The article is devoted to theoretical and legal research of legislative regulation and the general characteristics of the legal framework of the Republic of Turkey. The author traces the historical and contemporary aspects of the effectiveness of the legal basis of the Turkish state,the legislative powers of the President, the Parliament and the Government of Turkey, as well as some features of the administrative, criminal and criminal procedure law were considered. In conclusion, the author inferred regarding legislative activities of the Turkish Republic.
INTRODUCTION
In order to regulate the life of a society, general and legal rules are set down in written form by the highest legislative authority of a country. The Constitution designates such highest legislative authority, and possibly authorities subordinate to the highest authority which may also lay down subordinate written rules. Acts of legislation are generally called a code, law or statute and enacted to give a satisfactory answer, by means of a general rule, to the needs and requirements of society [1].
According to the Law «On procedures and principles of preparation of legislative regulation» the main source of law in Turkey are legislative and other regulations[2]. At the top of the hierarchy is the Constitution followed by laws and other parliamentary regulations that are supreme above decisions of other bodies of state power and regulatory bodies. The Parliament can substitute certain legislative authorities to the Council of Ministers. Legal law decisions are adopted by the President and the Government, excluding periods of emergency state or martial law cannot concern basic and political rights and duties of citizens. These decisions come into effect from the day of official publication and the parliamentary deputies are informed about them. Besides that, the Government issues usual regulatory decisions for law execution. Sublegislative regulations can be issued by ministries, departments and public legal entities to guarantee execution of law and instructions concerning special spheres of action if they do not contradict to these laws and instructions. Sources of law also include international treaties and agreements which came into effect after their ratification having the force of law and prevailing over acts of national government[1].
CHARACTERISTIC OF THE LEGAL FRAMEWORK OF TURKEY
Contemporary legal framework of Turkey belongs to the Romano-Germanic (continental) law system holding a separate position. Scientists and historians divide the history of development of the legal system into 3 periods. The first one (before 1839) is peculiar for unchallenged power of Muslim law. Seeking to avoid multitude of approaches the Ottoman caliphs in the 15th-16thcenturiespublished laws in a form of criminal law prescriptions[3, p. 10-12].
The second period (1839-1918) was peculiar for attempts of reforming Muslim law taking into account European experience. The Criminal code based on the French Criminal code was adopted in 1840 in the Ottoman Empire. During this period reception of the French commercial code (1850), Commercial procedural code (1861), Code of merchant shipping (1864), Criminal procedurecode (1879) and Civil procedure code (1880) were conducted most of which were subject to French laws. But implementation of French civil code even excluding family and succession law was blocked by conservative forces. The new civil law was created by another unusual way. «Mecelle» the greatest codification legal rules of Muslim law was adopted in 1869-1877. For the first time, the rules of Shariah in compliance with the European law were presented in the form of paragraphs and came into effect, based on the act of state power. This legislative act (1850 articles) concerned problems of legal capacity and its limitation and also material and duty relations but excluded family relations that were still regulated by various schools of Muslim law, in compliance with the principle of freedom of faith and personal law of adepts of various sects and natures.Later, at the beginning of the 20th century the reforms concerned family and succession law. In 1917, during the rule of one of the last sultans the Ottoman family law based on Muslim rules was adopted. Thus,in spite of significant adoptions from the European law, Turkey in a whole kept loyalty to Muslim legal traditions before the war in 1914-1918[3, p. 13-15].
The third period is specified by full modernization of Turkish law. After the Atatürk revolution in 1920-1923, the new Turkish state became the only one among all Muslim countries (except republics of the former USSR) to start the campaign of full deislamization of the legal framework. The Romano-Germanic law was adopted in the process of radical state reformation when the sultanate and caliphate were eliminated and religion was separated from state institutions. Codes and laws of various European countries like France, Switzerland, Italy and Germany were used as a sample. Thus, the new Civil code adopted in Turkey in 1926 represented the Civil code of Switzerland with minor changes (version of 1911); the new Criminal code represented the Civil code of Italy as of 1889; the Criminal procedurecode was developed on the basis of German code. Consequently, in 1926 Turkey entered into the Romano-Germanic law system[3, p. 16-18].
