Judge/ Zafar Gondal

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CONTENTS

Abbreviations and acronyms

1. Introduction and background

1.1 Background and context

1.2 Objectives and scope of the project

1.3 Project deliverables

2. Approach and methodology

Phase One

Impact Assessment of the Reform Initiatives for Enhancing the Efficiency and Effectiveness of the

Judiciary in Turkey

2.1. Research and review of international and EU guidelines, standards and best practices

2.2. Initial meetings and relationships building

2.3. Desk review of legal framework, strategies, action plan, reports and documents

2.4. Defining issues and factors for focused assessment

2.5. Identifying international and EU standards and practices and Turkey obligations

2.6. Identifying and accessing existing sources of data

2.7. Methods of collection of own data

2.8. Data entry, management and quality

2.9. Analysis, synthesis and confirmation of data

2.10. Assessing institutional and legal reforms, trends and markers for the future

2.11. Developing and refining Common Strategic Framework for responsive, effective, efficient and

functioning judiciary.

2.12. Developing performance standards and indicators for judiciary, ind ividual courts and individual

judges

2.13. Identifying areas for improvements, engagement, cooperation and programming for immediate

actions, short term, medium term and long term

Phase Two

From Vision to Action-designing a Common Strategic Framework for reform monitoring and

evaluation

3.1. Incorporating the Common Strategic Framework into Judicial Reform Strategy and Action Plan

3.2. Developing evaluation questions/indicators for performance and progress measurement of judiciary,

individual courts and individual judges

3.3. Designing inclusive, transparent and sustainable reform process monitoring and evaluation mechanism

3.4. Designing a transparent and accountable monitoring Plan

3.5. Developing realistic and sustainable mechanism and benchmarks to address the backlog of pending

cases using international and European models

4. Work Plan

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5. Logistic and support

ANNEX 1

Compendium of Project Tools

ANNEX 2

Work Plan for impact assessment

ANNEX 3

Performance Monitoring Matrices

ANNEX 4

Model Regulatory Impact Analysis

ANNEX 5

SIGMA standards for Compliance and Draft Verification

ANNEX 6

Terms of Reference

List of Abbreviations and Acronyms

MOJ Ministry of Justice

EU European Union

ADR Alternative Dispute Resolution

UNCAC United Nations Convention against Corruption

UNTOC United National convention against Organized crime

FATF Financial Action Task Force

HCoJP High Council of Judges and Prosecutor

CEPEJ European Commission for Efficiency and Effectiveness in judiciary

UN United Nations

UNODC United Nations Office on Drugs and Crimes

1. Introduction and background

1.1 Background and context

Turkey started judicial reform and transformation process in 2002. Since then many reforms init iative have

been taken, new laws enacted, the alignment of the institutions has been completed and a Judicial Reform

Strategy outlining goals, objectives and strategies to achieve those objectives and Judicial Reform Actions

Plan with specific act ivities completed in 2009. Many laws, practices and processes were reformed and

some implemented and some are in the process of implementation. However, there has been no formalized

and structured effort to assess the impact of these legal and institutional reforms on efficiency and

effectiveness of judiciary as whole. The overall objectives of the impact assessment are to assess the impact

of this ambit ious judicial reforms journey on efficiency and effectiveness of judiciary in capacity for

delivering speedy, fair and access to justice and enhancing confidence of cit izens and court users in

approaching judiciary for resolving their d isputes and determine their obligations. The impact assessment

process will also determine best practices, challenges encountered, lessons learned in this reform process.

The findings of this assessment will a lso determine future directions of the reform process. Within this

context, the assessment is to analyze the current situation and relying on the results to develop a strategic

framework for monitoring and improving the reforms for effective and efficient functioning of the

judiciary. The impact assessment will also define possible areas of technical cooperation in line with the

priority areas determined and develop a framework of a long-term partnership and areas of programming in

the field of judicial reform in Turkey.

1.2 Purposes and Scope of the Assessment

The Judicial Reform Strategy covering the period of 2008-2014 was developed to pursue the future reform

efforts contemplated in the field of judiciary within a specific plan. The Strategic Action Plan by the

Ministry of Justice covering the period 2010-2014 has, in parallel with the Judicial Reform Strategy,

formulated and deals with the issues in the field o f justice in a holistic, part icipative and systematic manner

and lays down measurable objectives and goals for solution to the problems so identified.

The Government has implemented three Judicial Reform packages since 2009 in line with the objectives

laid in Judicial Reform Strategy. The fourth package is in the pipeline. The second Judicial Reform

Strategy covering the period of 2014-2018 has recently started by the Ministry of Justice. There has been

some other reforms like restructuring of the High Council of Judges and Prosecutors based on wide

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participation, and the principles of scrutiny and accountability; amendment of the Turkish Criminal Code ,

the Criminal Procedures Code, the Turkish Commercial Code, the Turkish Code of Obligations, the Civ il

Procedure Code; taking measures to reduce the case load of the judicial bodies, increasing the number of

judges and public prosecutors, amendments to carry out enforcement and bankruptcy procedures in a

simple, fast and reliab le manner; establishment of Ombudsman and introduction of Probation services.

