Business Law Dersi 5. Ünite Sorularla Öğrenelim

What is a "state"?

A state can be defined as a politic body of a particular sovereign power used in a specific territory occupied by a community. Each state needs a government which can be defined as the direction of the various affairs of a state. A state comprises three basic organs : (1) The legislature, (2) The Executive and (3) The judiciary.

What is the aim of the separation of powers?

In the preamble of Turkish Constitution it is clearly stated that “the separation of powers does not imply an order of precedence among the organs of the State, but it refers solely to the exercising of certain state powers and discharging of duties, and is limited to a civilized cooperation and division of functions; and the fact that only the Constitution and the laws have the supremacy”.

What is the judiciary(judicial system)? 

Judiciary consists of a group of independent but interrelated elements (courts) comprising a unified whole, it can be considered as a system. Thus, the judiciary, which is also known as the judicial system, is defined as the organizational system and principles of court that administer the justice and constitute the judicial branch of government.

What are the three parts of the separation doctrine?

Under separation of powers doctrine, the judiciary shares power with executive and legislative branches of government.

What are the basic concepts regarding judiciary?

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

How is the Turkish judicial personnal categorized?

The personnel working in Turkish judicial system are split into three categories: judges, public prosecutors and auxiliary personnel.

Turkish Constitution has adopted the principle of “professional judge”. What does this imply?

This principle requires that decisions in courts must be rendered by professional judges, and the Turkish judicial system does not allow non-professional judges to render or take part in a judicial decision.

Besides the judges at benches, who is considered a "judge"?

- All of the public prosecutors,

- Almost all of the middle level and senior bureaucrats assigned in the central organization of the Ministry of Justice, the CoJP and justice inspectors,

- President and members of supreme courts and the public prosecutors assigned in these courts,

- Most of the judges assigned as rapporteurs in the supreme courts.

How are the public prosecutors defined in the Turkish Constitution?

Public prosecution in Turkey is a duty carried out by persons from judge class. In this regard, the public prosecutors have tenure of judges, and their appointments, promotions and discipline provisions are finalized by the CoJP as for the judges. Public prosecutors do not have any relation with the Bar Associations and other occupational organizations for lawyers. Their rights for election as members of supreme courts, being a member of the CoJP or other rights are the same with the judges. However, they are in the same position with the defence counsels during trial and they cannot intervene in the decisions of the judges.

What is the role of the prosecution service?

They have the duty to investigate the facts promptly after being informed about a crime and must gather and secure evidence both in favour of and against the suspect. Throughout the investigation, the judicial police are under the command of public prosecutors. If the public prosecutors believe that there is sufficient suspicion of a crime, they are obliged by law to file indictments.

What is a 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.
Court is a body of people presided over by a judge or a number judges and acting as a tribunal in civil, criminal and administrative cases.

What is a 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. Two main types of trials are civil trials and criminal trials. Civil trials resolve civil actions which are brought to enforce, redress or protect civil rights.

Who are the parties in a trial?

The main parties to a lawsuit are the plaintiff and the defendant. In a civil trial, the plaintiff initiates the lawsuit and seeks remedy from the court for private civil wrongs allegedly committed by defendant or defendants. There may be more than one plaintiff in a civil trial if they allege similar wrongs against a common defendant. In a criminal trial, the plaintiff is the government, and the defendant is an individual accused of a crime.

What is a legal action?

A legal action, legal proceedings or a lawsuit is defined as the act of using a court to help settle a disagreement. It can also be defined as a process to have a court of law to settle an argument. It is a process of enforcing a in the meaning of “national laws, national legislature” by proceeding within the court system. In such a judicial proceeding, one party (the plaintiff) prosecutes another (defendant) for a wrong done or protection of a right or prevention of a wrong.

What is the role of the Constitution in Turkish Republic?

In the Turkish legal system, the Constitution is the supreme law of the land, and all laws, executive, legislative and judicial organs, administrative authorities, institutions and individuals are bound by its provisions and must comply with them.

How are the duties of judges described in the 138th Article of the Constitution?

“Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, laws, and their personal conviction conforming with the law. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions. No questions shall be asked, debates held, or statements 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.”

How are the security of tenure of judges and public prosecutors maintained?

By article 139 of the Constitution; “Judges and public prosecutors shall not be dismissed, or unless they request, shall not be retired before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or a post. 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 because of ill health, or those determined as unsuitable to remain in the profession, are reserved.”

What is The Council of Judges and Prosecutors (CoJP)?

The Council of Judges and Prosecutors (CoJP) is an administratively and financially independent council performing its duties by considering the principle of independence of courts and the security of tenure of judges and prosecutors within the framework of the principles of fairness, impartiality, accuracy, honesty, consistency, equality, competence and qualification. 

It consists of thirteen members and functions as a Plenary Session and two Chambers (as the first and the second chambers of the CoJP).

What are the functions of the Council of Judges and Public Prosecutors?

• to appoint members of the Court of Cassation, Council of State and Court of Jurisdictional Disputes

• to 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

• admission of judges and public prosecutors into the profession

• appointments, transfers to other posts, the delegation of temporary powers,

• promotion and allocation of posts,

• decisions concerning those whose continuation in the profession is found to be unsuitable,

• the imposition of disciplinary sanction, 

• removal from office.

What are the main duties of the Council?

• Rendering final decisions aboutthe proposal of the Ministry of Justice concerning abolishment of a court or a change in a court’s jurisdiction,
• Performing the following proceedings concerning judges and prosecutors starting their careers:
- appointing or transferring to another locality,
- equipping them with temporary authorizations,
- promoting them or allocating them as first class,
- distributing cadres,
- making final decisions about those who are not considered appropriate to continue to perform their profession,
- issuing disciplinary punishments,
- suspending them from office to inspect whether judges and prosecutors perform their duties in compliance with laws, regulations, bylaws and circulars,
- examining whether they commit offenses in connection with or during the exercise of their duties, or whether their behaviours and acts are in compliance with the requirements of their capacities and duties, and if necessary, launching examination or investigation proceedings about them.

What are the jurisdictional fields in the Turkish judicial system?

The supreme courts are:
- the Court of Cassation as the final decision maker in civilian ordinary judiciary,
- the Council of State as the final decision maker in civilian administrative judiciary.

What is the principle of procedural economy?

According to the principle of procedural economy, it is the duty of the judiciary to conclude trials as quickly as possible and at minimum cost.

What are the "supreme courts"?

Because of its  multipartite structured judicial system, Turkey has four higher courts
with separate jurisdictions: the Constitutional Court, the Court of Cassation, the Council of State and the Court of Jurisdictional Disputes. In addition to those, the two supreme authorities with judicial powers, namely the Court of Accounts and the Supreme Election Board, are also considered as supreme courts.

What is the function of the Constitutional Court?

The basic function of the Constitutional Court is to examine “the constitutionality”; in both form and substance of laws, presidential decrees and the rules of procedure of the Turkish Grand National Assembly. Constitutional amendments are subject to constitutional review only in respect of form.

Who are the members of the Constitutional Court?

The Court consists of 15 members who are selected by the Parliament and the President of the Republic. Turkish Grand National Assembly (TGNA) appoints two members from the presidents and members of the Court of Accounts, and one member from among self-employed lawyers to be nominated by the heads of the Bar Associations. The President of the Republic of Turkey appoints three members from the Court of Cassation, two from the Council of State, three from academicians in the fields of law, economics and political sciences who are not members of the Council, and appoints four members from senior officials, self-employed lawyers, first class judges and public prosecutors or rapporteurs having served at least five years at the Constitutional Court.

How can the Plenary of the Constitutional Court take decisions?

As a rule, the Plenary shall take decisions by absolute majority. However, annulment of constitutional amendments, dissolution of political parties, or their deprivation from state aid, shall be decided with a two-thirds majority of members attending the meeting.

What are the duties of The Plenary?

