of the persons and to carry out the required proceedings in cases when the companies go bankrupt respectively.

The main function of the enforcement and bankruptcy offices is to ensure the collection of the claims of the persons. This claim may depend on the judgement of a court or may be based on an economic relation. The enforcement directorates are responsible to take action on the application of an individual or a company and they complete the required procedures and confiscate the properties of the debtors and collect the claims.

As per the Turkish Commercial Code, if the debtor is a company and cannot pay the debts, a decision on the bankruptcy of the company may be taken by a commercial court. Under these circumstances, it is the duty of bankruptcy directorates (or of enforcement directorate in the case of that they are gathered under a single roof) to carry out the proceedings on bankruptcy and to ensure the collection of the claims of the creditors. All types of proceedings of the directorates of enforcement and bankruptcy are under the supervision of civil courts. The courts finalize the applications against the actions and proceedings of these directorates.

The officials of the enforcement directorates consist of directors, deputy directors, and civil servants are assigned in these judicial institutions. Directors and deputy directors are appointed by the Ministry of Justice through oral and written exams. Other public officials are also appointed by the Ministry of Justice through ordinary methods.

The Ministry of Justice

The Ministry of Justice having an important role within Turkish judicial system is responsible for determining the main policies about the system as well as controlling the budgets of important bodies within this system.

The inistry of Justice is split into various units in order to fulfil ts duties. Accordingly, there are general directorates, heads of departments and presidencies in the Ministry.

The duties of the Ministry of Justice are:

• to establish and organize courts as foreseen in the laws,
• to plan and establish any and all types and degrees of judicial institutions such as penal execution and correction institutions as well as execution and bankruptcy offices, and to provide supervision and control as to their administrative functions,
• to submit proposals in matters such as abolishing of courts or changing of judicial locality,
• to carry out actions regarding the use of authority granted by laws to the Ministry of Justice concerning initiation of a public proceedings, - to carry out duties assigned to the Ministry by the Laws of Attorneys and Public Notaries,
• to carry out services regarding keeping judicial records, - to carry out duties assigned to the Ministry by the Turkish Commercial Law and Trade Registry Regulation,
• to carry out functions regarding foreign countries on judicial services,
• to make necessary research and legal arrangements and express opinions on matters of interest to judicial services,
• to review the compliance of draft laws and decrees having the force of law prepared by the Ministries with the Turkish legal system and techniques of preparing laws, before submitting them to the Ministry,
• to organize execution and correction functions according to the provisions of relevant legislation,
• to carry out execution and bankruptcy functions through execution and bankruptcy offices,
• and to carry out other functions assigned by laws.