Former CCJE head says HSYK should avoid self-protection, self-interest
In an exclusive interview with Today's Zaman, Julia Laffranque, Estonian Supreme Court judge and former president of the Consultative Council of European Judges (CCJE) emphasized that HSYK decisions should be open to judicial review, saying, “The independence of the council for the judiciary does not mean that it is outside the law and exempt from judicial supervision.” Judge Laffranque, who is credited with reforming the Estonian judiciary and legislation in line with European Union criteria between 1996 and 2004 as the head of the EU Law and Foreign Relations Division of Estonia's Ministry of Justice and later as the deputy secretary-general on legislative drafting, was the president of the CCJE until January 2010.
Laffranque was in charge of Estonia’s preparations to join the EU and was responsible for the approximation of Estonian legislation to European law and for preparing bills, including constitutional amendments.
Laffranque strongly believes that HSYK decisions should be reasoned, meaning detailed explanations of the basis for a decision should be revealed. “Some decisions of the council for the judiciary in relation to the management and administration of the justice system, as well as the decisions in relation to the appointment, mobility, evaluation, career, promotion, discipline and dismissal of judges -- if it has any of these powers -- should be reasoned and contain an explanation of their grounds, have binding force and be subject to the possibility of a judicial review,” she said.
The HSYK’s decision back in February to remove four public prosecutors in Erzurum from their positions without a reasoned opinion sparked outcry among jurists in Turkey, with many lashing out at the board for adopting an ideological stance on judicial cases and overstepping its authority.
The CCJE guidelines are very clear in this area. The advisory body is of the opinion that the decisions by the council for the judiciary on appointments, promotions, evaluations, discipline and any other decisions regarding judges’ careers should be reasoned.
“The council for the judiciary could consider the publication of decisions taken which are both formal and final, in order to inform, not only the whole of the judiciary, but also the general public of the way in which the proceedings have been conducted and to show that the judiciary does not seek to cover up reprehensible actions of its members,” Laffranque said.
Similar decisions previously made by the HSYK in Turkey were found to be in breach of the European Convention on Human Rights by the European Court of Human Rights, which exhaustively criticized them. In Kayasu v. Turkey, the European court had found that Turkey -- or more correctly, the HSYK -- violated the convention by disbarring Sacit Kayasu, who had demanded that the coup generals of Sept. 12 be tried. In its reasoned decision, the court said that “the imposition of a criminal sanction of that nature on an official belonging to the national legal service would inevitably, by its very nature, have a chilling effect, not only on the official concerned but on the profession as a whole.”
Treading carefully in disciplinary probes
Laffranque said it is important that disciplinary proceedings respect the principle of judicial independence and are carried out before a body free from any political influence, on the basis of clearly defined disciplinary faults. In the Kayasu case, the Turkish military pressured the HSYK to remove the prosecutor who was investigating a general from the case. It is suspected that the same happened in Erzincan, where four prosecutors who were conducting a probe into the alleged criminal activity of a regional commander were taken off the case.
The Consultative Council of European Judges
The Consultative Council of European Judges (CCJE) is an advisory body of the Council of Europe on issues related to the independence, impartiality and competence of judges. It is the first body within an international organization to be composed exclusively of judges, and in this respect, it is unique in Europe.
While Turkey is gearing up to overhaul the higher judiciary with a series of constitutional amendments, the Justice Ministry proposals to reform the judiciary are based on opinions expressed by both the Venice Commission and the Council of Europe’s CCJE.
The CCJE serves as a guarantor of the rule of law and judicial independence. It says the existence of independent and impartial courts is an important requirement of a state governed by the rule of law and stresses the importance of impartial justice free from external influence.
The main tasks of the CCJE are to adopt opinions, provide practical assistance and encourage judicial cooperation in Europe. The CCJE has made active use of its role to warrant that Council of Europe member states not only accept the European principles and standards on the judicial system in theory, but that they also apply them in practice. In connection to this, the CCJE has responded to several requests concerning the problems of the judiciary in different countries.
“In order to avoid conflicts of interest, disciplinary procedures in the first instance, when not addressed within the jurisdiction of a disciplinary court, should preferably be dealt with by a disciplinary commission composed of a substantial representation of judges elected by their peers, different from the members of the council for the judiciary, guaranteeing full rights of defense, with the provision of an appeal before a superior court,” she explained.
Though the CCJE prefers that disciplinary actions be dealt with within courts, in cases when the council for the judiciary nevertheless has disciplinary powers, it recommends that judges who are the subject of disciplinary proceedings should be fully informed about the grounds of the decision so they can evaluate whether to appeal it.
Conflict of interest in HSYK
The Estonian Supreme Court judge also suggested that the council for the judiciary should be consulted on all draft legislation relating to the status of judges, the administration of justice, procedural law and, more generally, the likely impact on the judiciary, e.g., the independence of the judiciary, and moves which might diminish citizens’ guarantee of access to justice prior to their deliberation in Parliament.
After consultations with the European Commission, the Justice Ministry in Turkey drafted a comprehensive legal reform strategy paper in line with Chapter 23 of the acquis communautaire, which deals with justice and fundamental rights. All higher judicial bodies signed this document, signaling their agreement. The action plan developed later based on this strategy document, however, has not generated the same enthusiasm within judicial circles.
