In an exclusive interview with Today's Zaman, Thomas Markert, secretary of the Council of Europe's Venice Commission, said, “The Venice Commission is indeed of the opinion that a substantial part or the majority of a judicial council should be judges from all levels elected by their peers.”
“The views of judges at the beginning of their career, belonging to a younger generation, will then also be represented on the council. This should make decisions more acceptable to all judges,” he added. Based on previous positions taken by the Venice Commission, Markert reiterated that the commission would welcome changes that will allow Parliament to have a say in the selection of judges in the higher judiciary as well as the introduction of the right to submit individual complaints to the Constitutional Court.
He also noted that the presence of the justice minister on the Supreme Board of Judges and Prosecutors (HSYK) would not be considered an unusual practice in Europe.
Applauding constitutional changes proposed by the government, the secretary of the Council of Europe's Venice Commission has said the commission would welcome changes that would allow Parliament to have a say in the selection of judges in the high judiciary
The ruling Justice and Development Party (AK Party) unveiled a draft package of constitutional amendments on Monday, which many people say are urgently needed in today’s Turkey. The package includes 26 amendments. The most contentious changes proposed are reforms to the HSYK, which appoints the senior members of courts. The HSYK currently comprises five judges plus the justice minister and his undersecretary. The government wants to expand it to 21 members and open the selection process to all judges to enable democratic representation.
Markert emphasizes the distinction between the judiciary and the bureaucracy as an important reason for broad representation. “The judiciary is not a hierarchical structure in the same sense as the bureaucracy, and all judges are independent when exercising their functions. It is therefore logical that all judges are represented in a body having as its main task the defense of the independence of the judiciary,” he argued.
Asked whether Parliament should be involved in the selection of judges in the higher judiciary, Markert said only a minority of the members of the council should be elected by Parliament as a safeguard to prevent politicizing the process. “The persons elected should be professionals and not parliamentarians. They should be elected by a qualified majority or in another manner ensuring that not only people close to the current majority are elected. All members of the council have to be independent in the exercise of their functions, and they do not represent the body electing them.”
The government proposal does not envision any member of the HSYK being selected by Parliament. It does, however, propose that three justices of the expanded Constitutional Court, the number of whose members will be expanded from 11 to 19, will be selected by Parliament from the nominees submitted by the Court of Auditors and the Turkish Bar Association (TBB). These three justices of the top court will be elected by a qualified majority in Parliament in the first round, followed by a second round of votes to meet the simple majority rule if a qualified majority is not reached.
Markert sees no problem in having Parliament involved in the selection of Constitutional Court justices. “Parliament should indeed have an important role in the selection of judges. This is the usual practice in Europe. The court can annul legislation adopted by Parliament and therefore needs some democratic legitimacy as well as sensitivity to political issues,” he said.
He went on to say that “the Constitutional [Court’s] justice must, by its composition, guarantee independence with regard to different interest groups and contribute toward the establishment of a body of case law which is mindful of this pluralism. The legitimacy of a Constitutional [Court’s] jurisdiction and society’s acceptance of its decisions may depend very heavily on the extent of the court’s consideration of the different social values at stake, even though such values are generally superseded in favor of common values. To this end, a balance which ensures respect for different sensibilities must be entrenched in the rules of composition of these jurisdictions,” he added.
Welcoming changes to make party closure difficult
The Venice Commission secretary welcomes a proposal that would take the power to launch party closure cases away from independent prosecutors and hand it over to Parliament. “We strongly welcome this proposal, which follows the practice of other European states such as Germany. The decision to ask for the closure of a political party is too important to be left to the discretion of a single official,” Markert said.
He also emphasized that political parties should only be banned in exceptional cases when it is justified legally and makes sense politically. “A prosecutor is competent to evaluate the legal case for the closure. He or she can, however, not determine whether such closure is necessary in the interest of protecting Turkish democracy,” he said.
The Venice Commission previously issued an opinion on the Political Parties Law in Turkey in which it found numerous problems. Markert argues that “the proposal seems indeed to go in the right direction,” noting, however, that the commission has not examined the new proposals. “We would be pleased to do so if asked to by the Turkish authorities,” he added.
Markert also stresses that the commission is in favor of opening the decisions of the HSYK as well as of the Supreme Military Council (YAŞ) to appeal, as suggested in the government’s proposals. “The Venice Commission is in favor of giving to the persons concerned the possibility to appeal to a court. A judicial council is an independent body but not a court of law, and its decisions, at least in disciplinary proceedings, should be subject to judicial review,” he explained.
Commenting on the participation of the justice minister and his undersecretary in HSYK proceedings and whether this practice is in keeping with the Venice Commission criteria, Secretary Markert said: “This is not unusual in European practice as far as the minister is concerned. The presence of the ministry is admissible, and even useful, as long as there is a proper balance within the council.”
“One may, however, query whether both the minister and the undersecretary should be on the council. It is more frequent to have the minister formally as the member, it being understood that he will mostly be replaced by an official from the ministry. The minister should also not take part in the vote on decisions in disciplinary proceedings,” he added.
According to the Justice Ministry’s proposal to overhaul the HSYK, the board would be divided into three chambers, each having specific functions such as promotions and disciplinary actions. The justice minister will have no voting rights in the chambers unless the decision in one chamber is disputed and it is brought for a review by the general board composed of all chambers. In that case, the justice minister presides over the board and has the right to vote to settle the dispute among chambers.
Individual complaints important
As for the proposal to allow individual complaints to be submitted to the Constitutional Court, the Venice Commission secretary said he welcomes the decision. “In 2004, the Venice Commission gave an opinion on a draft introducing the [right to submit an] individual complaint to the Constitutional Court. We welcome this very much. The experience of other countries shows that this is a good means of increasing the confidence of the people in the court system and that it can contribute to the democratization of society.”
Giving a comparable example to make his case, Markert said: “The role played by the German Constitutional Court since the 1950s is a good example in this respect. It should also make it possible for decisions to be made in Turkey in many cases which currently go to the Strasbourg court.”
He warned, however, that this will lead to a heavy caseload for the court and care has to be taken to ensure that there are appropriate procedures and sufficient resources to enable the Constitutional Court to cope with the caseload. “In its opinion, the commission gave recommendations in this respect,” he said. The government proposal increases the number of justices in the Constitutional Court from the current 11 to 19. It also divides the court into three chambers to reduce the caseload and establish a filtering mechanism including sub-commissions to examine the validity of complaints before sending them to the relevant chamber. Only important cases, such as party closure cases, would be decided by the General Council, which would include all three chambers.
Asked how the commission views the division of the justice system in Turkey into a military justice system and a civilian justice system, Markert said the commission has not studied Turkey in that regard yet. But he stated: “Generally, we would favor giving as many cases as possible to the civilian courts and leave only cases directly and exclusively linked to military duties to the military courts. The military has a very hierarchical structure and the military courts will always appear less independent than civilian courts.” The government included an amendment in the proposals that would allow civilian courts to try military staff for major offenses such as coups after similar legislation was cancelled by the top court earlier this year.
Markert declined to comment on the question of how the mentality of judges and prosecutors could be changed even if the justice system is overhauled completely in line with European standards. But he suggested that programs in cooperation with the Council of Europe could be useful in this context. “Otherwise I do not feel competent to comment,” he said. He also underlined that the commission has not yet studied the proposals for constitutional reform made by the government. “My answers will therefore be based on previous positions taken by the Venice Commission and should not be taken as comments on the reform proposals,” he said.