CONSTITUTIONAL LAW AND PUBLIC ADMINISTRATION
The working Constitution of the Republic of Turkeyas of 1982 consists of thepreamble and seven parts. The main principles of the state structure of the country: republican form of government, declaration of the republic as a democratic, civil, social and legal state, national sovereignty, supremacy of the constitution, independence of legislative, executive and judicial branches of power from each other are declared in the preamble and in the first part of the Constitution (articles 1-11). The second part (articles 12-74) is dedicatedto personal, social and economic and political rights of citizens also guarantees of these rights. The third part (articles 75-160) regulates competence of legislative, executive and judicial authorities, the procedure of election of governing bodies –the Parliament, the President and the Council of Ministers; rules concerning initiation of state of emergency and martial law and forming local self-government bodies are stated. The fourth part (articles 161-173) financial and economic aspects are illuminated. The fifth part (article 174) lists the laws adopted in 1924-1934 for the purpose of reinforcement of civil state. The sixth part illustratesprovisional regulations specifyingthe procedure of transition from the temporal military regime to representative democracy. The seventh part (articles175–177) consists of conclusive articles settingthe procedure of changes of Constitution and conditions of coming into effect of constitutional law[1].
As of 2004 amendments into the Constitution of 1982 were entered 9 times. Most of them were made for the purpose of provision of basic rights and freedoms of citizens, improvement of Turkish democratic system towards unification with legal frameworks of Western Europe, based on the European Convention on Human Rights[4, p. 90].
In 2001, the Parliament of Turkey has made some amendments that made the procedure of dissolution of political parties more complicated and limited the term of custody of detainees and prisoners and expanded the rights of citizens in the sphere of freedom of thought, speech and faith. Entrance into citizens` lodgings, search and forfeit of property are now allowed only on the basis of a warrant; death penalty is annulated (except for crimes, connected with terrorism or crimes during martial law); for the citizens the right to create associations and organize meetings and the right of fair judgment has been acknowledged; for foreign citizens the right to apply to court on the basis of principle of reciprocity has been acknowledged[4, p. 95].
In May 2004,there were made amendments according to which the principle of equal rights of men and women became constitutional and the state took duties to ensure observance of this right. To ensure freedom of press a resolution was made prohibiting property forfeit and suppression of publishing houses that were accused in being an instrument of crime; in case ofinconformity of the national legislation on human rights to the provisions of international treaties, the latter prevailed; the general staff lost the right to elect one member of the higher education Council. Abolition of death penalty led to repeal of the article of the Constitution «Courts of state security»which were the authorities sentencing to death penalty[5, p. 374].
According to the Constitution of the Republic of Turkey the legislative powerbelongs to the Grand National Assembly of Turkey (hereinafter referred to as «GNAT») – asingle-chamber parliament (Majlis) that consists of 550 deputies, elected at direct, universal, equal and single-level elections for the term of 4 years. Combination of deputy seats and ministry posts is allowed[1]. One of the most important functions of the parliament is legislative activity. GNAT has an exclusive competence to adopt, change and repeal laws. The parliament also has the following authorities: control of activities of the government and the ministers, granting the right to take legal decisions to the Council of Ministers (delegated legislation); discussion and adopting the Law on national budget and finances and authorization for money emission; decisions on war declaration and peace settlement; the right to approve concluded international treaties and agreements. GNAT makes decisions: on execution of death sentences; on universal and partial amnesties (except persons that have committed especially dangerous offenses against the state).
