TABLE OF CONTENTS - Delegation of the European Union to Turkey

Transkript

THE JUDICIAL TRAINING IN TURKEY
Report by Luca Perilli
TABLE OF CONTENTS
EXECUTIVE SUMMARY
METHODOLOGY
I. THE JUDICIAL TRAINING AS A RIGHT AND A DUTY OF JUDGES AND
PROSECUTORS
II. TRAINING OF JUDICIAL PRACTITIONERS.
III PRE-SERVICE TRAINING
III.1. CRITERIA AND PROCESS FOR THE SELECTION OF FUTURE JUDGES AND
PROSECUTORS
III.1.1. CRITERIA FOR THE RECRUITMENT OF CANDIDATE JUDGES AND
PROSECUTORS
III.1.2. THE PROCESS FOR THE SELECTION OF CANDIDATES
III.2 THE JUSTICE ACADEMY. ITS INDEPENDENCE AND CAPACITY TO PERFORM PRESERVICE TRAINING
III.2.1 ESTABLISHMENT, PREMISES AND LOCATION
III.2.2 THE MISSION OF THE JUSTICE ACADEMY. PRE-SERVICE TRAINING OF
JUDGES AND PROSECUTORS
III.2.3 STRUCTURE, ORGANISATION AND INDEPENDENCE OF THE JUSTICE
ACADEMY
III.2.4 CAPACITY OF THE JUSTICE TO PERFORM THE INITIAL TRAINING.
CURRICULA AND TEACHING STAFF
III.3 DURATION OF IN-SERVICE TRAINING
III.4 INITIAL TRAINEESHIP AT COURTS AND PROSECUTION OFFICES. ROLE OF JUDICIAL
MENTORS
III.5 THE FINAL EXAMINATION. APPOINTMENT AS JUDGES OR PROSECUTORS
IV. THE IN-SERVICE TRAINING
IV.1.1 THE ROLE OF HIGH COUNCIL OF JUDGES AND PROSECUTORS AND THE JUSTICE
ACADEMY
IV.2. MULTIPLE PROVIDERS OF IN-SERVICE TRAINING FOR JUDGES AND
PROSECUTORS
IV.2.1 DEPARTMENT FOR THE EDUCATION OF THE MINISTRY OF JUSTICE
IV.2.2. TRAINING PERFORMED BY THE COURT OF CASSATION AND THE COUNCIL OF
STATE
IV.3. THE ANNUAL PLANNING OF IN-SERVICE TRAINING. CRITERIA FOR SELECTION OF
PARTICIPANTS. STATISTICS
IV.4 TRAINERS AND SPEAKERS. TEACHING METHODOLOGIES. COORDINATION OF THE
SEMINARS. THE EVALUATION OF THE SEMINARS. REGIONAL TRAINING
IV.5. A GOOD PRACTICE OF REGIONAL TRAINING: CONSULTATION MEETINGS
IV.6 IMPACT OF IN-SERVICE TRAINING ON JUDGES AND PROSECUTORS CAREER. A
MANDATORY TRAINING?
IV.7. TRAINING OF AUXILIARY STAFF
IV.8. TRAINING OF LAWYERS
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EXECUTIVE SUMMARY
The report focuses both on recruitment and pre-service training of candidate judges and prosecutors
and on continuous training of serving Turkish judges and prosecutors. The conclusions of the
reports are summarised as follows.
The competitive examination for the recruitment of judges and prosecutors should be reformed
according to the principle of full transparency and of candidates’ merits, with the aim to test the
capacity of the applicants in legal reasoning and writing. The Ministry of Justice (henceforth: MoJ)
should set a clear strategy for the recruitment of young graduates and experienced lawyers and their
employment in the Judiciary, taking into account the capacity of the Justice Academy (henceforth:
JA) to train candidates fully and to prepare them to manage effectively their future tasks.
Pre-service training of candidate judges and prosecutors is performed by the JA, a well-established
institution with scientific, administrative and financial autonomy. Nevertheless, the dramatic
increase in the number of candidate judges and prosecutors in 2012 and 2013 and the drastic
reduction of the duration of the in-service training to only one year have seriously impacted on the
capacity of the JA to perform its task and to equip the future judges and prosecutors with the skills
necessary to effectively manage the case law and to tackle the workload.
The decision of the High Council of Judges and Prosecutors (henceforth: HSYK) upon proposal of
the MoJ to reduce pre-service training to one year should be revoked and the duration of this
training should be extended to at least two or, preferably, three years. Furthermore, the Law on the
JA should be amended to allow coordinators and trainers to be seconded to the Academy for a
period of four years. The internship of candidates at court should be fully coordinated with the
theoretical training at the JA. The Academy needs to develop different curricula for young
university graduates and for experienced lawyers so the latters' different level of experience and
professional know-how. Candidates should be informed at least six months in advance of their
appointment to judicial posts, whether they will work as civil or criminal judges and should be
trained accordingly. As regards the Academy’s structure, an equal representation of the MoJ and of
the HSYK should be ensured in the General Assembly and in the Board of Directors of the JA, to
guarantee the principle of independence of the institution.
Since August 2011, HSYK has been assigned by the law the task to provide in-service training of
judges and prosecutors. HSYK mainly performs its task in cooperation with the JA. During two
years of training activity HSYK has enhanced to a large extent its capacity to organize and deliver
in-service training: it performs a “training needs collection”, it publishes an annual large offer of
training events on its internet web-site and in UYAP, it has involved in conferences, workshops and
symposia more than half of the judges and almost 1/3 of the practicing prosecutors. In cooperation
with the JA, it has built up a large network of trainers and speakers. The JA regularly trains the
trainers.
Nevertheless there is still room for improvement to comply with the best EU standards. HSYK
should develop multi-annual agreements and protocols with the JA, in order to entrust the Academy
with the formal and visible role to perform in-service training for all judges and prosecutors,
including members of the Court of Cassation and of the Council of State. HSYK and the JA should
be equipped with the capacity and the resources to train all judges and prosecutors on most sensitive
issues, and on changes in law and technology, to organize continuous training that accompanies
young judges and prosecutors during the first years of their practice on important issues which
relate to the role and functions, to provide judicial training for small groups of judges or prosecutors
or even individualised training in the event of career changes, such as a move between criminal and
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civil courts, a move to a specialist jurisdiction, the assumption of the presidency of a chamber or a
court or of the management of a prosecution office. Particular importance should be attached to
training to improve the organisational capacities of judges and prosecutors in the areas of efficient
case preparation and management.
Furthermore the current centralised organisation of judicial training does not ensure that it can
systematically reach the majority of judges and prosecutors who operate in the field. According to
the EU best practices, regional training branches of the JA should be established with the aim to
convey information, disseminate training materials, case law and ECtHR judgments to judges and
prosecutors working in the field and to assist judges and prosecutors in individualized or small
groups training in case of career changes. Finally, HSYK should set transparent rules and
procedures for the admission of judges and prosecutors on equal footing to the in-service training.
The participation of judges and prosecutors in continuous training should be taken into
consideration in the framework of their individual professional evaluation. In-service should
become mandatory in the event of a career change.
A final consideration is devoted to common training of legal practitioners. The quality of the
performance of the judicial system depends clearly on the interaction of many roles: the police,
prosecutors, defence lawyers, clerks, justice experts, and bailiffs. However, in Turkey common
training of judges, prosecutors and lawyers is very rare. Common training of legal practitioners is
almost non- existent. MoJ needs to draft a strategy, in cooperation with the relevant stakeholders,
aimed at fostering the systematic training of legal practitioners and at increasing the capacity of the
JA to perform the training of legal practitioners in accordance with its legal duties.
METHODOLOGY
The expert drafted the present report, in the capacity as an independent expert, relying on
information gathered during an official visits to Turkey performed from 27 to 31 May 2013 and on
documents provided by the Turkish authorities and the European Commission before and during the
mission. The visit to Turkey consisted of four full days meetings arranged by the Turkish
Authorities with the following stakeholders: the President of the First Chamber and a Deputy
Secretary General of HSYK, rapporteurs judges attached to the In-Service Training Office of
HSYK, the General Director of EU department, the General Director of Personnel Affairs
departments and other representatives of the Ministry of Justice, the Deputy Secretary General of
the Court of Cassation; the General Secretary, two deputies and rapporteur judges from the Council
of State, judges of an Administrative Court, judges and prosecutors from an Ankara court, the
President, a Deputy President, the Director General and Deputy Directors of Training Centre,
coordinators, teachers, trainers, and trainees (candidates) from the Turkish Justice Academy, the
President, former President of the Ankara Bar Internship Board and members from the Ankara Bar
Training Board and two trainees.
During the meetings the expert was accompanied by Mr Christos Makridis, the Deputy Head of the
Turkey Unit within the Directorate General Enlargement of the European Commission and by Ms
Didem Bulutlar Ulusoy from the EU Delegation in Ankara. Judge Ziya Bekir Bugucam, guided the
expert through the official part of the programme as representative of the Turkish Ministry of
Justice.
The expert conducted his analysis of the Turkish Justice system by referring to the data included in
reports of the European Commission or elaborated in the framework of projects, missions and
studies supported by the European Commission and the Council of Europe, in particular: 2012 and
2011 EC progress reports on Turkey, the Third Advisory Report of 2005 by Kjell Björnberg and
3
Ross Cranston on “The Functioning of the Judicial System in the Republic of Turkey”; the reports
drafted by the expert Thomas Giegerich following the 2008, 2010, 2011 and 2012 peer review
missions to Turkey; and the Commissioner of Human Rights of the Council of Europe, Thomas
Hammarberg's, report “Administration of justice and protection of human rights in Turkey” of 10
January 2012.
The main sources of Turkish Law consulted by the expert for the assessment are as follows: the
Constitution of the Republic of Turkey, law no 6087 of 11 December 2010 on the High Council of
Judges and Prosecutors, law no 2802 on Judges and Prosecutors, law no 4954 on Turkish JA; JA
regulation on the internship period of candidate judges and prosecutors in civil and criminal
jurisdiction and candidate judges in administrative jurisdiction and internship courts, JA regulation
on the principles and procedures regarding the pre-service training of candidate judges and
prosecutors in civil and criminal jurisdiction and candidate judges in administrative jurisdiction,
JA regulation on the principles and procedures regarding the pre-service training of lawyers
appointed as candidate judges and prosecutors in civil and criminal jurisdiction and candidate
judges in administrative jurisdiction, the MoJ bylaw on training periods of candidate civil and
administrative judges and prosecutors and training courts.
This assessment is guided by European standards derived mainly from the following sources: the
European Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth:
ECHR) and the case-law of the European Court for Human Rights (henceforth: ECtHR); the
Charter of Fundamental Rights of European Union, Recommendation CM/Rec(2010)12 of the
Committee of Ministers to member states on Judges independence, efficiency and responsibilities,
adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the
Ministers' Deputies, Recommendation Rec(2000)19, adopted by the Committee of Ministers of the
Council of Europe on 6 October 2000 on The role of public prosecution in the criminal justice
system, Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of The Regions: Building Trust In
EU-Wide Justice A New Dimension To European Judicial Training, 13.09.2011 COM(2011) 551
final, Communication from the Commission to the European Parliament and the Council on judicial
training in the European Union, Brussels, 29.06.2006 COM(2006) 356 final.
Furthermore, the following Opinions of the Consultative Council of European Judges (henceforth:
CCJE) to the attention of the Committee of Ministers of the Council of Europe have been taken
into account: Opinion no. 1 on standards concerning the independence of the judiciary and the
irremovability of judges; Opinion no. 3 on the principles and rules governing judges’ professional
conduct, in particular ethics, incompatible behaviour and impartiality; Opinion no. 4 on
Appropriate initial and in-service training; Opinion no. 9 on The role of national judges in
ensuring an effective application of international and European Law. Opinion no. 10 on The role of
judges in the enforcement of judicial decisions; Opinion N.11 on Quality of judicial decisions.
The assessment takes note of the progress and efforts made by the Turkish Authorities to improve
the fairness of the Turkish criminal justice system and of the Judicial Reform Strategy and related
Action Plan drafted by the Turkish MoJ.
