The right to trial within a reasonable time by an independent and impartial tribunal in the light of the European Court of Human Rights Judgments and Turkish Law


Thesis Type: Postgraduate

Institution Of The Thesis: Marmara University, Faculty of Law, Public Law, Turkey

Approval Date: 2010

Thesis Language: English

Student: RECEP BAKIRCI

Consultant: SİBEL İNCEOĞLU

Abstract:

CONTENTS Page CONTENTS İ ABBREVIATIONS İV PREFACE Vİ INTRODUCTION 1 2. INDEPENDENT TRIBUNAL 4 2.1. Concept 4 2.2. Short History of Judge Independence 12 2.2.1. In the International Law 12 2.2.2. In the Turkish Law 13 2.3. The Concept of Tribunal 14 2.3.1. ECtHR Praxis 14 2.3.2. In the Turkish Law 19 2.4. Extent of Independence 20 2.4.1. Independence from Legislative 21 2.4.2. Independence from Executive 22 2.4.3. Independence from Jurisdiction 24 2.4.4. Independence from Media and Public Opinion 26 2.5. Criteria and Guarantees of Independence 27 2.5.1. Appointment Methods of Judges 29 2.5.1.1. Election of Judges by People 31 2.5.1.2. Appointment of Judges by the Executive 32 2.5.1.3. Election of Judges by Other Judges 34 2.5.1.4. Appointment of Judges by an Independent Board 35 2.5.2. Term of Office and Dismissal of Judges 38 2.5.2.1. Approach by ECtHR 38 2.5.2.2. In the Turkish Law 40 2.5.3. Qualification of Judges 43 2.5.3.1. Approach by ECtHR 43 2.5.3.2. In the Turkish Law 46 2.5.4. Guarantees Against to External Interventions and not to Receive Orders 47 2.5.4.1. Approach by ECtHR 47 2.5.4.2. In the Turkish Law 52 2.5.4.2.1. Promotion 55 2.5.5. Other Guarantees 58 2.5.5.1. Financial Guarantees 59 2.5.5.2. Geographical Guarantee 59 2.5.5.3. Professional Guarantee 61 2.5.6. Appearance of the Tribunal 62 2.5.6.1. Approach by the ECtHR 62 2.5.6.2. In the Turkish Law 73 2.5.6.3. HSYK (HCJP: High Commission of Judges and Prosecutors) and Judicial Independence 74 3. IMPARTIAL TRIBUNAL 81 3.1. Overview 81 3.1.1. Subjective Impartiality 85 3.1.2. Objective Impartiality 86 3.1.2.1. Approach by ECtHR 86 3.1.2.2. The Criteria Adopted by ECtHR to Assure Objective Impartiality of Judiciary 93 3.1.2.2.1. Judge’s Duties that Show Variety 93 3.1.2.2.2. Professional Tribunals 100 3.1.2.2.3. Various Duties of Courts 101 3.1.2.2.4. Judges’ Being Connected with the Case (with its parts) 102 3.1.2.2.5. Presence of a Regulation on Impartiality in Domestic Law 106 3.1.2.2.6. Judgment by Default and Re-trial for the Judgments which Overruled by Court of Appeal 107 3.1.2.3. Regulation Relating to Impartiality of Judges in Turkish Law 109 3.1.2.4. The Possibilities to Remove Infringement 120 3.1.2.4.1. Waiver 120 3.1.2.4.2. . Review of a Judgment by a Fully Authorized Superior Court 123 4. THE RIGHT TO TRIAL WITHIN A REASONABLE TIME 127 4.1. Concept 127 4.1.1. Criminal Cases 130 4.1.2. Civil Cases 131 4.1.3. Administrative Cases 131 4.2. The Status of Victim 136 4.3. Assessment of the Reasonable Time 138 4.3.1. The Term to be Taken into Consideration 138 4.4. The Criteria for Assessment of the Reasonable Time 148 4.4.1. Character of Case’s Subject 149 4.4.1.1. Complexity of Case 150 4.4.1.2. Importance of Case’s Subject for the Applicant 155 4.4.2. Applicant’s Conduct 156 4.4.3. National Authorities’ Conduct 163 4.5. The Right to Trial within A Reasonable Time in Turkish Law 171 5. GENERAL ASSESSMENT AND CONCLUSION 176 6. BIBLIOGRAPHY 179 7. RELATED JUDGMENT LIST OF THE ECTHR 184