Challenging the Judge in a Turkish Criminal Case: When a Judge Must Stand Down, and How to Ask for Recusal

The Code starts with situations in which the question is not whether the judge seems impartial, but whether the law allows the judge to act at all. These are the cases in which a judge cannot hear the case (hâkimin davaya bakamayacağı hâller). Under CMK 22, a judge may not perform the duties of a judge where he or she:

1. (a) has personally been harmed by the offence;
2. (b) has been married to, or in a guardianship or curatorship relationship with, the suspect, the defendant or the victim, even if that relationship has since ended;
3. (c) is a lineal ascendant or descendant, by blood or by marriage, of the suspect, the defendant or the victim;
4. (d) is linked to the suspect, the defendant or the victim by adoption;
5. (e) is related to the suspect, the defendant or the victim by blood up to and including the third degree;
6. (f) is related to the suspect, the defendant or the victim by marriage up to and including the second degree, even if the marriage has ended;
7. (g) has acted in the same case as public prosecutor, as a judicial police officer, as defence counsel for the suspect or defendant, or as the victim's representative;
8. (h) has been heard in the same case as an expert or a witness.

CMK 23 adds three situations tied to the judge's own earlier role in the file. A judge who took part in a decision or judgment may not take part in the decision a higher court gives on that judgment (23/1). A judge who served in the investigation stage (soruşturma) of the same matter may not serve in the trial stage (kovuşturma) (23/2). And where a case is retried, a judge who served in the earlier proceedings may not take part in the same matter (23/3).

Article 23/2 is a ground a foreign defendant is well placed to spot, because the investigation stage is where he first meets a judge. If you recognise the trial judge from an earlier step in your own file, say so to your lawyer at once. Whether that earlier step counts as serving in the investigation stage of the same matter is for the court to assess on the record.

A judge who knows of such a ground does not have to wait for anyone to raise it. Under CMK 30/1, where a judge withdraws (çekinme) on the basis of a ground that bars him or her, the competent authority assigns another judge or court to the case. The parties can also raise the ground themselves: CMK 24/1 provides that recusal may be requested in the situations where the judge cannot hear the case, as well as for other reasons described in the next section.

Beyond the fixed list, CMK 24/1 allows a judge's recusal to be requested for other reasons that cast doubt on his or her impartiality (tarafsızlığını şüpheye düşürecek sebepler). The Code does not list these reasons. It is for the court to decide whether the facts put forward are capable of casting such doubt, which is why the facts and the evidence for them matter as much as the label.

Who may ask. Under CMK 24/2, a request for recusal may be made by:

• the public prosecutor;
• the suspect or the defendant, or their defence counsel (müdafi);
• the intervening party (katılan), or that party's representative.

A foreign defendant therefore has the right to make the request personally, and his lawyer can make it on his behalf. CMK 24/3 adds a useful tool: if any of these persons asks, he or she is told the names of the judges who will take part in the decision or judgment. On a panel of several judges, that is how you find out who is actually deciding your case.

The deadlines. CMK 25 is headed as the time limit for recusal on grounds that cast doubt on impartiality, and it sets two rules:

1. Grounds already known. In first-instance courts, the request may be made until the questioning of the defendant (sorgu) begins (25/1). Article 25/1 sets separate cut-off points for the higher courts. The questioning is described in the note on the first hearing in a Turkish criminal court; for a ground you already know about, that is the moment to act.
2. Grounds that emerge or become known later. A ground that arises, or that you learn of, after that point may still be raised until the hearing or examination ends, but the request must be made within seven days of learning the ground (25/2).

The seven days run from the moment the ground is learned, not from the next hearing date. A defendant who notices something at a hearing and waits for the following session to mention it may find that the period has passed. That is why the practical section below starts with noting the moment and telling your lawyer straight away.

The form. Under CMK 26/1, the challenge is made either by a petition (dilekçe) to the court to which the judge belongs, or by applying to the court clerk (zabıt kâtibi) to have a record (tutanak) drawn up. The second route matters for a defendant who is in court when the ground arises: the request can be put on record there.

All grounds at once. Under CMK 26/2, the person making the request is obliged to state all the grounds for recusal he or she has learned of at one time, and to set them out, together with the facts, within the time limit. A challenge cannot be split into instalments, holding one ground back for later. Under CMK 26/3, the judge whose recusal is requested gives his or her views on the grounds in writing.

Who decides. Under CMK 27/1, the decision on the request is made by the court to which the judge belongs, but the challenged judge may not take part in the deliberations (müzakere). Where the court cannot be constituted without that judge, the Code sends the decision elsewhere:

• for a judge of a criminal court of first instance (asliye ceza), to the high criminal court (ağır ceza) within whose area it sits (27/1-a);
• for a judge of a high criminal court, to the chamber that follows it in number where there is more than one, the last chamber passing to chamber no. 1, or, where there is only one, to the nearest high criminal court (27/1-b);
• for a criminal judge of peace (sulh ceza hâkimi), to the criminal court of first instance within whose area he or she sits, and for a single judge, to the high criminal court within that area (27/2);
• for a presiding judge or member of a criminal chamber of a regional court of appeal, to the chamber on which that person serves, without his or her participation (27/3).

If the request is accepted, another judge or court is assigned to the case (CMK 27/4).

Requests that are turned away. CMK 31 contains an important exception for challenges raised at the trial stage. The court turns the request away (geri çevirir) where:

1. (a) it was not made within the time limit;
2. (b) no ground for recusal and no evidence for it were given;
3. (c) it is clearly understood that the request was made in order to prolong the hearing.