This report has been made possible thanks to the constant, open and warm cooperation of the
Turkish Authorities and the expertise and support provided by the representatives from the
European Commission DGs Enlargement and Justice, as well as the EC Delegation in Turkey.
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I.
THE JUDICIAL TRAINING AS A RIGHT AND A DUTY OF JUDGES AND PROSECUTORS
¾ FINDINGS
Article 119 of the Law No 2802 on Judges and prosecutors as amended by Law 6494 adopted by
Parliament on 27 June 2013 and published in the Official Gazette on 7 July 20131, considers the
judicial training as a right and a duty of judges and prosecutors.
¾ CONSIDERATIONS
The Turkish Law complies with the international standards by including the right and the duty to
undergo training in the rules governing the status of judges and prosecutors.
The importance of the training, as both a right and a duty of judges and prosecutors, is recognised in
international instruments such as the UN Basic Principles on the Independence of the Judiciary,
adopted in 19852 and Council of Europe texts, such as: Recommendation CM/Rec(2010)12 of the
Committee of Ministers to member states on judges independence, efficiency and responsibilities3
adopted in 2010, Recommendation Rec(2000)19, adopted on 6 October 2000 by the Committee of
Ministers of the Council of Europe on The role of public prosecution in the criminal justice system4;
the European Charter on the Statute for Judges5 adopted in 1998.
1
The same provision was contained in the former text of article 119, as amended by a Government decree. The decree
was annulled by the Constitutional Court in January 2013 for formal reasons (the provision had been adopted by a
decree and not by a law). The Parliament, following the Constitutional Court’s ruling, legally reinstated the previous
text.
2
Point 10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training
3
Point 56. Judges should be provided with theoretical and practical initial and in-service training, entirely funded by
the state. This should include economic, social and cultural issues related to the exercise of judicial functions. The
intensity and duration of such training should be determined in the light of previous professional experience. Point 57.
An independent authority should ensure, in full compliance with educational autonomy, that initial and in-service
training programmes meet the requirements of openness, competence and impartiality inherent in judicial office. Point
65. Judges should regularly update and develop their proficiency.
4
Point 7. Training is both a duty and a right for all public prosecutors, before their appointment as well as on a
permanent basis. States should therefore take effective measures to ensure that public prosecutors have appropriate
education and training, both before and after their appointment. In particular, public prosecutors should be made
aware of: a. the principles and ethical duties of their office; b. the constitutional and legal protection of suspects,
victims and witnesses; c. human rights and freedoms as laid down by the convention for the Protection of Human Rights
and Fundamental Freedoms, especially the rights as established by Articles 5 and 6 of this Convention; d. principles
and practices of organisation of work, management and human resources in a judicial context; e. mechanisms and
materials which contribute to consistency in their activities. Furthermore, states should take effective measures to
provide for additional training on specific issues or in specific sectors, in the light of present-day conditions, taking into
account in particular the types and the development of criminality, as well as international co-operation on criminal
matters. Point 8. In order to respond better to developing forms of criminality, in particular organised crime,
specialisation should be seen as a priority, in terms of the organisation of public prosecutors, as well as in terms of
training and in terms of careers. Recourse to teams of specialists, including multi-disciplinary teams, designed to assist
public prosecutors in carrying out their functions should also be developed.
5
Point 1.3. In respect of every decision affecting the selection, recruitment, appointment, career progress or
termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and
legislative powers within which at least one half of those who sit are judges elected by their peers following methods
guaranteeing the widest representation of the judiciary.
Point 1.5 judges must ensure that they maintain the high level of competence that the hearing of cases demands. This
means that the high level of competence and of ability is a constant requirement for the judge in examining and
adjudicating on cases, and also that he or she must maintain this high level, if necessary through further training. As is
pointed out later in the text, judges must be granted access to training facilities.
Point 2.3. The statute ensures by means of appropriate training at the expense of the State, the preparation of the
chosen candidates for the effective exercise of judicial duties. The authority referred to at paragraph 1.3 hereof,
ensures the appropriateness of training programmes and of the organization which implements them, in the light of the
requirements of open-mindedness, competence and impartiality which are bound up with the exercise of judicial duties.
5
The independence of the judiciary confers rights on judges of all levels and jurisdictions, but also
imposes ethical duties. The latter include the duty to perform judicial work professionally and
diligently, which implies that they should have great professional ability, acquired, maintained and
enhanced by the training which they have a duty, as well as a right, to undergo6. It is essential that
judges, selected after their graduation from university, receive detailed, in-depth, diversified preservice training so that they are able to perform their duties satisfactorily7. Such training is also a
guarantee of their independence and impartiality, in accordance with the requirements of the
ECHR8. Training should be also seen as essential in view of the need to improve not only the skills
of those in the judicial public service but also the very functioning of that service9. The trust
citizens place in the judicial system will be strengthened if judges have a depth and diversity of
knowledge which extend beyond the technical field of law to areas of important social concern, as
well as understanding enabling them to manage cases and deal with all persons involved
appropriately and sensitively. In-service training is therefore essential for the objective, impartial
and competent performance of judicial functions, and for the protection of judges from
inappropriate influences10.
II. TRAINING OF JUDICIAL PRACTITIONERS
¾ FINDINGS
The pre-service training of candidate judges and prosecutors is performed by the Turkish Justice
Academy. The in-service training of first instance judges and prosecutors and of rapporteur judges
attached to the Court of Cassation and the Council of State is organised and supervised by HSYK
and is mainly performed in cooperation with the JA. The training of members of the Court of
Cassation and the Council of State is organized and performed by these courts themselves.
Auxiliary and administrative staff of courts and prosecution offices is trained by the Training
Department of the MoJ. Law Enforcement Officials are trained by the Ministries they belong to.
The pre-service training of lawyers and notaries falls within the competence of the Turkish Bar and
the Union of Turkish notaries public, respectively. Common training and exchange of knowledge
and experience among the above legal practitioners is very rare, if even not existent.
¾ CONSIDERATIONS
The quality of the performance of the judicial system depends clearly on the interaction of many
roles: the police, prosecutors, defence lawyers, clerks, the jury - where applicable, justice experts,
bailiffs. The judge is only one link in the chain of such co-actors, and not necessarily even the final
one as the enforcement stage is of equal importance. Even when one concentrates only on the
quality of judicial decisions, it follows from what has already been mentioned that judges’
performance of their role is, although central, not the only factor conditioning the production of a
judicial decision of quality11.
4.4. The statute guarantees to judges the maintenance and broadening of their knowledge, technical as well as social
and cultural, needed to perform their duties, through regular access to training which the State pays for, and ensures
its organization whilst respecting the conditions set out at paragraph 2.3 hereof.
6
Opinion no. 4 of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers
of the Council of Europe on Appropriate initial and in-service training for judges at national and European levels
(hereinafter Opinion No 4 of the CCJE), paragraph 2.
7
Opinion No 4 of CCJE paragraph 3.
8
9
10
11
Opinion N.11 of CCJE on Quality of judicial decisions paragraphs 15-19.
6
There are a large number of legal practitioners in the European Union, including judges, court staff
and legal professionals of various kinds12. By adopting the Communication from the Commission
to the European Parliament, the Council, the European Economic and Social Committee and the
Committee of The Regions: Building Trust In EU-Wide Justice A New Dimension To European
Judicial Training13 , the European Commission set the objective to enable half of the legal
practitioners in the European Union to participate in European judicial training activities by 2020
through the use of all available resources at local, national and European levels, in line with the
objectives of the Stockholm Programme14. The objective is to target all legal practitioners
whether judges, prosecutors, court staff, lawyers or other legal professionals. Reaching this goal
requires the commitment and full co-operation of stakeholders at all levels. Priority is given to
judges and prosecutors as they are responsible for the enforcement and respect of Union law, but
judicial training is also essential for other legal practitioners.
The expert encourages the MoJ to draft a strategy, in cooperation with the relevant stakeholders,
aimed at fostering the systematic training of all legal practitioners and encourages the Government
to increase the capacity of the JA to perform the training of legal practitioners in accordance with its
duties established by article 5 letter A15 of Law No 4954 on Justice Academy. The expert
encourages the JA, HSYK, the MoJ, the Union of Turkish Bar and the Union of Turkish Notaries to
establish protocols with the aim to foster common training of legal practitioners.
We ENCOURAGE
• the Ministry of Justice to draft a strategy, in cooperation with all relevant stakeholders,
aimed at fostering the systematic training of all legal practitioners and to increase the
capacity of the Justice Academy to perform the training of legal practitioners in accordance
with its duties under article 5 letter A of Law No 4954;
• The Justice Academy, the High Council of Judges and Prosecutors, the Ministry of Justice,
the Union of Turkish Bar and the Union of Turkish Notaries to establish protocols aimed at
fostering common training of legal practitioners.
III.
THE PRE-SERVICE TRAINING.
III. 1 CRITERIA AND PROCESS FOR THE SELECTION OF FUTURE JUDGES AND
PROSECUTORS
III.1.1. CRITERIA
PROSECUTORS
FOR
THE
RECRUITMENT
OF
CANDIDATE
JUDGES
AND
¾ FINDINGS
Turkish Judges are divided into two categories: ordinary judges (the category includes also
prosecutors) and administrative judges.
12
In year 2011 professional judges were 79 100, prosecutors 35 032, lawyers, solicitors, barristers, 868 615, court staff
351 220, bailiffs 29 060, notaries 38 269. Legal professional in total were 401 296 (see COM(2011) 551 final.
13
COM (2011) 551 final.
14
Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of The Regions: Building Trust in EU-Wide Justice A New Dimension to European
Judicial Training, 13.09.2011 COM (2011) 551 final.
15
The Academy shall fulfil the following duties: to open training courses for the pre-service and in-service training and
development of the civil, administrative and military judges and prosecutors and notaries as well as the staff assisting
the judicial services and the lawyers upon their request; to organize specialty programmes in certain fields, seminars,
symposia, conferences and similar events; to implement the education and training programmes to be assessed through
certificates; to assist in the development and implementation of the training plans and study projects to be prepared by
the relevant institutions, organizations and boards in the field of law and justice.
7
Law n° 2802 dated 24.02.1983 on Judges and Prosecutors establishes the requirements and the
procedures for the selection of candidate judges and prosecutors and their admittance to the inservice training at the JA. The Law envisages two different ways of recruitment of candidate judges
and prosecutors: the first one relates to young university graduates and the second one to
experienced lawyers.
1) The recruitment of young university graduates is regulated by article 8 letters a-j) of as follows:
- Ordinary jurisdiction judges are selected from among graduates of law faculties which fulfil the
requirements established by the Law.
- Administrative jurisdiction judges are selected from among graduates of either law faculties or
faculties of political or social sciences, which include law courses in their programmes that fulfil
the requirements under the Law.
2) The provision about recruitment of experienced lawyers was introduced in December 2007 by
Law n°. 5270 /1 dated 01.12.2007 which amended Law No 2802, by adding a letter k in its article 8,
according to which lawyers who have a five years' experience and who have not completed the age
of 35 in the last day of January of the year of the entry examination, can be appointed as candidate
judges or prosecutors.
Pursuant to article 9 of Law 2802 the number of candidates (term which designates applicants
who passed the selection procedure to access the initial training), including the ones to be selected
among lawyers, is determined by the MoJ taking into account the needs in the judiciary and the
opinion of the JA.
In the last two years the MoJ recruited a number of candidates almost three times higher than that
of the two years before: candidate judges and prosecutors were 855 in 2009; 941 in 2010; 2 452 in
2011 and 2 759 in 2012. Among them, 1000 lawyers were recruited in the past two years and further
600 will be recruited in 2013. The expert was told that a similar trend will continue in the future
until the members of Turkish Judiciary reach 20 000, up from the current 13 182 serving judges and
prosecutors.
III.1.2. THE PROCESS FOR THE SELECTION OF CANDIDATES
¾ FINDINGS
Applicants must pass a competitive examination which is composed of a written and of an oral
part. The examination is regulated by article 9A of Law n° 2802 of 24.02.1983. The written
competitive examination is held by the Student Selection and Placement Centre, in accordance with
a Protocol signed between the Centre and the MoJ.