However, there has been no impact assessment of these reforms. The overall purpose of this effort is to

have a comprehensive and integrated impact assessment report resulting into findings and

recommendations leading to strategic framework for judicial reforms .

Turkey due to geographic position and historic background has ample potential to become leader, p ioneer

and innovator in judicial excellence and model not only for Asian countries but for EU countries as well

because due to globalization of economy, goods, services, communication, the existing institutions need

reforms to caters needs for the new world and face new realities .

In the context of Turkey, the assessment project has global objectives, regional objectives and national

objectives.

Global objectives are to assist the government of Turkey in the formulat ion of ongoing, feasible,

sustainable reform process in line with the EU requirement and international standards that would enhance

fairness, transparency, effectiveness , efficiency and accountability of judiciary. The regional objectives are

to make Turkish judiciary an innovator in prob lem solving and knowledge generation, excellence enhancer

of judicial processes, procedures and best practices and model for reg ional judiciaries to follow. On

national front, judiciary will ensure fair justice, rule of law, equality of arms, cohesion and harmony in the

society, prosperity, peace and security for the citizens.

Within this framework, the assessment will diagnose issues, challenges, gaps, and opportunities and assess

performance of individual judges, the courts and of the judicial system and as a result set the benchmarks to

monitor and assess the duration of court proceedings and improve the efficiency and effectiveness of the

judicial system. The assessment would include institutional reforms, legal reforms, and procedural reforms

so far taken by the jud iciary in line with the judicial reform strategy 2009 and activ ities in the Action Plan.

The assessment would be carried out against the standards and best practices set by United Nations Rule of

Law Indicators, UN Rule of Definit ion, the Council of Europe, the Venice Commission, the Consortium of

Excellence in Judiciary and CEPEJ evaluation standards, methods and checklists in accordance with

Turkish judicial and legal framework. The impact assessment findings would be included in the new

updated Judicial Reform Strategy and Action Plan.

1.3. The Deliverables

There are two main immediate outputs of this assessment. The assessment would result into other

significant findings and pointers for Turkish judiciary, and if acted upon would place judiciary on

progressive path and making Turkish judiciary as a shaper of justice values, enhancer of excellence and

efficiency, and a model for regional judiciaries:

Output I

The primary output is impact assessment of reform init iatives in Turkey for enhancing efficiency and

effectiveness of the judiciary. The impact assessment will address progress against the judicial reforms

since 2002 together with its current capacities. The process will also assess and highlight trends,

challenges, opportunities, lessons learned, and contentious issues and needs for further improvements . The

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assessment will also help determine direct ions for judicial reforms and aligning judicial policies in the

national and regional interests.

Output II

Following the conduct of impact assessment study, a Common Strategic Framework for monitoring of the

reforms and improving the effectiveness and efficiency of the judiciary in Turkey will emerge. The

resulting Framework would address the following:

1. Indicators of success of the reform initiat ives for the efficient and effective functioning of the

judiciary

2. Monitoring and evaluation mechanism and plan includ ing who monitors and evaluates, what is

monitored and evaluated and how it is to monitor and evaluate

3. Benchmark to monitor and time standards for court proceedings to address the backlog of pending

cases, in particular, the serious criminal cases

4. Mitigation plan against the risks identified for reducing the current backlog , in line with

international standards and best practices set by CEPEJ.

2. Approach and methodology

Approach

Working closely with relevant institutions and staff, engaging them in the process, mobilizing relevant

stakeholders, forging partnerships, building positive relationship and transferring skills and winning

commitment and ensuring sustainability, are the guiding princip les of this approach. This approach is

expected to understand the stakeholders requirements , their perspectives and expectations, their concerns,

problem and challenges, the realistic and holistic approach and solutions, ways to achieve solutions and

what toolkits and methods are best suited to local conditions and national legal and institutional framework.

The success of this assessment depends on the extent to which the responsible officials trust our endeavour

and have confidence in the mechanism and process of implementing it. Confidence is developed through

relationships and engagement of all stakeholders, the supply side as well as the demand side.

The approach would also provide and enhance opportunities to share different experience and perspectives

by the consultant, ask questions, contribute ideas, facilitate access to information and become part of the

process. This participatory and constructive approach will also allow stakeholders to better understand the

benefits of the init iative for strengthening the rule of law, justice and efficiency of judiciary. Frequent

interactions with key stakeholders are important to maintain momentum and convey the seriousness of our

efforts.

Methodology

The methodology is divided in two phases. The phase one will focus on impact of legal and institutional

reforms since 2002 in delivering effective, efficient, fair and reliable justice up to the expectation of the

users. The process will in the development of a Common Strategic Framework, recommendations for future

direction for the reform process. Phase two will focus on developing roadmap and a framework for

judicial reforms, set goals and develop strategy for ach ieving those goals with the t ransparent, inclusive,

fair and sustainable monitoring and evaluation mechanism for judicial reform process.

