The Judge's Disqualification

The Turkish legal system is structured to ensure impartiality and fair trial. Judges barred . These circumstances are shaped within the framework of the principles of legal security and impartiality. Barring from presiding over a case is a mandatory condition indicating that the judge cannot hear the case, and the judge must take this into account ex officio.

1. Legal Regulations

The disqualification of judges is regulated in the Turkish Code of Civil Procedure (HMK), the Code of Civil Procedure (Law No. 6100), the Code of Criminal Procedure (CMK), and other special procedural laws.

Articles 34 and 36 of the Code of Civil Procedure (Prohibition of Judges)

According to Article 34 of the Code of Civil Procedure, a judge is prohibited from hearing a case under certain circumstances. In such cases, the parties are not obligated to challenge the judge; the judge shall voluntarily declare the prohibition and withdraw from the case.

According to Article 36 of the Code of Civil Procedure, a disqualified judge cannot hear a case or take any action on the case file. Otherwise, any actions taken void and invalid.

2. Disqualification Clauses for Judges

a. Prohibition due to relationship with the parties

1. Blood or affinity relationship: The judge is prohibited from offending any party if the judge or their spouse has a blood or affinity relationship (such as ancestor, descendant, sibling) with one of the parties. This kinship includes blood relatives up to the third degree (including the third degree) and affinity relatives up to the second degree (including the second degree).
2. Marriage to one of the parties: If a judge is married to one of the parties to the case, or even if divorced, the judge is considered to have lost their impartiality.
3. Client-attorney relationship: A judge is prohibited from acting as an attorney or representative if they have previously acted as such for one of the parties.

b. Disqualification due to previous roles related to the case.

1. The judge must have previously presided over the case: If a judge has previously ruled on the same case, for example, if they served as an expert witness in the same case, they cannot subsequently preside over that case as a judge.
2. Having handled another case arising from the same event: In order to maintain impartiality, a judge cannot serve in multiple related cases arising from the same event. For example, a judge handling a criminal case cannot handle a compensation case based on the same event.

c. Prohibition due to previous decisions

A judge is prohibited from rendering a subsequent decision or intervening in the same case if they have already issued a ruling in that case.

d. Interest or Conflict of Interest

A judge is also prohibited from acting impartially in situations where the outcome of the case directly or indirectly affects them. For example, a judge whose financial or family interest depends on the outcome of the case is considered to have compromised their impartiality.

3. What to Do in Cases Where the Judge is Prohibited from Going to Judge

• The judge must, upon learning of a disqualification, automatically notify the higher court of this situation. The judge is also obligated to notify the higher court of a disqualification upon the request of one of the parties.
• The judge makes a decision to recuse himself in this situation . The recusal decision is reviewed by the higher court, and if the judge's disqualification has arisen either on its own initiative or upon request, he/she is removed from the case.

4. Differences Between Disqualification and Recusal of a Judge

• Disqualification: The judge is obligated to declare the case as disqualified. Disqualification is a definitive and legal condition; the judge must recuse himself from the case voluntarily.
• Recusal: The recusal of a judge is a process left to the initiative of the parties. In the case of recusal, one of the parties may request the judge's recusal by claiming that there is a reason affecting the judge's impartiality. However, in the case of disqualification, the parties do not need to make a request; the judge automatically withdraws from the case.

5. Consequences of the Judge's Disqualification

If a judge continues to serve in a case in which they are barred, the proceedings are invalid. In this case:

• The judge's decisions are legally null and void.
• If one of the parties learns that the judge is prohibited from participating, they have the right to inform the court of this.
• If the judge presided over the case despite being prohibited from doing so, this appeal . The decision may be overturned by a higher court.

6. Disqualification of Judges in Supreme Court Decisions

The Supreme Court's precedents are quite clear regarding the disqualification of a judge. The Supreme Court considers the decisions and actions of a judge who is disqualified to be null and void. Furthermore, failure to observe the disqualification of a judge is considered an error that violates public order.

7. Conclusion

The disqualification of a judge is crucial for protecting the right to a fair trial and ensuring judicial independence. A judge who is disqualified from presiding over a case violates the principle of impartiality and undermines confidence in justice. Therefore, grounds for disqualification are clearly defined and guaranteed by law. Judges are required to declare this disqualification voluntarily, and parties can also pursue this matter.