The written examination consists of 140 written questions on the following topics: general
capability and general culture consisting of Turkish Language, Mathematics, Turkish Culture and
Civilization, The Principles of Atatürk and the History of Reforms, and Basic Information on
Citizenship, and
a) for civil and penal judiciary: constitutional law, civil law, law of obligations, civil
procedural law, commercial law, bankruptcy and insolvency law, penal law, penal
procedural law, administrative procedural law and administrative law,
b) for administrative judiciary: constitutional law, administrative law, administrative
procedural law, civil procedural law, law of obligations (general provisions), civil law,
penal law (general provisions), tax law, tax procedural law and finance – economics.
Written answers are rated by points (maximum 100).
A number of successful applicants exceeding by three times the posts announced for competition is
admitted to the oral part of the exam. The oral exam is performed by the Board of Interview
which is composed by the following seven members: the Undersecretary of the MoJ who is the
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president of the Board; the Head of the Inspection Board, the Directors General of Penal Affairs,
Civil Affairs and Personnel Affairs of the MoJ, and two members who are assigned by the
Executive Board of the JA among the members of the JA Board.
The board of interview assesses the following candidates’ five qualifications by giving grades (up
to 20 points for each qualification): a) the ability of judgement, b) the ability to understand a
particular subject and to make a summary, c) the appropriateness for the profession of the
physical appearance, behaviour and reactions of the applicants, d) capability and culture, f)
openness towards the contemporary scientific developments and technological improvements.
¾ CONSIDERATIONS
According to the terms of reference agreed with the Turkish Authorities, the experts’ mission is to
assess judicial training and does not cover the assessment of the requirements for the recruitment of
future judges and prosecutors and the composition of the Board of Interview.
However, the process of recruitment of candidate judges and prosecutors is relevant for the present
report for the following reasons:
- the quality and level of juridical preparation and professional experience of candidates
impact on the organization and on the duration of the initial training. While it is obvious that
judges who are recruited at the start of their professional career need to be trained, the
intensity and duration of this training depend on how the Law School prepared the students
for dealing with the challenges of legal professions16 and also on the suitability of the entry
examination for selecting the best Law School graduates; when judges and prosecutors are
instead selected from among experienced lawyers, training programmes should be adapted
to train them only on what is required for their new profession17;
- the number of candidates recruited every year should be compatible with the capacity of the
JA to train properly and accurately future judges and prosecutors.
On both scores, the expert noted the absence of a clear strategy by the MoJ as regards the
recruitment policies. Whilst it is clear that the MoJ intends in the next years to almost double the
size of the Turkish Judiciary (from the current 13 000 members to a final number of 20 000) it is
not clear whether this process of enlargement of the Judiciary takes care of the fundamental need to
recruit and appoint judges and prosecutors who are technically well prepared, fully acquainted with
the principles of judicial ethics and trained to deal with the complex judicial practice. The expert
has indeed to raise the following concerns:
- the competitive entry written examination in not conceived to test the legal knowledge of
candidates, and therefore to select the best candidates, because it is basically a questionnaire.
The candidates do not have to show their capacities in legal reasoning and writing that is of
outmost importance in the legal profession;
- the oral part of the examination is aimed at testing qualifications (please see above) which
can hardly be measured in the short conversation with candidates held by the Interview
Board; the candidates met by the expert clearly reported that they did not know how to
prepare for the exam. This oral exam is not only unsuitable to test the preparation of
candidates but also gives a discretionary power to the Interview Board – mainly composed
of members of the Executive - that is too large to comply with international principles.
These stipulate that in the process of recruitment of judges and prosecutors there must be
total transparency in the conditions for the selection of candidates, so that judges and society
itself are able to ascertain that an appointment is made exclusively on a candidate’s merit.
16
17
On this please see the parallel report by German professor Thomas Griegerich.
Opinion No 4 of CCJE paragraph 3, paragraphs 25 and 26.
9
-
-
The transparency of the criteria for the selection of candidates is also aimed at ensuring that
procedures for judicial appointment are opened to a pool of candidates as diverse and
reflective of society as a whole as possible18 and that this choice should be based exclusively
on a candidate’s merits rather than on more subjective reasons19;
young graduates and experienced lawyers are subject to a similar entry exam - and to
the same initial training at the JA, even though among the two categories there are
differences in age (22-23 years of age for young graduates; more than 30 and up to 35 years
of age for experienced lawyers) and professional experience. The strategy of the MOJ on
how to employ experienced lawyers at courts is not clear. In some EU Member States (like
France or Italy) experienced lawyers are recruited to be appointed to superior courts. In
Turkey instead, after the completion of the initial training, they perform the same functions
in the same geographical areas (4th and 5th categories of regions) as young graduates; their
assignment is decided by lot, irrespective of their capability and experience;
the number of candidates (2 452 in 2011 and 2 759 in 2012) is incompatible with the
capacity of the JA to train the candidates fully and to prepare them to manage effectively
their future tasks. The justification for this massive recruitment, which is the need to deal
with the huge court’s workload, is questionable, if we consider that the number of
candidates is not compatible with the capacity of the JA to equip the future judges and
prosecutors with the skills necessary to effectively manage the case law and to tackle the
workload. A human resources strategy for the judiciary needs to be developed which should
acknowledge the need for candidate judges and prosecutors to be properly and accurately
trained; otherwise citizens rights’ will be put to risk by bad decisions, trust in the judicial
system will be eroded, and the effectiveness of the judicial system will be compromised
because improper judgments are destined to be annulled and create new workload.
We RECOMMEND
•
that the competitive examination for the recruitment of judges and prosecutors is reformed
according to the principle of full transparency and a candidate’s merits, and with the aim to
test the capacity of the applicants in legal reasoning and writing;
•
that the MoJ establishes a clear strategy for the recruitment of young graduates and of
experienced lawyers and their employment in the Judiciary;
•
that a strategy for future recruitment of judges and prosecutors is established which takes
into account the capacity of the JA to train candidates fully and to prepare them to manage
effectively their future tasks.
III.2 THE JUSTICE ACADEMY, ITS INDEPENDENCE AND CAPACITY TO PERFORM PRESERVICE TRAINING
Applicants who are finally selected by the Interview Board are admitted to the pre-service training
at the Turkish Justice Academy as candidate judges (or prosecutors).
III.2.1 1 ESTABLISHMENT, PREMISES AND LOCATION
¾
FINDINGS
20
18
OP. No 10 of CCJE paragraph 50.
OP. No 10 of CCJE paragraph 51.
20
The following information is mainly derived from the publication of the Ministry of Justice: Turkish Judicial System.
19
10
The Centre for Training Judges and Prosecutors was established in Ankara in 198521 as an agency
affiliated to the Ministry of Justice. The aim of the Centre was to train judges and prosecutors for
civil and administrative judiciary. Within the context of the EU accession process, and in order to
comply with European standards which call for the establishment of an independent institution, the
Turkish JA was established by the Law on the Turkish Justice Academy numbered 4954 and dated
23.07.2003. The Academy is a legal entity with scientific, administrative and financial autonomy22.
In 2013 the JA was assigned a budget of € 6.4 million. According to the law the Academy is
“affiliated to the Ministry of Justice”23.
The Academy which was based in Etlik-Dışkapı quarter of Ankara province was later moved to a
new campus area of 100 000 square meters including 25 413 square meters of indoor and 74 587
square meters of outdoor space. The premises comprise five service building: an administrative
building, two training buildings, one dormitory and a social centre. The Academy operates in this
campus since 16.11.2005.
III.2.2 THE MISSION OF THE JUSTICE ACADEMY; PRE-SERVICE TRAINING OF
JUDGES AND PROSECUTORS
¾ FINDINGS
The JA has four main general tasks related to:
1) training of legal practitioners, that includes the in-service training of judges and
prosecutors24;
2) consultancy and opinions in the fields of training and legal professions25;
3) review, research, publications and documentation in the fields and law and Justice26; and
4) international cooperation27.
The Academy is furthermore entrusted with a specific task, that is the organization of theoretical
vocational courses in the preparatory and final stages of pre-service training of judges and
prosecutors and administrative judges in accordance with relevant laws and by-laws28; also, the
21
By the Law on the Establishment and Duties of the Training Centre for Candidate Judges and Prosecutors
promulgated in the Official Gazette dated 15.06.1985 and numbered 18785.
22
Art. 4 of Law No 4954. The Law No. 5018 on Public Financial Management and Control granted the Academy the
authority to operate with private budget.
23
Art. 4 paragraph 2 of Law No 4954.
24
Training of legal practitioners is aimed at designing and implementing pre- and in-service training courses for the
professional development of civil, administrative and military judges and prosecutors, auxiliary judicial
personnel and for lawyers upon request. The Academy can: organize seminars, symposia, conferences and similar
events, implement certificate programmes, and assist institutions and agencies in the design and implementation of
training and research programmes and projects in the field of law and justice (Art. 5 paragraph 1 lett. a of Law No
4954).
25
The Academy can deliver opinions to the relevant institutions and agencies on education and training in the field of
law and justice (Art. 5 paragraph 1 lett. b of Law No 4954) and can provide consultancy services and deliver opinions
concerning national and international law and justice and professional matters (Art. 5 paragraph 2 of Law No 4954).
26
The Academy can further conduct research on the development of legislation, develop recommendations based on
research and draft legislative texts (Art. 5 paragraph 3 lett. a of Law No 4954); carry out reviews and research and
make publications in the field of national and international law and justice (Art. 5 paragraph 3 lett. b of Law No 4954) ;
establish an information and documentation centre, a databank and a library which include documents, legislation,
judgments and publications in the field of law and justice in Turkey and other countries.
27
As regards its international activity, the Academy may organize joint training programmes, mutual study visits, and
seminars and scientific activities in cooperation with its counterpart institutions abroad. It contributes to the
development of Turkish judiciary by developing projects together with the relevant institutions of the European Union (
Art. 6, last part of Law No 4954).
28
Art. 5 lett. a of Law No 4954.
11
organization of pre-service training programmes during the probation term of military judges and
prosecutors, public notaries and lawyers29.
III.2.3 STRUCTURE, ORGANISATION AND INDEPENDENCE OF THE JUSTICE
ACADEMY
30
¾ FINDINGS
The Academy is administered by the Presidency with a President, two Deputy Presidents31 and a
Secretary General. The executive manager of the Academy is the President32. The President is the
chairman of the Executive Board. The President and his deputies are appointed by the Council of
Ministers for a period of four years out of three members nominated for each post by the Board of
Directors from among the members of the Court of Cassation and Council of State, first level
judges and prosecutors, law professors, lawyers with an experience of a minimum of 20 years, and
first level notaries33. A Secretary General is responsible for administrative and financial affairs34.
The General Assembly is the decision making body of the JA and convenes once a year. It consists
of the Minister of Justice, the Undersecretary of the Ministry of Justice, the Directors General for
Criminal Affairs, Civil Affairs, Legislation, EU Affairs, and Personnel Affairs, the Head of
Department of Training from the Ministry of Justice and 18 more members: four elected by the
Court of Cassation, three by the Council of State, two by military courts, one by the High Council
of Judges and Prosecutors, two by the Council of Higher Education from lecturers in the Academy,
one by the Executive Board of the Union of Turkish Bar Associations, one by the Executive Board
of the Union of Turkish Public Notaries, and four from trainers of the Academy. The President and
the former Presidents of the Academy are also members of the General Assembly35. The main
duties of the General Assembly are to select five regular and three substitute members for the Board
of Directors, to approve the annual report, the Audit Board report, training and education plans and
the Academy's budget, to discharge the President, the Board of Directors and the Audit Board36.
The Board of Directors is the permanent decision making body of the Academy. It consists37 of six
regular and three substitute members under the chairmanship of the President of the JA. The
Director of Personnel Affairs of the Ministry of Justice is a permanent member of the Board. The
other four regular and three substitute members are elected by the General Assembly either among
the Assembly’s members or amongst other candidates who have the qualifications for presidency
set forth in the first paragraph of the article 9 of the Law 495438. The main competences of the
Board are39 to identify the candidate presidents and deputy presidents, to review the annual report
and schedule and annual budget drafted by the Presidency and present them to the General
29
Art. 5 lett. b of Law No 4954.