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Phase One

Impact Assessment of the Reform Initiatives for Enhancing the Efficiency and Effectiveness of the

Judiciary in Turkey

This Phase One includes following main activities:

2.1. Research and review of international and EU standards and best practices

The international standards, European Union standards, USA and UK standards, Australian standards for

the case flow management are very crucial for globalized, well functioning and responsive national and

international judiciaries . Analysis of legal and institutional framework, judicial reform strategies, judicial

reform act ion plan against well established, widely recognized and practiced international standards and

best practices for rule of law and judiciary specially UN Rule of Law Indicators (project Tool 1), UN

principles of independence of judiciary, Bangalore principles (pro ject tool 3), European commission for

efficient and effective judiciary under Venice commission (project tool 4), international framework for

courts excellence and global measures of courts performance (pro ject tool 2), US best practices (project

tool 10), UK best practices, Australian best practices would serve guid ing principles and standards in the

process of impact assessment and developing Common Strategic Framework.

2.2. Initial meetings and relationships building

The main objective of introductory meetings was to understand expectations of relevant stakeholders from

impact assessment initiat ive, engage them and also to establish relations with the main stakeholders. The

initial meet ings were organized in Ankara from May 27-31, 2013 with Department of Strategy

Development, Prof. Mustafa, Faculty of Law, Cankaya University, Head of Justice Academy, the

Undersecretary and Deputy Undersecretary, Director Generals of Ministry of Justice and judges of Court of

Cassation. The meetings were very productive and beneficial in understanding the objectives of the

assessment process. The stakeholders expressed their enthusiasm, commitment and ownership of the

project. These meet ings also helped identify relevant stakeholders, their roles and responsibilities in making

the project a successful effort.

2.3 Desk review of legal and institutional framework, strategies, action plan and documents

Extensive review of Strategic Plan of Ministry of Justice, Judicial Reform Strategy, Action Plan, Strategic

Plan of Court of Cassation and Strategic Plan of the Justice Academy against the UN Rule of Law

Indicators, UN princip les of legal aid, UNDP Programming for Justice: Access for All-a human right based

approach to access to justice- standards, European union standards for functioning judiciary, USA proven

practices for t imely disposal of cases and case management, UK efforts and lessons learned for expedit ious

disposal of cases, Australian standards for case management, inter alia, is crucial for successful, reliable,

impart ial and objective assessment. The UN Rue of Law Indicators are result of collective wisdom and

capture existing knowledge, experience and lessons learned in the areas of independence and impartiality,

efficiency and ability to manage resources by judiciary . UN also provides a uniform and standard

definit ion of Rule of Law. USA Centre for State Courts and Australian Federal courts have developed very

efficient and practical tools for enhancing courts efficiency and case management. These tools are endorsed

by CEPEJ as well. The UK faced similar problems of backlog and access to justice and introduced several

measures including small claim track, fast track and multi track mechanism to deal with this problem. We

would also examine evaluation findings and research papers completed by CEPEJ under the guidance of

Venice Commission, evaluation criteria for judiciary and checklist for assessing judiciary. The desk rev iew

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would also identify country’s legal and institutional framework, Turkey international and EU obligations

and prepare a list of what has been done and what is required to be done, enumerate challenges and

problems faced in implementation and preserve the lessons learned in the process of implementation.

2.4. Defining issues and factors for focused impact assessment

The process of review and analysis of Turkey’s Judicial Reform Strategy and Action Plan against the UN,

EU, US A best practices and standards will identify issues for focused study and wider d iscussion. The

Judicial Reform Strategy has already identified 10 objectives and mult iple act ivities under each objective.

Those objectives are in line with CEPEJ evaluation checklists . Some of the areas and factors for

assessment are discussed below. However, new factors may be added during the process of assessment and

in the light of new lessons learned. The project would analyze current situation in each area, spotlight

and consolidate the impact of past reforms in that area, spotlight international and EU best practices

in that area and come up with solid and refined recommendations for future reform directions and

proposals. After wider stakeholder consensus , study and comparisons of international standards and best

practices, those focused issues will be available for incorporation into reform strategy and action plan.

Strengthening independence and accountability of judiciary

The international human rights tools, EU standards for independence of decision-making and accountability

practices, Budapest Guidelines, and Bangalore Princip les (project tool 1,2,3,4,5) are proven tools for

understanding the meaning of independence and accountability of jud iciary and judging judiciary. The

assessment of public perception of independence of judiciary, objective, transparent, fair and effective

recruitment of judges and prosecutors, fair and transparent disciplinary process, income and asset

disclosures, high standards of judicial conduct and rules of judicial ethics , conflict o f interest rules,

limited judicial immunity from civil and criminal suits are some of the sub areas for assessment of

independence and accountability of judiciary. The code of conduct is fair and transparent enforcement

mechanis m is crucial in accountability of a judiciary. The answers to questions like who may be

complained against, where to file a complaint, what to include in a complaint, what happens after a

complaint is considered and where and how to file rev iew against decision need much consideration and

attention.

Promoting Impartiality and transparency in judiciary and judicial processes

Another important area for assessment is impartiality and transparency of judiciary and judicial processes.

Fairness, integrity, treatment of vulnerable groups, treatment of international users of judicial system are

very important for enhancing confidence and trust in judiciary. The national legal and institutional

framework and judicial processes and proceedings would be examined in the light of international best

practices, guidelines and the checklist developed and used by CEPEJ for valuation of judici aries of 47

EU countries. The pro ject tool 1-6 are establish standards and guidelines in this respect. Conflict of interest

principles and simplification of proceedings also help promote transparency.

