Strasbourg, December 9, 2024 – The European Commission for Democracy through Law, known as the Venice Commission, has issued a critical opinion on the structure and independence of Türkiye’s Council of Judges and Prosecutors (CJP). The report, adopted at the Commission’s 141st Plenary Session in Venice, underscores significant hindrances to safeguarding judicial independence under the current framework.
Key Issues Highlighted
The Commission’s opinion addresses the composition and election process of the CJP, a key body tasked with judicial appointments, promotions, and disciplinary actions. It raises serious concerns about the potential for executive and legislative influence over judicial matters, noting that six of the 13 members of the CJP are appointed directly or indirectly by the President of Türkiye. These include four members appointed by the President and two ex officio members—the Minister of Justice and the Undersecretary to the Ministry of Justice.
The Venice Commission observed that this structure grants the executive undue influence over the judiciary, with the potential to compromise its independence. It criticized the lack of peer-elected representation within the CJP, highlighting that none of its members are chosen directly by judges and prosecutors. Instead, selections are made by political actors such as the President or the National Assembly, creating a perception of judicial politicization.
Inspection System Under Executive Control
The opinion also flagged the inspection system as a significant area of concern. The Minister of Justice, as President of the CJP, holds the authority to authorize inspections and investigations into judges and prosecutors. This process, the Commission warned, creates a direct channel for executive influence over judicial accountability mechanisms.
While the Minister does not participate in disciplinary decisions, their role in approving or denying inspections allows them to shape the trajectory of cases involving judges and prosecutors. The Venice Commission emphasized that this power compromises the independence of the inspection process, which is a critical component of judicial oversight.
Moreover, by deciding whether or not to permit inspections or investigations, the Minister is positioned to preemptively influence potential disciplinary or legal actions. This dual role risks eroding public trust in the judiciary and undermines the perception of impartiality and fairness in judicial proceedings.
Historical Context and Systemic Risks
The Commission’s concerns are framed against a backdrop of systemic risks to judicial independence in Türkiye. Following the 2017 constitutional reforms, the country adopted a presidential system that granted expansive powers to the President, including the ability to appoint senior judicial figures without parliamentary oversight.
The report noted that this concentration of authority over judicial appointments, combined with the dismissal of approximately one-third of judges and prosecutors after the 2016 coup attempt, has created a climate of fear and submission within the judiciary. This environment, the Commission argued, exacerbates the potential for political interference and undermines the judiciary’s role as a check on executive power.
Recommendations for Reform
To address these concerns, the Venice Commission proposed a series of reforms aimed at restoring judicial independence and public confidence:
- Independent Selection Processes: At least half of the CJP members should be judges and prosecutors elected by their peers, ensuring representation across all levels of the judiciary.
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Revamping the Inspection System: The Commission strongly recommended removing the Minister of Justice’s authority to authorize inspections and investigations. The inspection process should be placed under the independent oversight of the CJP, free from executive interference.
- Increasing Lay Participation: Non-judicial members, such as academics and lawyers, should play a larger role in the CJP, selected through transparent and merit-based processes.
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Reducing Executive Oversight: The dual role of the Minister of Justice as head of the CJP and as an appointee of the executive should be reevaluated to ensure separation of powers.
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Enhancing Transparency: The selection and disciplinary processes should be conducted with clear eligibility criteria and open mechanisms to minimize perceptions of political bias.
Implications for the Rule of Law
The Venice Commission concluded that judicial independence is a cornerstone of democratic governance and the rule of law. The current structure of the CJP and its inspection system undermines these principles by enabling executive control over judicial matters.
The report called on Türkiye to promptly address these issues, emphasizing the ongoing oversight by the Council of Europe’s Committee of Ministers in cases such as Kavala v. Türkiye and Selahattin Demirtaş v. Türkiye. These cases highlight the need for urgent legislative and institutional reforms to protect judicial independence and restore public trust.
For the full opinion, visit the Venice Commission’s website: www.venice.coe.int or click here.
Categories: Turkey Human Rights Blog