In the Code of Civil Procedure No. 6100, the situations that would constitute an obstacle for the judge hearing a case to hear the case are grouped under two headings. It may be the case of prohibition of the judge, or it may also be possible to apply the institution of refusal of the judge in certain cases.
Article 34 of the Code of Civil Procedure in the regulation of;
In the case that belongs to him or is directly or therefore related to him,
Even if the marriage bond is Decoupled between them, in the wife’s case,
In the case of himself or his wife’s subordinate or superior,
In the case of the one who has an adoptive bond Decoupled between him and,
In the case of those who are related by blood, including in the third degree, or in the case of those who are related by blood, even if the marriage tie that formed them is removed,
In his fiancée’s case,
It has been accepted that in a case where one of the two parties acts as a lawyer, guardian, trustee or legal adviser, the judge will have to withdraw from the case.
In the event of the existence of any of the above-mentioned prohibition conditions, the judge may not continue the case, may not make a trial, even if the parties agree to continue the case. However, this state of Decriminalization is of importance between the judge and the parties to the case. The existence of a state of prohibition between the proxy representing one of the parties and the judge will not be evaluated in terms of the Decrees of prohibition accepted by the law.
Supreme Court 20. Law Office, dated 14.01.2016 and dated 2015/15973 E., 2016/292 K. in the decision numbered “During the case between the parties, the judge decided to withdraw from the case on Dec. 13.03.2015 on the grounds that “…the plaintiff’s attorney is the judge’s ex-wife, the conditions of Article 34/1-b of the CCP have occurred …”.
By the authority examining the file, the request to withdraw does not comply with the prohibition listed in Article 34/1-b of the CCP, the request to withdraw should be between the judge and the parties to the case, the plaintiff’s attorney is the legal representative of the party, the plaintiff can represent himself with another attorney, the obligation to withdraw here is Dec. 13 of the Law on Advocacy. according to the article, the decision reached regarding the rejection of the request to withdraw on the grounds that he is in the attorney has been appealed by the plaintiff’s attorney.
13 of the Law No. 1136. according to the article, “The spouse of a judge or public prosecutor, a lawyer who is a member of the procedure and profession for a reason or generation, or up to the second degree (including this degree), cannot act as a lawyer in cases and affairs handled by that judge or public prosecutor.” In the concrete case, although the judge decided to withdraw from the case on the grounds that the plaintiff’s attorney is his ex-wife, 13 of the Law on Lawyers No. 1136 mentioned above. due to the supervisory provision of the article, a lawyer who is the spouse of a judge or public prosecutor cannot work as a lawyer in a court where his wife is authorized. In accordance with the special provision of the law, since the plaintiff’s attorney is in a prohibited state, Article 34 of the CCP. according to the article, since this situation is not a state of prohibition of the judge, since there is no error in making a written decision, it was decided unanimously on 14/01/2016 to APPROVE the verdict by rejecting inappropriate appeals and to upload the approval fee written below to the appellant.” the judgment is established in the form of.
Article 22 of the Code of Criminal Procedure has introduced provisions in terms of criminal proceedings. 23 Entitled the judge who cannot attend the trial. article “(1) A judge who participates in a decision or judgment may not participate in a decision or judgment to be issued by the high-ranking court in relation to this provision.
(2) A judge who has served in the investigation phase in the same job may not serve in the prosecution phase.
(3) In case of renewal of the trial, the judge who served in the previous trial may not serve in the same job. “ it is in the form of.
In case of a request for renewal of the trial, it has been added to the third paragraph that the judge who served in the previous trial cannot serve in the same job. Thus, the judge who had previously stated his opinion about the same dispute was prevented from serving in the process of renewing the trial later, and it was also wanted to ensure the impartiality of the judge in this aspect.
Article 35 of the Code of Civil Procedure regulates the consequences of the judge’s ban. An application may be made to the upper court against the judge’s decision to withdraw. From the date of birth of the reason for the prohibition, all transactions made by that judge while his trial is ongoing may be canceled by the decision of the supreme court. However, the judgments and decisions made by that judge or in the presence of that judge are “probably” annulled. In this case, that judge who continues the case despite the prohibition may be sentenced to trial expenses.
It is possible for the judge to withdraw from the case at any stage of the case, with the birth of the prohibition state, the judge must withdraw from the case. An appeal can be filed against the withdrawal decisions, but the decisions of the court of appeal regarding the withdrawal are final decisions.
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