• carries out abstract and concrete review of the constitutionality of norms,

• tries, for offences relating to their offices, the President of the Republic, the Speaker of the TGNA,

• the deputies of the President of the Republic, the ministers, presidents and members of the High Judicial Organs and the Chief of Staff and the Commanders of Land, Air and Naval Forces,

• decides on the cases related to the dissolution of political parties,

• carries out the financial audit of political parties,

• reviews and decides on the individual applications referred to the Plenary by the Section,

• reviews the decisions of the Parliament with regard to the annulment of the parliamentary immunity or disqualification from membership,

• elects the President and Vice-President of the Court of Jurisdictional Disputes from among the judges of the Constitutional Court.

What is the function of the Court of Jurisdictional Disputes and the Judiciary of Jurisdictional Disputes?

The Court of Jurisdictional Disputes is regulated in article 158 of the constitution as an independent court that is established to finalise the jurisdictional disputes that may occur between the courts of different jurisdictional areas. It does not have district and first instance courts. Its decisions are binding for the supreme, district and first instance courts except for the Constitutional Court.

What is the Court of Cassation and the Ordinary Judiciary?

The Court of Cassation, also called Supreme Court of Appeals of Turkey which was founded in 1868 is the last instance for reviewing verdicts given by the courts of ordinary justice meaning that it is the highest court in the ordinary judiciary. It is the last instance court for reviewing decisions and judgments rendered by civil and criminal courts and which are not referred by law to other judicial authorities. It is also the first and last instance court dealing with specific cases prescribed by law.

What are the “district courts of appeals”?

The “district courts of appeals” are the regional courts established to evaluate the appeal applications against the decisions of the ordinary judiciary first instance courts. These courts have the authority to examine files coming from the First Instance Courts in terms of form and substance. District Courts of Appeal may either uphold or quash the decision of the First Instance Courts. In the latter situation, it may either send the case file to the relevant Court of First Instance or retry the case itself.

What is the Council of State?

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

What duties does the Council of State have?

There are some specific cases prescribed by law where the Council deals with as the first and last instance court i.e. the administrative actions against the decrees of the President and ordinary presidential decrees. Besides being a supreme court, the Council also has advisory functions such as giving opinions on legal matters that are sent by the President of Republic or giving opinions on or on draft legislations, examining the conditions and the contracts under which concessions concerning public services are granted and the draft regulations and carrying out other duties as prescribed by law.

What are the chambers of the Council of State?

There are 15 chambers in the Council of State, 14 of them are judicial chambers and 1 of them is the administrative chamber. The First Chamber is assigned as the administrative chamber. The administrative chamber, delivers opinion on administrative tasks assigned to them by law. Four of the judicial chambers deal with the tax cases, and 10 of them deal with other administrative cases.

What are thee district administrative courts?

The district administrative courts are regional courts established to evaluate the applications for objection remedy against the decisions of the first instance administrative courts. Just like the district courts of appeals, district administrative courts also make “appeal” review and are established in bigger provinces of Turkey in a way to include the neighbouring provinces within their areas of jurisdiction. Each court is established independently and there is not a joint body.

What are 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. These courts deal with cases which are brought against the administrative organs because of the implementation of the administrative legislation.

Administrative cases can be split into three categories: administrative actions with demand for the cancellation of an administrative proceeding, administrative actions claiming for compensation of damages caused by an administrative proceeding or action (full remedy actions), and finally administrative actions aiming the resolution of administrative disputes that occur as a result of the contracts signed to carry out a public service.

What are the duties of the Court of Accounts?

The Court of Accounts is 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. 

What is the Supreme Election Board?

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.

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

Supreme Election Board is a sui generis independent judicial board which is assigned with administrative and electoral jurisdiction, and appeal is not allowed to any other institutions against its decisions. The SEB is assigned from the start till the end of elections in order to manage the order of elections with honesty, to undertake or provide undertaking all necessary transactions, to examine all electoral complaints and objections and to give final decisions on such complaints and to accept electoral minutes of members of Turkish Grand National Assembly and minutes of presidential elections. SEB executes the administration and supervision of elections, and is composed of seven original and four reserve members.

What are the directorates of enforcement and the directorates of 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.

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

What are the duties of the Ministry of Justice?

- 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,

- to carry out other functions assigned by laws.