IMPARTIALITY OF JUDGE AND MANDATORY REASONS FOR A JUDGE’S DISQUALIFICATION FROM A CASE IN THE CRIMINAL PROCEEDINGS IN THE LIGHT OF THE DOCTRINE AND THE CASE LAW

In this paper, scope of the mandatory reasons for a judge’s disqualification from a case, which are set forth under the articles 22 and 23 of the Turkish Code of Criminal Procedure, is examined in detail in the light of the doctrine and the case law after we briefly outline the concept of impartiality of judge and how it was regulated in the Constitution and international human rights conventions. In this study, we also consider the articles of the German Criminal Procedure Code and the German doctrine and jurisprudence since the German Code includes similar provisions. We elaborate on the first and the third paragraphs of article 23 because these provisions, on which there are various opinions, cause problems in the practice. The judge about whom there is a mandatory reason for her/his disqualification from a case must not practice any judicial duty in that case. In this regard, it is not necessary that the judge is aware of the reason for the disqualification just as it is not needed that a motion for the disqualification of the judge is forwarded. Ignoring a mandatory reason for a judge’s disqualification from a case is considered as an absolute violation of the law and requires the judgment to be set aside