Enhancing Efficiency and Effectiveness of civil, criminal and administrative Judiciary:

Cost effective resolution of disputes, minimizing undue delays, certainty and predictability of court

proceedings, access to courts, respecting the rights of the vulnerable groups, treatment of parties, fair trial

in civ il, commercial, admin istrative and criminal matters, public perception of undue delays, pre-trial

detention, children in pre-trial detention, consistent and uniform sentencing guidelines , fair and prompt

dis posal of forfeited and confiscated property, fair and transparent treasury lawyers system and

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effectively dealing with corporate and serious crimes are important pillars of effective and efficient

judiciary. Using checklist for promoting quality of justice and courts, designed and developed by CEPEJ

would be used (project tool 4). The checklist is built around the five areas. These five areas are strategy

and policy, operation and processes , access to justice, human resources , and means of justice. For each

area, subtopics are identified and a list of questions given. Similarly, International Framework for

Excellence in Courts and Global Measures of Courts Performance would also be used in the process

(project tool 2). The latter, identifies seven areas of excellence and those are court management and

leadership, court policies, public trust and confidence, court proceedings, user satisfaction, court

resources and affordable and accessible court services (project tool 2). The other international standards

and best practices would also be used to assess the judiciary and charting framework for excellence. The

MOJ and judiciary may use Court Excellence Self-Assessment Questionnaire themselves (Project tool 2,

4).

Enhancing professionalism and competency in the judiciary

Professionalism and competency is another determining factor for responsive and delivering judiciary.

Judiciary must have adequate and competent human resources. An effective judiciary needs readily

available data and information for decision-making. Judiciary must keep informed of day-to-day

development in justice sector and in dealing with new matters coming before it. The social, economic,

political and environmental conditions are changing rapidly and expectation from judiciary to deal with

these changes are changing too. Professionalism and competency are as important as independence,

impartiality, and transparency of judiciary (project tool 1,2, 4).

Judicial decision-making and coordination

The judicial policy-making is important for co llaboration, sharing experience and coordination of judicial

institutions and other actors of justice sector. It is important to find out how is the policy making carried out

and what are the roles of the key institutions : i) Do judges regularly confer on policy, sharing experiences

and best practices, uniformity of opin ion, and administrative issues confronting the courts? ii) Is there an

annual judicial conference or periodical regional conferences of judicial officers and prosecutors to discuss

issues such as delay and access to the courts? iii) Do judges participate in the development of overall policy

for the judicial branch? This is important for improving management system of the judicial organizat ion,

administrative and management capacity, gender and ethnic considerations, local legal needs and culture,

allocation of resources, judicial freedom of expression and association.

Enhancing public confidence and trust in the judiciary

Users’ satisfaction both domestic and international is another significant indicator for functioning and fair

and impartial judiciary. In the case of Turkey it becomes more relevant. Turkey is an important player in

international trade and development. The state institutions are in competit ion with the non-state actors.

Regional judiciaries are also competing with the each other. It is a competit ive world. If international

community exh ibits trust and confidence in judiciary, Turkish judiciary may become model and an example

to follow for resolving national and international disputes. The assessment process will determine and lead

to confidence and trust building measures. The current level of confidence and trust would be measured

using proven Users’ Satisfaction Survey form. International Consortium for Court Excellence uses this

Users’ Satisfaction Survey (Pro ject tool 15, 16) and CEPEJ uses this survey as well (p roject tool 4).

International Consortium is a quality management system designed to help courts improve their

performance. It represents an all-encompassing approach to achieving court excellence and CEPEJ is

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member of this Consortium. It consists of a Framework of universal core values, the Court Excellence Self-

Assessment Questionnaire and the Global Measures of Court Performance.

Consistent, simple, fair and predictable court proceedings and processes

Certainty of court proceedings, efficacy, consistency, predictability and sustainability of laws, effective and

transparent judicial processes are other dynamics for determining efficiency and excellence of judiciary.

The users expect certainty of court proceedings, consistency in decisions, predictability of court

proceedings and transparency of processes. International standards, best practices and the Venice

Commission checklist for evaluation of judiciary use this as vital criteria. The introductory meetings at

different levels highlighted that consistency, certainty and predictability of proceedings and processes is a

huge issue facing judiciary in Turkey. The assessment will diagnose causes , decision points, actors,

practices and processes contributing to and responsible for mult iplying this problem. The assessment report

on the working and processes of the Court of Cassation and Courts of First Instance would help analyze

this problem. The meet ing with National Judicial Network is also crucial for assessing and analyzing this

problem. The field visits and analysis of some typical closed case files will help explore reasons for

inconsistency lack of p redictability and certainty and delays. The international best practices and guidelines

on consistency, time management, case flow management, interpretation of laws, application of laws,

guidelines on exercise of d iscretion and sentencing guidelines would be researched, examined in the light

of local conditions, and if viable, introduced into the system. Apart from substantive codes, the procedural

rules, instructions, interpretative guidelines, prescriptive rules, recommendations, practices rules and

informal guidelines also play important role in this area. Thorough and critical analysis of such material is

also essential to deal with this stubborn issues faced by world judiciaries. The simpli fication of rules and

regulations and possibility of elimination of unnecessary practices and steps will also be explored.

