Turkish Judicial

System
 Lecture Outline

1. Sources of Turkish Law

2. Court Structure in Turkish Law

3. Actors of the Turkish Judiciary

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 1. Sources of Turkish Law

The sources of Turkish domestic law, in

descending order of importance, are:

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 Sources of Turkish Law

 The Constitution
 International Treaties
 Laws/Codes (Statutes)
 Decree laws (Statutory Decrees)
 Regulations
 By-laws
 Administrative Decrees
 Court Decisions (Precedents)
 ‘Commercial’ Usage and Custom

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 Sources of Turkish Law – Constitution

Turkish Constitution

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 1. Sources of Turkish Law - Constitution

Since the proclamation of the Turkish Republic in 1923, the

Turkish Constitution has undergone numerous amendments...

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 Sources of Turkish Law – Constitution

 1924 Constitution
 1961 Constitution
 1971-73 amendments
 1981 Constitution
 1995 amendments
 2010 amendments
 2017 amendments

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 Sources of Turkish Law – Constitution

The Constitution:

Outlines the Turkish legal system

Recognizes the basic rights and freedoms of individuals
No law can be enacted which is unconstitutional, violating
the constitution
The constitutionality of laws are monitored by the
constitutional court

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 Sources of Turkish Law – Constitution

With regards to business in particular:

Provides a basic «fundamental» right to ownership of property

with article 35

Article 46 prohibits the expropriation of property

Article 48 provides the freedom to work – contract – establish

private enterprises

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 Sources of Turkish Law – International Treaties

International Treaties

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 Sources of Turkish Law – international Treaties

International Treaties:

Become effective when approved by the grand national

assembly of Turkey

Have the same status as laws when approved

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 Sources of Turkish Law – International Treaties

In the case of a conflict between international agreements

concerning fundamental rights and freedoms and domestic
laws, due to differences in provisions on the same matter, the
provisions of international agreements shall prevail...

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 Sources of Turkish Law – Codes

Laws/Codes (Statutes)

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 Sources of Turkish Law – Codes

Laws/Codes (Statutes):

Enacted by the Grand National Assembly of Turkey (TBMM) and

signed by the president

Become effective when specified by the law or the day the law is
published in the official gazette

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 Sources of Turkish Law – Decree Laws

Decree Laws (Statutory Decrees)

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 Sources of Turkish Law – Decree Laws

 The Grand National Assembly of Turkey may delegate law

making responsibility to the Council of Ministers which may
issue decree laws (KHK - decrees having the force of law)
 There are also the «extra-ordinary» decree laws which are
issued by the president and do not require any delegation of
authority from the Grand National Assembly
 Decree laws have the same status as laws but are subject to
review and approval by the Grand National Assembly and the
Constitutional Court (AYM)

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 Sources of Turkish Law – Regulations

Regulations (Tüzük):

Written explanations of how a particular law will be

interpreted, applied or enforced in the absence of such an
explanation in the law itself

Must be authorized by, and cannot be contrary to the law itself

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 Sources of Turkish Law – By-laws

By-laws (Yönetmelik):

Written instructions regarding relevant laws and by-laws

Issued by the prime minister, individual ministers, or other public

authorities regarding areas of authority delegated to them

Must be authorized by, and cannot be contrary to the law or the

by-law itself

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 Sources of Turkish Law – Precedents

Court Decisions (Precedents)

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 Sources of Turkish Law – Precedents

 Judges have wide latitude to interpret and apply the laws and
to make law, if there is no other applicable law

 However, judges are bound by decisions of the highest courts

First instance court ->>

Regional appeal courts ->>
Court of Cassation (Yargıtay) ->>
Constitutional Court (AYM)

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 Sources of Turkish Law – Decrees, Usage and Custom

Administrative Decrees
Instructions issued by administrative agencies regarding subjects
under their jurisdiction, e.g., appointments

‘Commercial’ usage and custom

Societal and business customs are often noted by judges

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 Sources of Turkish Commercial Law

Turkish Commercial Law is governed by:

The Civil Code (Medeni Kanun)

The Code of Obligations (Borçlar Kanunu)

The Commercial Code (Ticaret Kanunu)

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 Sources of Turkish Commercial Law

