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CCJE-BU(2014)2

Strasbourg, 12 February 2014

BUREAU OF THE CONSULTATIVE COUNCIL
OF EUROPEAN JUDGES
(CCJE-BU)

Comment
on the Draft Law to Amend the
Law on the High Council of Judges and Prosecutors
and Related Laws

Comment
On the Draft Law to Amend the
Law on the High Council of Judges and Prosecutors
and Related Laws

I. REQUEST:

The High Council of Judges and Prosecutors of Turkey (the Council) has informed the Consultative Council of European Judges (CCJE) of certain amendments that are envisaged concerning the Law of the High Council of Judges and Prosecutors. The Council fears that these amendments will endanger the independence of the Council and of the Turkish judiciary generally.

The European Association of Judges (EAJ) and the Magistrates Européens pour la Démocratie et les Libertés (MEDEL) have also requested an examination of these developments, in particular the amendments that are proposed in this draft law.

The CCJE is aware of events in Turkey and various allegations which have been widely reported in many national and international media. It is not the task of the CCJE to comment either on these issues or allegations. However, under its terms of reference the CCJE is entrusted with commenting on and giving advice on specific situations concerning judges and of providing targeted cooperation upon the request of member states of the Council of Europe, or of judicial bodies or relevant associations of judges in member states so as to enable States to comply with Council of Europe standards concerning judges, in particular with regard to the maintenance of their independence from the executive power.

This opinion aims to meet the requests of the two European Judges’ Associations and the High Council of Judges and Prosecutors of Turkey.

The CCJE has been provided with the text of the Law on High Council of Judges and Prosecutors (in the following text HCJP-Law) in the version which is in force at the moment (last amendment 2010) and also with the draft of the proposed amendments. It has also examined the relevant parts of the Constitution (Chapter 3), the Law on Judges and Prosecutors and the Law on the Turkish Justice Academy.

It must be emphasised that the CCJE has considered only the issue of compatibility of the proposed amendments with European standards. The question of their constitutionality under Turkish law is not and cannot be the subject of this report. All legal texts were provided in English translation. It is appreciated that the use of English translations may have resulted in minor misunderstandings.


II. THE DRAFT AMENDMENTS:

The main reforms of the proposed package concern:

It is very clear from the general scheme of the proposal that the influence of the Minister of Justice would be enormously increased.

1. Regarding the High Council of Judges and Prosecutors the following changes are proposed in the draft law:

1.1. the competence of the HCJP should be reduced:

1.2. The internal structure of the HCJP and the powers within the HCJP would be reorganized.

The overall scheme of the proposed restructuring will be to strengthen the powers of the president of the HCJP, who is ex officio the Minister of Justice, and it will correspondingly weaken the powers of the HCJP as a whole and the elected members of the judiciary:

2. The Turkish Justice Academy will be restructured

3. Transitional Provisions – loss of office

The overall task of a council of the judiciary should be to protect the independence of the judges. It will functions as a buffer between the judges on the one hand and the other powers of the state and others on the other hand and it will thereby prevent undue influence.

This concept is perhaps best expressed in Para 8, 12 and 13 of Opinion No 10 of the CCJE

Recommendation 2010/12 takes this up and states in para 26 and 46

This principle had already been expressed in the European Charter for Judges point 1.3.

and by the Report on the Independence of Judicial Systems of the Venice Commission para 32

The statute ensures by means of appropriate training at the expense of the State, the preparation of the chosen candidates for the effective exercise of judicial duties. The authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training programmes and of the organization which implements them, in the light of the requirements of open-mindedness, competence and impartiality which are bound up with the exercise of judicial duties.

The CCJE in Opinion 4 para 13, 14, 16, 19, and 20 takes this up and further elaborates this necessary requirement:

13. The European Charter on the Statute for Judges (paragraph 2.3) states that any authority responsible for supervising the quality of the training programme should be independent of the Executive and the Legislature and that at least half its members should be judges. The Explanatory Memorandum also indicates that the training of judges should not be limited to technical legal training, but should also take into account that the nature of the judicial office often requires the judge to intervene in complex and difficult situations.

14. This highlights the key importance attaching to the independence and composition of the authority responsible for training and its content. This is a corollary of the general principle of judicial independence.

16. The judiciary should play a major role in or itself be responsible for organising and supervising training. Accordingly, and in keeping with the recommendations of the European Charter on the Statute for Judges, the CCJE advocates that these responsibilities should, in each country, be entrusted, not to the Ministry of Justice or any other authority answerable to the Legislature or the Executive, but to the judiciary itself or another independent body (including a Judicial Service Commission). Judges’ associations can also play a valuable role in encouraging and facilitating training, working in conjunction with the judicial or other body which has direct responsibility.

19. In order to shield the establishment from inappropriate outside influence, the CCJE recommends that the managerial staff and trainers of the establishment should be appointed by the judiciary or other independent body responsible for organising and supervising training.

20. It is important that the training is carried out by judges and by experts in each discipline. Trainers should be chosen from among the best in their profession and carefully selected by the body responsible for training, taking into account their knowledge of the subjects being taught and their teaching skills.

When dealing with the Council for the Judiciary in Opinion 10 CCJE, para 65 and 68 once again underline the following:

Finally the Committee of Ministers has itself made the same point and has underlined the various requirements of training as stated in Recommendation 2010/12 para 57:

57. An independent authority should ensure, in full compliance with educational autonomy, that initial and in-service training programmes meet the requirements of openness, competence and impartiality inherent in judicial office.

It is evident that the proposed amendments are entirely contrary to these international standards. Instead of expanding the influence of the independent body HCJP its powers concerning in-service training are to be abolished. Like the proposals regarding the reform of the HCJP the reforms proposed for the Justice Academy would serve to increase the influence of the ministry of justice. The new composition of the board would exclude the election of members in the Supreme Court and of the Council of State, substituting for appointments that will be determined by the presidents of these courts, and would introduce 6 members from among the judges who would be appointed by the minister. The three vice-presidents of the Academy would also directly be appointed by the minister.
By these changes the Justice Academy will be totally under the influence of the ministry of justice. But even worse than this organizational subordination is the strong impact the minister is going to make on the content of training. Lecturers, experts , assistant experts can only be engaged if the minister consents.

The proposed reforms can be fairly summarised as having the effect of turning the Justice Academy into an executive-run school to train members of the judiciary. This is a clear step backwards. It infringes the principles of the balance of powers and the independence of the judiciary. As a consequence the proposals will very likely have a deleterious influence to the quality of the justice system.

3. Transitional Provisions:

The proposal that all the office holders will lose their position when the new law is put in effect, regardless of whether their position will continue to exist (like inspectors, rapporteur judges, members of the plenary etc.) or will be abolished (like Secretary General of the Justice Academy) needs no further comment. It is a radical encroachment of the other powers of state on the central institutions of the judicial power and will manifestly encroach on judicial independence.