What does the 12th Judicial Package promise?

The 12th Judicial Package, submitted to the Grand National Assembly of Turkey by the Justice and Development Party (AKP), has been introduced to the public with the aim of ensuring that the judicial system operates more effectively and efficiently. When the proposal is examined, it is seen that the package primarily contains regulations regarding procedural law. Changes such as the introduction of a mandatory application requirement before initiating enforcement proceedings against the administration, moving notary procedures to an electronic environment, expanding the scope of video-conferenced hearings, limiting the time between hearings in written trial procedures, and opening the path for appeal in certain decisions can be considered as steps aimed at accelerating the functioning of the judiciary at first glance.

However, evaluating a judicial reform solely from the perspective of shortening trial durations or reducing the case load is not sufficient. In a state of law, the fundamental issue is not how fast the judiciary works, but how fairly it works.

One of the most notable regulations in the package is the abolition of the "uncertain claim lawsuit" (belirsiz alacak davası). As is known, this type of lawsuit was introduced into our legal system to prevent the loss of rights in cases where the exact amount of the claim could not be determined at the date the lawsuit was filed. The abolition of this institution, which has an important function especially in labor claims and compensation lawsuits, will bring about new debates regarding the freedom to seek rights. In many disputes, information and documents regarding the amount of the claim are in the hands of the defendant, while the plaintiff can only learn the actual amount of the claim during the trial process. For this reason, it should be questioned how this change will affect the right of access to court, as much as whether it will accelerate trials.

Expanding the scope of cases to be heard by a single judge in administrative courts is also among the regulations that should be evaluated in a similar manner. Undoubtedly, the purpose of this change is to reduce the workload and accelerate decision-making processes. However, especially in disputes between individuals and the administration, the guarantees provided by evaluations made by a panel should not be ignored. The quality of judicial review depends not only on the speed of decisions but also on the extent to which decisions are made as a result of a pluralistic evaluation.

The fact that the institution of "deferment of the announcement of the verdict" (HAGB) will not be applicable for certain crimes within the scope of the package is also noteworthy in terms of criminal justice. Although the HAGB institution has been debated for many years with its different aspects, it is accepted as one of the important tools that serves the individualization of punishment for first-time offenders. Narrowing its scope will bring about new debates regarding how the preventive and rehabilitative aspects of the criminal justice system will be shaped.

The provision for a new storage and destruction system regarding digital evidence and DNA data can be seen as an important need in today's world, where the impact of technology on judicial processes is increasing. However, the real issue here is not collecting more data, but under what guarantees the obtained data will be stored and how it will be used. The delicate balance between the right to the protection of personal data and the fight against crime will be decisive in the implementation of these regulations.

Expanding the scope of video-conferenced hearings is also one of the prominent headings of the package. The integration of digital technologies into judicial services has become a widespread practice in many countries around the world in recent years. It is clear that video-conferenced hearings can make significant contributions in terms of reducing time and cost losses that arise especially due to the different cities where parties, lawyers, and courts are located. In this respect, this regulation can be considered a positive step in terms of making judicial services more accessible and effective.

Another aspect of the package that can be welcomed is the regulation aimed at preventing unnecessary expert appointments. In practice, it is frequently seen that courts send files to experts even in matters where they should make legal evaluations themselves. Sometimes, expert examination is even resorted to in non-pecuniary damage claims, where the discretion should belong directly to the judge. However, the institution of expert witness is an exceptional tool for evaluating evidence that should be resorted to in cases requiring technical or specialized knowledge that the judge does not possess. Therefore, the fact that unnecessary expert appointments could have consequences in terms of disciplinary law can be considered a positive step both in preventing the unnecessary prolongation of trials and in strengthening the judge's responsibility for decision-making.

However, one of the most striking aspects of the 12th Judicial Package is not only the regulations it contains but also the regulations it does not contain. In recent years, the penal execution system, the way the detention measure is applied, and the density in prisons have been among the most debated topics in public opinion. While official data has long revealed that penal institutions are operating at a capacity beyond their limits, a significant segment of society was in expectation of a new execution regulation.

Similarly, strengthening the exceptional nature of the detention measure, preventing long detention periods, completing the investigation phase within a reasonable time, and increasing guarantees for the preparation of indictments without delay were also among the reform topics frequently voiced in legal circles. In particular, debates regarding the proportionality of measures restricting freedom in criminal procedure and the principle that trials should be conducted without detention have maintained their place on the agenda for a long time.

However, looking at the current state of the proposal, it is seen that comprehensive regulations regarding these topics, which are heavily debated in public opinion, are not included. For this reason, it can be said that while the 12th Judicial Package tries to produce solutions to some technical problems regarding the functioning of the judicial system, it largely leaves the fundamental expectations regarding the criminal justice system to subsequent reform packages.

The regulation included in the proposal, which stipulates that decisions made by an unauthorized or incompetent court cannot be overturned solely for this reason, appears to be a candidate to be one of the most controversial provisions of the package. One of the fundamental guarantees of a state of law is that individuals are tried before courts that are authorized and competent, as determined by law in advance. The principle of the "lawful judge," guaranteed in Article 37 of the Constitution, covers not only the establishment of courts in advance but also the hearing of the dispute by the competent and authorized court.

In this context, accepting that decisions made in violation of competence or authorization rules cannot be overturned solely for this reason raises serious question marks regarding the fundamental guarantees of trial law. Competence and authorization rules are not formal details but important elements of the right to a fair trial and the principle of legal certainty. An approach to the contrary could significantly reduce the practical effect of these rules and undermine the principle of predictability in judicial processes.

Indeed, in states of law, the goal is not just to create courts that make faster decisions. The main goal is the establishment of a predictable, impartial, and fair judicial system that guarantees the rights and freedoms of individuals. Accelerating trials is undoubtedly important; however, pushing fundamental guarantees into the background for the sake of this goal may, in the long run, decrease rather than increase trust in the judiciary.

For this reason, when evaluating the 12th Judicial Package, it is necessary to look not only at the question of how many more cases will be concluded faster, but also at how it will affect individuals' freedom to seek rights and their right to a fair trial. Because in states of law, the real issue is not how fast cases are concluded, but to what extent the citizen trusts justice.

Attorney Deniz Ali İlkem Demir