The Turkish Constitution provides that GNAT has sole authority to enact laws for application throughout Turkey. The 7th Article of the Turkish Constitution states that «legislative power is vested in the Grand National Assembly of Turkey. This power shall not be delegated»[1]. GNAT can only delegate under certain the power of legislation to the Council of Ministers.
The Constitution of Turkey grantslegislative initiativeto the Council of Ministers and parliamentary deputies. The bill adopted by the Parliament is directed to the President who approves and promulgates the law within 15 days or returns it back to the Parliament with remarks (except the bill on budget). If the majlis adopts the bill once again with the absolute majority of votes, the President is obliged to approve it. When the President decides that the bill is extraconstitutional and the majlis insists on its adoption, the President can direct it to the Constitutional Court that will make the final decision within 60 days[6, p. 49].
The President of Turkey is the head of state having expansive authorities in the sphere of legislative, executive and judicial power according to the Constitution, also playing the main role in all spheres of state activity. Moreover, besides other constitutional authorities, the President can deliver a program speech at the meeting of annual parliamentary sessions; he has the right to call the Parliament for an extraordinary session, dissolve it and set new general elections[1].
The President makes decisions of full legal force; all of them except those specifically mentioned by the law are certified by the Prime Minister or a corresponding minister responsible for their development[6, p. 50].
Executive power is performed by the President and the Council of Ministers. The Parliament indirectly participates in the procedure of appointing the head of state. The President appoints the leader of the winning party to the post of Prime Minister and the persons proposed by the latter to the posts of ministers before discussing their candidacies by the Parliament. Not later than 7 days, the membership of the Council of Ministers and the governmental program are submitted to the approval by the majlis and reception of vote of confidence. The Council of Ministers of Turkey works under strict parliamentary control, that is: oral or written questioning of the Prime Minister or the ministers; studying and checking of the government activity; discussion of important problems of the state and society at plenary sessions of the majlis[6, p. 51].
According to the Constitution the administrative management is integral and its structure and functions are set by the law. Organization and functions of management are based on the principles of centralization and local selfgovernment[1].
From the point of view of organization of central administration based on geographical location and environmental conditions together with requirements of municipal service Turkey is divided into provinces and they are in their turn divided into lower levels of administrative districts.
The system of local selfgovernment (modified French framework serves as an example) is built on the principles of transfer of wider authorities
to local level and strict hierarchy. Local administrative bodies are public legal entities formed for fulfilling basic local requirements of citizens of regions, municipal districts and villages. The head of the province (Turkey has 81 provinces) is the governor appointed by the Council of Ministers after presentation by the Ministry of internal affairs. The Governor implements decisions of the government, organizes and manages work of all bodies, province agencies and officials working there. Organization, duties and authorities of local self-government are regulated by the law in compliance with the principle of local self-government[7].
Basic and continuous functions of state economic enterprises and other public associations that have the status of legal entity implementation of which should comply with general bases of administrative governing are provided by actions of government officials and other publicofficers.
Requirements to government officials and other civil servants, the procedure of their appointment, duties, authorities, rights, responsibility, payment, pensions and other aspects connected with their status are regulated by the law[8].
ADMINISTRATIVE LAW
Administrative law is the branch of law particularly concerned with the administrative machinery of government, «the Administration». However, the composition and/or functioning of some agencies in the legislative and judicial branches of government also fall within the domain of Administrative Law. On the other hand, there are certain matters which are within the jurisdiction of the Administration, but which are subject to the rules of private law, such as commercial law, labour law, and the law of obligations. In other words, administrative law is the body of law dealing with matters which are not legislative, judicial or political in nature and not governed by private law. Thus the content of Turkish administrative law is different from that of Anglo-American administrative law but identical to droit administrative: it comprises a wide range of topics such as public personnel administration, police power, administrative acts, actions and contracts, rule-making power, liability of the state and its civil servants, emergency powers, central and local administration, judicial control of the Administration, administrative sanctions, public property, public economic enterprises, privatization, regulation, public utilities, licensing, taxation, planning and natural resources[9, p. 47].
