Bülent Çiçekli, a member of the Supreme Board of Judges and Prosecutors (HSYK), has stated that the HSYK aims to replace the statist mentality that dominates the judiciary with a more individualist perspective.
Noting that many institutions in Turkey are going through a process of mental transformation, Çiçekli stated that Turkey’s democratization efforts and the liberal interpretations of the judiciary positively affect each other.
Çiçekli stated: “When we compare the number of judges and prosecutors per 100,000 people in Turkey with other countries, we can see an obvious shortage of judges and prosecutors. We are trying to work on this by recruiting new judges and prosecutors, reducing the workload of the courts and improving the quality of judicial personnel through on-the-job training.”
Çiçekli spoke exclusively with Today’s Zaman on these and other issues.
What will the HSYK’s strategy be to reduce the number of rulings that the European Court of Human Rights (ECtHR) makes against Turkey?
The HSYK, which has recently been restructured, has some priorities concerning the judicial system and its problems in Turkey. One of these is raising awareness among judges and prosecutors about the provisions of the European Convention on Human Rights (ECHR) and ECtHR rulings.
These rulings provide a binding legal framework for our domestic law. On Sept. 30, 2011, the board decided that before making decisions on promoting judges and prosecutors, they would examine if the decisions that those judges and prosecutors had made complied with the ECHR and the ECtHR rulings.
Are there projects in place that aim to raise awareness about the ECHR and the ECtHR among judges and prosecutors?
We have prepared two important projects. Firstly, we are planning to make over 20 working visits to the ECtHR to raise awareness about human rights. The judges and prosecutors will visit the ECtHR, where they will be briefed on the rulings of the court. The project aims to provide a two-way learning process. The judges and prosecutors who will participate in these visits will not only be briefed on the rulings of the ECtHR, but will also inform the ECtHR judges about the current situation and developments in Turkish domestic law concerning the rulings that violate human rights and the reasons why our courts made those decisions. We are aiming to raise awareness about human rights via mutual interaction. Secondly, in cooperation with the Ministry of Justice, we are planning to conduct another project concerning freedom of expression. This is one of the key issues that both the HSYK and the ECtHR view as very important.
There have been some criticisms over the lack of quality education amongst young legal professionals.
The law faculties of the various universities are primarily responsible for education and training so it would not right for me to answer this question. In addition, career training is the one of the responsibilities of the Turkish Justice Academy. None of these fall under the board’s area of responsibility.
The lack of on-the-job training programs has also been criticized. Does the board plan to increase the number of on-the-job training programs?
When we look best practices around the world, offering on-the-job training programs is one of the main responsibilities of the higher judicial boards. In 2011, the Law on Judges and Prosecutors was amended to take into account international developments. The amendment introduced two important changes: Firstly, the law made it compulsory for judges and prosecutors to attend on-the-job training programs, and secondly, it stated that these programs would be offered by the HSYK.
After consulting with the Turkish Justice Academy, the HSYK prepared the guidelines and procedures for these training programs. Because of the former structure of the HSYK and a lack of coordination between the HSYK and the Turkish Justice Academy, on-the-job training had been one of the most neglected issues, though it is now one of our top priorities.
Which areas will the board focus on during these training programs?
There are three important categories. Firstly, the HSYK needs to offer training programs to inform judges and prosecutors about newly passed laws. Under this framework, the training program will focus on amended laws that were recently passed or will be passed soon such as the commercial code, debt law, civil procedures law, etc. Secondly, in cooperation with the Supreme Court of Appeals, the HSYK will offer training programs on the procedures of the court. The third area of the training, which has been completed, is updating judges and prosecutors on the verdicts and investigation processes of the Supreme Court of Appeals. These judges and prosecutors were able to observe, up close, how case files are examined. The focus is on the areas and reasons why certain cases are quashed.
Didn’t such training exist in the past?
Not with such scope and sustainability. Two hundred people attended this program over a period of two-and-a-half months, and in the past one-and-a-half years, there were three such programs. We intend to keep this up; the number of participants may decrease, but the program will continue.
What do you do to ensure a mental shift on the part of judges and prosecutors towards a human rights-oriented perspective?
A change of mentality is not a problem that is specific to the judiciary. As a society, we are undergoing a mental transformation. I think our country has made significant achievements in socio-cultural and economic terms, as well as with regards to democratic development.
While society’s mental transformation with regards to democracy contributes to the judiciary’s change in mentality, at the same time the performance of judicial members in major ongoing trials contributes to the country’s mental transformation concerning democracy.
This process of transformation relates to generations as well. There is a mental framework that was formed with previous education and practices. These established behavioral patterns cannot be changed via training after a certain age. The problem of ensuring the transformation of certain generations is visible also in the judiciary.