Please see the chart attached to the report.
31
Pursuant to article 9 of the Law No 4954.
32
Art. 10 of Law No 4954.
33
Art. 9 of Law No 4954: The President and deputies return to their prior posts when their term of office is over.
The Secretary General is appointed by the President from those who have a degree of 4-year higher education and
served for 12 years as a civil servant.
30
34
36
37
38
To be members of the Court of Cassation and Council of State, first degree civil and administrative judges and
prosecutors and those who are deemed to be in this degree, law professors, lawyers who performed this profession
actively for minimum twenty years or first degree notaries who performed this profession actively for minimum twenty
years.
39
35
12
Assembly, to review and approve regulations drafted by the Presidents, to develop short and long
term education and training plans, and take decisions regarding the education and training services.
The Training Centre is established in the Academy to carry out activities with regard to preservice and in-service training of judges and prosecutors of ordinary, administrative and military
judiciary and lawyers, notaries and auxiliary judicial staff. The Training Centre is administered by a
director and two deputy directors. The Training Centre director and deputy directors are
appointed by the Minister of Justice on proposal of the President from among those working as
judges, with their consent40.
¾ CONSIDERATIONS
The Turkish Academy has a very wide mission, which includes the training of legal practitioners
and building up and maintaining a research and publication centre about Justice and law, which
should become a reference for all legal practitioners. Even though the JA is very well equipped as
regards its premises, which include not only a training building and a specialized human rights
training centre, but also a social building and impressive social facilities, a big dormitory and a big
restaurant, the Academy has yet to achieve its ample statute goals.
Premises and space are not adequate for all candidate judges and prosecutors engaged in the preservice training (please see below). The training of legal practitioners is still far from being
implemented, also because the Academy has not yet established protocols or similar formal links
with the Authorities covering the training of legal practitioner (Turkish Bar Association, Turkish
Association of Public Notaries, Ministry of Justice as regards administrative staff and even the High
Council of Judges and Prosecutors - see below on in-service training). The library has a large
variety of national and international legal books but is has not yet been organised as a research and
publication centre. To reach its wide goals the JA should be significantly reinforced in terms of
budget, personnel and training facilities (specifically devoted to training of legal practitioners). It
should develop stable and formal relations and protocols with the Authorities legally responsible for
the training of legal practitioners.
As regards its main current activities, i.e. the pre-service training of candidate judges and
prosecutors and –in cooperation with the HSYK- the in-service training of judges and prosecutors,
there are a number of concerns for the JA independence. According to European standards41 the
independence and composition of the authority responsible for training and its content is a
corollary of the general principle of judicial independence and the judiciary should play a major
role in organising and supervising training. Examples of independent judicial training bodies in EU
Countries are L'Ecole Nationale de la Magistrature (France), the Centro de Estudos Judiciários
(Portugal), the Escuela Judicial del Consejo General del Poder Judicial (Spain), and la Scuola
Superiore della Magistratura (Italy).
40
The European Charter for the Statute for Judges (paragraph 2.3) recommends that at least half of the members of this
Authority, independent of the Executive and the Parliament, should be judges. On the same line, the Consultative
Council of European Judges in its Opinion No 4 paragraph 16 affirms that the judiciary should play a major role in or
itself be responsible for organising and supervising training. It advocates that these responsibilities should, in each
country, be entrusted, not to the Ministry of Justice or any other authority answerable to the Legislature or the
Executive, but to the judiciary itself or another independent body. Judges’ associations can also play a valuable role in
encouraging and facilitating training, working together with the judicial or other body which has direct responsibility.
The CCJE therefore recommends that, under the authority of the judiciary or another independent body, training should
be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges,
to devise training programmes and ensure their implementation (Opinion No 4 of CCJE paragraph 17).
41
13
The experts’ concerns are related to the strong presence of Ministry of Justice representatives in the
General Assembly of the JA, which not only adopts the main policies about the development of the
JA but also appoints the Executive Board (and the latter designates the candidates for the
Presidency). According to the Law on the JA, this Institution is “affiliated to the Ministry of
Justice”. In addition to the Head of the MoJ Department for Training, the Minister of Justice, his
Undersecretary and five Directors General participate in the Assembly. Furthermore, the law
ensures the permanent presence on the Executive Board of the Director General of Personnel
Affairs of the Ministry. On the other side, the High Council of Judges and Prosecutors, which is not
only the body entrusted by the Constitution with the protection and the promotion of the
independence of the Judiciary but it also the Authority legally responsible for the in-service
training of Judges and prosecutors, has only one representative in the General Assembly.
A more balanced composition, to comply with the principle of the independence of the institution,
would suggest at least an equal presence of representatives of the Ministry of Justice and of HSYK
in the General Assembly (for instance four members appointed by the MoJ and four by the HSYK)
and a permanent representation of the HSYK in the Executive Board (both the Ministry of Justice
and HSYK could be represented by the heads of respective training departments). This would also
increase the judicial component in line with the international recommendation.
We RECOMMEND
• that the Justice Academy is reinforced in terms of budget, personnel and training facilities
specifically devoted to in-service training of legal practitioners;
• that the Justice Academy develops stable and formal relations and protocols with the
Authorities legally responsible for the training of legal practitioners;
• that, to preserve the principle of independence of the Justice Academy, an equal
representation of the Ministry of Justice and of the High Council of Judges and Prosecutors
be ensured in the General Assembly and in the Board of Directors of the Justice Academy.
III .2.4 CAPACITY OF THE JUSTICE ACADEMY TO PERFORM THE INITIAL TRAINING
CURRICULA AND TEACHING STAFF
¾
FINDINGS
NUMBER OF CANDIDATES
JA trainees are divided depending on whether they have been recruited to become
a. civil and criminal judges and prosecutors;
b. administrative judges;
c. military judges.
The number of trainees increased dramatically in the last two years and almost tripled since 2009:
they were: 855 in 2009-2010; 941 in 2010-2001; 2 452 in 2011-2012; and 2 759 in 2012-2013 (from
April 2012 to April 2013). The increase is due to the Ministry of Justice policy on recruitment of
judges and prosecutors (please see paragraph III.2.2 above). At the time of the visit, the trainees
employed in the Justice Academy were 1 100 (around 70% male and 30% female).
TEACHING STAFF
The Justice Academy relies on permanent administrative staff and on temporary trainers and
lecturers. Lecturers and trainers serve in the Academy within the scope of educational activities.
Lecturers and trainers can be selected from Turkish or foreign academicians, members of the
Turkish Court of Cassation, Council of State, Military Court of Cassation, and judges and
prosecutors who have a minimum of 10 years in the profession, lawyers and notaries42. Lecturers
and trainers are selected, through interviews and academic references, by the Board of Directors and
42
Art. 22 of the Law4954.
14
are assigned to the Academy for up to one year43 upon the authorization of the Institutions they
belong to44.
CURRICULA
During the period spent at the Justice Academy candidate judges are expected to follow 21 courses
and 180 classes' hours. Foreign languages are not part of the curricula. In practice candidates,
because of the shortage of time devoted to the theoretical training and the enormous number of
trainees, have not enough time and space to follow all courses and class hours. Classes are
overcrowded. Young candidates and experienced lawyers follow almost the same pre-service
training.
Human rights are part of the curricula and are a mandatory topic. It is divided in two parts. The
first part relates to a general outline of human rights system. The second part is devoted to specific
rights such as freedom of expression or fair trial. Training on Human Rights is performed in a
dedicated unit of the building, recently set up and equipped with modern IT tools, which allow
research and documentation. The Academy further envisages the establishment a video-conference
line with the Court of Human Rights in Strasbourg.
TEACHING METHODOLOGIES AND EVALUATION OF TRAINING
Trainers and teachers of the JA use different teaching methodologies, depending on the subject of
training, such as didactic, Socratic, problem solving, drama, working groups. However the trainers
themselves stressed that, because of the high number of trainees and the shortened training period,
detailed courses' plans, frameworks and guidelines for teaching methodologies or instructions for
preparation of professional material have not yet been developed. A group of Academy professors
is working on a project for the establishment of new teaching modules in order to make the training
more systematic. The trainers and the quality of the training are evaluated by the trainees through
questionnaires. The evaluation outcomes are analysed by the Academy teaching staff and taken into
account for the planning of future training.
¾ CONSIDERATIONS
All JA representatives met by the expert, from the President and the vice- President to the training
coordinators to pre-service and in-service trainers are enthusiastic and committed people, devoted
to the task of performing an effective preparation of future judges and prosecutors. They are also
aware about the current shortcomings of the in-service training which are mainly related to:
¾
the high number of trainees (1 200 at the time of the visit), which exceeds the capacity of the
JA to host them and to fully implement the envisaged training courses;
¾
the reduction of the training period to only one instead of the two years provided for by the
Law (see III.3 below). This reduction forces the Academy to squeeze courses and to operate
in a rush;
43
Art. 23 of the Law 4954.
Approval decision shall be taken by the First Presidency Board of the Court of Cassation for the members of the
Court of Cassation; by the Presidency Board of the Council of State for the members of the Council of State; by the
Presidency Board of the Military Court of Cassation for the members of the Military Court of Cassation; by the
Presidency Board of the Supreme Military Administrative Court for the members of the Supreme Military
Administrative Court; by the Supreme Council of Judges and Prosecutors for the judges and prosecutors; by the
Minister for the judges working at the Ministry of Justice; by the Ministry of National Defence for the military judges
and prosecutors; and by the Executive Board of the Union of Turkish Bar Associations for the public notaries.
44
15
¾
¾
¾
the limited coordination between the Academy and courts and prosecutors' offices, which
are responsible for the practical internship of candidates; this lack of coordination weakens
the effectiveness of this internship period;
the lack of permanent trainers and coordinators; the latter, according to the law, can be
seconded to the JA for only a year, which can be extended for one more year before it
expires. This short period of secondments prevents the Academy from planning medium and
long term training activities. The law should ensure the secondment of trainers to the JA for
longer periods, possibly four years, at the end of which trainers should return to their
practice45;
the current lack of detailed lesson plans and frameworks and guidelines for teaching
methodologies and instructions for preparation of professional material.
Most of the above shortcomings are out of the control of the JA. The number of trainees is decided
by the MoJ; the reduction of the training period is decided by HSYK upon proposal by the MoJ; the
internship period is regulated by the MoJ and performed by courts; the limited assignment of
trainers is established by the law. However, there is room for improvement also for the JA which
could:
- establish protocols with the Courts and the MoJ aimed at ensuring that the internship is
coordinated with the in-service training at the Academy (please see III.4);
- develop different curricula for young university graduates and experienced lawyers so that
lawyers receive only what is necessary for their new profession46;
- develop foreign language courses for trainees. International documents underline that
knowledge of foreign languages is an important tool for national judges to keep informed
about developments in international and European law47, and that mastering a foreign
language and its legal terminology is important because it is a precondition for effective
contacts across Member States, which are in turn the cornerstone for judicial cooperation48.
We RECOMMEND
• that the Justice Academy establish protocols with the Courts and the Ministry of Justice
aimed at ensuring that the internship at courts is coordinated with the in-service training at
the Academy;
• that the Law on Justice Academy is amended to allow coordinators and trainers to be
seconded to the Justice Academy for a period of four years.
We ENCOURAGE
• the Justice Academy to continue to develop detailed courses' plans, frameworks and
guidelines for teaching methodologies and instructions for preparation of professional
material;
• the Justice Academy to develop different curricula for young university graduates and
experienced lawyers so that experienced lawyers receive only what is required for their new
profession.
45
Opinion No 4 of CCJE paragraph 21: When judges are in charge of training activities, it is important that these
judges preserve contact with court practice.
46
Opinion No 4 of CCJE paragraph 3, paragraphs 25 and 26.
47
Opinion No 9 on The role of national judges in ensuring an effective application of international and European Law,
paragraph 20.