 The Commercial Code is an extension of the civil code to

commercial transactions

 The Law of Obligations and other Civil Code provisions apply

to all commercial transactions unless a provision of the Turkish
Commercial Code preempts them

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 Sources of Turkish Law

 The Turkish Civil Code – Code of Obligations – Civil

Procedural Code and the Code of Enforcement & Insolvency
are all recepted from Swiss Codes in 1926 (except the Code of
Enforcement & Insolvency which was recepted in 1932)

 The Turkish Commercial Code was recepted from German

Commercial Code also on 1926

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 Sources of Turkish Law

However, all these codes have undergone extensive

amendments in the last decades:

 Civil Code in 2001

 Code of Obligations in 2012
 Commercial Code in 1955 and in 2012
 Code of Civil Procedure in 2002

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 Lecture Outline

1. Sources of Turkish Law

2. Court Structure in Turkish Law

3. Actors of the Turkish Judiciary

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 2. Court Structure in Turkish Law

 High Courts

 First Instance Courts

 Appeal Courts
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 2. Court Structure – High Courts

Constitutional Court Court of Jurisdictional Disputes

(Anayasa Mahkemesi) (Uyuşmazlık Mahkemesi)

 Examines the constitutionality  Final authority to settle

in both form and substance of disputes concerning verdicts
Laws, decrees having the and competencies of judicial
force of law, and the rules of and administrative courts
procedure of the Turkish
Grand National Assembly as
well as constitutional
amendmends

 Serves as the Court of last

resort for claims of violation of
fundamental rights and
freedoms by public authorities
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 Court Structure – High Courts

Court of Cassation
Council of State (Danıştay)
(Yargıtay)

 The Court of Cassation is the  The Council of State is the last

last instance court for instance for reviewing
reviewing decisions and decisions and judgments
judgments rendered by civil rendered by administrative
and criminal courts and which courts which are not referred
are not referred by law to other by law to other administrative
judicial authorities. courts.
 It is also the first and last  It is also the first and last
instance court dealing with instance court for dealing with
specific cases prescribed by specific cases prescribed by
law law

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 Court Structure – High Courts

 There is also the «Court of Accounts» (Sayıştay) which carries out

regularity (financial and compliance) and performance audits of public
administrative bodies.

 The «Court of Accounts» also decides whether or not the accounts and
transactions of the competent departments are in accordance with the
legal arrangements

 Whether or not the «Court of Accounts» is a court let alone a high Court
under the Turkish system is controversial although a recent 2014 decision
of the Constitutional Court identified the «Court of Accounts» as a judicial
body
 Court Structure – First Instance Courts

Civil Courts Criminal Courts

Civil Court of First Instance Criminal Court of First Instance

Peace Courts (First Instance) Juvenile Courts

Commercial Courts
Criminal Courts of
(of First Instance)
Intellectual & Industrial
Specialized Courts Property Rights

Family Courts
Assize Court (First Instance)
Labour courts
Maritime Courts Juvenile Assize Courts
Cadastral Courts
Consumer Courts
Civil Courts of
Intellectual & Industral
Property Rights
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 Court Structure – Appeal Courts

Civil & Criminal Law matters

Regional Court of Appeals (Bölge İstinaf Mahkemesi)
Court of Cassation (Yargıtay)

Administrative Law matters

Regional Administrative Courts (Bölge İdare Mahkemesi)
Council of State (Danıştay)

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 Court Structure

 The courts in Turkey are divided into civil, criminal and

administrative courts

 These courts are further divided into lower and higher courts

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 Court Structure – Courts of Civil Jurisdiction

The lower courts of civil jurisdiction are:

Civil courts of first instance (asliye hukuk mahkemeleri)

Peace courts (sulh hukuk mahkemeleri)
Commercial courts
(Other) specialized courts

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 Court Structure – Courts of Civil Jurisdiction

Civil court of first instance:

The basic trial court with general and residual jurisdiction

covering everything not specifically assigned to other tribunals

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 Court Structure – Courts of Civil Jurisdiction

Peace courts:

Established to hear certain cases specifically assigned by the

law

Such cases include: leasehold appraisals, eviction cases,

demand for sale by auction, actions for guardianship and so forth

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 Court Structure – Courts of Civil Jurisdiction

