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

Abstract

CONTENTS Page CONTENTSİ ABBREVIATIONSİV PREFACEVİ INTRODUCTION1 2. INDEPENDENT TRIBUNAL4 2.1. Concept4 2.2. Short History of Judge Independence12 2.2.1. In the International Law12 2.2.2. In the Turkish Law13 2.3. The Concept of Tribunal14 2.3.1. ECtHR Praxis14 2.3.2. In the Turkish Law19 2.4. Extent of Independence20 2.4.1. Independence from Legislative21 2.4.2. Independence from Executive22 2.4.3. Independence from Jurisdiction24 2.4.4. Independence from Media and Public Opinion26 2.5. Criteria and Guarantees of Independence27 2.5.1. Appointment Methods of Judges29 2.5.1.1. Election of Judges by People31 2.5.1.2. Appointment of Judges by the Executive32 2.5.1.3. Election of Judges by Other Judges34 2.5.1.4. Appointment of Judges by an Independent Board35 2.5.2. Term of Office and Dismissal of Judges38 2.5.2.1. Approach by ECtHR38 2.5.2.2. In the Turkish Law40 2.5.3. Qualification of Judges43 2.5.3.1. Approach by ECtHR43 2.5.3.2. In the Turkish Law46 2.5.4. Guarantees Against to External Interventions and not to Receive Orders47 2.5.4.1. Approach by ECtHR47 2.5.4.2. In the Turkish Law52 2.5.4.2.1. Promotion55 2.5.5. Other Guarantees58 2.5.5.1. Financial Guarantees59 2.5.5.2. Geographical Guarantee59 2.5.5.3. Professional Guarantee61 2.5.6. Appearance of the Tribunal62 2.5.6.1. Approach by the ECtHR62 2.5.6.2. In the Turkish Law73 2.5.6.3. HSYK (HCJP: High Commission of Judges and Prosecutors) and Judicial Independence74 3. IMPARTIAL TRIBUNAL81 3.1. Overview81 3.1.1. Subjective Impartiality85 3.1.2. Objective Impartiality86 3.1.2.1. Approach by ECtHR86 3.1.2.2. The Criteria Adopted by ECtHR to Assure Objective Impartiality of Judiciary93 3.1.2.2.1. Judge’s Duties that Show Variety93 3.1.2.2.2. Professional Tribunals100 3.1.2.2.3. Various Duties of Courts101 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 Law106 3.1.2.2.6. Judgment by Default and Re-trial for the Judgments which Overruled by Court of Appeal107 3.1.2.3. Regulation Relating to Impartiality of Judges in Turkish Law109 3.1.2.4. The Possibilities to Remove Infringement120 3.1.2.4.1. Waiver120 3.1.2.4.2. . Review of a Judgment by a Fully Authorized Superior Court123 4. THE RIGHT TO TRIAL WITHIN A REASONABLE TIME127 4.1. Concept127 4.1.1. Criminal Cases130 4.1.2. Civil Cases131 4.1.3. Administrative Cases131 4.2. The Status of Victim136 4.3. Assessment of the Reasonable Time138 4.3.1. The Term to be Taken into Consideration138 4.4. The Criteria for Assessment of the Reasonable Time148 4.4.1. Character of Case’s Subject149 4.4.1.1. Complexity of Case150 4.4.1.2. Importance of Case’s Subject for the Applicant155 4.4.2. Applicant’s Conduct156 4.4.3. National Authorities’ Conduct163 4.5. The Right to Trial within A Reasonable Time in Turkish Law171 5. GENERAL ASSESSMENT AND CONCLUSION176 6. BIBLIOGRAPHY179 7. RELATED JUDGMENT LIST OF THE ECTHR184