According to Law «On administrative procedures», in Turkey, there is a separate system of bodies the main function of which is to review and settle administrative disputes[10]. This is also a reminiscence of applying experience of European countries. The system of administrative courts is managed by the State council which is the highest Cassation institution of administrative law. Its duties, besides reviewing and settling administrative disputes, include consultation of the Government on draft laws, studying drafts of statutes, agreements and conventions and other functions according to Law «On administrative procedures». Territorial administrative councils and tax pre-action committees review and deal with complaints on actions of civil servants of governing bodies.
In Turkey, as in some European countries, administrative sanctions are the result of the adoption of unilateral decisions by administrative authorities. Decision is taken by the authorized state bodies against individuals who violate the laws of public order, i.e, administrative acts. The Turkish administrative justice works in private and public areas of law (labor law, environmental law, civil law, and others.). But first samples of administrative sanctions were applied by municipal authorities[11].
The main aims of municipal authorities in the application of administrative sanctions pursued the protection of the public interest, the provision of social and public order and the warning and prevention of offenses. Administrative authorities may take such decisions as disciplinary action, fines, permanent or temporary ban on doing business, other occupation or school attendance, cancellation or suspension of licenses, except for the arrest and imprisonment, the decision on which is accepted by the court[11].
However, in order to take a qualified and fair solution to the administrative courts in the activity apply the provisions of the criminal law and other normative legal acts, including the Law «On Misdemeanors», which provides for the general principles of misdemeanors, the types of administrative sanctions for misdemeanors, and some procedures of making solutions[12].
CRIMINAL LAW
Criminal law as a field of law occupiesa special niche in the legal framework of any state, especially in the sphere of regulation of lawenforcement activity. In this regard let us consider historical and contemporary aspects of development of this field of law in Turkey. It was said before that in 1840 the Ottoman Empire adopted the Criminal code that was based on the Criminal code of France (1810). The code had a rather convenient structure and consisted of legal measures of penal nature, that were timely at that period of governing. This regulation was active till 1926 and after Atatürk reforms it was changed by a new Criminal code that was generally based on the Criminal code of Italy (1889). Later one of the basic laws of the state was exposed to alterations and additions several times. Thus, adoptions from fascist Italy legislation were made in the 1930s, in particular, introduction of criminal responsibility for communist activity and propaganda. In 1971 in response to escalation of political violence in the country criminal responsibility for kidnapping was enhanced and new constituents of crime such as aircraft hijacking, owning, manufacture and transportation of explosives, illegal entrance into public buildings and others were introduced[13, p. 31-33].
The draft of improved Criminal code was presented in Parliament in 1986. It was expected to abate responsibility for ordinary crimes and enhance responsibility for political crimes. Preservation of oppressive tendencies in Turkish criminal law is determined by sustaining tension in the republic, particularly in connection with the continuing armed struggle of the Kurds for their identity.The draft of new Turkish Criminal code was finished in 1997[13, p. 38].
In 1991, Turkey adopted the antiterrorist law that cancelled the clauses of the Criminal code(articles 141, 142, 163) that established responsibility for «ideological crimes» [14]. But this law established vast and complicated definition of terrorism and this gave the Government the right not only to use the Law against terrorism but also to impose penalties on citizens for written and oral propaganda, meetings and demonstrations intended to «cause harm to integral state unity»[15].
One of the most disputable problems in the legal framework of Turkey in the 1990s was the death penalty, preservation of which hindered the country from entering the European Union. By thattime, 16 clauses of the Code stipulated death penalty as an obligatory procedure for crimes against the state, government and the Constitution. In addition, 8 clauses stipulated death penalty for ordinary crimes such as murder or crimes which result to unfair punishment of a person. Twelveclauses of the Military Criminal code of Turkey and twoclauses of the Law on treachery and one clause of the law on counterfeit also stipulated death penalty as an obligatory measure of punishment[16]. The last time when the death penalty was performed was 1984. During the period from 2002 to 2005 laws were passed which provided for the abolition of the death penalty by reducing the articles of the Criminal code providing for the death penalty, replacing the capital punishment with the life imprisonment, as well as the ratification by the Turkish Republic of international conventions and agreements concerning the abolition of the death penalty[17].
