Appendices
| Author | James Anderson; David Bernstein; Cheryl Gray |
| Profession | Poverty Reduction and Economic Management Department (ECSPE) in the Europe and Central Asia (ECA) Region |
| Pages | 65-100 |
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The Europe and Central Asia (ECA) region in the World Bank comprises all former socialist countries in CEE and the CIS as well as Turkey. Turkey was not included in the analyses in the body of this report because of its very different history, having never been part of the communist world. With a population of 70 million people, however, Turkey is the second largest country in the ECA region. This appendix summarizes its legal and judicial reforms and compares its indicators with those of other ECA countries for readers who are interested in comparative analysis.1
The foundation of the modern legal and judicial system in Turkey was formed when the Shariah Courts were replaced with secular courts in accordance with the Judicial Organization Law passed shortly after the Republic was established in 1923, although the genesis of the secularization began decades earlier. The Hatt-i Sherif, considered one of the most important documents in modern Middle Eastern history, was written in 1839 by the Foreign Minister of the Ottoman Empire and includes an important affirmation of the rule of law: the declaration that laws must apply equally to all subjects, both Muslim and non-Muslim. Reform during the 19th century led to the creation of dual judicial systems with shariah and secular courts existing side-by-side.
The modernization of the legal system that began in the 1920s drew heavily on continental approaches: the Turkish legal system was based on Swiss civil law and civil procedure; German commercial law, maritime law, and criminal procedure; Italian criminal law; and French Page 66 administrative law. The different codes were chosen from what were considered to be the best in the field for various reasons, including prestige, efficiency, and chance. Choosing a number of different models may have given the borrowings "cultural legitimacy," in that the push to modernize and westernize would not be tied to any one dominant culture. The goal behind using foreign laws was to uproot the foundations of the old legal system by creating completely new laws. Importantly, these models were chosen by Turkey, not imposed, and then adapted and adjusted to fit the Turkish situation, often by Turkish academics trained in the universities of the model countries.
According to the European Union's 2003 and 2004 Regular Reports, the main problem facing the Turkish legal and judicial system is the large backlog of cases and general inefficiency of the justice system.2 The ruling Justice and Development Party has acknowledged that the running of the legal system in Turkey has been slow and ineffective and that the problem is more one of inefficient implementation than the legislation itself. The system has also been criticized for the de facto lack of independence of judges, despite the de jure commitment to independence. The reform objectives set out in the EU Accession Partnership with Turkey emphasize strengthening the independence and efficiency of the judiciary, among other goals.
At the same time, progress is being made on a number of fronts. The number of judges and prosecutors has expanded, and a new IT program enabling speedy exchange of information has continued to progress. Present reforms are geared both toward the immediate expansion of human capital through training sessions for judges and prosecutors on a wide range of issues and on institutionalizing human capital development by creating an academy to provide continuing legal training to judges, public prosecutors, and other court personnel. The EU and the World Bank are providing assistance aimed at improving information and training and strengthening the caseload management and court administration system, among other goals.
Although the perceptions of firms generally support the need to improve efficiency and independence, the perceptions of Turkish firms are not out of line with those of firms in the eight transition countries that have joined the European Union (EU8)-Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovenia, and Slovak Republic. Assessments of judicial independence from the EOS database are in line with those of the EU8 (figure A1.1), though neither is particularly high, while the BEEPS suggests the same for the speed of court proceedings [that is, assessments in Turkey and EU8 are similarly unfavorable, (figure A1.2)]. With regard to efficiency, data from the Doing Business database supports the notion that Turkish courts perform as well or better than its EU8 counterparts. For both the cost of enforcing a contract and the length of time it takes to enforce a contract, Turkey outperforms the EU8 (figures A1.3 and A1.4).
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One area where the experience of firms in Turkey is different from that of most transition countries, and especially the EU8, is that Turkish firms are much less likely to actually use the courts. In the BEEPS questionnaire, for example, firms were asked if they had been to court in the previous two years. Firms in Turkey were less than half as likely as firms in the EU8 to say they had used the courts. A second, and perhaps related, difference between the perceptions of firms in Turkey and those of firms in the EU8, is that Turkish firms provided significantly worse assessments of the courts in terms of honesty and fairness. This finding corresponds with the assessment of the Turkish Industrialists and Businessmen's Association that Turkish courts are subject to outside influences.
[SEE GRAPHIC IN PDF ATTACHED]
In terms of the actual effectiveness of the courts, firms provide more positive assessments. Turkey appears different from the EU8 and other transition countries in two important respects. First, the judicial system is viewed as stronger in Turkey in its ability to enforce court decisions (figure A1.5) and this enforcement process is cheaper and takes less time than it does in the transition countries. Second, firms in Turkey are more likely to express confidence that the legal system will uphold their rights in property disputes (figure A1.6). The greater stability of legal institutions and longer experience with market mechanisms in Turkey may help to explain these positive assessments.
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In the earliest stages of transition in the first half of the 1990s, the World Bank focused its efforts in CEE and the CIS on laying the basic groundwork for a market economy through macroeconomic stabilization, privatization, and fiscal and banking reform. In the legal sphere, the Bank focused on helping support the drafting of specific pieces of legislation related to, inter alia, transportation, telecommunications, privatization, and...
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