Expeditious and timely disposal of cases and case management

The sketching progression of a case file, identifying decision points and actors in criminal, civil and

commercial cases is very important to put preventive and monitoring measures. During field visits and

observations, the consultant will understand progression of some random closed case files, determine

various decision points and decision makers, identify risks area, analyze dynamics and reasons for delay

and identify contributors and beneficiaries. The consultant will also explore possibility of eliminating some

points or actors to expedite the flow. This would help in setting standard time for performing certain

actions on the file. A transparent and time bound case flow and time management system has been

successfully put into pract ice in United States of America. The US National Center for State Courts has

developed proven standards for dealing with the case backlog, case flow management and has successfully

reduced time for disposal of cases (project tool 16). These are ten CourTools for performance measures and

these tools have proven to be very realistic and practical. The United Kingdom faced similar p roblem and

have since developed a system of putting cases on different tracks such as small claim track, fast track and

multi track. This is also helping in min imizing the average t ime spend on cases. SATURN Guidelines for

Judicial Time management developed by CEPEJ has already been introduced in Turkey (project tool 4).

The consultant will discuss different standards with the stakeholders leading to selection of the best to the

local conditions. Apart from substantive codes, the procedural rules, instructions, interpretative guidelines,

prescriptive rules, recommendations, practices rules and informal guidelines also play substantial role in

delays. The importance of an effect ive and sustainable mechanis m for knowledge generation through

experience documentation, experience capitalization, knowledge mapping, knowledge management,

dissemination and sharing cannot be over emphasized for expedit ious and timely d isposal of matters before

the judiciary.

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Facilitating access to justice

Access to justice is another benchmark to determine excellence in the judiciary. The pro ject will assess the

legal barriers, institutional barriers, social barriers, political barriers and other forms of barriers in

relation to claiming rights and current level of access to justice in Turkey against the United Nations

guiding principles on legal aid (pro ject tool 11) and UNDP programming for justice: Access for All and

UNDP Access to Justice, practice note, 2004 (project tool 9). These tools are result of co llect ive wisdom

and lessons learned. Accessibility of courts to the poor and other vulnerable groups including juvenile,

gender and minorities plays a vital role in enhancing confidence and trust in judiciary. Other sub factors are

affordable and accessible court services, availability of interpreters, access to redress the miscarriage of

justice, quality of legal representation, fees to obtain justice and being responsive to gender based violence.

The impact assessment process will explore the access to justice level in line with above international and

EU standards. Moreover, recently several courts of 1st Instance have been merged. The impact of merging

courts would be subject of assessment as well. The courthouse design is important to enhance physical

accessibility of courts. There are key elements and standards in modern courthouses design. The

assessment will also assess the role of courthouses design in enhancing accessibility. The analysis of

challenges and lessons learned by EU court management project and v isit to pilot courts would also help

crystalize findings on access to justice.

Impact of new Legislative Framework on judicial functions

Since 2002, several new civil, criminal, commercial and admin istrative laws and regulations have been

enacted, amended or repealed to enhance independence, impartiality, fairness and functioning of judiciary.

It is quite relevant to assess the impact of these new laws and amendment on functioning of judiciary. Some

laws have worked well, while others have not and there is a need to examine the impact of these new laws

and amendments scientifically. The project will evaluate laws, regulations and process of making fair laws

and rules in the light of international standard for impact evaluation of legislat ion and compliance

verification of a new legislation (Annex 4). These standards have been developed by SIGMA in

coordination with OECD and EU institutions (Annex 5). Th is evaluation process of legislation starts with

defining the p roblem to be addressed and objectives achieved by new legislation and amendment, exp lores

drivers, actors, losers and those who are benefiting from the situation. It discusses various alternative

options and finds out suitable, realistic, workable and sustainable solutions. The assessment findings will

help develop framework for Regulatory Impact Analysis , best standards for a draft evaluation and standard

compliance verificat ions for MOJ and line ministries. Effective dealing with growing corporate crimes,

financial crimes and other organized crimes is crit ical for success of a judiciary. The project will explore

laws and regulations addressing these crimes. Simplification of laws and regulations is another important

factor in efficiency of justice. In a fair and justice society, no individual or group of individuals should

benefit on the cost of other individual or group of individuals.

Measures for prevention of disputes and developing alternative dispute resolution

The international best practice is to divert cases to other means of resolution such as good office,

conciliat ion, mediat ions and arbitration. It applies to civil, commercial and criminal disputes. Judicial

action plan provides for ADR. However, how fa r it has been successful is yet to be determined. The

assessment would determine the current level of ADR and find out how far it complies with international

standards and identify deviations from these standards. The measures other than putting in prisons are more

important in dealing with corporate crimes, financial crimes and corruption. The measures like

confiscation, asset recovery, fines; suspension and cancellation of business licenses, plea-bargain and

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deferred prosecution are some of the alternative being used. Many countries are seriously considering

choices and consequences.

