25 Mar THE RULE PROVIDING FOR A TARGET PERIOD FOR THE COMPLETION OF A PROSECUTION OR TRIAL IS NOT CONTRARY TO THE CONSTITUTION
The Objected Rule
28 of Law No. 2802. in the seventh paragraph of the article, it is stipulated that the target periods stipulated for the completion of the investigation, prosecution or trial will be determined by the Ministry of Justice (Ministry) taking into account the opinion of the Supreme Council of Judges and Prosecutors (Council). The section of the aforementioned paragraph “The target periods stipulated for the completion of the prosecution or trial are determined by the Ministry of Justice based on the opinion of the Supreme Council of Judges and Prosecutors” constitutes the rule of appeal.
Grounds For Objection
In summary of the application decision; the scope of the right to a fair trial within a trial within a reasonable time in order to ensure a trial in order to avoid delays from the authorities, some measures should be taken while the target application is one of the measures of the target importance of time will be determined by WHO that the time of judgment binding on judges the target application target is revealed, relating to the exercise of jurisdiction is subject to appeal in accordance with rule these periods are determined by the Ministry of, it has been stated that the determination of the target periods by the executive branch is incompatible with the principles of the rule of law and the independence of the judiciary, and it has been suggested that the rule is contrary to the Constitution.
Evaluation of the Court
Article 15 of the Law No. 2802. in its article, it is stated that the profession of judge and prosecutor is divided into four classes: third-class, second-class, first-class and first-class. The conditions required for the promotion of judges and prosecutors to the specified classes and degrees are defined in Article 21 of the Law in question. it is regulated in the article. In accordance with the aforementioned article, the legal path assessment forms are among the issues that should be taken into account in order for judges and prosecutors to achieve degree dec.
Some conclusions have been made in various articles of the Law on whether or not a degree upgrade has been made. At the beginning of them, the Board evaluates whether it will be appropriate for judges and prosecutors who have not been awarded a degree two or three times in a class to stay in the profession. As of this date, Article 30 of the Law. it is clear that the duties of judges and prosecutors who are deemed unfit to remain in the profession as a result of the evaluation to be carried out in accordance with the article will be terminated. Again, Article 103 of the Law. in the monthly statement prepared in the article, financial rights consisting of the sum of monthly and judicial allowances paid for judges and prosecutors are also determined according to the class or degree in which the judge or prosecutor is located. In addition, among the requirements for being elected to the Supreme Court or the Council of State are to have served successfully for at least three years after leaving the first class and not to have lost the qualifications that require leaving the first class Dec In this respect, the legal path assessment form constitutes one of the issues affecting the evaluation of whether judges and prosecutors stay in the profession, the progress of their professional careers and, in this context, their personal rights.
The rule subject to objection provides for the determination of the target period, which is one of the criteria taken into account in the preparation of the road assessment form of the law. Article 36 of the Constitution. an element of the right to a fair trial regulated in the article is the right to a trial within a reasonable time. In this regard, Article 141 of the Constitution. the article also provides for an obligation in this regard by stating that it is the duty of the judiciary to conclude cases with the least expense and as quickly as possible. Completion of investigations and trials within a reasonable time has an important role in ensuring the proper provision of justice and the preservation of faith in the law by protecting the parties from material and moral pressure and difficulties that they will face due to prolonged investigative and judicial activities. jul. In this regard, it is understood that the rule is designed to ensure that investigations and trials are completed within a reasonable time.
28 of the Code. it can be seen that there is a comprehensive regulation on the regulation and evaluation of the road assessment form of the law, in the article of which the target period to be determined in the manner prescribed by the rule is taken into account as a criterion. In this context, there is no aspect incompatible with the Constitution in leaving the issue of expertise and management technique in the form of determining target periods after determining the basic rules for the regulation of the legal path assessment form affecting the personal rights of judges and prosecutors to the derivative transactions of the executive.
28 of the Law, which also contains the rule subject to appeal. in its article, the path of the law evaluation form is organized taking into account many aspects, including the completion of the prosecution and trial in the target time. While there are many elements that will affect the regulation of the form, it is impossible to say that the element of prosecution or completion of the trial within the target time is the determining element of the said form alone.
In order to make a positive or negative assessment about the judge and the prosecutor in accordance with the provision of the aforementioned Law, the issues taken into account in the preparation of the law path assessment form do not have to be realized at the same time and at the same rate in order to be able to make a positive or negative assessment about the judge and prosecutor. In this context, the decision of a judge of the trial, lawful and accurate in time that have not been able to complete the target conclusively negative assessment of a trial the judge, which showed that the target would be faced with the end of the period, however, the above-mentioned laws against trades about a judge who is definitely a positive evaluation should not be performed.
At this stage, it should be noted that the Law also provides for an assurance that can prevent judges and prosecutors from using the law’s path assessment form in violation of fairness in raising degrees. 28 of the Code. in the fifth paragraph of the article, it has been stipulated that those who have been issued an evaluation form may request a re-examination of the evaluation form by stating their reasons within one month from the date of registration of the form in the National Judicial Network Information System. This applies to other issues taken into account in the preparation of the form, as well as to the completion of the investigation and prosecution within the target period.
On the other hand, the completion of the trial within the target time is not the only criterion and determinant of the law’s path assessment form, but it will be observed in the regulation of the said form, and this form will also be observed in Article 21 of the Law. it is clear that judges and prosecutors will be taken into account when raising their degrees in accordance with the article. In the aforementioned article of the degree of judges and prosecutors to rise is not the only legal course evaluation form in addition, since a certain time and penalty terms with the moral of judges and prosecutors, of course, professional knowledge and understanding, effort and industriousness of things that are the accumulation of whether they are caused, the amount and nature of work, and work on the implementation of alternative dispute resolution methods, their devotion to duty, and attendance, the top authorities and inspectors registration papers and receipts hal held about them, and jobs that last from the law review, it is also necessary to take into account such issues as sample decisions and interviews, as well as professional works and articles, if any, as well as intra-professional and specialized trainings that they participate in.
In this context, the evaluation criteria will be completed within the target period prosecution and trial law is not the only determinant of the form, where the degree of the rise of judges and prosecutors, law, together with the evaluation, including evaluation forms and many different elements, made this assessment of the board in charge of making tenure of judges and with the guarantee of the independence of the courts protected the independence of judges and prosecutors, subject to appeal to the target of the time it cannot be said that violates the rule. In addition, by stating that the Board’s opinion will be taken in determining the target periods in the rule, the Ministry has provided the opportunity to observe the Board’s views on the issue. Therefore, there is also no aspect of the rule that contradicts the principle of the independence of the courts.
The Constitutional Court decided on the grounds described that the rule was not contrary to the Constitution and rejected the appeal.
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