Other criminal penalties include strict confinement, ordinary confinement, and heavy fines. Strict confinement means penal servitude for the term from one year to life sentence. For habitual criminals it can start from solitary confinement. Ordinary confinement is imposed for a term of 20 years and is also connected with forced labor. In some cases conviction can be followed by a prohibition to perform public functions and exercise some occupations and types of activity.During the period from 1990 to 2000 the Government intended to abate the strictness of the Criminal code, having provided alternative measures of criminal influence and fines, and also encourage imposing of short terms of imprisonment (to one year). Furthermore, new forms of conditional release, such as prison vacation, house arrest, confinement at the weekend and night confinement helped to unload congested penal institutions and prisons in the country[13, p. 542].
Criminal code 1926 (№ 756) acted until July 2005, as the transitional provisions of the new Criminal Code (№ 5237), adopted in September 2004, required a step change in Turkish legislation. The draft law (№ 5237) prepared by the Ministry of Justice in 2003 differed after being discussed in Parliament. At the beginning of the project development of the Turkish Criminal code, the developers used the international experience of France, then they found it necessary to review the provisions of the criminal law in such countries as Germany, Switzerland, Austria, Spain, Poland and Russia[13, p. 38-39].
As a result, the Criminal code was adopted, it did not meet the principles of rule-making and legislative activities, in the future it was subjected to much criticism by the public authorities and the scientific community. Society was critical of the fact that the language of the law was not satisfactory (unclear definitions, spelling errors), as well as the Code was considered not original, as many of the rules were copied from the provisions of the foreign law. These and many other developers' omissions caused the changes and amendments to the Criminal code before the entry into force[13, p. 40].
CRIMINAL PROCEDURE LAW
The first Criminal procedurecode of the Ottoman Empire was dated on 1879, which as well as the Criminal code was based on the model of the French criminalprocedure legislation. The structure of the Code consisted of general provisions and two books, the rules of law of which did not conflict with the principles of Islamic law. This legal act was in force until the adoption of the new Criminal procedurecode, approved by the Law № 1412 in April 1929[18, p. 26].
In the period of republican government the Criminal proceedings was developed under the German pattern. Significant changes in the sphere of criminal procedure legislation were made during Atatürk reforms when the Criminal procedurecode (№ 1412) was adopted[19, 592]. The workingCriminal procedurecode of Turkey (№ 5271) was adopted in December 2004 and entered into force, as well as the Criminal code from the 1-st of June in 2005[20].
Continuous political tension and instability in the country have extremely negative impact on criminal proceeding. In cases of political crimes and terrorism the rights of accused persons are significantly limited by the law and even more when coming to practice. Such cases are considered by militaryor extraordinary courts. Thus, after the military takeover (in 1980) most of death penalties were imposed by military courts when conducting trials on crimes that led to martial law. Activity of solicitors of the sentenced was hindered in many ways and tortures in any category criminal proceedings was wide spread[21, p. 128].
In the 1990s under pressure of European countries and international organizations on human rights the criminal procedure legislation of Turkey was positively changed[19, p. 604]. In particular, modern Criminal procedurecode (№ 5271) has received some innovations that established the following: a person, accused in «collective crimes» cannot be seized for a term more than 4 days (before that this term was 15 days); the accused person has a right for uncontrolled communication with his/her solicitor at the required time; the maximum term of seizure during pre-trial investigation was set to six months; in cases submitted to the court the maximum term of seizure including pretrial hearing cannot exceed two years, etc.
