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Dr Ayse Saadet Arikan Judge Director General for the EU Affairs Ministry of Justice

TURKISH JUDICIAL SYSTEM and LEGAL REFORMS. Dr Ayse Saadet Arikan Judge Director General for the EU Affairs Ministry of Justice. 16 June 2005 The HAGUE. TURKISH JUDICIAL SYSTEM and LEGAL REFORMS. OUTLINE. I- TURKISH JUDICIAL SYSTEM A-SOME FACTS AND FIGURES 1-COURT SYSTEM 2-FIGURES

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Dr Ayse Saadet Arikan Judge Director General for the EU Affairs Ministry of Justice

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  1. TURKISH JUDICIAL SYSTEM and LEGAL REFORMS Dr Ayse Saadet ArikanJudgeDirector General for the EU AffairsMinistry of Justice 16 June 2005 The HAGUE

  2. TURKISH JUDICIAL SYSTEMand LEGAL REFORMS OUTLINE I-TURKISH JUDICIAL SYSTEM A-SOME FACTS AND FIGURES 1-COURT SYSTEM 2-FIGURES B-BASE of the LEGAL SYSTEM II-TURKEY and EC/EU RELATIONS A-1963-1999 PERIOD 1-ANKARA AGREEMENT 2-CUSTOMS UNION B-1999-2005 PERIOD 1-ACCESSION PARTNERSHIP / NATIONAL PROGRAMME 2-CONSTITUTIONAL and LEGISLATIVE REFORMS III-IMPLEMENTATION in the FIELD of JUDICIARY

  3. I- TURKISH JUDICIAL SYSTEM A-SOME FACTS AND FIGURES 1-COURT SYSTEM

  4. CONSTITUTIONAL COURT ADMINISTRATIVE JURISD. CIVIL JURISDICTION MILITARY JURISD. COUNCIL of STATE C.OF CASSATION MILITARY COURTS C.of APPEAL Administ. C.of Appeal . Civil Courts Criminal Courts Peace C Magistrate C Administr. C Tax C General Civl. C General Cr.C Felony C. Specialised Courts -Commercial C -Labour C -Maritime C -Land Regsitry C -Family C -Consumer C -IP Courts -Juvenile C -Enforcement C -Traffic C JURISDICTIONAL DISPUTE COURT

  5. I- TURKISH JUDICIAL SYSTEM A-SOME FACTS AND FIGURES 2-FIGURES

  6. Population of Turkey: 70 million 2004 Total Disputes: 4.8 million %42 civil %56 civil 575 000 Before C.Cassation %44 penal %58 penal 5969 Judges %28 Female Total Judge&Pros. 9131 3162 Prosecutors %4 Female Penal: 266 days Civil: 241 days Stagiers 1159 General Courts Average Duration Penal: 283 days Civil: 86 days C.o. Cassation Members of the CoCas. 222 Coucil of State 460 days Members of Council of State:78 Auxilary Court Personel:Aprox. 30 000

  7. 444Prisons PRISONS Current N.o Inmates: 58 000 Total Prison Officials: 31 000

  8. I- TURKISH JUDICIAL SYSTEM B-BASE of the LEGAL SYSTEM -Contemprary Principles and Values DEMOCRATIC RULE of LAW ARTICLE 2 of the CONSTITUTION Based on and SECULAR Turkey is a RESPECT for HUMAN RIGHTS SOCIAL STATE

  9. B-BASE of the LEGAL SYSTEM CIVIL CODE 1926 SWITZERLAND SWITZERLAND 1911 CODE of OBLIGATIONS COMMERCIAL CODE 1957 SWISS and GERMANY CIVIL AREA TAX LEGISLATION GERMANY SWISS ,GERMAN FRENCH 1927 CIVIL PROC. CODE FRENCH ADMINIST RATIVE LAW 1927C. PROCEDURAL CODE 1877 GERMAN C. PENAL AREA 1889 ITALIAN (Zanerdelli) 1926 PENAL CODE REDRepresents Renewed Laws in 2002 and 2005 GREENRepresents Current Drafts

