The Rule Providing A Target Period For The Completion Of The Prosecution Or Trial Is Not Contrary To The Constitution
Rule Subject to Objection
In the seventh paragraph of Article 28 of the Law No. 2802, it is stipulated that the target periods foreseen for the completion of the investigation, prosecution or trial shall be determined by the Ministry of Justice (Ministry) in consultation with the High Council of Judges and Prosecutors (Council). The part of the aforementioned paragraph stating that “the target periods for the completion of the prosecution or trial shall be determined by the Ministry of Justice in consultation with the High Council of Judges and Prosecutors” constitutes the rule subject to objection.
Grounds of Objection
In summary in the application decision; in order to ensure trial within a reasonable time within the scope of the right to a fair trial, some measures should be taken in order to prevent delays arising from the judicial authorities, the target time application is one of these measures, it is important who will determine the target periods, the target time application in the judiciary sets a binding target for the judges, it is related to the exercise of judicial power, these periods are determined by the Ministry in accordance with the rule subject to objection, and the determination of the target periods by the executive body is incompatible with the principles of the rule of law and the independence of the judiciary, and it has been argued that the rule is contrary to the Constitution.
Assessment of the Court
Article 15 of the Law No. 2802 states that the profession of judge and prosecutor is divided into four classes: third class, second class, first class and first class. The conditions for the promotion of judges and prosecutors to the specified classes and grades are regulated in Article 21 of the said Law. Pursuant to the aforementioned article, legal remedy evaluation forms are among the issues to be taken into consideration for the promotion of judges and prosecutors.
In various articles of the Law, certain consequences are attached to the granting or not granting of a promotion in rank. The most important of these is the Board’s assessment of whether it would be appropriate for judges and prosecutors who are not deemed worthy of promotion two times in a grade or three times in a class to remain in the profession. In this respect, it is clear that judges and prosecutors who are not deemed appropriate to remain in the profession as a result of the evaluation to be made according to Article 30 of the Law will be dismissed.
Again, in the salary table regulated in Article 103 of the Law, the financial rights of judges and prosecutors, consisting of the sum of salary and judicial allowance, are determined according to the class or grade of the judge or prosecutor. In addition, among the requirements for election as a member of the Court of Cassation or the Council of State is to have served successfully for at least three years after being promoted to the first class and not to have lost the qualifications for promotion to the first class. In this respect, the legal remedy evaluation form constitutes one of the issues affecting the evaluation of whether judges and prosecutors should remain in the profession, the progression of their professional careers and, in this context, their personal rights.
The rule subject to objection stipulates the determination of the target period, which is one of the criteria taken into consideration in the preparation of the legal remedy evaluation form. One of the elements of the right to a fair trial regulated in Article 36 of the Constitution is the right to be tried within a reasonable time.
In this context, Article 141 of the Constitution stipulates that it is the duty of the judiciary to finalise the cases with the least possible expense and with the greatest possible speed. Completion of investigations and proceedings within a reasonable time has an important role in ensuring that justice is properly provided and faith in the law is preserved by protecting the parties from material and moral pressure and distress they will be exposed to due to the protracted investigation and trial activity. In this respect, it is understood that the rule is regulated in order to complete the investigations and proceedings within a reasonable time.
Article 28 of the Law contains a comprehensive regulation on the organisation and evaluation of the legal remedy evaluation form, in which the target time to be determined as stipulated by the rule is taken into consideration as a criterion. In this framework, there is nothing incompatible with the Constitution in leaving the issue related to expertise and administrative technique in the form of determining the target periods to the derivative procedures of the executive branch after determining the basic rules regarding the regulation of the legal remedy evaluation form affecting the personal rights of judges and prosecutors.
In Article 28 of the Law, which includes the rule subject to the objection, the remedy assessment form is regulated by taking into account many issues, including the completion of the prosecution and trial within the target period. While there are many factors affecting the form, it is not possible to say that the completion of the prosecution or trial within the target period is the determining element of the said form alone.
Pursuant to the aforementioned provision of the Law, in order for a positive or negative evaluation to be made about the judge and the prosecutor, it is not necessary that the issues taken into consideration in the preparation of the legal remedy evaluation form are realised at the same time and to the same extent. In this context, the fact that a judge whose decision is in accordance with the law and is accurate does not show that that judge will definitely face a negative evaluation, nor can it be said that a judge who completes the trial within the target time but takes actions contrary to the matters specified in the above-mentioned legal provision should be evaluated positively.
At this stage, it should be noted that the Law also foresees the guarantee that may prevent the unfair use of the legal remedy evaluation form in the promotion of judges and prosecutors. In the fifth paragraph of Article 28 of the Law, it is stipulated that those for whom an evaluation form has been issued may request a re-examination of the evaluation form by stating their reasons within one month after the form is registered in the National Judicial Network Information System. This situation is valid in terms of the completion of the investigation and prosecution within the target period, as it is valid in terms of other issues considered in the preparation of the form.
On the other hand, although the completion of the trial within the target period is not the only criterion and determinant of the remedy evaluation form, it is clear that it will be taken into consideration in the preparation of the said form and this form will be taken into consideration in the promotion of judges and prosecutors in accordance with Article 21 of the Law.
In the aforementioned article, for the promotion of judges and prosecutors, not only the legal remedy evaluation form, but also certain time and penalty conditions, as well as the judges’ and prosecutors’ moral behaviour, professional knowledge and understanding, diligence and hard work, whether they have caused the accumulation of the works they have seen, the amount and nature of the works they have done, The work on the implementation of alternative dispute resolution methods, their commitment to duty and attendance, the status papers and registration slips issued by the higher authorities and inspectors, their works that have been subjected to legal remedy review, their sample decisions and opinions, their professional works and writings, if any, and the in-professional and specialisation trainings they have attended should also be taken into consideration.
In this context, considering that the criterion of completing the prosecution and trial within the target period is not the sole determinant of the remedy evaluation form, that the promotion of judges and prosecutors is made by evaluating many factors, including the remedy evaluation form, and that the Board responsible for making this evaluation has the independence of the courts and the guarantee of judgeship, it cannot be said that the rule subject to objection regarding the target period violates the independence of judges and prosecutors. Moreover, by stating in the rule that the opinion of the Board will be taken in determining the target periods, the opportunity is provided for the Ministry to observe the opinions of the Board on the subject. Therefore, there is no aspect of the rule that contradicts the principle of independence of courts.
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