State based non-judicial grievance mechanism

The state should provide effective and appropriate non-judicial grievances mechanism, alongside judicial

mechanis ms, as a comprehensive state based system for the remedy of business related human rights abuses

and remedy against excesses and abuses of state institutions as well. The project will exp lore any such

mechanis m in existence and assess its compliance with international standards and effective crit eria for

non-judicial grievance mechanis ms such as legitimacy, accessibility, pred ictability, equitability,

transparency, rights compatibility and a source of continuous learning.

Fair and effective enforcement of court decisions and bankruptcy system

It is also important for efficiency of judiciary. If decisions are not enforced, or it takes a lo ng time and a

huge effort on part of a winn ing party to enforce decisions of courts, judiciary system is not perceived

efficient and effective. The Judicial Reform Strategy envisages for reforms in enforcement of judgments.

However, the impact has not been assessed. Using the international best practices, the gaps and weaknesses

in the system would be highlighted and solutions discussed with the stakeholder. There is a problem in

enforcement o f decisions in criminal cases contributing to overcrowding in prisons population . Efforts

would be made to study reasons for this acute overcrowding. The project will seek guidelines from

European standards and UNODC guidelines (pro ject tool 8). Another area could be enforcement of foreign

arbitral awards . That is very crucial for foreign investment and trade and it is an obligation under UN

Convention.

Capacity of forensic medicine institution and expert witness, witness and victim protection

For success and well functioning of criminal justice system when organized crimes, corporate crimes

and financial crimes are on the rise, importance of forensic evidence, expert witness, protection of witness

and victim cannot be over emphasized. It is an international and EU obligation to protect the witness and

victim against possible retaliat ions. The forensic evidence is also vital for investigation of organized and

white-collar crimes reaching far beyond national boundaries. Turkey being signatory of UNCAC, 2003

and UNTOC, 2000, Narcotics Conventions of 1961, 1971 and 1988 and several other international

treaties and conventions is mandated to have in place effective forensic evidence, expert witness, victim

and witness protection mechanism. The UN Handbook on Witness and Victim Protection, UNODC

Handbook are models for this part icular area. The project will study and analyze current situation in the

light of EU and international best practices , Turkey international and reg ional obligations and make

recommendations for future reforms..

Working of penitentiary system

Another important area that heavily impacts on efficiency and effect iveness of judiciary is penitentiary

system. The judicial reform strategy reveals that groundbreaking efforts have been made for improvement

of prisons, promulgation of new laws, reducing number of prisoners and improving probation system.

Labour centers are established. However, these issues have not been subject to thorough examination yet. It

is important to assess the impact of changes in criminal laws and other reforms introduced so far and to

chart course for future reforms. Using international human rights standards (project tool 5), United Nat ions

standards for pre-trial detainees, standards for administrative and preventive custody, UN Standards

Minimum Rules for Prisoners, the EU Prison Rules, and UNODC assessment of criminal justice system

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including prisons would be used (project tool 8). The prison population is a persistent problem in many

jurisdictions and it is taken as an indication for functioning criminal justice system. Therefore, reform of

penitentiary system is imperative.

Mechanism for Mutual Legal Assistance and Cooperation

Mutual legal assistance and cooperation is one of the international and EU obligations and a fundamental

pillar in functioning of justice and judicial system. The corporate crimes, organized crimes, financial

crimes, transfer o f proceedings, transfer of convicted persons, even civil, commercial and family disputes

demand constant and real time coordination, cooperation and information sharing with justice actors of

other countries. The project will assess this issue as well as this plays vital role in determining efficiency

and effectiveness of a judiciary.

Crosscutting Themes: corruption, malpractices, gender, juveniles and the vulnerable groups

The assessment process will mainstream the problems and challenges faced by the disadvantaged and the

poorest groups, including migrants, small ethnic groups , children, youth and women in accessing the courts

and the share of these groups in human resources of the judiciary. The treatment of gender issues are

assessed in accordance with UN Women standard guidelines for treatment of gender in criminal justice.

The malpract ices in the offices and judicial process would is another cross cutting issue. The consultant has

developed an institutional integrity model. The possibility of rep licat ing that model into Turkish judiciary

will be explored.

Juvenile system needs assessment and there are international conventions on juvenile justice, treatment

and rehabilitation of juvenile o ffenders. The current situation would be assessed in the light of UNODC

Juvenile Justice Assessment Tool (pro ject tool 8), the impact of reforms since 2002 identified and

solidified and recommendations developed and refined for Strategic Framework.

2.5. Identify international and EU standards, best practices and Turkey obligations

The results and findings of focused areas would be compared with international best practices and

standards mentioned in pro ject tools in ANNEX 1. Turkey being active member of UN and applicant for

European Accession is under obligations to comply with these standards. It is critical to conform judiciary

to international and EU standards to compete to regional judiciaries. Chapter 35 of EU Accession

Partnership spells out obligations of the judiciary. Similarly, UNCAC, 2003, UNTOC, 2000, FATF 40

Recommendations, three Narcotics Conventions , child conventions to name a few, are also very relevant.

