On 15 February 2014, the Turkish parliament adopted a bill that amended to the Law on the High Council of Judges and Prosecutors. While the bill waits for the decision of the President of the Republic, grave concerns on the independence of judiciary remains.
The new bill raised wide-spread criticism from the opposition parties mainly due to the unconstitutionality of the amendments as well as for the incompatibility with the international standards on this issue. The opposition parties and the relative stake holders stated on several occasions that the amendments brought by the bill were in conflict with the article 159 of the constitution which guarantees the independence of courts and the legal guarantee of the judges. It endangers one of the founding principles of democracy, the independence of judiciary from the executive and separation of powers.
Article 17 of the HCJP in force, which lays down the Duties and Powers of the Council Inspectors was criticized by the Venice Commission in 2010 for being too broad and conferring wide powers of inspection and supervision to the HCJP ;
The general competence given in Article 17.1 is very wide, stating, inter alia, that the inspectors have the right and duty to:
“Supervise whether judges and prosecutors perform their duties in compliance with laws, regulations, bylaws and circulars”.
This is then limited by Article 17.4, which states that the inspectors:
“performing in accordance with the principles of independence of the courts and tenure of judges cannot interfere with the judicial power and discretion…”.
The Venice Commission considers that, although the very wide powers of supervision in Article 17.1 are in principle countered by Article 17.4, it would be preferable to regulate the inspection powers in a more restricted and detailed manner, with greater precision and predictability. Pending such regulation, it is all the more important that Article 17 be interpreted and applied in a restrictive manner, which neither directly or indirectly infringes judicial independence.
The bill, instead of resolving this issue, attaches the Council Inspectors to the Ministry of Justice. According to the amendments, the Minister of Justice will have the power to appoint the Chairman, Vice Chairmen of the Council Inspectors which will be responsible to the Minister of Justice. The Inspector Council will fulfill the tasks given by the Minister of Justice.
Under article 9 of the HCJP law, the Third Chamber is charged with supervising through Council Inspectors, whether judges and prosecutors perform their duties in compliance with laws, regulations, bylaws and circulars. However, the amendments confer the authority of final decision of holding an inquiry or investigation to the Minister of Justice. Thus rendering the authority of the Third Chamber illusionary.
Amendments concerning the supervisory powers of the HCJP are in clear conflict with the European standards mentioned in the Venice Commission’s Opinion On The Draft Law on Judges And Prosecutors Of Turkey (CDL-AD(2011)004). In 2010 the Venice Commission had criticized the HCJP law on the grounds that it failed to rely on effective self-regulation;
Effective self-regulation related to the execution of the official duties seems preferable to a system that heavily relies on external supervision and disciplinary sanctions. In the Turkish court system, there seems to be a lack of reliance on such self-regulation
With the amendments mentioned above, the Minister of Justice will be the sole authority to supervise the judiciary as well as the members of HCJP for its supervision and regulation.
Formation of the HCJP
The amendments to the law on HCJP bring an additional article 4 to the law which terminates the duties of the following office bearers of HCJP
· HCJP Secretary General and Deputy Secretary Generals,
· Chairman, Vice Chairmen, Inspectors, of the Council Inspectors, Investigating Judges and the Administrative Staff of the Council Inspectors.
The additional article 4 ends the duties at the HCJP, of the following office bearers
· HCJP Deputy Chairman
· Heads of the chambers and the HCJP members working in the chambers
Following this radical overturn, the Minister of Justice will fill for vacant posts by new appointments. Moreover the amendment foresees the annulment of all and any circulars previously issued by the HCJP. Another amendment no. 31 amending article 13 of the HCJP law concerning the formation of the HCJP, states that the HCJP staff may be appointed by transfer or from outside the state institutions. The appointment by the Minister of Justice, of judges and prosecutors, to the key positions inside the HCJP is in conflict with the standards of the Council of Europe. Principle I.2.c of Recommendation No. R (94) 12 of the Committee of Ministers of the states
“All decisions concerning die professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration”
On the same matter Consultative Council of the European Judges in its opinion no.10(2007) states:
Members, whether judges or not, must be selected on the basis of their competence, experience, understanding of judicial life, capacity for discussion and culture of independence. […]. In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary […] The CCJE does not advocate systems that involve political authorities such as the Parliament or the executive at any stage of the selection process. All interference of the judicial hierarchies in the process should be avoided. All forms of appointment by authorities internal or external to the judiciary should be excluded
The amendments on the formation of HCJP will provide the Minister of Justice with a massive reshuffle of the HCJP. The minister will have the possibility to appoint the members who shares the Government’s view to the 1st and 2nd chambers and others to the 3rd chamber whose powers are stripped with these amendments mentioned above.
According to the amendment no.36 amending the article 29 of the HCJP law, the Minister of Justice decides the dates of the HCJP meetings. In exceptional circumstances the Minister may call for a meeting upon the request of the HCJP members’ simple majority. Nevertheless the final decision rests with the Minister. The Minister also decides the agenda of the HCJP meetings. These are the elements of the exercise of influence of the executive on the judiciary. On this matter Consultative Council of the European Judges in its opinion no.10 (2007) states:
“The Council for the Judiciary should […] freedom to organize itself, without being answerable for its activities to any political or other authority. It should be free to organize its sittings and set the agenda for its meetings”
It seems that the aim of all such radical changes is to cover up the corruption scandal by appointing judges and prosecutors who would act in accordance with the ruling party’s interests.