Constitutional Court? Human Rights Court?

According to Article 9 of the Constitution of the Republic of Turkey, "Judicial power is exercised by independent and impartial courts on behalf of the Turkish Nation."

This is a provision that should be at the constitutional level. However, I am a bit confused by the laws under which this provision is enshrined.

In practice, there are many issues that the judiciary has to decide and almost every issue requires expertise in its own context.

For this purpose, the laws have categorized the issues among themselves and the courts have allocated the issues more or less in accordance with these classifications.

The judicial branches that exist in the Republic of Turkey today,

-> Judiciary

-> Administrative Judiciary

-> Constitutional Jurisdiction

->Dispute Adjudication

organized in four branches.

These branches are also divided into distinctions within themselves.

The judicial judiciary is divided under two sub-headings, 

- Civil Courts

- Criminal Courts

These courts are in turn divided into courts according to their subject matter, which are divided into courts of various subjects under each of the two headings.

Civil Courts

-Civil Courts of Peace

-Civil Courts of First Instance

-Other Civil Courts Established by Special Laws: 

-Consumer Courts

-Commercial Courts

-Labor Courts

-Execution Courts

-Family Courts

-Cadastral Courts

Criminal Courts are

-Criminal Courts of First Instance

-High Criminal Courts

-Other Criminal Courts Established by Special Laws:

-Juvenile Courts

-The State Security Courts, now abolished

The supreme judicial body of the judicial courts is the YARGITAY.

The ADMINISTRATIVE JUDICIARY was first organized by regions under the name of Regional Administrative Courts, and under them:

-Administrative Courts

-Tax Courts

and is broadly divided into two.

The supreme judicial body of the administrative courts is the DANIŞTAY.

Up to this point, I can say that it is acceptable, although maybe it should be organized a little better. I would organize especially the Judicial Judiciary a little better. 

By the way, the Military Judiciary, which has been abolished today, is actually a judicial branch that requires a special expertise in itself. Therefore, even though the distinction between civilian and military is not appropriate, I think it would be better to have a separate court under the Judicial Judiciary as a branch of specialization. Because military disciplinary rules are different from normal life in terms of military order. This is my opinion, of course the experts will know better.

As I said, I think the Criminal Judiciary could be organized a little differently. After all, it looks at a very wide area.

First of all, I would take care to make a distinction according to the interlocutors before the subjects.

How can the interlocutors be divided?

1) Citizen - Citizen

2) Citizen - Legal Entity

3) Citizen - State (Public)

4) Legal Entity - Legal Entity

5) Legal Entity - State (Public)

Also for disputes between State institutions:

6) State (Public) - State (Public) 

Maybe the distinction can also be considered. But we can say that this part falls more within the scope of the higher courts, and there are already higher courts in this regard. I will touch on the issue of superior courts in a moment.

Yes, it seems to me that it would be a more logical division if there were these main distinctions.

Disputes between citizens and non-citizens can be subdivided according to their subject matter, such as criminal courts or civil courts, if they involve a serious criminal situation. 

Other main divisions will also be subdivided into sub-courts. But at least I think it will be more understandable who will apply where according to the character of the disputes.

As I said, I am not an expert on the subject, I did not study law, but I can say that organization is my area of expertise due to my profession.

Let's talk about the higher courts.

The main division is between the Court of Cassation and the Council of State. In fact, as their names suggest, one of them was established for judicial matters and the other one seems to have been established more for advisory purposes, but the Council of State is considered as a supreme court for administrative matters. 

For each of the main divisions I propose, a superior court can be considered. Their names are not important at this stage. 

Actually, the main question mark in my mind when I started this article was the case load in the judiciary mentioned in the news I read. Especially the recent disputes between landlords and tenants. Of course, the number of disputes between banks and citizens or shopkeepers is also quite high. Complaint files between citizens are also quite high. 

In short, I can say that the judiciary is under such a workload and time pressure that it cannot keep up with the files in its hands. As a result, the error rates in decisions are also quite high. This has created an additional burden on the higher judiciary.

In other words, the main source of the problem is again the economy and the wrong practices of those in charge of the country. However, there is also a backlog of cases that have not been resolved or decided for years.

One reason for this backlog is the confusion in the judiciary. Since it is often not known exactly which court will decide which case, or because they are often confused, the files go back and forth from one court to another. This leads to a great waste of time. 

In case of confusion, a dispute court has even been established between the higher judicial bodies in order to decide who has jurisdiction over which matter. This court is the supreme judicial body that decides which judiciary is competent on the issue. 

Of course, there are other problems in the judiciary, but these problems are not the subject of this article. Those who are jurists have already discussed these issues sufficiently. I find it more appropriate to express my opinions on the organization of judicial bodies. 

Of course, we cannot leave out the Court of Accounts when we count the high courts. I have no objection to this, but I think that the Court of Accounts should have more authority in terms of sanctions. I also think that the Tax Courts could be organized under the Court of Accounts. 

Also, perhaps a court under the Court of Accounts should be considered to audit private sector companies. 