With the government proposal to overhaul the HSYK, both the justice minister and his undersecretary will be less influential on the board. The reform will divide the board into three chambers, each having specific functions, such as promotions and disciplinary action. Currently, the HSYK has only one board, which deals with all issues, posing conflicts of interest within the seven-member body.
Laffranque pointed out that “one must be aware of and take into account the fact that there might be conflicts between different functions of the council for the judiciary, such as between the appointing and training of judges, or between training and disciplinary matters, as well as between the training and evaluation of judges. One way of avoiding such conflict is indeed to separate the different tasks between various branches of the council for the judiciary.”
The reforms, if adopted, will mean that the justice minister has no voting rights in the chambers unless a decision in one chamber is disputed and is brought for 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 them. The undersecretary will remain an ex officio member of the board but will only wield voting power in one chamber. In addition, his presence will no longer be essential for a decision to be made by the board. Currently, the board cannot make decisions unless the undersecretary is present at a meeting.
HSYK should be as diverse as possible
Laffranque emphasized that the composition of the council for the judiciary is highly important in order to guarantee its independence and to enable it to carry out its functions effectively. “The council for the judiciary can be either composed solely of judges or have a mixed composition of judges and non-judges,” she said. “The CCJE considers that, in order to prevent any manipulation or undue pressure, a substantial majority of the members should be judges elected by their peers and some of its tasks may be reserved to sitting in an all-judge panel.”
In the proposed reforms, only four permanent members of expanded 21-member HSYK will be appointed by the president from amongst lawyers and academics in law, economics and political science. Laffranque does not see any conflict with the CCJE’s opinion that the non-judge members may be selected among other outstanding jurists and university professors who have undertaken a certain length of professional service or are citizens of acknowledged standing. “Modern management of the judiciary might also require wider contributions from members experienced in areas outside the legal field -- e.g., in management, finances, IT and social sciences,” she argued.
Promotion rules should be transparent
The Estonian judge further emphasized the need for openness, transparency and full disclosure in the promotion and selection of judges to ensure the impartiality and independency of the judiciary. She said there must be total transparency pertaining to the selection requirements of the candidates so that judges and the society are able to ascertain that an appointment is made exclusively due to a candidate’s merit and based on his/her qualifications, abilities, integrity, sense of independence, impartiality and efficiency.
“Therefore, it is essential that the appointment and selection is ensured by publicizing the appointment criteria and disseminating the post descriptions and that the objective criteria are made accessible to the general public. The procedures for judicial appointment and promotion should be based on the candidate’s merits rather than on subjective reasons, such as personal, political or association/trade union interests, and be open to a pool of candidates as diverse and reflective of society as a whole as possible,” Laffranque explained.
“Any interested party should be able to look into the choices made and check that the council for the judiciary applied the rules and criteria based on merits in relation to appointments and promotions,” she added.
She stated that it is preferable that the judges sitting on the council for the judiciary are elected by their peers following methods guaranteeing the widest representation of the judiciary at all levels (including both members of judges’ associations and those who are not members of these associations). The current selection process for the HSYK has been continuously criticized as the members are selected from only about 90 judges from the Council of State and about 250 from the Supreme Court of Appeals. The proposed changes open the selection to more than 4,000 first-class judges with the same background and the same expertise as the ones in the higher judiciary.
Free from external influence
A special chapter of CCJE Opinion No. 10 is devoted to the role of the council for the judiciary in service of the accountability and transparency of judiciary. “Transparency is an essential factor in the trust that citizens have in the functioning of the judicial system and is a guarantee against the danger of political influence,” the CCJE states.
Laffranque argued that the appointments of the members of the council for the judiciary should be depoliticized: political authorities such as Parliament or the executive should not be involved at any stage of the selection process.
The new reforms would not allow Parliament or the executive branch to appoint the members of the HSYK. The president appoints only four members from amongst academics and lawyers. The remaining members will come directly from either a top court, such as the Supreme Court of Appeals and the Council of State, from among legal academia or from among first-class judges and prosecutors who will be elected in a national vote open to all judges and prosecutors across the country.
“Non-judge members should not be appointed by the executive and be appointed by non-political authorities. If in any state any non-judge members are elected by the parliament, they should not be members of the parliament and should be elected by a qualified majority necessitating significant opposition support,” Laffranque said.
The proposed changes also envisage the HSYK having its own secretariat, its own building and its own budget to perform its functions freely and independently. Laffranque noted: “It is very important for the council for the judiciary to have appropriate means to operate independently and autonomously as well as power and capacity to negotiate and organize its own budget effectively. The council for the judiciary should have its own premises, a secretariat, computing resources and freedom to organize itself, without being answerable for its activities to any political or other authority. The council for the judiciary must have its own staff according to its needs.”
Laffranque responded to Today’s Zaman’s questions in light of opinions expressed by the CCJE in the past, most specifically with reference to Opinion No. 10 (2007), which addresses in particular the role of the council for the judiciary in the service of society. It is welcome that the opinion of the CCJE has found such interest and feedback in Turkey, she said during the interview, adding, however, that the CCJE has not studied the proposals for constitutional reform made by the Turkish government.
“I assume that the CCJE would be pleased to give its observations if asked to do so by the Turkish judiciary/authorities,” Laffranque noted.