48
Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of The Regions: Building Trust In EU-Wide Justice A New Dimension To European
Judicial Training, 13.09.2011 COM (2011) 551 final.
16
III.3 DURATION OF IN-SERVICE TRAINING
¾ FINDINGS
According to the law49, duration of pre-service training of young candidates (selected from among
graduates from University faculties) should be two years. The training shall cover three periods: the
preparatory training, the probationary training, and the final training period. Article 10 of Law n°
2802 on Judges and prosecutors provides that the pre-service training of candidates who are
recruited among lawyers lasts six months and is performed at the Training Centre of the Justice
Academy in line with the principles laid down by the JA by-law. According to a Justice Academy
by-law, candidate judges and prosecutors in civil and criminal jurisdiction, receive in the Academy
preparatory training for three months and final training for four months.
The 17 months between the preparatory and final training are spent in internship at courts.
Pursuant to the MoJ by-law on Training periods of candidate civil and administrative judges and
prosecutors and training courts, this period is divided between:
- plenary internship for 3 months50, and
- assignment internship for 14 months51.
As soon as the candidates of civil and criminal jurisdiction complete the first six months of their
pre-service training, they are divided into the groups of candidate judges- candidate prosecutors,
according to their wishes. If the candidates’ wishes do not fit with available posts, the assignment to
one of the two categories (judges or prosecutors) is done by lot.
The above picture about the legal framework on duration of in-service training describes the system
as it should be according to the law and the by-laws. In reality though, since 2011 up to 2016, the
duration of the initial training has been reduced to only one year instead of two by decision of
the High Council for Judges and Prosecutors upon proposal of the Ministry of Justice. As a
consequence, all periods described above are reduced proportionally so that candidates spend five
months in the Justice Academy and seven at courts.
¾ CONSIDERATIONS
The justification for the reduction of pre-service training from two years to only one is the same as
for the massive recruitment: the need to deal with the huge court’s workload. As pointed out above
in III.2.2, this justification fails to meet EU standards. The workload should be dealt with
appropriate organisational measures52, including a strategy for the recruitment and management of
human resources. This strategy should aim that future judges and prosecutors acquire, trough the
initial training, the knowledge and skills necessary for the performance of their tasks; improve their
49
Article 28 of Law No 4954
The three-month plenary internship for candidate judges and prosecutors in civil and criminal jurisdiction is
composed of one month in a Chief Public Prosecution Office; two months in courts with 10 days each at the serious
crimes courts, criminal courts of first instance, criminal and civil courts of peace, civil courts of first instance and
enforcement courts.
51
The 14-month assignment internship for judges is composed of 6 months in a civil court of first instance and a civil
court of peace; further six months in a serious crimes court, a criminal court of first instance and a criminal court of
peace; two months at the Court of Cassation.
The assignment internship for prosecutors is composed of 10 months in a Chief Public Prosecution office; two
months in one of the serious crimes courts, criminal courts of first instance and criminal courts of peace; and two
months at the Court of Cassation.
The 17-month internship training for candidates judges in the administrative jurisdiction is composed of six months
at the Council of State; four and a half months in an administrative court; four and a half months in a tax court; one
month in a regional administrative court; and one month in the Office of a Governor.
50
52
Please see the report about the effectiveness of Turkish system by the same expert.
17
sense of impartiality, professional dignity and understanding of justice; abide by ethical principles;
develop the skills of research and analysis; comprehend the fundamental principles of law; have the
ability to interpret legal disputes and produce solutions; acquire the capacity to manage case law
without unnecessary delay or unnecessary steps53.
The training should equip judges and prosecutors with the abilities necessary not only to give effect
to changes in domestic and international legislation and legal principles, but should also promote
other complementary skills and knowledge in non-legal matters, giving them a good background
understanding of the issues they face. In this regard, it would be important that, beyond the training
on “substantial law” (civil, criminal and commercial law and civil and criminal procedures, human
rights), candidates, both young graduate and experienced lawyers, are properly and accurately
trained on issues relevant to the role and functions of judges and prosecutors54 such as: human
rights, judicial independence and impartiality, judicial accountability, judicial ethics and conduct,
media-bench relations, judgment writing and delivery, the science of fact-finding, judicial
reasoning, alternative dispute resolution, case-flow management, time management, judicially
exercised discretion and interpretation of law, economic and social impact of judicial decisions,
judicial communication and social skills (how to act in court, how to speak to lawyers, witnesses
and defendants, non-verbal communication in court, how to write explanatory statements that are
informative and acceptable by the public). They should, through practice, learn how to perform
their duties. They should be able to perform a complete and logical reasoning of, for example, pretrial detention order or, if prosecutors, acquire the knowledge and experience on how to guide the
judicial police during investigation, how to filter evidence gathered by judicial police and order the
collection of further evidence when needed, to write indictments.
The minimum time for performing the above training is, according to the EU experience55, two
years; however, taking also into account that the current recruitment procedures are not the best
suited to recruit skilled and well-prepared candidates, it might be better extended to three years56.
We RECOMMEND
• that the decision adopted by the High Council of Judges and Prosecutors upon proposal of
the Ministry of Justice to reduce the pre-service training of judges and prosecutors to one
year for the period 2013-2016 is revoked;
• that duration of pre-service training of judges and prosecutors is extended to at least two or
preferably, three years.
53
Brochures, case studies of good and bad practices, standard models for writing judgments together with
methodologies, fact sheets and bench books, developed for training purposes could be broadly disseminated among
judges.
54
Recommendation Rec(2000)19, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000
on The role of public prosecution in the criminal justice system, emphasizes that Training is both a duty and a right for
all public prosecutors, before their appointment (as well as on a permanent basis). States should therefore take
effective measures to ensure that public prosecutors have appropriate education and training, both before and after
their appointment. In particular, public prosecutors should be made aware of: a. the principles and ethical duties of
their office; b. the constitutional and legal protection of suspects, victims and witnesses; c. human rights and freedoms
as laid down by the convention for the Protection of Human Rights and Fundamental Freedoms, especially the rights as
established by Articles 5 and 6 of this Convention; d. principles and practices of organisation of work, management and
human resources in a judicial context; e. mechanisms and materials which contribute to consistency in their activities.
Furthermore, states should take effective measures to provide for additional training on specific issues or in specific
sectors, in the light of present-day conditions, taking into account in particular the types and the development of
criminality, as well as international co-operation on criminal matters.
55
For example, Italy.
56
As it is in France.
18
III.4 INITIAL TRAINEESHIP AT COURTS AND PROSECUTION OFFICES. ROLE OF
JUDICIAL MENTORS
¾ FINDINGS
The internship period is not under the domain of the Justice Academy. It is regulated by MoJ. Until
their final judicial appointment by the HSYK, candidates are indeed considered civil servants and
are formally attached to the MoJ, which provides for their salary.
According to Article 5 of the Ministry of Justice by-law on Training periods of candidate civil and
administrative judges and prosecutors and training courts, trainees are employed at a court's or a
public prosecutor's office under the supervision of a judge or a public prosecutor. Trainees attend
hearings, on-site inspections and autopsy sessions. The tasks assigned to trainees include: the
preparation of draft summons, writs, arrest warrants and other interlocutory decisions. Trainees
have to examine files and documents concerning on-going investigations or trials and have to write
their opinions about the procedures. They must prepare draft decisions about investigation and trial
files. They carry out research on legislation, supreme courts' jurisprudence and ECtHR decisions.
The above draft documents are eventually endorsed by the presiding judge, judge or public
prosecutor and kept in the training file. A minimum number of files and draft decisions assigned to
the trainees are established by a circular issued by the Ministry after consulting the Academy.
¾ CONSIDERATIONS
The internship period of candidates is considered by most of the interlocutors met by the expert as
the weakest part of pre-service training, due to lack of coordination among the JA and the courts
where candidates perform the internship, and because of the absence of guidelines to mentors on
how to conduct the internship. Furthermore, the performance of mentors is not supervised regularly
by any Authority, and mentors are not encouraged to engage in an effective traineeship because
their efforts are not taken into account in their individual professional evaluation. Finally,
candidates do not know in advance whether they will work as civil or criminal judges. This prevents
them from orienting the internship to their future professional practice. This situation produces
inefficiencies and inconsistencies.
The expert recommends that, in accordance with the practice of EU countries57:
- the internship period is regulated by the JA in cooperation with HSYK, which, being the
governing body of the Judiciary, can address circulars and directives to courts;
- the regulation establishes precise framework and guidelines for courts and mentors;
- mentors are trained by the JA for the task (train the trainers);
- mentors periodically report to the Academy about the performance of candidates in
internship to allow the JA to exercise its supervision and coordination of internship;
- the mentors’ performance is taken into account in the framework of the individual
professional evaluation;
- candidates are told at least six months in advance of their appointment to judicial posts
whether they will work as civil or criminal judges, in order to target their final training to
their future tasks.
We RECOMMEND
•
•
57
the internship period is regulated by the Justice Academy in cooperation with the High
Council of Judges and Prosecutors, and with the Court of Cassation and the Council of State;
this regulation establishes an appropriate framework and guidelines for courts and mentors;
Italy
19
•
•
•
•
mentors are trained by the Justice Academy for the task;
mentors periodically report to the Academy about the performance of candidates in
internship to allow the JA to exercise its supervision and coordination of internship;
the mentors’ performance is taken into account in the framework of the individual
professional evaluation;
candidates are told at least six months in advance of their appointment to judicial posts
whether they will work as civil or criminal judges.
III.5 THE FINAL EXAMINATION. APPOINTMENT AS JUDGES OR PROSECUTORS
¾ FINDINGS
Following the final period of training at the Academy, the candidates are subject to an end-oftraining examination carried out by the JA. This is conducted by an examining commission
composed of five members selected among the trainers by the Academy Board: four are members
of the Court of Cassation and the fifth is a rapporteur judge in the Court of Cassation. The
candidates must answer four questions for each course followed at the Academy, i.e. 20 questions
in total. Most questions relate to problems solving. Candidates who receive at least 70 points in the
final examination can be accepted to the profession. The expert was informed that in that last five
years only one candidate did not succeed this final examination.
Acceptance to the profession -for those who are successful in the final examination- is decided by
the HSYK 58 that can refuse to accept candidates to the profession when it is concluded that the
behaviour and the attitude of a trainee are incompatible with the judgeship profession59 . According
to article 11 of Law 2802, the information regarding the capability, the loyalty to the profession and
the moral characteristics of the trainee is derived from the documents prepared and sent to the High
Council by the head of the relevant unit in which the trainee served, and from reports of judicial
inspectors. As regards the internship at the Court of Cassation or Council of State, final reports are
drafted by the chief justice of the relevant chamber and submitted either to the Presidency of the
Court of Cassation or the Presidency of the Council of State in order to be sent to the MoJ and to
the HSYK. The expert was informed that the HSYK refused the acceptance to the profession in
three cases out of 1,500 candidates. The refusal was due to disciplinary reasons. Candidates in the
Administrative Jurisdiction and in the Civil and Criminal Jurisdiction who have been accepted to
the profession are appointed to their posts by the HSYK upon drawing of lots, irrespective of the
grades obtained in the final examination at the JA60.
¾ CONSIDERATIONS
In countries that train judges at the start of their professional career, the CCJE considers that the
results obtained by candidates at the initial training need to be taken into account in their initial
nominations61. The Justice Academy evaluation should thus reward the merit of candidates and it
should be relevant for the appointment to judicial posts.
The expert recommends that judicial posts are assigned to candidates according to the ranking list
established by the JA examination (the first in the rank chooses among the available posts according
to his/her desires, the last is assigned the last available post left by the other candidates on the list)
and not by lot. Those posts could be communicated and the examination carried out six months in
advance of the candidates’ appointment as mentioned in the paragraphs above.
58
Article 13 of Law 2802.
Article 12 of Law 2802.
60
Article 13 paragraph 2 of Law 2802.
61
Opinion No 4 of CCJE paragraph 3, paragraph 40.
59
20
.
We RECOMMEND
•
IV.
that the results of the evaluation of the initial training are taken into account by the High
Council of Judges and Prosecutors for the appointment of candidates to judicial posts.