Okay, in the end, under free market conditions, whoever can sell what they can sell at what price will sell it. But I think it would also be useful to have some standards.

In my opinion, it is not a pleasant practice to make price adjustments in the private sector, for example, by playing with the weight settings. It is like deceiving the public in a sense. I think such issues need supervision. 

You go to the market and buy sunflower oil, you think you have bought a liter of oil, but it turns out that they have reduced the amount of oil in the bottle to 800 milliliters. If you don't pay attention, you don't notice, and when you do notice, you feel like you've been cheated.

The remaining supreme courts are the YSK, the Supreme Electoral Council and the Constitutional Court.

Let me talk about the Constitutional Court first. 

The Constitutional Court is, as its name suggests, a constitutional court. I think it should be just that. In other words, the Constitutional Court should be the court that has the final say on anything that does not comply with the constitution! 

I can hear you saying, isn't that the case right now? 

I have a small objection to the practices. I think the Constitutional Court should not be the Court of Human Rights!

There should be a separate Human Rights Court in our country to have the final say on human rights!

This court should be in a position like the Supreme Court of Appeals, the Council of State or the Court of Accounts and it should act as a superior court that citizens can apply to in case of wrong practices of lower courts on human rights and most importantly, its judgments should be binding.

I am talking about a court where one should not be able to say I criticize the decision and I don't respect it. The decision should be final and it should be enforced by everyone.

Except for one thing, of course, if a citizen thinks that the judgment of this court is unconstitutional, he/she should be able to complain to the Constitutional Court, with proof, but not alone, through the bar association of the city where he/she lives, i.e. through a public institution. 

In other words, I am talking about a solution where there is no direct relationship between the Constitutional Court and the citizen, but where the court is in a position to have the last word on the citizen's problem when necessary.

The Constitutional Court should essentially be in charge of the sixth of the distinctions I have made above, namely the "State - State" distinction. 

It should resolve disputes between state institutions within the context of the constitution and its judgment should be final for each institution. 

Even the decisions of the European Court of Human Rights should not bind the Constitutional Court. 

In my opinion, this is an indispensable requirement of our independence!

I think the ECHR's interlocutor should be the Human Rights Court in Turkey, which is positionally below the Constitutional Court. The ECtHR judgments can even be advisory for this court, again as a requirement of our independence. 

As I wrote above, unless citizens appeal to the Constitutional Court through the bar association, the judgments of this court should be final.

As I said, since the Constitutional Court only deals with disputes between state institutions, its decisions on all state institutions, including the SBE, should be binding and final. 

By the way, I have also expressed my opinion on the YSK. 

If the practices of the Supreme Board of Elections are unconstitutional, political parties or relevant state institutions should be able to apply to the Constitutional Court.

But as I said, I am only talking about unconstitutional practices. 

For example, the annulment of only one of four separate votes in an envelope. The Constitutional Court might not be expected to intervene in the annulment decision, but if it was annulled, it would be the responsibility of the Constitutional Court to decide that all four votes should be annulled.  

Or the acceptance of unsealed votes, for example, is a matter that can be appealed to the Constitutional Court in the context of disagreements between state institutions, as it is against the law, but not the constitution. In this context, I think that a fair solution can be found in a way that the YSK's rulings are certain to a certain extent, but the Constitutional Court has the final say, especially in practices that violate the constitution or the law.

Naturally, since the Constitutional Court will be the highest court in the country to review and decide on the applications of state institutions, including political parties and bar associations, in the context of the constitution, including the laws enacted, the determination of the members of the Constitutional Court should be completely free from the influence of other powers. 

The selection of members of the Constitutional Court should be entirely at the discretion of the judiciary and based on merit procedures. 

Unless they have health problems, a disgraceful offense or their own choice, these members of the supreme judiciary should be authorized to remain in office for the rest of their lives. 

In other words, they must be judges who have dedicated their lives to this cause!

As the highest judicial institution, they should have all kinds of guarantees, since their decisions may be subject to complaints from bar associations or political parties, and the HSK, the Council of Judges and Prosecutors, may also make wrong decisions.

I also think that constitutional amendments must be approved by the people, and that they must be approved by a qualified majority.

In this way, I think it will not be possible for any state institution to establish tutelage over another. Because in this case, the only duty of the Constitutional Court will be to implement the people's constitution.

Yes, today I have thought of my own scheme for the judiciary. Of course, this is just brain gymnastics. 

Maybe it will attract the attention of someone in authority and at least leave a question mark in their minds. 

Everyone is talking about the problems in the judiciary, but I have not come across anyone who has thought of a solution. 

I think it would be useful for the country if at least the judicial reform of the six parties, which we call the people's table, is something similar to what I have said.

Love and respect to everyone from Moscow.

Note:

We have lost Halit Kıvanç, the doyen presenter and television presenter of my childhood and youth years, as well as the unforgettable sports announcer of the sports world. My condolences to all of Turkey. May he rest in peace, he was a very valuable person.