2.6. Identifying and accessing existing sources of data

The identification and sifting of existing resources and data such as admin istrative reports, surveys,

analysis, or opinion of expert as well as international assessments such as EU Progress Reports on Turkey,

Reports of UN Special Rapporteur on Independence of Judges and Lawyers are very important for

understanding the issues and defining the problems. It is also important to determine drivers of the

problems, actors, losers, and those benefiting at the cost of others. The stakeholders are expected to identify

the existing data. The analysis and assessment of existing data concerning judiciary is important for making

objective and balanced conclusions.

2.7. Methods of collection of own data

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Another source of information gathering used would be face-to-face interviews with key staff of Ministry

of Justice and judicial departments as well as other national, local and international stakeholders and

experts identified by MOJ and UNDP. Case studies, observations and field visits of courts first instance

situated in different geographical areas would be organized.

Court users satisfaction survey (project tool 15) would be used to gauge the confidence and trust of users

of the courts. This survey is used by CEPEJ and recommended by international consortium for excellence

in judiciary.

Focus Group: In order to reach in formed and consensus conclusions on the key issues identified through

desk reviews, interviews, review of documents and legislative framework, structured focus group

discussions could be very useful. The focus groups will help explore and identify causes of a problem or a

phenomenon, drivers, losers and those benefiting from the situation and find and refine possible options

solution. Focus groups will be p lanned, in consultation with MOJ, to achieve definite goals set beforehand.

Each focus group will consist of 10-15 part icipants. The composition of each focus group may vary

depending on the problem d iscussed, knowledge, experience and relevancy of a stakeholder. If the goal is

to find out solution for inconsistency in the judgment and interpretation of laws, the relevant stakeholders

could be judges of the Court of Cassation, court of 1st Instance and prosecutors relevant to this issue. If the

goal is to deal with prison population, the relevant stakeholders are DG prisons, judges and prosecutors.

Some of the key issues highlighted during the initial meetings are scoring of judges and prosecutors,

frequent amendments in laws, retrospective application of laws and procedures, uniform sentencing,

consistency in decision-making, fo rm of judicial conferences, coordination of training system, consistency

in human rights based approach, consistency in interpretation, dealing with prison population, setting

performance indicators for courts and judges etc. (project tool 14).

2.8. Data entry and management

A transparent, consistent and structured procedure for keeping record of data collected through interviews,

desk reviews, case studies, observation visits and surveys analyzed and used to draw conclusions and

findings would be maintained, preserved and made available to UNDP (project tool 12).

2.9. Analysis, synthesis, validation of findings and conclusions

The consultant will analyze the data accessed and gathered against the Judicial Reform Strategy and Action

Plan and in the light of international best practices and standards to identify the most important impacts

making sure that impacts are direct results of interventions. The analysis will mainly focus on, among

others, administration of judiciary, policy making, impartiality, competency, accountability, train ing, flow

of a case file, case management, implementation gaps, evaluation of the legislation, finding gaps in

substantive laws, consistency in sentencing and decisions, transparent processes, predictable proceedings,

determining compliance of laws with international standards, identifying gaps, overlaps among the

activities of the institutions, thorny points, knowledge generation, experience documentation, lessons

learned and future challenges in the focused areas and any other area demanded by the stakeholders .

2.10. Assessing institutional and legal reforms, trends and markers for the future

The crucial impact enhancing pillars and reforms would be identified. The leaders in enhancing judicial

efficiency and effectiveness would be identified. The build ing blocks and necessary bonds for impact

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would be established. The reforms impact on institutions and judicial processes and procedures is captured

minutely.

2.11. Developing and refining Common Strategic Framework for res ponsive, effective, effi cient and

functioning judiciary

The findings of the assessment would be defined clearly, refined and translated into future Common

Strategic framework.

2.12. Developing performance standards and indicators for performance of judiciary, individual

courts and individual judges

The performance standards and indicators for judiciary as whole, individual courts performance standards

and individual judges performance standards and indicators is a proven and well-established standard for

enhancing efficiency and effectiveness of judiciary (project 1,2,3,4,9, 16).

2.13. Identifying areas for improvements, engagement, cooperation and programming for immediate

actions, short term, medium term and long term

The impact assessment exercise will also identify areas for immediate actions, short term, medium term and

long term engagements, cooperation and programming.

Phase Two

3. Designing reform monitoring and evaluation mechanism

The phase two will continue to develop framework of excellence for judiciary and design mechanism for

monitoring and evaluation of reform process. The process will consist of following components:

3.1. Incorporating the strategic Framework into Judicial Reform Strategy and Action Plan

3.2. Developing evaluation questions and indicators for performance and progress measurement of the

judiciary, individual courts and individual judges

3.3. Developing and designing inclusive, transparent and sustainable reform process monitoring and

evaluation mechanism

The monitoring mechanism developed by CEPEJ is a good guideline in this regard.

3.4. Designing a transparent and accountable monitoring Plan (ANNEX 3)

3.5. Developing realistic and sustainable mechanism and benchmarks to address the backlog of pending

cases using international and European models

4. Work Plan

The proposed timeline for desk review, data assessing, data collection, analysis, report writing, and

designing of monitoring and evaluation is attached as ANNEX 2.