Commercial courts

Some civil matters involving commercial transactions are heard in

‘specialized’ commercial courts

A commercial case may also be commenced in an ordinary civil court

if the defendant does not object, or in the absence of a commercial
court in the area

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 Court Structure – Criminal Courts

The Criminal courts of original jurisdiction are:

Courts of general criminal jurisdiction (Criminal Court of First

Instance) (asliye ceza mahkemeleri)

Assize Courts (ağır ceza mahkemeleri)

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 Court Structure – Administrative Courts

 Administrative courts of first instance

 Tax courts (first instance)

 Regional administrative courts (for review)

 Council of State (appeal court and - for certain disputes - first

instance court)

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 Court Structure – Administrative Courts

Administrative Judiciary

Council of State

Regıonal Administrative Courts

Administrative Courts Tax Courts

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 Court Structure – Appeal Courts

 Notwithstanding the division amongst courts, there is one high court

for both civil and criminal matters (Court of Cassation - Yargıtay)
which considers the legality of lower (regional) court decisions

 The Council of State (Danıştay) acts as an appeal court on

administrative and tax disputes

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 Court Structure – Appeal Courts

Since 2016, the decisions of the courts of first instance

(both civil and criminal) are now first reviewed by the
«Regional Courts of Appeal» (Bölge İstinaf Mahkemeleri)

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 Court Structure – Appeal Courts

 The decision of the «Regional Court of Appeals» are final and

binding for certain type of cases

 In all the other remaining cases, the «Court of Cassation»

serves as the court of last resort, accordingly with those cases
the decisions of the «Regional Court of Appeals» may be taken
to the «Court of Cassation» for a final review

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 Court Structure – Appeal Courts

In Private Law matters,

The decision of a first instance court might be appealed in a

«Regional Court of Appeals»

Then the parties will retain the right to appeal to the decisions of
the regional judicial courts in the «Court of Cassation»

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 Court Structure – Appeal Courts

In Private Law matters,

However not every decisions of the ‘Court of First Instances’ can
be appealed in the ‘Regional Court of Appeals’

For example,
Final decisions of cases regarding property with a value of less
than 3,000 Turkish liras are final and cannot be brought to regional
courts for appeal except the actions for non-pecuniary damages

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 Court Structure – Appeal Courts

In Private law matters

Additionally, not every decision of the «Regional Court of

Appeals» can be appealed in the «Court of Cassation»

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 Court Structure – Appeal Courts

For example,

Decisions of the appeal to ‘Peace courts’ decisions

Decisions of the appeal to cases regarding property with a value
of less than 40,000 Turkish liras
Decisions regarding jurisdictional disputes between lower
courts

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 Court Structure – Appeal Courts

The methods of review differ in the ‘Regional Court of

Appeals’ and the ‘Court of Cassation’:

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 Court Structure – Appeal Courts

 The «Court of Cassation» does not reinvestigate factual

aspects of the case or merits

 It reviews whether the lower court decision complies with

procedure and law

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 Court Structure – Appeal Courts

 Unlike the Court of Cassation, the «Regional Court of Appeals»

may reinvestigate the merits of the case

 However, the reinvestigation is limited to the grounds stated in

the appeal petition, except for violations of public order

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 Court Structure – Specialized Courts

 In addition, there are more specialized courts such as special

courts for land registration, maritime law, family law, intellectual
property and labor disputes

 The procedural rules applied in those courts, as well as Council

of State, are basically similar to those of civil cases

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 Court Structure - Military Courts

 All Military Courts have been abolished following the

2017 referandum

 Those abolished include Military Court of Cassation, High

Military Administrative Court and all other military courts

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 Lecture Outline

1. Sources of Turkish Law

2. Court Structure in Turkish Law

3. Actors of the Turkish Judiciary

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 3. Actors of the Turkish Judiciary

Persons participating in administration of justice are:

Judges
Public Prosecutors (Cumhuriyet Savcıları)
Court Reporters
Practicing Lawyers
Expert Witnesses (bilirkişiler)
Notaries
Mediators (Arabulucular)

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 Actors of the Turkish Judiciary – Judge

