Venice Commission secretary slams HSYK, urges judicial reform

Speaking to Today's Zaman in Strasbourg on Wednesday, Thomas Markert, acting secretary of the Venice Commission, the advisory body of the Council of Europe, criticized the composition of the Supreme Board of Judges and Prosecutors (HSYK) and the way the members are elected to the board. “In Turkey what is unusual is that the HSYK is very much composed on the basis of proposals coming from higher courts.

If you compare it with the situation in other countries in Europe, all judges are able to elect representatives to a board,” he said, stressing that it is not acceptable for only superior courts to be able to designate representatives of the board.

He also proposed that there might be a possibility to have some people in the HSYK, who may or may not be judges, be elected by Parliament in order to have what he called “accountability to society.” Markert further emphasized that lower courts, unlike constitutional courts, which may be a bit political because of their nature, in almost all countries should be less political. In Turkey the HSYK along with other higher judiciary bodies such as the Council of State and the Supreme Court of Appeals were often accused of being overtly political for a long time.

The Venice Commission official further argued that the election of justices to the Constitutional Court would also need to be changed to reflect pluralism in society. “Constitutional courts are always a bit more political than other courts. This is the reason why all countries’ parliaments also have a say in the composition of the Constitutional Court, which is not the case in Turkey,” Markert explained. “I think some of the judges should be elected by Parliament and in a manner to ensure pluralism. Not only the ruling party but also opposition parties should have a say in the election so it reflects pluralism,” he added.

New AK Party closure case is baseless

When asked how he would respond to rumors concerning another possible closure case in the works by the chief public prosecutor of the Supreme Court of Appeals, Markert said, “It would be strange to want to prohibit the ruling party, which has governed in democratic ways for so long.” He argued that the power bestowed on the prosecutor in Turkey in closure cases is problematic on procedural grounds and that Turkey constitutes a very unique case in that regard. “Such procedures are quite rare in other countries,” he underlined.

Giving a German case as an example, Markert said only the government and Parliament can ask for the closure of a party. “Not only from a legal point [of view] but also from a political perspective, there must be an agreement between Parliament and the government,” he emphasized. In the pro-Kurdish Democratic Society Party (DTP) case, where the party was shut down by the Constitutional Court in December of last year, Merkert said: “The court may have been justified. I don’t know the evidence. The party may have links to the outlawed Kurdistan Workers’ Party [PKK],” he said, stressing the Venice criteria on party closure may have been met on substantive grounds. The commission says parties using violence or advocating violence can be closed down.

He questions the decision, however, on a political front. “Even if it was justified, does it make sense politically to close the party down? Or would it be better to keep it in order to have political dialogue and maybe undertake reforms which would alleviate the situation in the region? So the political aspect is always important,” he noted.

Merkert also said the commission welcomes Turkish efforts to adopt a new constitution and understands some of the articles that can’t be amended in the current Constitution would have a place in the new one as well. Asked if the Turkish government has contacted the Venice Commission for help or an opinion, he said there has been no official request put forward by the government yet. “With the election of [Mevlüt] Çavuşoğlu as the new president of the Parliamentary Assembly of the Council of Europe [PACE] and the government set to take over the presidency of the Council of Ministers in November, things may change for the better,” he said.

The Venice Commission is an advisory body of the Council of Europe made up of independent members in the field of constitutional law. It was created in 1990 after the fall of the Berlin Wall, at a time when there was an urgent need for constitutional assistance in Central and Eastern Europe. The commission’s official name is the European Commission for Democracy through Law, but due to its seat in Venice, where it meets four times a year, it is usually referred to as the Venice Commission.