In these three cases the usual rule that the challenged judge stays out does not apply: on a panel, the request is turned away with the challenged judge taking part in the deliberations, and in a single-judge court the challenged judge turns it away personally (31/2). An objection (itiraz) lies against these decisions (31/3). A challenge that is late, bare or tactical therefore risks being decided by the very judge it targets.

The judge's own withdrawal. A judge may also step aside without any request. Where the withdrawal is based on grounds that cast doubt on impartiality, the competent authority decides whether the withdrawal is appropriate; if it is, another judge or court is assigned (CMK 30/2). Where it is based on a ground that bars the judge, the authority assigns another judge or court (30/1).

What the judge may do meanwhile. Under CMK 29/1, until a decision is made on the challenge, the challenged judge performs only those acts that cannot be delayed without harm (gecikmesinde sakınca olan işlemler).

A challenge made during a session. CMK 29/2 deals with a challenge that is raised in the courtroom during a session. Even if deciding on it would require an adjournment, the session continues without one. Two limits apply: the court may not move on to hearing the parties' submissions under Article 216, the stage described in the note on closing speeches and the last word; and until the challenge has been decided, the next session may not be started by the challenged judge or with his or her participation. The case cannot reach its closing stage while a challenge made in the session is still open.

If the challenge is accepted. Under CMK 29/3, where the challenge is accepted, the hearing is repeated, except for the acts carried out because they could not be delayed. This is the reason the rule exists: a judge who should not have sat has shaped what was heard, so the hearing is conducted again before the new judge. Under CMK 28, a decision accepting the challenge is final (kesin).

If the challenge is refused. Under the same article, an objection lies against a decision not to accept the challenge, and a refusal given on that objection is reviewed together with the judgment. The objection procedure is in CMK 268. Unless the law provides otherwise, the objection is made within two weeks from the day the persons concerned learn of the decision, by a petition to the authority that gave it or by a statement to the court clerk to be put on record (268/1). If that court or judge finds the objection justified, it corrects its decision; if not, it sends the objection to the authority competent to examine it within no more than three days (268/2). The route and the authorities are set out on the appeals page.

The table brings the rules together.

Court clerks. Under CMK 32/1, the provisions of this part of the Code also apply to court clerks. Where a clerk is challenged, or withdraws by stating the grounds that would require his or her recusal, the decision is made by the presiding judge or the judge with whom the clerk works (32/2). Where a clerk and a judge are challenged together in the same matter, the authority that decides is determined by reference to the judge (32/3). The clerk writes the minutes of the hearing, which is why the rule is there.

Court experts. Under CMK 69/1, the grounds that require a judge's recusal also apply to a court expert who prepares a report (bilirkişi). How a defendant can respond to that report itself is discussed in the note on objecting to the forensic report.

Review on points of law. The question of the judge does not end with the trial. Where an appeal on points of law (temyiz) is available against the judgment, CMK 289/1 lists situations in which a definite breach of law (hukuka kesin aykırılık) is presumed, even if the appeal petition or statement does not mention it. Two of them concern this note:

• (b) the participation in the judgment of a judge who is barred by law from performing the duties of a judge;
• (c) the participation in the judgment of a judge against whom a challenge was made on valid grounds of doubt, either where the challenge was accepted and the judge still took part, or where it was refused contrary to law and the judge took part.

Point (c) is the reason why the timing and the record of a challenge matter so much. The reviewing court can only see a challenge that was actually made, in time, with its grounds and facts, and a refusal that was actually objected to. Under CMK 28, a refusal given on objection is reviewed together with the judgment. A doubt that was felt at the hearing but never put on record leaves nothing for that review to examine. What happens after the judgment, and which decision can be challenged by which route, is covered in the note on the types of verdict in a Turkish criminal court and on the appeals page.

Recusal is a serious step and the Code treats it as one: it demands grounds, facts, evidence and speed, and it lets the court turn away a request that looks like a delaying tactic. For a defendant who follows the hearing through an interpreter, the difficulty lies less in the law than in noticing the ground in time and getting it on record. A short routine helps:

1. Note the moment. Write down, the same day, what was said or done, at which hearing, who was present, and when you learned of it. The seven-day period in CMK 25/2 runs from learning the ground, so the date you learned it is part of the case.
2. Tell your lawyer at once. Do not wait for the next hearing. Your lawyer can check the facts against the file, ask for the names of the judges who will decide (CMK 24/3), and assess whether the facts fall under Article 22 or 23 or amount to doubts about impartiality under Article 24.
3. Raise every ground together. Under CMK 26/2 all known grounds must be stated at one time, with their facts. A second challenge built on a ground you already knew is exposed to the time limit.
4. Give facts and evidence, not impressions. A request with no ground or evidence is turned away under CMK 31/1-b. Minutes of the hearing, documents in the file and the identity of the people involved are the kind of material a court can assess.
5. Use the record in the courtroom. If the ground arises during a session, the request can be made by having the clerk draw up a record (CMK 26/1). Ask your lawyer to make sure that what was said is also reflected in the minutes.
6. Keep the decision and the date. If the challenge is refused, the two-week period for an objection runs from the day you learn of the decision (CMK 268/1). Keep a copy, with its translation, together with the rest of your file, because the refusal returns with the judgment (CMK 28).

None of this means that every disagreement with a ruling is a reason to challenge the judge. A ruling you think is wrong is a matter for the remedies against that ruling or against the judgment. Recusal concerns the person who decides: whether the law bars that judge, or whether facts exist that cast doubt on his or her impartiality.