  10. II-TURKEY and EC/EU RELATIONS A-1963-1999 PERIOD 1-ANKARA AGREEMENT

  11. II-TURKEY and EC/EU RELATIONS 1963AnkaraAgreement FRAMEWORK AGREEMENT Article 28:As soon as the operation of this Agreement has advanced farenough to justify envisaging full acceptance by Turkey of the obligations arising out of the Treatyestablishing the Community, the Contracting Parties shall examine the possibility of the accession of Turkey to the Community. 14 April 1987: Full Membership Aplication 1999 December: Helsinki Summit 2002 December: Copenhag Summit 2004 December: Negotiat. Decs. For Oct.2005

  12. II-TURKEY and EC/EU RELATIONS A-1963-1999 PERIOD 2-CUSTOMS UNION

  13. CUSTOMS UNION DECISION 1/95 (96/42 EC) I-FREE MOV. GOODS and COMMERCIAL POLICY II-AGRICULTURAL PRODUCTS III-CUSTOMS PROVISIONS Intellectual Property Competition TradeDefence Instruments IV-APPROXIMATION of LAWS VI CHAPTERS (66 Articles) Gov. Procurement Direct and Indirect Tax V-INSTITUTIONAL PROVISIONS VI-GENERAL and FINAL PROVISIONS ANNEXES 9 Annexes

  14. II-TURKEY and EC/EU RELATIONS A-1999-2005 PERIOD 1-ACCESSION PARTNERSHIP and NATIONAL PROGRAMME

  15. A-1999-2005 PERIOD TURNING POINT December 1999, Helsinki Summit Decision: ‘’.......Turkey is acandidate State destined to join the Union on the basis of the same criteria as applied to the other candidate States........’’ • By 1999 Decision, the accession turned into a realistic possibility rather than being a distant prospect.

  16. A-1999-2005 PERIOD • ROAD MAP for TURKEY: Accession Partnership (Prepared by the Council) 8 March 2001 Accession Partnership (2001/235 EC) 19 May 2003Accession Partnership (2003/398 EC) (Updated Version) TURKEY’s OWN ROAD MAP: National Programme (Prepared by the Government) March 2001 National Programme 24 July 2003National Programme for the Adoption of the Acquis Updated Version + Political Critera Economic Critera FRAMEWORK for PRIORITY AREAS Internal Market and Other Fields of EC Chapters Justice and Home Affairs

  17. 2-CONSTITUTIONAL and LEGISLATIVE REFORMS in TURKEY -Outline- • Promulgated Legislation and Constitutional Amendments between 1999-2005 • Comparison Among the Constitutional Amendments Before and After Helsinki • Main Criteria and Road Maps • Content of the Legislation and Amendments • Implementation • Concrete example:Human Rights Project for Judges and Prosecutors

  18. PROMULGATED LEGISLATION BETWEEN 1999 -2005 (June )

  19. COMPARATIVE TABLEABOUTCONSTITUTIONAL AMENDMENTS

  20. MAIN CRITERIA and ROAD MAPS • COPENHAGEN CRITERIA • ACCESSION PARTNERSHIP(March 2001) • REVISED VERSION of AP (April 2003) • NATIONAL PROGRAMME (March 2001) • REVISED VERSION of NP (July 2003)

  21. CONTENT of the LEGISLATION and the AMENDMENTS • CONSTITUTIONAL AMENDMENTS • October 2001 -proportionality, -freedom of expression, -privacy, -inviolability of domicile, -freedom of residence, fr.of press, -fr.of association, -right to fair trial, -equality of spouses in the family, - reduced detention periods + immediate notification to the next of kin, -principles on the dissolution of political parties in line with the Venice Commission Decission ,

  22. CONTENT of the LEGISLATION and the AMENDMENTS • CONSTITUTIONAL AMENDMENTS • October 2001 (continue) -illegally obtained findings shall not be‘’evidence’’ before court, -death penalty reduced to times of war and terrorist crimes, -strengthened the civil aspect within the N.Security Council • May 2004 -equality between man and woman, -further strengthening the freedom of press, -total abolition of death penalty, -surrender of the citizen to the ICC, -priority of HRs Conventions over conflicting national legislation, -more reduction on NSec.Council’s competence -scrutiny of the Armed Forces’ possessions, -abolution of the State Security Courts.