THE IN-SERVICE TRAINING.
IV.1 THE ROLE OF HIGH COUNCIL OF JUDGES AND PROSECUTORS62 AND THE JUSTICE
ACADEMY.
¾ FINDINGS
Article 119 of Law No 2802 on Judges and Prosecutors, as amended by Law 6494 adopted by the
Parliament on 27 June 2013 and published on Official Gazette on 7 July 201363, provides the
following: Being the right and duty of judges and prosecutors, the in-service training shall be
conducted by the High Council of Judges and Prosecutors. The procedures and principles for the
in-service training of judges and prosecutors shall be regulated by a by-law issued by the High
Council of Judges and Prosecutors after receiving the opinion of the Turkish Justice Academy.
Article 9 of Law No 6087 on the High Council of Judges and Prosecutors provides that
participation in in-service training activities is the responsibility of the HSYK. Within the HSYK,
pre-service training is regulated by Article 16 of the Regulation on the principles and procedures of
the Secretariat General and the Council Inspection Board, according to which the HSYK “InService Training Office” - which employs five rapporteur judges- deals with proceedings or
activities concerning the in-service training of judges and prosecutors. Statistical data on the
participation of judges and prosecutors in education programmes are regularly registered into
UYAP (National Judiciary Information System). While preparing draft annual training programmes
of in-service training, HSYK consults the relevant Institutions through the In-Service Training
Office. Opening speeches and other training material used in in-service training programmes is
offered for the benefit of the users on the web page of the Council while they are also archived in
electronic environment.
The strategic plan of High Council of Judges and Prosecutors, adopted by its general assembly on
14 March 2012, devotes a specific item to the development of the professional competence of
judges and prosecutors by setting, among others, the following goal: to prepare annual training
programmes in cooperation with the Justice Academy of Turkey.
62
The High Council of Justice and prosecutor is a constitutional body aimed at preserving the internal independence of
judges and prosecutors. According to the Constitution and Law No 6087 of 11 December 2010 on the High Council of
Judges and Prosecutors primaries competences are the following: to render final decisions about the proposal of the
Ministry of Justice concerning abolishment of a court or a change in a court’s jurisdiction; to govern judges and
prosecutors careers: by admitting them to the profession; appointing or transferring to another locality; equipping them
with temporary authorizations; promoting them or allocating them as first class; distributing cadres; issuing disciplinary
punishments; suspending from office; to inspect whether judges and prosecutors perform their duties in compliance
with laws, regulations, by-laws and circulars; to examine whether they commit offenses in connection with or during
the exercise of their duties, or whether their behaviours and acts are in compliance with the requirements of their
capacities and duties, and if necessary, to launch examination or investigation proceedings about them; to issue circulars
concerning the administrative duties of judges other than those related to the matters related to the exercise of the
judicial power, as well as concerning the judicial tasks of prosecutors other than those related to the power of
assessment of evidence and determination of crime; to elect members to the Court of Cassation and the Council of
State; to appoint chief prosecutor.
63
By Law 6494, the Parliament replced the provison introduced by a Governent legislative decree and annulled by the
Constitutional Court.
21
In the JA, a specific branch of the Training Centre is devoted to in-service training. It is
composed by the head of branch, one coordinator, three deputy coordinators and five administrative
staff. A judge, who served as a prosecutor for five years, is the general coordinator for in-service
training. A second judge is responsible for criminal justice programme. A third judge is responsible
for civil issues and an administrative judge for administrative issues.
As regards the budget, HSYK allocated 1,367,598 TL (around € 526,000) in 2011 and 3,556,904 TL
(around € 1,368,040) in 2012 to in-service training.
The HSYK further promotes and supports, through its Bureau of Foreign Affairs & Projects,
overseas education programmes for judges and prosecutors, which include: programmes for
foreign language and education abroad64; post-graduated (MA & PhD) studies and professional
research abroad65; study visits abroad66 to enhance knowledge & experience in justice and law and
on protection human rights case law.
IV.2. MULTIPLE PROVIDERS OF IN-SERVICE TRAINING FOR JUDGES AND
PROSECUTORS
IV.2.1 DEPARTMENT FOR THE EDUCATION OF THE MINISTRY OF JUSTICE
¾ FINDINGS
The MoJ organizes study visits and conferences for judges and prosecutors. It is further responsible,
through its training department67, for the training of judges and prosecutors attached to the Ministry
of Justice and of the judicial administration.
It finances foreign language courses for judges and prosecutors: during the period 2003-2013, 2,134
judges and prosecutors who work for the central organisation and at the court houses participated in
foreign language courses68.
IV.2.2. TRAINING PERFORMED BY THE COURT OF CASSATION AND THE COUNCIL OF
STATE
¾ FINDINGS
The expert was informed that the members of the Court of Cassation and of the Council of State are
not subject to the authority of the HSYK. They do not, therefore, undergo the professional training
organized by the HSYK and the JA. However, some members take part in this training as speakers
and further participate in negotiation meetings (see below IV.5).
The Court of Cassation and Council of State, relying on their own budget69, organize their own
training activities not only for their members and rapporteur judges attached to these courts but
also for first instance judges. Both the Court of Cassation and the Council of State host candidate
judges in the course of their internship (see above).
¾
CONSIDERATIONS
64
In USA. Since 2011 93 judges and prosecutors took part in this programme.
In UK, USA, Australia and Japan. Since 2012 61 judges and prosecutors took part in this programme.
66
In 2011, 142 judges and prosecutors participated in study visits in Portugal, Italy, Poland, Belgium, Romania, Spain
and Slovenia. Further study visits were organised in the following years.
67
The department is presided over by a president and is divided in 5 branches; survey and evaluation Department;
Publication, archive and data processing department; planning and enforcement department; budget, document and
personal affairs department; project management and training centers department.
65
68
69
60% of fees are paid by the Ministry of Justice; the rest is born by the trainee.
Determine determined in accordance with the Budget Act at the beginning of the fiscal year.
22
The aim of in-service judicial training is to enhance professionalism of judges and public
prosecutors through high quality education. Judicial Training is considered by the European
Commission a fundamental tool for the constitution of a “European Legal Culture”70.
Large and increasing caseloads, frequent changes in legislation due to the process of approximation
of Turkey to the EU, the emergence of complex legal issues connected to the complexity of the
society, and increasing media scrutiny of judicial decisions have increased the demand and need for
continuing judicial training in Turkey. In this context, the independent and effective exercise of
jurisdiction -which is required both by the EU standards and by the Turkish Constitution- confers
the right and the duty on judges and prosecutors71 to undergo judicial training, in order to acquire,
maintain and consolidate professional ability 72 and develop their proficiency73.
The European standards suggest that, in order to preserve the Judges’ independence, training should
be entrusted to a special autonomous establishment, under the authority of the Judiciary, with its
own budget, which is thus able, in consultation with judges, to develop training programmes and
ensure their implementation74.
Since August 2011, the task of judicial in-service training has been assigned by the law75 to HSYK
that is a constitutional independent body which acts under the authority of the Judiciary. However,
considering that the Turkish Judiciary is very large in terms of number of judges and prosecutors
and geographical location, and considering the current tiny structure of the In-service Training
Office of HSYK76, the Council has not the organizational capacity to efficiently perform and
implement the in-service training of judges and prosecutors. HSYK has therefore established
cooperation with the JA whose general legal task is the training of legal practitioners, including of
judges and prosecutors. In practice, the in-service training of judges and prosecutors is one of the
main activities of the JA, which has set up an entire branch, within its Training Centre, devoted to
in-service training,
However, although the cooperation between HSYK and the JA is one of the main goals of the
strategy of HSYK, the relation between the two bodies is not grounded on formal and stable
agreements and protocols. It is instead based on an informal understanding and on practice. At the
same time the JA is not the only provider of in-service training the HSYK cooperates with. The
HSYK decides on an ad hoc basis whether to organize training events directly or in cooperation
with different institutions. The role and the visibility77 of the JA as the main in-service training
provider is further weakened by the competitive judicial training directly organized and performed
by the Court of Cassation, the Council of State and the Ministry of Justice.
The above picture shows the current fragmentation of the performance of the in-service judicial
training. This fragmentation prevents the JA from developing a proper multi-annual planning –with
relative investments- on in-service training.
70
Communication from the Commission to the European Parliament and the Council on judicial training in the
European Union. Brussels, 29.06.2006 COM(2006) 356 final.
71
CoE Recommendation Rec (2000) 19 point 7.
72
Opinion no. 4 of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers
of the Council of Europe on Appropriate initial and in-service training for judges at national and European levels
(hereinafter Opinion No 4 of the CCJE), paragraph 2.
73
CoE Recommendation CM/Rec (2010) 12 Point 65.
74
75
Law No 2802 on Judges and Prosecutors and Law No 6087 on the High Council of Judges and Prosecutors.
76
It is composed by only 5 rapporteur judges.
77
Some judges and prosecutors met by the expert were event not aware about the role of the JA in providing in-service
–training.
23
As underlined above and below (see paragraphs about curricula and methodology IV.4), in-service
judicial training is a very challenging task and implies a systematic planning and common efforts by
all stakeholders. It should therefore be assigned to an independent, stable and visible training
institution: that should be, according to its legal mission, the Judicial Academy.
In-service training, from the perspective of EU standards, does not simply mean offering judges and
prosecutors the opportunity to participate in one seminar or conference from time to time; it implies
instead that judges are trained with a view to overcoming difficulties and to correct shortcomings
they encounter in the performance of their judicial duties. It implies that all concerned judges and
prosecutors receive assistance in case of change in legislation, change in function, assignment to
specialized functions, and appointment to management posts.
In order to reach a proper multi-annual and systematic planning of in-service training and to ensure
that resources for continuous training are properly deployed and used in the interest of the trainees
and therefore in the interest of justice, the expert recommends that:
-
HSYK develops multi-annual agreements and protocols with the JA, in order to entrust the
Academy with the formal and visible role to perform in-service training for all judges and
prosecutors;
-
all judges and prosecutors, including members of the Court of Cassation and the Council of
State are involved in the training performed by the Justice Academy. In this respect, the
Consultative Council of European Judges stresses the desirability of arranging continuous
judicial training in a way that embraces all levels of the judiciary. Whenever feasible, the
different levels should all be represented at the same sessions, giving the opportunity for
exchange of views between them. This would contribute to diffusing hierarchical
tendencies, keep all levels of the judiciary informed of each other’s problems and concerns,
and promote a more cohesive and consistent approach throughout the judiciary78;
-
other Authorities, beyond HSYK and JA, provide judicial training when it is justified by
exceptional circumstances and coordinate their efforts with the HSYK and JA, in order to
avoid competition among training providers, overlapping and inefficient use of resources.
We RECOMMEND
• that the HSYK develops multi-annual agreements and protocols with the Justice Academy,
in order to entrust the Academy with the formal and visible role of performing in-service
training for all judges and prosecutors;
• that all judges and prosecutors, including members of the Court of Cassation and Council of
State, are commonly involved in the in-service training performed by the Judicial Academy;
• that other institutions, beyond the HSYK and the JA, provide judicial training when it is
justified by exceptional circumstances and coordinate their efforts with the HSYK and JA, in
order to avoid duplication of efforts and increase an overall efficient use of resources.
IV.3. THE ANNUAL PLANNING OF IN-SERVICE TRAINING. CRITERIA FOR
SELECTION OF PARTICIPANTS. STATISTICS
¾ FINDINGS
HSYK prepares, compiles and publishes an annual training programme. In the preparation of the
programme, the In-Service Training Office of the HSYK collects opinions and requests by the JA,
“higher judicial bodies” and the MoJ. It further takes into account the inspection reports prepared by
78
Opinion No 4 of CCJE paragraphs 32 and 36.
24
the Inspectors of the High Council, the reports issued by the European Commission and the Council
of Europe, the case-law of the European Court for Human Rights and the evaluation forms
compiled by judges and prosecutors at the end of each training event. The draft programme is
finalised each year at the end of November and it is then submitted to the first Chamber of the High
Council for approval. Once approved, the programme is announced on the web page of the High
Council and is distributed among judges and prosecutors with official correspondence. The annual
training plan is also sent to other bodies and institutions involved79.
