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Judicial Authority: Judge

December 1, 2025
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THE JUDICIAL AUTHORITY IN CRIMINAL PROCEDURE: THE LEGAL QUALIFICATIONS, INDEPENDENCE, AND IMPARTIALITY OF THE JUDGE

 

Criminal procedural law is a public judicial activity based on the dialectic of accusation (thesis), defense (antithesis), and judgment (synthesis). The ultimate goal of this activity is to uncover the material truth in a manner befitting human dignity and to restore the disrupted public order. In this dialectical process, the authority that has the final say, balances conflicting interests, and transforms the state's power to punish (jus puniendi) into a concrete decision the Judicial Authority i.e., the Court/Judge.

In a system where the rule of law prevails, the mere formal existence of a judicial authority is insufficient. The judge occupying this authority must be constitutionally guaranteed, independent, impartial, professionally competent, and appointed in accordance with the principle of the "natural judge." As Aristotle stated, "The judge is living justice."

In this study, we will examine in detail the legal status of the judge, who is the decision-making authority in criminal proceedings, their qualifications within the framework of the Constitution and the Code of Criminal Procedure, the institutions of "prohibition" and "recusal" foreseen to ensure impartiality, and the legal/criminal responsibility regime of the judge.

I. CONCEPTUAL FRAMEWORK: THE DISTINCTION BETWEEN COURT AND JUDGE

 

In criminal procedural law, although the concepts of "Court" and "Judge" functionally refer to the authority exercising judicial power, they have technical differences.

A. Court (Prosecution Phase)

 

The court is the body authorized to pronounce judgment during the prosecution (trial) phase of a trial. It can function as a panel or consist of a single judge.

  • Collective Courts: High Criminal Courts (composed of a president and two member judges).

  • Single-Judge Courts: District Criminal Courts.

B. Judge (Investigation and Prosecution Phase)

 

The concept of a judge refers to the natural person who exercises judicial authority. In the Code of Criminal Procedure system, the judge appears in two different forms:

  1. Deputy Judge / Magistrate Judge: This judge decides on protective measures (arrest, search, etc.) during the investigation phase or handles tasks assigned by the court panel during the prosecution phase.

  2. Judge of the Court of Cassation: The judge who decides on the merits of the case.

II. CONSTITUTIONAL AND UNIVERSAL QUALIFICATIONS OF A JUDGE

 

Simply putting on a robe and standing on the bench does not make someone a "judge" in the sense of a state governed by the rule of law. A judge must possess certain fundamental qualities that legitimize their judicial activity.

1. Principle of Independence (Article 138 of the Constitution)

 

The exercise of judicial power cannot be influenced by any authority, body, or person. Article 138 of the Constitution enshrines this in the clearest terms: “Judges are independent in the performance of their duties; they render judgments according to their conscientious convictions in accordance with the Constitution, the law, and legal principles. No organ, authority, body, or person may give orders or instructions to courts and judges in the exercise of judicial power; may not send circulars; may not offer advice or suggestions.”

Independence is not a privilege of the judge, but a guarantee of the citizen's right to a fair trial. Independence is considered in two dimensions:

  • Personal Independence: The judge's personal rights, appointment, and promotion processes must be free from pressure from the executive branch (government) (Geographical guarantee).

  • Functional Independence: Not being influenced by either the legislative or executive branches when making decisions.

2. Principle of Neutrality

 

Impartiality means that the judge maintains an equal distance from both sides of the case (prosecution and defense) and is unbiased. According to the jurisprudence of the European Court of Human Rights, impartiality is divided into two categories:

  • Subjective impartiality: This refers to the judge's ability to harbor no animosity, hostility, or affection towards either party, and to have no personal bias.

  • Objective Impartiality: This refers to the judge giving the impression of being impartial even when viewed from the outside. "justice should not only be delivered, but also seen to be delivered ," the judge must avoid any doubt that could cast a shadow on their impartiality.

