INTRODUCTION
Judicial reform has been a topic on Turkey's agenda for many years. The need for reform undoubtedly implies a structural problem. Indeed, for decades, the judiciary in Turkey has been associated with long trial periods, insufficient sources of trust, attempts to shape politics through an ideological mindset, and physical impossibilities. This has been reflected in popular culture in the not-so-unfair caricature of the judiciary, characterized by dilapidated courthouses, undeterrent convictions, and endless trials. Undoubtedly, such a problematic judicial body undermines social peace and can create various vulnerabilities, endangering public order and national security. As almost everyone agrees today, regardless of the preferred system of government, the existence of an effective and independent judiciary—or, in other words, a judiciary capable of producing justice—is a guarantee for a country's political, economic, and social stability. When we examine the trajectory of the judiciary in Turkey, we see that it has not fulfilled its expected role of protecting the rights and freedoms and the rule of law.
Certain elites who dominate the constitutional, administrative, and, to a lesser extent, criminal judiciary—all of which, due to their functions, deal primarily with political matters—have, far from protecting the legal order, pressured elected governments through practices we now describe as tutelage, effectively turning the judiciary into the perpetrators of political instability.
Higher judicial bodies, which should have assumed the role of ensuring the functioning of a democratic state governed by the rule of law, have undermined Turkey's democratization and political stability through unjust party closure cases, political bans, and restrictions on freedom of religious belief and worship.
The search for reform in the judiciary, driven on the one hand by ideological commitments, and on the other, ineffective in providing solutions to society's daily legal needs, gained an anchor in the early 2000s, particularly with the vision of European Union membership. Prioritized steps were taken to civilianize the judiciary. This will was embraced more strongly under the AK Party government, and finally, in 2009, strategy documents began to be adopted to ensure that reform efforts were carried out systematically and on a timely basis. To date, three Judicial Reform Strategy Documents have been adopted in 2009, 2014, and 2019, and significant improvements have been made in a wide range of areas, from access to justice and judicial accountability to criminal justice and human resources.
While there is still a public expectation of reform in the judiciary and justice sectors today, a comparative analysis reveals that significant progress has been made over the last twenty-five years.
3TH JUDICIAL REFORM STRATEGY DOCUMENT
To implement the goals of the third strategy document, which was adopted in 2019 and is in its final year of implementation, eight judicial reform packages have been adopted in the last five years, including amendments to the criminal law and regulations to combat violence against women. The document has a 71 percent implementation rate as of March 2024. The legal and administrative amendments aimed to strengthen freedom of expression, shorten the duration of detention, provide more practical and expeditious trial procedures, reform criminal justice and especially the execution system, promote alternative dispute resolution methods and digital solutions in the judiciary, specialize in courts, protect the exceptional nature of detention measures, strengthen the freedom to seek legal remedies, reform enforcement procedures, increase the quality of human resources (legal profession entrance exams, judge/prosecutor assistantships, increase the success ranking of law schools, etc.), protect the privacy of personal data, and observe ethical principles in the judiciary. Finally, the Bill of Law No. 2/2258 on Amendments to Certain Laws, known as the 9th Judicial Package and currently on the agenda of the Turkish Grand National Assembly (TBMM),2 - details of which will be explained in the subheading - aimed to manage the workload of the judiciary, improve the quality of human resources, and address alternative dispute resolution methods. regulations are being introduced.
COMPLIANCE WITH CONSTITUTIONAL COURT CANCELLATION DECISIONS
Our legal system provides an important social state institution called ""legal aid"" to ensure that individuals who cannot afford legal aid and litigation expenses can benefit from legal services. Legal aid is provided by legal aid offices within bar associations. The expenses of legal aid services are covered by shares of fees and administrative fines collected by the Ministry of Finance, which are transferred to the Union of Turkish Bar Associations.
The Union of Bar Associations distributes legal aid shares to bar associations in accordance with the principles set forth in the law. Law No. 7409 stipulates that in provinces with more than one bar association (currently in Ankara and Istanbul), a separate legal aid office be established in each bar association.
The Constitutional Court found this provision to be in compliance with the Constitution. However, the same law also stipulated that 40 percent of the points allocated to provinces in the scoring system, which forms the basis for calculating the allocated funds, would be distributed equally, while 60 percent would be distributed based on the bar association's number of lawyers. The Court annulled this regulation on the grounds that it ""failed to establish a reasonable balance in the distribution of the legal aid allowance between bar associations with fewer members and those with larger members""4 and therefore violated the principle of proportionality. The General Assembly proposal attempts to overcome the Constitutional Court's criticism of proportionality by reducing the equal distribution ratio from 40 percent to 30 percent. In administrative judiciary, tax, full remedy, and annulment cases can only be subject to appeal and cassation review for cases exceeding a certain financial limit. However, for example, as of 2024, there is no clear provision in the legislation as to whether this limit of 275,000 Turkish lira for appeals will be sought on the date the case is filed or the date the verdict is rendered. This gap was filled by determining the financial limit as of the date of the decision that would be the basis for appeal or appeal, in accordance with Council of State precedents.