The average participation is 60-100 judges/prosecutors per training event. Judges and prosecutors
who wish to participate in training send a request via UYAP (National Judiciary Information
System) to the In-service Training Office of HSYK; the latter compiles and submits the list of
applications to the first Chamber of HSYK. The expert was informed that in deciding the
admission of applicants to training the first Chamber takes into account: “the quality of the
training programme, the position, responsibilities and place of duties of applicants and the training
programmes they have attended before”.80
As regards statistics, in 2011 HSYK organized and performed 36 training events 81, with the
participation of 3,046 trainees (207 participants took part in a seminar organised by the Court of
Cassation). In 2012, 79 training events82 took place, with the participation of 5,735 trainees (315
79
The 2013 programme includes 31 training events on diverse topics, as follows: Turkish code of obligations (two
seminars – 228 participants); Turkish Commercial Code (two seminars – 212 participants) ; Labour Law (two seminars
– 118 participants); protection of the Family and Prevention of Violence against Women under Law No 6284 (two
seminars – 224 participants); Children Monitoring Centres (one seminar – 53 participants); Natural Disasters and the
Accountability of the Administration (one seminar – 17 participants); Practices under Law 5233: Reimbursement of
damages arising from Antiterrorism (one seminar– 26 participants); Workshop on Tax disputes (one seminar – 95
participants); Zoning Law, procedures of the State Council for the 6th Circuit (one seminar – 87 participants);
Symposium on Urban Transformation (one seminar – 87 participants); Cyber Crimes and methods of gathering
evidence (one seminar – 61 participants); Investigation Procedure for Organised Crimes (one seminar – 95
participants); Fair Trial under the European Convention on Human Rights (one seminar – 95 participants); Custom
Code No 4458 (one seminar – 69 participants); Ruling procedure and ruling writing methods (one seminar – 58
participants); Enforcement Law (one seminar – 100 participants); Crimes against assets (one seminar – 62 participants);
Efficient investigation methods ((two seminars – 156 participants); Crimes arising from corruption (one seminar – 58
participants); Administrative Judiciary Decision in the light of the Case Laws of European Court of human rights (one
seminar – 100 participants); Denial of on-line access (one seminar – 60 participants); Supervised liberty (one seminar –
100 participants); In-Service Training Seminar for Investigation Judges of Penal Department No 1, Civil Departments
No 2, No 3 and No 12 of the Supreme Court (two seminars – 90 participants); Professional harmonisation and Personal
Development of investigation judges of Supreme Court (two seminars – 346 participants).
80
HCJP source
81
31 seminars on Introduction to civil procedure code (2560 participants); 1 seminar about Introduction to Turkish
Commercial code (79 participants); 1 seminar about Challenges arising form caption and custody procedures in Turkey
and enhancing the efficiency and productivity for the acceleration of trials I8142 participants); 1 seminar about:
Administrative and judicial procedures of the system (43 participants); 1 seminar about: Training of press agents (15
participants).
82
4 seminars on Introduction to civil procedure code (2730 participants); 8 seminar about Introduction to Turkish
Commercial code (692 participants); 2 symposia on: Struggle with violence against women in the context of efficient
implementation of human rights standards (157 participants); 2 symposia on Protective measures and freedom of
expression in the light of the decision of European Court of Human Rights (274 participants); 23 seminars about New
Turkish code of obligations (101 participants); 2 seminars on Terror and organised crime in the light of the decisions of
European court of human rights; 1 seminar about hearings of the Council of State (87 participants); 2 seminars on
expropriation (78 participants); 5 seminars on: Professional harmonisation and career development for Chief judges of
High Criminal Courts, chief public prosecutors and deputy prosecutors (275 participants); 1 seminar on: Professional
harmonisation and career development for Chief judges regional Administrative Courts and chief judges appointed to
the Tax Courts for the first time (95 participants); 1 seminars on: Professional harmonisation and career development
for Investigation Judges of the Council of State end Ankara Regional Administrative Court Judges (111 participants);
1 seminar on Training for investigation judges of criminal court No 4 of the Supreme Court (33 participants); 1 seminar
25
participants took part in two seminars organised by the Court of Cassation). In the first five months
of 2013, 35 training events took place with the participation of 2,645 trainees (30 participants took
part in two seminars organised by the Court of Cassation). It is expected that, in 2013, 5,837 judges
and prosecutors, that is 44.2% of 13,182 of serving judges and prosecutors, will follow in-service
training. In the past two years more than half of judges and 29% of prosecutors followed in-service
training organized by HSYK.
¾ CONSIDERATIONS
In two years and a half of training activity, HSYK has enhanced by far its capacity to organize and
deliver in-service training for judges and prosecutors. It performs regularly the “training needs
collection”, taking into account also EU reports and ECtHR decisions, and publishes the annual
training offer on its internet web-site and in UYAP. The offer for 2003 is diverse and touches upon
not only traditional fundamental topics, like code of obligations and commercial code, but also
newly emerging issues like Urban Transformation and Cyber Crimes, and topics which are very
relevant for the judicial practice, such as Ruling procedure and ruling writing methods or
Investigation Procedure for Organised Crime. At the same time, HSYK has reached more than half
of judges and 1/3 of practicing prosecutors.
However, the training offer, which is performed trough seminars and conferences for rather large
groups of participants per training event (60-100), does not cover entirely the training needs of
judges and prosecutors, when those needs are considered in the light of EU standards. As mentioned
above, in-service training should be aimed at accompanying judges and prosecutors in their judicial
practice in order to enhance their judicial performance and to improve the performance of the
judicial service. A diverse offer of conferences and symposia is very important indeed for the legal
culture. Those training events are aimed at identifying controversial and new legal issues, both for
theory and practice, and to offer solutions. However, this is not enough to ensure that the outcomes
of those conferences and seminars reach judges and prosecutors who operate in the field. There is a
serious risk that only participants in seminars, who are a small minority of serving judges and
prosecutors, are informed about problematic legal issues and possible solutions dealt with during
the seminar.
Considering this, there is still room for improvement of the in-service training:
A) The effectiveness of the training would require that all judges and prosecutors have the
opportunity to be trained about the most sensitive issues identified by HSYK. For example,
the expert detected in previous reports some very significant shortcomings in the judicial
practice in the criminal field, with reference to the weak reasoning of pre-trial detention
orders by judges and the improper compilation of indictment by prosecutors. The expert
recommends, therefore, that once a significant shortcoming is identified in judicial practice,
all judges and prosecutors are trained with a view to correcting this shortcoming (On how to
realize this training in practice, please see paragraph on regional training IV.4.).
B) Furthermore, in-service training for all judges and prosecutors is very important in case of
change in law and in technology.
C) In addition, considering that the pre-service training for young graduates is still very weak,
both in terms of duration and effectiveness of training and internship, young judges and
Professional harmonisation and career development for public prosecutors form the Supreme Court (206 participants);
.
26
prosecutors should be accompanied by training during the first years of their practice
on the important issues which are linked to the role and functions of the judge, such as
human rights, judicial independence, judicial accountability, judicial ethics and conduct,
sensitivity training in contemporary social issues - gender, ethnic and other disadvantaged
groups, media-bench relations, judgment writing and delivery, the science of fact-finding,
communication skills (sensitivity to witnesses, litigants and the public), alternative dispute
resolution, case-flow management, time management, judicially exercised discretion,
economic and social impact of judicial decisions.
D) Finally, training for small groups of judges or prosecutors or even individualised training
becomes indispensable in the event of career change, such as:
o move between criminal and civil courts;
o move to a specialist jurisdiction (e.g. family, juvenile, social, commercial or regional
criminal court);
o assumption of a post in a specialised prosecution office, such as prosecution offices
attached to regional criminal courts or to juvenile courts;
o assumption of the presidency of a chamber or a court or of the management of a
prosecution office. Court presidents and chief prosecutors should be trained in
management of human resources, strategic planning to regulate and manage case
flow, as well as efficient planning and use of budgetary and financial resources83.
HSYK and the JA should therefore equip themselves with the capacity and the resources to provide
all forms of training highlighted above (A-D).
A final remark concerns the criteria for the admission to training events. Judges and prosecutors
met by the expert were not aware of the rules established by HSYK for the admission to in-service
training. Such rules apparently don't exist. Recommendation CM/Rec (2010)12 point 28 states that:
Councils for the judiciary should demonstrate the highest degree of transparency towards judges
and society by developing pre-established procedures and reasoned decisions. Those preestablished rules and procedures are relevant, according to the EU practice, also for the admission
to the in-service training.
We RECOMMEND
that HSYK and the JA should equip themselves with the capacity and the resources to:
• train all judges and prosecutors on most sensitive issues and changes in law and technology;
• organize continuous training that accompanies young judges and prosecutors during the first
years of their practice on important issues which relate to the role and functions of the judge;
• provide judicial training for small groups of judges or prosecutors or even individualised
training in the event of career change, such as a move between criminal and civil courts, a
move to a specialist jurisdiction, the assumption of a post in a specialised prosecution office,
the assumption of the presidency of a chamber or a court or of the management of a
prosecution office.
We RECOMMEND that HSYK
• establishes transparent rules and procedures for the admission of judges and prosecutors on
equal footing to the in-service training.
83
judges.
27
IV.4 TRAINERS AND SPEAKERS. TEACHING METHODOLOGIES. COORDINATION
OF THE SEMINARS. THE EVALUATION OF THE SEMINARS
¾ FINDINGS
In-service training programmes are organized in the form of courses, seminars, symposia,
conferences for civil, criminal and administrative judges and prosecutors and military judiciary. As
highlighted above, the average participation per training event is 60-70 judges or prosecutors.
Teachers and speakers are selected among: members of high courts (a big portion of teachers),
judges and prosecutors, trainers form higher education institutions, lawyers, international academics
and experts. In selecting the teachers HSYK takes into account the titles and the context of the
training and attention is paid to the performance of professional or academic studies on the relevant
issues. 119 Judges and prosecutors act as part-time trainers and speakers. When the training is
organised in cooperation with the JA, the latter takes care of the preparation of the agenda and the
selection of speakers and trainers; the HSYK takes care of logistical arrangements.
Neither HSYK nor the JA has established guidelines or written instructions or other standards for
trainers and speakers. The trainers together identify the subjects and prepare the agenda of each
training event. Coordination of the seminar, the framework of the speech, the written material, etc.
are matters decided autonomously by each trainer.
In 2012 the JA trained 100 trainees to become trainers. The train the trainers' workshop lasted 3
days and was organized in different locations in Turkey.
An “investigation judge” from HSYK participates in training programmes as a representative of the
Council. He/she prepares a report containing the assessment of the event and its outcome. At the
end of the training event, participants are asked to evaluate the training. The overall evaluation by
participants is as follows: 25% excellent; 45% good; 23% as expected, 7% below expectations.
¾ CONSIDERATIONS
In only two years and a half of implementation of in-service training, HSYK and JA have built up a
large network of trainers and speakers, regularly train judges and prosecutors to become trainers or
to improve their capacity as trainers (train the trainers), and have put in place a system of
evaluation of the training.
However, there are some concerns with regard to teaching methodologies. Most training events are
organized based on the so called face to face methodology, which is concretely implemented
according to different modules: conference, symposia, and workshops. Face to face methodology
implies that judges and prosecutors travel to a central location for face-to-face lectures or discussion
with the trainers. According to this methodology a large number of participants (form 60 to 100)
attend, as an average, training events in Turkey.
In many EU judicial training centres, interactive teaching methods are increasingly being used
instead. This includes case studies, small group discussions, individual and joint presentations,
panel discussions, and self-evaluated tests. In addition, some Training Centres and also the
European Judicial Training Network84 and the European Programme for Human Rights Education
for Legal Professionals (the HELP Programme)85 of the Council of Europe are developing more
on-line, web-based programmes often in an attempt to provide immediate and up-to-date
84
85
http://www.ejtn.net/
http://help.ppa.coe.int/
28
information, and to provide distance learning in jurisdictions where it is more difficult for all judges
to attend courses at a central location.