3. The Principle of Natural Rule

 

According to Article 37 of the Constitution, "No one shall be brought before a court other than the one to which he is legally subject." This principle means that the court that will hear a crime must be determined by law before the crime is committed. A special court cannot be established for that person or event after the crime has been committed (prohibition of extraordinary courts). The judge is not someone appointed after the event, but someone who has been authorized by law before the event.

III. PROCEDURAL INSTITUTIONS ENSURING JUDICIAL IMPARTIALITY (PROHIBITION AND REFUSAL)

 

The legislator did not consider it sufficient for a judge to merely declare "I am impartial," but, assuming situations where impartiality could be compromised, prohibited the judge from hearing the case or granted the parties the right to reject the judge.

A. Inability of the Judge to Hear the Case and Disqualification Circumstances (Article 22 of the Code of Criminal Procedure)

 

In these circumstances, it is legally presumed that the judge cannot be impartial . The judge has no discretionary power and must recuse himself from the case. He is prohibited from taking any action even if the parties do not request it; if he does, those actions will be absolutely contrary to law .

The following are prohibited situations:

  1. Being Harmful to Crime: If a judge is the victim of a crime, they cannot preside over that case.

  2. Kinship Relationship: If there is a marital relationship (even if it has ended), guardianship, descendant-ancestor (mother, father, child), adoption, or blood/in-law relationship up to the third degree between the defendant or the victim and the defendant.

  3. Previous Assignments: The judge has previously served in the same case;

    • The public prosecutor,

    • Judicial law enforcement officer,

    • The suspect's or defendant's lawyer,

    • The victim's lawyer,

    • If a judge has served as a witness or expert, they cannot preside over that case.

  4. Lower Court Decision: The lower court cannot participate in the review of its own decision at the Court of Cassation or Appeals stage.

B. Recusal of the Judge (Code of Criminal Procedure, Article 24)

 

Apart from cases of disqualification, the institution of "Recusal of a Judge" comes into play when there are other reasons that cast doubt on the judge's impartiality. Here, there is no absolute disqualification; rather, it is a matter of doubt depending on the specifics of the case.

Reasons for Rejection:

  • The judge meeting with or guiding one of the parties outside of the courtroom.

  • The judge expressing his opinion on the case (stating his view before the verdict).

  • The existence of hostility or a conflict of interest between one of the parties.

Procedure:

  • The defendant, their counsel, the plaintiff, or the prosecutor may request the recusal of the judge.

  • The request for refusal must be made in writing, stating the reasons and evidence.

  • The judge whose recusal was requested will give their opinion on the request.

  • Decision-making authority: If the decision is rejected in a single-judge court, the decision rests with another Criminal Court of First Instance or High Criminal Court in the same location; if the decision is rejected by a member of the High Criminal Court, the other members of the court make the decision.

  • If the request for recusal is granted, that judge will be removed from the case and another judge will be appointed in their place.

IV. DUTIES AND POWERS OF THE JUDGE

 

In criminal proceedings, the judge is not a passive "arbiter" as in the Anglo-Saxon system, but an active subject investigating the material truth, in accordance with the Continental European system.

1. Management and Discipline of the Trial

 

During the prosecution phase, the absolute judge of the courtroom is the Presiding Judge or the Judge.

  • He makes promises, then breaks them.

  • It prevents parties, witnesses, and spectators from disrupting the order of the trial.

  • If necessary, the court can remove anyone disrupting the proceedings (excluding lawyers) or impose disciplinary detention of up to four days.

2. Direct Assessment of Evidence

 

In Turkish law, the principles of "freedom of evidence" and "conscientious evidence" are valid.

  • Principle of Directness: The judge must personally examine the evidence when making a decision. They must hear the witness themselves and review the documents. They should not be content with the statement on paper (in the minutes) but should summon the person to court if possible.

  • Conscientious Judgment: The judge freely evaluates the evidence. The law does not state, "if this evidence exists, this decision must necessarily be made" (there is no legal system of evidence). The judge makes a decision based on their conscientious conviction, according to the impression gained from legally obtained evidence. However, this conviction cannot be arbitrary; it must be reasoned and verifiable.