The event that accelerated this process was the constitutional amendments in the referendum of Sept. 12, 2010, which resulted in a younger and more dynamic board and a more participatory representation. The HSYK’s new composition of members, which was a result of those amendments, has given a serious boost to the process of the mental transformation of the judiciary.
Will the statist approach be abandoned?
Just like any public organization, the judiciary has a certain statist mentality. This is also expressed by local and foreign experts. This approach that prioritizes and glorifies the state may serve to protect other interests as well, but I don’t want to talk about it.
An individual-centered approach to law should be inculcated in law students, and through on-the-job training, professional judges and prosecutors. A person can change his or her approach, even on issues that they know very well, after they undergo training or education.
Are the steps undertaken to ensure greater harmony with international practices incapable of speeding up this mental transformation?
We see this as a significant instrument for “internationalization.” In this context, I believe, benefiting from the practices in other countries, sharing their experiences, perusing their reports, making country visits and launching mechanisms for cooperation will contribute to this transformation. I personally think we have an advantage with mental transformation in the judiciary. This transformation can be forced with demands from the bottom and, at the same time, it can be managed via processes guided by the top.
Are both factors involved simultaneously?
Yes, I think this is the case. Until very recently, there have been demands coming from the bottom. The referendum that gave us a younger and more dynamic face created an environment that supports mental transformation from both the top and the bottom. I see an HSYK that is ready to respond to the demands from the bottom as a historic event.
But the Venice Commission has voiced criticisms.
The Venice Commission of the Council of Europe in general approves of the new composition and the functioning of the HSYK in terms of judicial independence in Turkey. In particular, it sees it as a positive development that the inspection and supervision authority was transferred from the Ministry of Justice to the HSYK. It also approves the facilities provided to judges and prosecutors for written or oral defense against disciplinary measures.
But it has criticisms about the relations between the executive branch and the judicial branch.
It says these relations hurt judicial independence. For instance, judges and prosecutors are employed in administrative positions at the Ministry of Justice, but they can be assigned to the court at any time, which is considered to be something that does not play nicely into their impartiality.I believe it is a waste of resources to employ judges and prosecutors in administrative positions while the demand for them at courts is high. However, I must also note that it is wrong to strip a ministry that is charged with shaping judicial policies of its judges and prosecutors.
If relations between the executive office and the HSYK do not appear to undermine judicial independence, I believe it would not be risky to employ judges and prosecutors at the Ministry of Justice.
Then there is the matter of making the justice minister a member of the HSYK.
Although it was not mentioned in the Venice Commission’s report, it is occasionally voiced as a criticism. Yet, this matter varies from one country to another. In some countries, the head of state is a member of the board. In others, the justice minister presides over it. Actually, these are symbolic positions. Some reports claim that the board members may not express their ideas freely when the justice minister is presiding over the board.
Have you ever felt this was the case?
The justice minister has only attended two or three meetings of the general assembly so far. He cannot attend all of the department’s activities. In practice, I didn’t observe such a problem. The justice minister’s authority to approve of disciplinary examinations is criticized as well. He has not declined to approve any disciplinary examination proposed by the relevant department.
The low number of judges and prosecutors is considered one of the basic problems of the judiciary. How does the HSYK plan to deal with this problem?
There were 12,000 judges and prosecutors as of 2011. The number of judges or prosecutors per a designated number of people (for instance, per 100,000 people) is the generally used criterion. Simple comparisons between countries may lead to wrong results. Every country has its differences in terms of judicial organization, review of disputes and the presence of alternative settlement methods, the judicial culture, etc. To compare, the number of judges per 100,000 people is 19.9 in Austria, 24.2 in Russia, 33.3 in Greece, and 8.3 in Turkey.
Isn’t that a significant difference in all respects?
You cannot expect the same figures. Judicial needs should be assessed in light of a country’s circumstances. However, figures clearly show that there is a serious deficiency in the number of judges in Turkey.
How do you plan to eliminate this deficiency?
Various methods are envisaged. First, you can decrease the number of disputes that are referred to the judiciary. In this context, the HSYK is conducting meetings to discuss the matter. Based on some suggestions made during these meetings, we have proposed to the ministry that some issues be taken outside the judicial sphere. Several legal plans were made in the two packages of judicial reforms that were passed last year and new studies are under way. Second, the existing legal workforce can be more effectively used. For instance, small courthouses could be merged into a big one to use the personnel more effectively. Redundant distinctions between various court types may be eliminated.
These are not measures that will increase the number of judges per 100,000 people.
The Ministry of Justice is planning to recruit 1,250 judges and prosecutors in the next year. But if you boost the number of judges and prosecutors without planning and preparing properly, then you will end up with an unqualified team.