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In brief, research and desk rev iew of international and EU best practices; national legal and institutional

framework and strategies are completed in May. In the month of June, I would like to visit Ankara, collect

data from MOJ, courts of appeals, courts of first instance, interviews , complete case studies and field visits

out of Ankara identified and arranged by MOJ. In first half of Ju ly , I would analyze data, confirm data

where required, arrange focus groups on issues identified. The second half of July would be used come up

with recommendations and conclusions and submit draft and final report as well. In August, I would like to

develop monitoring and evaluation mechanism and a plan.

5. Logistic and support

UNDP, Init iation Project will provide support and infrastructure to facilitate work of the consultant. UNDP

will also coordinate activities with the relevant stakeholders. The cooperation and coordination with

Ministry of Justice, Presidency for Strategy Development is also paramount for success of the impact

assessment initiatives.

Setting up a Task Force or a Steering Committee of relevant stakeholders is very critical for success of this

project. It would provide direct ion, guidelines, focus, and coherence and would be very useful particularly

in designing a sustainable, judiciary owned and lead monitoring and evaluation mechanis m. The

arrangement should be lead by the Presidency of Department of Strategy Ministry of Justice under general

guidance of the Undersecretary. The composition, at this stage, may include members from Court of

Cassation, HCoJP, Council of State, High Office of Chief Prosecutor, Justice Academy, relevant DGs, and

other members invited by MOJ. MOJ may enlarge membership at some appropriate stage. The Committee

or Task Force will engage stakeholders, enhance ownership, and provide space for sharing ideas and skills.

It also will ensure their commitment, build strength and ensure sustainability of reforms. The collaboration

and coordination is precondition for success of this assessment and for follow up of Common Strategic

Framework, monitoring and evaluation mechanism.

ANNEX 1

Compendium of project tools

Project tool 1

1. United Nat ions Rules of law Index, United Nat ions rule o f law defin ition (United Nat ions Security

Council, this 2004, S/2004/616),

2. Rule of Law Index, World Justice Project,

3. Developing Indicators to Measure the Rule of Law: a Global Approach, 2008, Vera Institute of Justice

Project tool 2

International Consortium for Excellence in Judiciary, CEPEJ is member of this Consortium

1. International Framework for courts excellence, by International Consortium of Court Excellence, 2nd

edition 2013

2. Global Measures of Courts Performance

3. Court Excellence Self-Assessment Questionnaire

Project Tool 3

1. Bangalore Principles of Judicial Conduct and UN Basic Principles on Judicial Independence,

2. UN basic principles on the role of lawyers

3. UN guidelines on the role of prosecutors

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4. European Guidelines on ethics and Conduct for Prosecutors (Budapest Gu idelines)

Project Tool 4

1. CEPEJ Checklist for promoting the quality of justice and the courts

2. SATURN Guidelines for Judicial Time management, CEPEJ

3. Handbook for Conducting Satisfaction Surveys Aimed at Courts Users in European Union Countries

4. CEPEJ Evaluation Process of EU Judiciary

Project Tool 5

Relevant human rights justice standards

The UDHR, ECHR, ICCPR, EU Charter on the Status of Judges, 1998, Council of Europe

Recommendation, 1994, TI Fair trial manual, Commonwealth fair trail manual, Marx Plank Fair Trial

manual and others

Project Tool 6

1. Global best practices: judicial Integrity standards and consensus principles, IFES, 2004

2. Global Best Practices: A Strategic Tool for Promoting, monitoring and reporting on judicial integrity

reforms, IFES Rule of law White paper Series, 2004

Project Tool 7

Law and Justice Institutions, the World Bank

Project Tool 8

1. UNODC Criminal Justice Assessment Tool, 2006

2. UNODC Juvenile Justice Assessment tool, 2006

Project Tool 9

1. UNDP Capacity Development, Measuring Capacity document

2. UNDP Programming for Justice: Access for All

3. UNDP Handbook on Planning, Monitoring and Evaluation for Development Results, 2009

4. UNDP Access to Justice, Practice Note, 2004

Project tool 10

1. USAID TIPS Monitoring the Policy Reform Process, 2000 Number 14

2. USAID TIPS Measuring the Institutional Capacity, 2000, Number 15

Project tool 11

1. United Nat ions Princip les and Guidelines on Access to Legal A id in Criminal Justice Systems, UN

General Assembly Resolution (E/CN.15/2012/L.14/Rev.1)

2. Dutch Legal Aid principles and experience

3. UK Legal Aid principles and experience

Project tool 12

Documents/interview Record Form

Project tool 13

Field Data Collection Form

Project tool 14

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Focus Groups format

Project tool 15

Courts Users’ Survey Questionnaire

Project Tool 16

CourTools for performance measures of courts, developed by NCSC

ANNEX 2

Work Plan for Impact Assessment

ANNEX 3

Performance Monitoring Matrices

ANNEX 4

Model Regulatory Impact Analysis/Assessment

ANNEX 5

SIGMA Standards for Compliance and Draft Verification

ANNEX 6

Terms of Reference

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