With changes in social, political and economic situation in the country the Turkish government decided to improve the criminal and criminal procedure laws (the Law № 1412), having developed in 1997 the projects of the Criminal code and the Criminal procedurecode. In 1999 the project of the Criminal procedurecode received many conclusions from different organizations that demanded its completion. As a result of long-term work the Ministry of Justice submitted to the Government the final bill in 2003[18, p. 29].
CONCLUSION
The discussed abovehistorical and constitutional and legal provisions of the Turkish legal framework can lead us to conclusion that till present time Turkey has been preserving a stable devotion to the principle of secular state and law; any attempts of the society to raise issue about revising these principles are resolutely suppressed by the government. Also it should be mentioned that the legislative regulation of Turkey is similar to the principle of Kazakhstani rulemaking. It is determined, first of all, by that fact that both Turkey and Kazakhstan are part of the continental law system. Subsequent to the results of our scientific research we can make the following conclusions.
The modern Constitution of Turkey adopted in the circumstances of a politicomilitary regime compared to the previous one (1961) has significantly enforced the authorities of the President and the Parliament. According to the Constitution, Republic of Turkey is a democratic, secular and social-legal state with mixed (presidential-parliamentary) form of government.
The President of the Republic of Turkey is prevailing in the state machine, non-partisan and neutral to the party composition of the Parliament, personifies unity and integrity of the republic and nation, possess expansive authorities in the sphere of legislative, executive and judicial power and is not politically responsible for performing his authorities.
Additional source of law in Turkey isjudicial precedents – «unified» decisions of the Cassation court and the State Council. Nowadays tradition as a source of law playsquite insignificant role.
Administrative sanctions applied against legal entities and individuals. Sometimes, you do not apply to persons who respect the decision of this administration. A short description can be done with these words: administrative sanctions, sometimes to set the order of management are required in a court action to protect the administration. Turkish administrative law without a court order, the administration gives you the ability to carry out its decision with a very high degree of its objects.
The Turkish Criminal code divides crimes into two main categories: felonies and misdemeanors. They are distinguished from each other by the severity of punishment. Therefore, in order to say whether an offense is a felony or a misdemeanor, one must look to the punishment to which the offender is subject. Punishments for felonies are death, heavy imprisonment (for life and up to 24 years), imprisonment, heavy fine, disqualification from holding public office temporarily or for life. For misdemeanors they are: light imprisonment (up to 2 years), light fine, disqualification from practicing a profession or trade.
The Constitution of Turkey declares many recognized democratic principles of criminal proceedings. However, in proceedings, adversity of the parties is not procured, defense does not have equal rights with prosecution and the solicitor is obliged to behave loyally during the court session. Hearing in court (except petty cases) is collegial but there is no jury trial in Turkeylike in many Western countries.
BIBLIOGRAPHY
- Constitution of the Republic of Turkey of October, 9th, 1982 /http://mevzuat.basbakanlik.gov.tr/;
- Law of the Republic of Turkey «On procedures and principles of preparation of legislative regulation» № 3056 of October, 10th, 1984;
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- Centel, H.Zafer, Ö.Çakmut«Introduction to Turkish Criminal Law», renewed and revised, 8 edition – BETA, Istanbul, September, 2014, p. 793;
- Criminal code of the Republic of Turkey № 5237 of September, 26th, 2004;
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- Centel, H.Zafer«Criminal procedure law», renewed and revised, 11 edition – BETA, Istanbul, September, 2014, p. 924;
- Yıldırım, S.Genç «Innovations in the Criminal procedure legislation of Turkey: Freedom of Judges and/or Courts» // Journal of the Law Academy of Turkey, № 14, 2013, p. 589-621;
- Criminal procedurecode of the Republic of Turkey № 5271 of December, 4th, 2004;
- Ö.Gültekin «Rights of Defendants in Criminal and Criminal procedure law» // Journal of the Law Academy of Turkey, № 11, 2012, p. 119-148.