The Constitutional Court, however, concluded that the rule did not meet the requirement of legality because it ""failed to clearly, unambiguously, and unambiguously define the date on which the financial limit would apply for appeal."" It also stated that the inability to appeal against a regional administrative court decision that initially ruled against the plaintiffs in cases below the financial limit imposed a disproportionate restriction on the right to request review of the judgment. Taking into account the proposed annulment decision, the Constitutional Court then revoked Article 46/1,b of Law No. 2577, which pertained to this limit, stipulated that ""in determining the decisions subject to appeal or appeal, the monetary limit as of the date on which the final decision was rendered by the first-instance court or regional administrative court shall be taken as the basis."" Furthermore, even if the appeal requirement is not met, the Council of State is granted the right to appeal for cases re-ruled following annulment decisions (those for amounts less than 920,000 Turkish Lira) that are subject to a revision.
Another annulment decision issued by the Constitutional Court concerns the rule regarding cases concerning the denial of lineage, which are also brought before it through concrete normative review.
According to the presumption of paternity in the Turkish Civil Code, ""The father of a child born during the marriage or within three hundred days of its dissolution is the husband"" (Article 285).
However, while the law allows the father and child to refute the presumption of paternity by filing a lawsuit to deny lineage, the mother does not have the opportunity to appeal to the courts, claiming that the child she gave birth to was not from her husband. The Constitutional Court ruled that this regulation violated the right to an effective remedy within the context of the right to respect for private life and annulled it. The proposal also grants the mother the right to file a lawsuit to deny lineage within one year of birth. On the other hand, it is envisaged that the Constitutional Court's annulment decision regarding the second paragraph of Article 47 of Presidential Decree No. 1 on the Organization of the Presidency,6 which stated that the duties, powers, and responsibilities of justice inspectors should be regulated by law, not by presidential decree, will be amended by law.
A final point to be noted in the Constitutional Court's decisions is the court's annulment of the Civil Code provision requiring a woman to take the surname of her husband. The court concluded that ""the different treatment envisaged by the rule between men and women in the context of the sole use of a woman's maiden surname after marriage violates the principle of equality."
The proposal revises the annulled rule in a similar manner. The proponents emphasize the negative impact that having mothers and fathers with different surnames on children and the debate over the determination of a child's surname could "damage the unity of the family, the foundation of Turkish society."
REGULATIONS FOR THE FAST PROCESSING OF THE JUDICIAL SERVICE
The proposal stipulates that, to expedite the judicial process, civil chambers of appeals courts may decide not to consider themselves competent and refer the file to the competent chamber within one month at the latest. However, this period is set at two weeks for chambers that receive a file on the grounds that they are competent.
Furthermore, the proliferation of social media platforms has led to a significant increase in the number of insult crimes, and this has resulted in a significant workload for the criminal judiciary, which deals with vital issues such as crimes against human physical integrity. Indeed, according to a newspaper report, one in four criminal cases filed at the Ankara Chief Public Prosecutor's Office is filed on the grounds of insult. In this context, the amendment stipulates that the period for filing a complaint for defamation offenses subject to a complaint, regardless of the form, cannot exceed two years from the date of the act. If the defamation act is committed through a voice, written, or video message addressed to the victim, no lawsuit will be filed. Mediation will not be pursued, and prepayment provisions will apply.
Furthermore, an amendment has been made to mediation, an alternative dispute resolution method in criminal proceedings, stipulating that a law school degree will be required to become a mediator in criminal proceedings.
REGULATIONS TO INCREASE THE QUALITY OF HUMAN RESOURCES IN LEGAL PROFESSIONS
As is known, the Entrance Exam for Legal Professions and the Preliminary Exam for Administrative Jurisdiction have been introduced to increase the quality of human resources in legal professions. The new regulations regarding these exams, which aim to employ graduates with a certain level of competence in the legal profession, include:
• Inclusion of international law, private international law, general public law, and social security law among the fields to be questioned
• Authorization of the executive branch to add new question areas through the regulation
• Increasing the number of exam questions to 120. Furthermore, international law and private international law are being added to the list of topics to be asked in the exam for assistant judges and prosecutors, and commercial enterprise and corporate law is being included among the questions for assistant judges in administrative jurisdictions.
Another important regulation is the reduction of the number of candidates invited for interviews for assistant judges and prosecutors from twice the number of assistant judges and prosecutors to one. This will allow, for example, a maximum of two thousand successful candidates to be invited for a position of one thousand. This regulation will increase the decisive role of written exams in the recruitment of judges and prosecutors. On the other hand, it is stipulated that law school graduates with at least twenty years of experience in the profession will be exempt from the written mediation exam, provided they complete mediation training and meet other necessary legal requirements.
CONCLUSION
The proposal appears to have introduced significant technical regulations to manage the judiciary's workload within the framework of efficiency and fair trial principles, strengthen the quality of the judiciary's human resources, and strengthen the freedom to seek justice. More than half of the changes introduced by the 38-article law consist of mandatory regulations designed to comply with the Constitutional Court's annulment decisions.
Nevertheless, the need for comprehensive legal regulation, particularly aimed at eliminating the perception of impunity, persists. Furthermore, the regulation regarding geographic security for judges and prosecutors with a certain professional seniority, included in the third strategy document, is also among the expectations for the coming period. Therefore, it will not be surprising if new legislative packages are brought to the Parliament's agenda in the new legislative year.
