Restructuring The Higher Judiciary was discussed in TEPAV In the meeting, Asst. Prof. Dr. Artuk Ardıçoğlu, who is a member of Ankara University Law Faculty, was the speaker and Dr. Ardıçoğlu evaluated the bill, aiming the reorganization of the Court of Cassation and Council of State.
Ankara - “ Restructuring the Higher Judiciary: Current Debates” meeting organized by Tepav Legal Studies Center was held at Tepav on Wednesday, June 29th. Lawyers, academicians, some members of higher judiciary and the representatives of public institutions and embassies attended the meeting.
In the meeting, Asst. Prof. Dr. Artuk Ardıçoğlu, who is a member of Ankara University Law Faculty, was the speaker and Dr. Ardıçoğlu evaluated the bill, aiming the reorganization of the Court of Cassation and Council of State. Requested changes in higher judiciary were discussed from different perspectives and the possible implications of the regulations were analyzed.
Ardıçoğlu started his speech by mentioning that there has been a tendency to reorganize the Turkish judicial system with various interventions for several years but the reorganization process has started to change after 2000’s. He mentioned that Turkish judicial system has significantly altered in the recent periods particularly on the basis of the Constitutional Reform in 2010 concerning the structure and powers of the High Council of Judges and Public Prosecutors and the Constitutional Court.
Ardıçoğlu expressed that a new model named “appeal” has been envisioned starting from 2004 to solve the problems in the judicial system. This model can be considered as “a right to appeal in stages”. The model provides that a dispute is handled by more than one judicial body. He also discussed that how this model could reduce the workload in higher and evaluated that appeal would not decrease the workload by itself, in contrast to what is written in law’s preamble.
According to Ardıçoğlu, with this new model which is peculiar to Turkey, regional courts of justice and regional administrative courts will be the final decision maker for most disputes. He mentioned that the model is not based on the classical three-step procedure. He mentioned that this system can only be called as an “appeal”, if it is applied only for such cases pre-determined by law. He said “this model will narrow down the scope of high court’s duties.”
During the meeting, especially two important regulations in the bill were discussed: the limitation of the terms of office of the Court of Cassation’s and the Council of State’s members to twelve years for and the termination of the membership of existing members.
Ardıçoğlu mentioned that limiting the tenure of the high court judges is debatable in terms of legitimacy but more importantly this regulation entails a legal defect. He stated that such an amendment cannot be implemented through a statute and can only be subject to a constitutional amendment. Ardıçoğlu, who states that the allegation in the preamble of the bill, which claims that in existing regulations there is no uncertainty regarding the tenure of the high court judges, does not reflect the truth, based his statement on the Article 157 of the Turkish Constitution.
Pointing out that a regulation, which is aimed at dismissing the current members of the high courts, also cannot be realized through a constitutional amendment; Ardıçoğlu further suggested that several landmark decisions of the Constitutional Court of the Republic of Turkey and principles of international law could be an example as such. Furthermore Ardıçoğlu argued that not only exterminating public servants duty through legislation would be disharmonious with the principle of the separation of powers but also it would prevent the right to seek for legal remedies. These types of applications would only be legitimate in the Constitutional Court if there is a legal or practical necessity. Consequently, he stated that judges cannot be removed by legislation.
According to Ardıçoğlu, these regulations can be brought before the international judicial bodies as has been done in the case of Baka v. Hungary of European Court of Human Rights, relating with the right to a fair trial, freedom of speech, right to access to court effectively, and right to defend yourself.
Ardıçoğlu mentioned some other problems regarding with the current bill:
- The criterion of the appointment or reappoinment in higher judiciary is uncertain. Criteria should be written in a statute clearly. If “success” criterion is going to be preffered, are those members whose memberships have been terminated will be considered as “unsuccessful”?
- The bill which provided for the members, who are not reappointed to the Council of State by the President of the Republic, are going to be appointed to administrative courts in accordance with their legal status at the time of termination. This regulation is apparently incompatible with the Article 140 of the Turkish Constitution.
Prof. Dr. Levent Gönenç, Director of TEPAV Legal Studies Center, asked “Why the government and law-makers are trying to solve this issue by statutory regulations now?” He continued that: “The tenure of the Constitutional Court members has been limited to twelve years by a constitutional amendment during the 2010 constitional revision campaign, what has been changed since then?”. Gönenç said that if such an amendment is subject to statute rather than constitution, it would jeopardize the principle of the rule of law and the independence of the jurisdiction. Gönenç drew attention to similar cases which could be found in Central and Eastern European countries. He also mentioned the relevant documents of the European Parliament and the Venice Commission.
The meeting ended with the questions and comments concerning the bill.
