Venice Commission starts working with Turkey on judicial reforms

In an exclusive interview, Venice Commission Secretary-General Thomas Markert confirmed to Today's Zaman that officials from the Turkish Ministry of Justice had met with representatives of the Venice Commission three weeks ago in Strasbourg to discuss constitutional reforms recently adopted by Parliament. “We just had a delegation from the Ministry of Justice here in Strasbourg. So now we are very well informed about the package,” he said, stressing that the changes are in conformity with what the Venice Commission would recommend a country to do.

According to a game plan agreed by both Turkish and commission officials, putting in an official request for an opinion on the constitutional changes is too late at this stage, as the reforms will soon be voted on in a public referendum. “The Venice Commission will be involved in the implementation process because the changes will require new laws to be enacted,” Markert said. Jurists estimate that over 100 laws needs to be revised or enacted to harmonize the legal system with the new constitutional amendments.

Experts from the Venice Commission will only deal with the most important laws and will provide opinions on how to proceed in line with the Council of Europe's standards on democracy, the rule of law and fundamental human rights. “I think the most complicated law will be the one concerning the Constitutional Court. With a [proposed] right for individuals petition to the court, this will be a tricky one to formulate,” Markert said, pointing out differences in the definition of rights between the Turkish Constitution and the European Convention on Human Rights. Though Turkey has not officially sought the opinion of the commission on the constitutional changes, the secretary-general has said the changes are in line with Venice Commission criteria.

“We see that the package takes up many positions which the Venice Commission has taken up in general terms with other countries. In general, the package is in conformity with what the Venice Commission would recommend a country to do,” Markert explained. He said, however, that he regretted the removal of a proposition on making the prohibition of political parties more difficult. The article did not get enough votes in Parliament.

Reform will restore confidence in judiciary

Markert believes that with the recent proposed changes introduced to the judiciary, allegations of a partisan and politicized judiciary in Turkey will lose steam. “Some people suspect Turkish courts of having a political agenda, and the whole population has no confidence in the Turkish judiciary,” he said, expressing hope that reforms will boost confidence in the judiciary.

The Venice Commission welcomes changes to the Supreme Board of Judges and Prosecutors (HSYK) as well. Opening the board up to judges at all levels is a major change, he says. “The fact that all judges will be involved in this body is certainly a positive development,” Markert added. Having HSYK decisions subject to judicial review in court is something the commission applauds. “We have told other countries that decisions of high judicial councils should be reviewed in a court of law. Decisions should be open to appeal in court,” Markert said, stressing that courts should certainly review decisions to dismiss or discipline judges.

Commenting on the HSYK dismissing judges from cases, the Venice Commission secretary-general said removing a judge from a case should not happen at all. “The dismissal of judges should only happen in very exceptional circumstances,” he said, noting, however, that should a situation arise to warrant the dismissal of a judge, the reason must be justified, with the HSYK issuing a reasoned decision explaining in detail why it dismissed the judge.

The Venice Commission is pleased with the proposed changes introduced to the Constitutional Court and finds it very positive to give individuals the right to complain to the court about human rights violations. “We also hope this will act as a filtering mechanism in human rights cases so that we have less Turkish cases at the Strasbourg European Court of Human Rights. It is in the interest of Turkey to see less cases ending up in Strasbourg. The issues should be resolved at the national level,” he said.

‘People do not change after a certain age’

Asked how to change the mentality of judges in implementing reforms, Markert argued that changing the mentality of the judiciary is “always something very difficult and slow.” “I think people do not want to change after a certain age,” he said.

Commenting on how the Constitutional Court should proceed on examining the reform package, Markert said the court has a duty to examine the changes from a procedural point of view, as mandated by the Constitution. He does not believe the court will go further and examine the case on substantive grounds. “The court should focus on the task of procedural examination, and I think that will be carried out. But it is difficult to see what substantive grounds out there prevent the reform package from moving forward, however,” he said.

The secretary-general strongly believes the changes adopted in Parliament are in line with the first three articles of the Constitution and general principles laid out therein. “These articles deal with the separation of powers, and there are different ways of dealing with this issue in Europe. These articles should not be used as a pretext to say that you cannot change anything,” he underlined. Markert also pointed out that it is normal for the legislature to adopt new laws and for the judiciary to interpret them.

Markert urges Turkey to change the law on banning political parties. “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 noted that one should be very cautious about banning political parties in modern democracies and that this option should only be resorted to in exceptional cases when it is legally justified and makes sense politically. “It can be justified in some cases, especially when terrorism is involved. It is legitimate to ban a party when it advocates violence. It may not be wise to prohibit it politically, but it may be legitimate on legal grounds,” he said. The Venice Commission previously issued an opinion on the Political Parties Law in Turkey, in which it found numerous problems.

Markert also does not see any problem with submitting all changes as a packaged deal in the referendum, as opposed to an article-by-article vote. “In fact, posing individual questions on each article may confuse voters because some of these articles are linked to each other, and I think that would be too much to ask of people,” he said. He also underlined that these changes can be considered a “substantial revision of the chapters of the Constitution” and as such can be submitted to a single vote according to Venice Commission guidelines. “The other approach maybe is to group linked articles on the same chapter,” he also said.