3. Principle of Ex Officio Investigation

 

In civil cases, the judge is "bound by what the parties present." However, a criminal judge is obligated to investigate evidence not presented by the prosecutor or the defendant on their own initiative . The material truth does not allow evidence favorable to the defendant to remain hidden. The judge is obligated to clarify every point of doubt.

V. LEGAL AND CRIMINAL RESPONSIBILITY OF THE JUDGE

 

Judicial authority is not an unlimited and unaccountable sphere of power. Errors or crimes committed by judges in the performance of their duties are subject to specific sanctions.

1. Legal Liability (Compensation)

 

Individuals cannot be sued directly for damages suffered due to the judge's judicial activities (arrest, conviction, etc.)

  • State Responsibility: According to Article 141 and subsequent articles of the Code of Criminal Procedure, if protective measures or the trial are unlawful (e.g., wrongful arrest, detention of a person who has been acquitted), the citizen files a compensation claim the State Treasury .

  • Recourse Mechanism: After the state pays compensation to the citizen, if the judge's action is found to be "intent" or "gross negligence," the state can seek recourse from the judge for the money paid. This system was introduced to allow judges to make decisions freely without constantly being under the threat of compensation claims.

2. Criminal Liability

 

Judges are subject to a special investigative procedure if they commit crimes during or because of their duties (e.g., bribery, abuse of power).

  • Permission to investigate the Council of Judges and Prosecutors (HSK) .

  • Trials are generally held in the relevant criminal chamber of the Court of Cassation or the nearest High Criminal Court, depending on the nature of the crime and the judge's rank.

3. Disciplinary Responsibility

 

Judges who engage in conduct unbecoming of the profession, neglect their duties, or delay their duties are subject to disciplinary investigation by the HSK (High Council of Judges and Prosecutors). Various administrative sanctions, ranging from warnings to dismissal from the profession, may be applied.

VI. QUALIFICATIONS AND APPOINTMENT CONDITIONS OF JUDGES (LAW NO. 2802)

 

To qualify as a "Judge," a lawyer must possess the qualifications specified in Law No. 2802 on Judges and Prosecutors. These qualifications are aimed at ensuring the quality of judicial services.

  1. Citizenship: To be a Turkish citizen.

  2. Education: Graduation from a Faculty of Law (While graduation from different faculties is accepted for administrative law, a Faculty of Law degree is required for judicial/criminal judgeship).

  3. Exam and Interview: Successfully passing the written exam and subsequent interview conducted by the Ministry of Justice and ÖSYM (Student Selection and Placement Center).

  4. Internship: Gaining experience as a prospective judge by completing an internship in courts for a specific period (currently 2 years).

  5. Character and Ethics: Not having received a prison sentence, and not engaging in conduct incompatible with the honor and dignity of the profession.

  6. Appointment: Being accepted into the profession and appointed by the HSK (High Council of Judges and Prosecutors).

VII. CONCLUSION AND EVALUATION

 

In criminal proceedings, a judge is not merely an official who applies the law to a case; they are an authority that ensures social peace, dispenses justice, and provides the greatest guarantee for the individual against the state.

The independence and impartiality of judges are not a privilege, but a constitutional obligation. The mechanisms of disqualification and recusal are safety valves embedded in our legal system to ensure that this impartiality is "real," not merely "for show.".

For the suspect, defendant, or victim, the most important element of the judicial process a judge who listens, understands, is unbiased, and is solely bound by the law . Therefore, the judicial profession requires not only legal knowledge but also a high degree of conscientious and moral maturity. The quality of the judicial authority directly determines the quality of the rule of law.

It is essential for the realization of the right to a fair trial that citizens and law enforcement officials know the powers and limitations of the judicial authority; and that they do not hesitate to exercise these rights in the event of prohibition or refusal.

Legal Notice: This text has been prepared for general informational purposes within the framework of the provisions of the Criminal Procedure Code No. 5271, the Constitution No. 2709, related legislation, and legal doctrine. To avoid loss of rights in your specific legal processes, it is strongly recommended that you seek professional legal assistance.

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