 Since there is no Jury trial in Turkey, the position of the

Judge is especially important

 The role of the Judge is substantially larger than that of a

Judge in Anglo-American system

 In Turkey, the Judge is actively responsible for the

administration of justice

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 Actors of the Turkish Judiciary – Judge

 Judge (and Prosecutors) are public officers and are appointed

by the Council of Judges and Prosecutors

 Although same in legal status with the prosecutores and

lawyers, in practice judges hold a much higher status than
both, especially the lawyers

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 Actors of the Turkish Judiciary – Public Prosecutor

 Brings suits mainly on matters where a public interest exists,

primarily the prosecution of criminal defendants

 The role of the prosecutor is primarily found in criminal offenses

although there are some few instances in the areas of civil maters
where the prosecutor also functions

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 Actors – Council of Judges and Prosecutors (HSK)

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 Actors – Council of Judges and Prosecutors

 Comprises of the Minister of Justice, the Undersecretary of the

Ministery of Justice and 13 Judges and Prosecutors

 7 of those judges & prosecutors are elected by the Grand

Assembly and 4 of them by the President of the Turkish
Republic

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 Actors – The Council of Judges and Prosecutors

 Main duties include admission of the judges and prosecutors to

the profession as well as the appointment, transfer, promotion,
demotion, suspension and disciplinary investigations and
sanctions of the judges and prosecutors

 The Council of Judges and Prosecutors also selects members

for the Court of Cassation (Yargıtay) and Council of State
(Danıştay)

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 Actors of the Turkish Judiciary – Lawyers

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 Actors of the Turkish Judiciary – Lawyers

 Represent the parties in Court and defend the accused in

criminal cases

 In Turkish law, no distinction between solicitors or barristers

exists

 Lawyers must join local bar association in order to be able to

practice in court

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 Actors of the Turkish Judiciary – Lawyers

Under Turkish Law, except some specific cases, parties to a

lawsuit do not have to be represented by a lawyer!

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 Actors of the Turkish Judiciary – Lawyers

Eligibility for Bar Association:

 There is no entry exam requirement for admittance to the Bar

Association

 A ‘LLB’ from a law school and a 1 year compulsory training is

sufficient for Bar application

 Only Turkish citizens are eligible to apply to the Bar association

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 Actors of the Turkish Judiciary – Lawyers

 Foreign Law Firms may operate in Turkey, provided that there

is reciprocity and the partnership is incorporated in accordance
with the regulations laid out in Turkish Law...

 However, these foreign firms may only advise on foreign and

international law matters

 This limitation also applies to Turkish lawyers working in such

foreign partnerships

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 Actors of the Turkish Judiciary – Lawyers

 The legal profession is seen by law to be a mix of commercial

activity and public service in nature

 Accordingly, the advertisement of lawyers is strictly prohibited

in Turkish law

 Lawyers are also prohibited to engage in any commercial

activities or to be employed in a different profession other than
law

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 Actors of the Turkish Judiciary – Notary

 Prepares deeds and other documents such as wills,

authenticates them, sends offical notices and performs other
similar functions

 Notaries are controlled by the Ministry of Justice

 They receive no wages, only a fee for each transaction

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 Actors of the Turkish Judiciary – Mediator

 The entry of the «Code of Mediation on Civil Law Disputes»

into force on 2013, have introduced the institution of
«mediation» into the Turkish civil private law

 Mediation is a voluntary dispute resolution method which

aims to bring parties for the purpose of negotiating, reaching
an understanding and agreeing on their own resolution
conducted with the assistance of an impartial and independent
person (mediator) who has relevant expertise

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 Actors of the Turkish Judiciary – Mediator

 Under Turkish law, the scope of mediation has been limited to

private law disputes - including those with a foreign element -
arising from affairs or actions which are freely at the parties'
disposal
 Under Turkish law the «impartial and independent third
person» who will carry out the mediation activity must be a
qualified lawyer with at least 5 years of professional experience
 The candidates must successfully finish a mediation training
and be registered to the Mediation Registry

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 Actors of the Turkish Judiciary – Mediator

 If an agreement is reached as a result of the mediation

process, this agreement has the force of a court decision

 If no agreement is reached, then the parties are free to resort

to court and the statements, evidences, documents etc.
submitted during the mediation will be inadmissible for court
proceedings

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 End of Lecture

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