TEPAV Constitution Experts Seminar Series - 6/ Lessons from Europe for Judicial Independence … Italian Political Scientist Prof. Carlo Guarnieri shares some lessons from Europe on judicial independence at TEPAV.

ANKARA - The sixth meeting of the TEPAV Constitution Experts Seminar Series was held on Friday, May 27, 2011 with the participation of Political Scientist Prof. Carlo Guarnieri of University of Bologna.  Guarnieri assessed the structure of judicial institutions and judicial independence focusing on European examples and answered questions from the audience on the assignment of judges in Turkey, the structure of the Supreme Council of Judges and Public Prosecutors of Turkey (HSYK), and periods of detention.

Delivering a speech at the meeting held at TEPAV, Italian Political Scientist Prof. Carlo Guarnieri drew attention to "socialization" as an indirect method to ensure judicial independence and stressed the importance of social values as well as professional judicial experience for judges. Concerning the structure and the operation of the judicial councils, he grouped the Europe broadly in two categories: the "weak" Northern version, and the "strong" Southern version. He stressed that in the Netherlands, Sweden and England that are in the first group, the councils had advisory opinions on judicial appointments and that functions such as training, appointment or disciplining were carried out by separate institutions. On the other hand, he said, in Finland, Italy, Spain and Portugal among the strong Southern group, there existed a council structure that has rule over the entire judicial system. Professor Guarnieri also addressed several problems of the judiciary including autonomy, the ratio between lay members and judges, corporatist influence and internal independence.

Appointment by the Ministry was 50 years ago

Upon the question whether the Ministry of Justice played role in the appointment of judges in Italy, Guarnieri said that the role of the Prime Ministry in this process was eliminated in early 1960's. He added that though it is compulsory to hear the advisory opinion of the Ministry before the election of the chief prosecutor, there is no obligation to follow it. Stressing that it is also not possible to argue that the Ministry has no role, "It plays a minor role", he added.

We rank above Turkey with respect to detention periods

In response to another question on the extended detention periods in Turkey, Guarnieri stressed that it is needed to see the bigger picture instead of assessing the laws with "blinkers on". Maintaining that concerning detention and custody durations, Italy was the country with the highest number of European Court of Human Rights (ECHR)  decisions against by the and that was followed by Turkey, he stated that though might have a political dimension, this also might have brought by certain institutional problems. Professor Guarnieri said that to overcome this problem, incentives that will encourage lawyers to take faster action might be initiated as in Finland.

Who should constitute the HSYK?

On the debates that initiated in Turkey about who should constitute the HSYK following the constitution referendum held in 2010, Guarnieri stressed that there is no perfect solution to this question and added that judicial councils must not be composed solely of judges and public prosecutors whereas other options might bring the risk of political intervention. He maintained that the councils must involve both courts and politicians whereas external control mechanisms must be well-established and net political checks must be allowed while making sure to avoid under-the-counter influences.