  23. CONTENT of the LEGISLATION and the AMENDMENTS • Content of the Legislation : • First 3 Harmonisation Packages: 25 Laws (2002) -wide range of human rights issues, -shorten the pre-trial detention period, no incommunicado detention, -no penalty for sole critisism of state institutions, -broadcast in local languages, -medical examination of criminals on transfer to and from prisons,

  24. CONTENT of the LEGISLATION and the AMENDMENTS • Content of the Legislation : • Following 7 Harmonisation Packages: 74 Laws (2003-2004) -no convertion of imprisonment to fine for torture offenders, -lifting the administrative permission procedure (from senior officials for torture and ill treatment offenders, - legal description of torture and ill treatment cases as’’ priority issue ‘’ to proceed by prosecutors and before courts, -no adjournment more than 30 days between two court hearings introduced for torture and malltreatment cases -’’re-trial’ ’was introduced for an effective implementation of the ECtHR’s judgements, -freedom of expression was expanded further, -setting up association eased, -no restriction on property acquisition for non-muslim foundation, -political parties, -emergency rule in the Southeastern part of the country was ended

  25. CONTENT of the LEGISLATION and the AMENDMENTS • Contentof the Legislation :(continue) • Following 7 Harmonisation Packages: 74 Laws (2003-2004) -abolition of Art.8 of Anti Teror Law (propaganda against the state), -freedom of expression was further extended (159,312,169), -restriction of military court jurisdiction to civilians, -age of juveniles was raised to 18 to be tried in juvenile courts, -broadcasting rights were extended, -state security courts were abolished and regular heavy penalty courts were given jurisdiction for the teror and organised crimes, -absolute abolution of death penalty in line with Prot.13.

  26. OTHER LEGISLATION(Few Examples out of 585 Laws Passed in 31 Months) • Law on Family Courts (2003) • Law on Justice Academy (2003), • Law on Access to Information (2003), • Law on Electronic Signature (2004), • Law on Compansetion of Damages Arose From Combatting Terrorism (2004), • New Penal Code ( passed in 26.9 2004), • Court of Appeal ( passed in 26.9 2004), • Law on Criminal Procedure (accepted in 5.9.2004) , • Law on Enforcement of Criminal Judgements (passed on 13.12 2004) • Law on Misdemeanours (passed on 30. 3. 2005)

  27. MAJOR DRAFTS SEND for CONSULTATION • Draft Commercial Code, • Draft Law of Obligations, • Draft Law for Civil Procedure, • Draft Law on Ombudsman, • Draft Law on Personal Data Protection, • Draft Law on Association for Judges, • Draft Law on Personal Data Protection

  28. IMPLEMENTATION IMPORTANT TOOL is TRAINING • JOINT INITIATIVE PROJECT on HRs (Turkey,EU,CoE) • Approach: Train the Trainers • Target group: 225 judges and prosecutors • Topic :on the ECHR and the case law of ECtHR • Duration :May 2003-Dec.2003 • Survey:express wish to use information in their decisions • Collection of the Decisions and Judgements: March 2004-May. 2005 -Their Training 8500 judges and prosequters: Completed July 2004

  29. EVALUATION

  30. MOSTLY REFERRED ARTICLES OF THE ECHR

  31. REFERANCES

  32. REFERANCES

  33. TYPES of COURTS(which make referance)

  34. EVALUATION of PROJECT RESULTS • Referances were made even before the Constitutional change made in May 2004, • They have the legal capacity to recognise the duly ratified coventions over the domestic legislation, • Training is efficient tool for effective implementation, • Judges and Prosecutors are the insurance to interpret any legislation within the light of international HR conventions.

  35. CONCLUSION • Turkey itself is a Westernisation Project started in 1923, with the proculamation of Republic, long before the EU Project. • Those two Projects are based on reform type of ‘’changes’’ by time , in line with their own targets. • Nevertheless Turkey’s reform process has gained rapid momentum since 1999 within the framework of joining the EU Project. • It is believed that this momentum, generated by the reform process, shall act as a catalyst for further reform initiatives in Turkey.

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