The Venice Commission says it does not see any problem with a referendum on the whole package as long as there is an “intrinsic connection between the various parts of each question put to the vote.” The commission notes, however, that this requirement may be waived if a total or substantial revision of the chapters of the Constitution is being attempted.

A revised opinion on the Code of Good Practice on Referendums issued by the commission in 2007 argued that the unity of content rule applies except in a total revision of the constitution. “The revision of several chapters of a text at the same time is equivalent to a total revision,” the report stated.

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,” he said, cautioning, however, that there should be a balanced mechanism in Parliament to ensure that all parties’ opinions, and not just that of the majority party, will be heard. “It should be a mechanism where all parties have a say in the process,” he noted.

Asked how the commission views the division of Turkey’s justice system into military and civilian judicial systems, Markert said: “I think the jurisdiction of the military courts should as narrow as possible. Military courts should only deal with military issues such as the discipline of military personnel. They should not deal with crimes of a general nature.” He further noted that the military has a very hierarchical structure and that military courts always appear less independent than civilian courts.

Top court judge should step down

The Venice Commission official also commented on charges of bias recently leveled against one of the Constitutional Court justices. He said the European Court of Human Rights’ guidelines for excusing a judge are pretty clear. “What the court said was, if the justice is not biased but appears to be, then that is reason enough to exclude him or her from the case,” Markert explained.

Jurists and legal professionals in Turkey have called on Constitutional Court member Fulya Kantarcıoğlu to resign. Her voice features on a legally wiretapped telephone conversation with a former justice minister implicated in the Ergenekon investigation, which focuses on a clandestine group charged with plotting to overthrow the government. In the conversation, Kantarcıoğlu discussed the case with former Justice Minister Seyfi Oktay and suggested he call other members of the court to influence the course of the case.

The transcript of the conversation, published by Turkish media outlets, revealed that Oktay called Kantarcıoğlu after a phone conversation with former Republican People’s Party (CHP) leader Deniz Baykal, who told him to “do something” about the reform package. The package was passed in Parliament in May and subsequently challenged by the CHP, which asked the Constitutional Court to annul it despite the fact that a referendum is due to take place on the package on Sept. 12. Oktay’s conversations were being monitored legally as he is a suspect in the Ergenekon case.

Controversial decision on Haberal

Markert also underlined that a Supreme Court of Appeals decision to sanction judges on the ongoing case and to order them to pay compensation to a suspect they are currently trying is something that should not happen frequently. He stressed that he is not familiar with the case, however. The case involves Ergenekon suspect Mehmet Haberal, whose lawyers filed numerous appeals at various high criminal courts to have the “arrestee status” of their client dropped due to his health.

The appeals, however, were rejected by the courts. In response, his lawyers filed a criminal complaint against the judges at the 4th Chamber of the Supreme Court of Appeals. The chamber decided to punish the judges, ruling that they pay the rector compensation for damages. Prime Minister Recep Tayyip Erdoğan strongly criticized the court, saying: “This ruling is against the law and the Constitution. It is highly ideological. It is a scandal aimed at intimidating our judges and prosecutors.” Jurists say the controversial decision of the 4th Chamber cleared the path for thousands of convicts to appeal their jail terms.

Court decision should be respected

Asked how the Venice Commission would react if the Constitutional Court annuls one or more articles, especially the main changes dealing with the HSYK and the court itself, Markert said, “That would be regrettable,” but stressed that the decision of the court should be respected. He said suggestions of Constitutional Court rapporteur Osman Can, who said the government should ignore the court’s ruling if the court oversteps its authority by cancelling the articles, are somewhat dangerous speculation. “We should start with the presumption that the Constitutional Court will act in accordance with the Constitution,” Markert said, stressing that it is dangerous to start this type of speculation. “Let’s not go too far. It is not wise to have such a crisis, one which would hurt Turkey,” he added.

Can, who is also the co-chairman of an organization of liberal jurists called the Democratic Judiciary, stirred up controversy with his remarks. More jurists have lined up in expressing support for his statements, saying the court simply has no mandate to cancel the changes on substantive grounds. The government said it would respect the court’s decision, whatever it may be.

Cihaner’s release is unusual

Markert also finds the 11th Chamber of the Supreme Court of Appeals ruling on the ongoing case involving a prosecutor without waiting for a case file from a lower court as “very unusual.” “I do not know all the Turkish procedural rules, but it seems very unusual indeed,” he said. “Normally, the decision of the lower courts gets appealed in the higher courts,” Markert added.

In what could be seen as the concrete result of a subversive plan to save Erzincan Chief Public Prosecutor İlhan Cihaner from prison, the 11th Chamber of the Supreme Court of Appeals on June 18 ruled to set the prosecutor free. Cihaner is accused of membership in a terrorist organization and abuse of power in separate cases. For most observers, the 11th Chamber of the Supreme Court of Appeals decision on the Cihaner case was “unprecedented” in Turkey, with many saying it is against laws and regulations for a court to release a suspect from prison without examining the case file.

The ruling triggered a heated debate in Turkey as it has no precedent in the Turkish legal system. The chamber initially decided unanimously to merge the two ongoing legal cases against the suspected prosecutor in lower courts without waiting for the original documents regarding the terror case in which Cihaner is accused of membership in Ergenekon. The documents are currently at the Erzurum 2nd High Criminal Court.