The circumstances in which a judge may not hear a case are set out in Article 22 of the Code of Criminal Procedure, the relevant provision of which is reproduced below.
Code of Criminal Procedure — Article 22
A judge may not perform judicial duties where:
- a) They have personally suffered harm as a result of the offence,
- b) They have a marriage, guardianship, or trusteeship relationship with the suspect, accused, or victim — even if that relationship has subsequently ended,
- c) The suspect, accused, or victim is a lineal blood relative in the ascending or descending line,
- d) There is an adoptive relationship between them and the suspect, accused, or victim,
- e) There is a blood relationship up to and including the third degree between them and the suspect, accused, or victim,
- f) There is an affinal relationship up to and including the second degree between them and the suspect, accused, or victim — even if the marriage has ended,
- g) They have acted in the same case as a public prosecutor, judicial law enforcement officer, defence counsel for the suspect or accused, or legal representative of the victim,
- h) They have been heard in the same case as a witness or expert witness.
What is Disqualification of a Judge from Participating in Proceedings?
The circumstances in which a judge may not participate in proceedings are set out in Article 23 of the Code of Criminal Procedure, the relevant provision of which is reproduced below.
Code of Criminal Procedure — Article 23
- A judge who has participated in a decision or judgment may not participate in the decision or judgment to be issued by a higher court in relation to that judgment.
- A judge who has served during the investigation phase of the same matter may not serve during the prosecution phase.
- In the event of a retrial, a judge who served in the previous proceedings may not serve in the same matter.
What Are the Grounds for Recusal of a Judge?
The grounds for recusal of a judge are set out in Article 24 of the Code of Criminal Procedure, the relevant provision of which is reproduced below.
Code of Criminal Procedure — Article 24
- A judge may be subject to a recusal request both in the circumstances where they are disqualified from hearing the case, and on other grounds that cast doubt upon their impartiality.
- The public prosecutor; the suspect, accused, or their defence counsel; and the intervening party or their representative may apply for the recusal of a judge.
- Upon the request of any of the aforementioned parties, the names of the judges who are to participate in the decision or judgment shall be notified to them.
Which Court Decides on a Recusal Request Against a Judge?
The court competent to decide on a recusal request against a judge is set out in Article 27 of the Code of Criminal Procedure, the relevant provision of which is reproduced below.
Code of Criminal Procedure — Article 27
- A recusal request shall be decided upon by the court to which the judge subject to recusal belongs; however, the judge in question may not participate in the deliberations. Where the court cannot be constituted for this reason, the authority to decide on the matter shall belong to:
- a) Where the judge subject to recusal belongs to a court of first instance (asliye ceza mahkemesi): the heavy criminal court (ağır ceza mahkemesi) within whose jurisdiction that court falls,
- b) Where the judge subject to recusal belongs to a heavy criminal court: if there is more than one chamber of the heavy criminal court at that location, the chamber bearing the next sequential number, or chamber no. 1 in the case of the last-numbered chamber; if there is only one chamber of the heavy criminal court at that location, the nearest heavy criminal court.
- Where the recusal request is directed against a magistrate (sulh ceza hâkimi), it shall be decided by the court of first instance within whose jurisdiction the magistrate operates; and where it is directed against a single judge, by the heavy criminal court within whose jurisdiction they operate.
- Recusal requests directed against the presiding judges and members of the criminal chambers of the regional courts of appeal shall be examined and decided upon by the relevant chamber, without the participation of the presiding judge or member subject to recusal.
- Where a recusal request is accepted, another judge or court shall be assigned to hear the case.
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