REGIONAL IN-SERVICE TRAINING
Centralisation of training is particularly problematic for jurisdictions covering a large geographic
area. The difficulty in getting leave from busy courts and the cost of travelling to one central
location for training are major barriers for judges and prosecutors to take part in centralized inservice training. In particular in Turkey, because of the system of assignment of young judges and
prosecutors to regions (mainly 4th and 5th category regions) far from Ankara and Istanbul, there is a
crucial need to bring experienced trainers and training events close to the trainees.
European Justice Academies and School of Magistrates of large EU Countries, like Italy, have
solved this problem by setting up regional training centres, under the direction and supervision of
the central Justice Academy. The Regional Training centres are a fundamental link between the
central Academy and the trainees: they can convey information, disseminate training material, case
law and ECtHR judgments to judges and prosecutors working in the field. They can assist judges
and prosecutors in individualized or small groups training in case of a career change. They can host
training events at regional level.
Regional Training centres should be established in main cities of different regions of Turkey. They
should be assigned judges and prosecutors acting as responsible of the training centre on a
temporary basis, administrative staff, premises –possibly in courts- training equipment and material,
IT facilities and resources. The regional training could be mainly delivered through the train the
trainers' methodology. The regional level is also best suited for the organization of common
training between judges and prosecutors and the administrative staff regarding the management of
court and cases and the use of IT tools.
For the sake of the effectiveness of single training events, the expert encourages HSYK and the JA
to establish written protocols and guidelines for the coordinators, moderators and speakers of
training events, which take into consideration the characteristics of each training (conference,
symposium, working group, individualized training, distance learning, train the trainers) and the
characteristics of the trainees (whether experienced or young judges or prosecutors, whether chief
justices or judges of superior jurisdictions).
We RECOMMEND
•
the establishment of regional branches of the Justice Academy with the aim to convey
information, disseminate training material, case law and ECtHR judgments to judges and
prosecutors working in the field, and to assist judges and prosecutors in individualized or
small groups training in case of a career change.
We ENCOURAGE
• the High Council of Judges and Prosecutors and the Justice Academy to establish written
protocols and guidelines for the coordinators, moderators and speakers of the training events,
which take into consideration the characteristics of each training and those of the trainees,
• the High Council of Judges and Prosecutors and the Justice Academy to implement
interactive and on-line training methodologies.
IV.5. A GOOD PRACTICE OF REGIONAL TRAINING: CONSULTATION MEETINGS.
¾ FINDINGS
In order to prevent divergent practices and case law, often due to frequent and radical legislative
amendments along the process of membership of Turkey to the EU, and to reduce the annulment
29
rate86 of first instance judgments by higher courts – the HSYK organises the so called “consultation
meetings”. These are aimed at establishing an informal comparison of notes, dialogue and transfer
of knowledge and experience among courts of first instance and high courts and among newly
appointed and experienced judges and prosecutors. The usual duration of such meetings is 3 days
(from Friday to Sunday). In the first two days (Friday and Saturday), participants are divided in
groups and pre-selected topics, related to practice, are presented by pre-selected speakers to all
groups. Each group designates a moderator and a reporting committee. The moderator allocates
equal time to all participants to discuss the topic presented by the speaker. In the last day (Sunday)
the conclusions of the meetings are presented by a rapporteur to the plenary assembly of
participants.
In 2012 seven consultation meetings were organised in six different locations87 with the
participation of 672 judges in total, among which 336 were administrative judges and 336 civil and
criminal judges. HSYK has organised in 2013 further nine consultation meetings in six different
locations88 .
¾ CONSIDERATIONS
The practice of consultation meetings is very positive and has to be greatly appreciated. The CCJE
suggests that the in–service programmes should take place in, and encourage an environment in
which members of different branches and levels of the judiciary may meet and exchange their
experiences and achieve common insights89. Case-law of the superior courts is better understood if
an informal dialogue is established by members of courts of different levels of jurisdiction.
IV.6 IMPACT OF IN-SERVICE TRAINING ON JUDGES AND PROSECUTORS CAREER. A
MANDATORY TRAINING?
¾ FINDINGS
Even though, according of the law, training is both a right and a duty of judges and prosecutors, inservice training is not mandatory and the participation in training has not any (formal) impact on the
career of judges and prosecutors.
¾ CONSIDERATIONS
It is indeed unrealistic to make in-service training mandatory in every case. The fear is that it would
then become bureaucratic and simply a matter of form. The suggested training must be attractive
enough to induce judges to take part in it, as participation on a voluntary basis is the best guarantee
for the effectiveness of the training. This should also be facilitated by ensuring that every judge is
conscious that there is an ethical duty to maintain and update his or her knowledge90.
However in order to encourage all judges and prosecutors to take part in training activities, this
participation –for example at least a participation every two years- could be taken into consideration
as a condition for a positive professional evaluation91. The training could even be linked with the
professional evaluation system, in a way that, according to the best EU standards, this evaluation
system is oriented not simply to assess the judge's performance in view of his/her promotion, but
also to detect the shortcomings of his/her performance and outcome. Professional evaluation can
inform judges about how they are performing and how they are perceived, and it can help an
86
The annulment rate is extraordinary high in Turkey and is one of the causes of the large workload of first instance and
high courts, longer duration of trials, long pre-trial detention periods.
87
Afyonkarahisar –twice- Erzurum, Izmir, Konya, Istanbul, Antalya
88
Afyonkarahisar –twice- Izmir –twice-, Istanbul –twice-, Hatay –twice-, Bodrum and Mardin.
89
Opinion No 4 of CCJE paragraph 37 .VI.
90
91
As it is in Italy.
30
individual judge, trough training, to correct mistakes and increase his/her own personal job
satisfaction. In-service programmes could instead be considered mandatory in the event of a career
change, such as a move between criminal and civil courts, the assumption of specialist jurisdiction,
the assumption of a post in a specialised prosecution office such as prosecution offices attached to
regional criminal courts or to juvenile courts, the assumption of presidency of a chamber or a court,
the assumption of the management of a prosecution office. Such a move or the assumption of such a
responsibility may even be made conditional upon attendance on a relevant training programme.
We RECOMMEND
• That the participation of judges and prosecutors in continuous training is taken into
consideration in the framework of the individual professional evaluation of judges and
prosecutors;
• That in-service training becomes mandatory in the event of a career change, such as a move
between criminal and civil courts, the assumption of the management of a specialist
jurisdiction, the assumption of a post in a specialised prosecution office, the assumption of
presidency of a chamber or a court, the assumption of the management of a prosecution
office.
IV.7. TRAINING OF AUXILIARY STAFF
¾ FINDINGS
Auxiliary personnel working in the judicial system are mainly assigned in courts, public
prosecution offices and other judicial institutions as clerks or mid-level managers. It is also
exceptionally possible for them to hold certain high-level positions. They can also be assigned as
experts in certain areas that require expertise. Auxiliary personnel serve as civil servants and have
the same rights as other civil servants.
The training department of the Ministry of Justice92 organizes training activities for “auxiliary
Judicial Staff”93 in order to improve their knowledge, experience and skills and help them adapt to
changes in their professional environment94. At the end of each year the training department works
out an annual in-service training annual plan for the following year, which takes into account inservice training requirements of the various departments of the Ministry of Justice, training needs of
the provincial staff, law amendments and innovation. The training department organises two
different kinds of courses: personal development courses 95 performed by psychologists,
pedagogues and social workers of the Ministry of Justice, and professional courses96 performed by
92
The department is presided over by a president and is divided in 5 branches; Survey and evaluation Department;
Publication, archive and data processing department; planning and enforcement department; budget, document and
personal affairs department; project management and training centers department.
93
It is composed by: enforcement directors and deputy director; chief clerk for Judicial Committees; chief clerk; case
worker (psychologist, pedagogue, social workers); court clerk; property clerk; usher; secretary; data preparation and
control operator; cook; driver.
94
Training is regulated by article 20 of bylaw No 2992 on Amendment and approval of the Statutory Decree on the
Organisation and Mission of the Ministry of Justice. According to this regulation, the Training Department of the
Ministry of Justice has the competences: to prepare and publish the educational plan for the central and provincial
organization of the Ministry and monitoring the implementation and to organise and perform pre-service and in-service
training programmes for the ministry organisation.
95
Personal development courses include the following topics: Communication: “I” language and “You” language;
listening skills; body language; empathy; prejudice and criticism
96
As regards professional courses they are separately organised according to the competences and the position in the
administration of the employees. Different modules are therefore conceived for the following professional categories:
31
judges, prosecutors and Heads of department of the Ministry of Justice. The training department
performs an assessment and evaluation of the training through an analysis of training needs of the
auxiliary judicial staff, and the evaluation of the training performance by the trainees after each
training activity through “course questionnaires”.
As regards statistics, the expert was informed that the training department up to the time of the visit
trained a significant number of auxiliary staff: 2,398 out of 3,838 chief clerks, 8,776 out of 27,769
of court clerks, 163 out of 215 property clerks, 166 out of 185 Directors of administrative affairs,
and 315 out of 440 case workers.
¾ CONSIDERATIONS
The assessment of the training of the auxiliary staff is not within the scope of the mission. The
expert takes note of the extensive training performed by the Ministry of Justice, without expressing
an evaluation. The expert observes instead the absence of common training among judges,
prosecutors and administrative staff. This is of particular importance for training staff and court
assistants in preparing the hearings and monitoring and ensuring the smooth progress of cases (for
example, in relation to the use of IT, case and time management techniques, drafting of judgments,
foreign languages, communication with the parties and the public and legal research). This training
will contribute to relieving judges from administrative and technical duties and allowing them to
focus on the substance and management of the trial process and decision-making97. This common
training would be better placed at regional level.
We RECOMMEND
•
that the Ministry of Justice and the Judicial Academy organize common training for judges,
prosecutors and auxiliary staff.
IV.8 TRAINING OF LAWYERS (TO WHAT EXTENT IS IT COMMON WITH THAT OF
JUDGES AND PROSECUTORS?)
¾ FINDINGS
Pre-service training of lawyers lasts one year and is divided in two stages. Trainees spend 6 months
at courts and 6 months in a law firm, in both periods under the supervision of the Internship Board
of the local Bar. There are around 1,200 trainees in a year. They are divided in groups of 20-30.
Each group is directed by a trainer who is lawyer assigned by the Bar Internship Board. Around 100
lawyers were trained for this task (train the trainer). The Internship Board organizes collective and
individual training, theoretical and oral. Collective training is performed trough seminars,
conferences and social activities. In the course of the individual training the trainee is assigned a
case-file and the decision adopted by the court. The candidate must evaluate the file and comment
on the case and the decision.
At the end of the training period, the trainees sit an oral interview. If successful, the trainees
receive a licence to practice as lawyer. If they fail, the training period is extended for a further six
months.
Court Clerks; Enforcement Office Clerks, Chief clerks, Chief Clerks for Judiciary Committee , Director of
Administrative Affairs , Directors, Assistant directors and newly appointed Directors of Enforcement97
judges.
32
In-service training of lawyers is not regulated.
Lawyers are not involved in common training with judges and prosecutors.
¾ CONSIDERATIONS
The assessment of training of the lawyers is not within the scope of the mission. However, the
expert must observe that the lack of systematic in-service training for lawyers is, in the light of EU
standards, a shortcoming that the Turkish Union of Lawyers should correct. The expert further
notes the absence of common training between judges, prosecutors and lawyers.
The CCJE recommends the organisation of training common to the various legal and judicial
professions. This is likely to foster better knowledge and reciprocal understanding between judges
and other professions.98The CCJE also encourages, in the context of continuous training,
collaboration with other legal professional bodies responsible for continuous training in relation to
matters of common interest (e.g. new legislation)99.
We RECOMMEND
•
that HSYK, the JA and the Turkish Union of Bar Associations organize common training for
judges, prosecutors and lawyers.
Written in September 2013
by Luca PERILLI, Italian Judge
98
99
33
Organizational Chart of Justice Academy of Turkey
.
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