Restructuring of HCJP by Ministry of Justice

8/9/2019 Restructuring of HCJP by Ministry of Justice

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CONTENTS

INTRODUCTION 3

1. Formation of HCJP and Criticisms on this Formation 4

2. Relevant Regulations in International Documents 5

3. Formations of Similar Councils in the European Countries 6

France 7

Italy 8

Spain 8

Poland 9

Portugal 9

The Netherlands 10

Sweden 10

4. Principles and the Model Proposed in Judicial Reform Strategy in Relation toRestructuring of HCJP 11

a. Objectivity, Impartiality, Transparency 11

b. Broad-based Representativeness 11

c. Introduction of an Effective Objection Procedure and of Judicial Review Procedureagainst the Decisions 11

5. Status of Minister of Justice and Undersecretary 14

6. Selection of Members to HCJP by the President 15

7. Whether an Election Atmosphere will emerge within the Judiciary 15

8. Formation of the Council according to the 1961 Constitution 16

9. Overall Evaluation 17

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RESTRUCTURING OF HIGH COUNCIL OF JUDGES AND PROSECUTORS

INTRODUCTION:

In recent years, quite crucial improvements have been experienced in terms of bothlegislation and implementation, and the facilities judiciary hold have been broadened in such a way ascannot be compared to previous years. Ministry of Justice continues its studies in order to broaden thecurrent facilities more and to find solutions to certain ongoing problems.

With the aim of maintaining the conduct of these studies in accordance with a certain planand in the course of the requirements to continue the negotiations on the Chapter 24th Judiciary andFundamental Rights which is one of the topics of negotiations on full membership, following January2008, a Judicial Reform Strategy started to be prepared and was announced to public after having been

completed in September 2009.

Judicial Reform Strategy, a document addressing all the problems of judiciary with anintegrated approach and providing proposals, is independent from discussions on judicial reform thatoccupies the public intensively in recent times and the preparations of the Strategy was initiated longbefore.

In response to the mentioned integrated approach of Judicial Reform Strategy; as theproblems of judiciary is in question in various platforms, compared to the other problems, usually theindependency and impartiality of judiciary comes to the fore, and these subjects are handled inaccordance with the discussions more related to formation of HCJP.

Strengthening Judicial Independency and Improving the Impartiality of Judiciaryconstitutes two of ten main aims within Judicial Reform Strategy. In the course of the goals determinedto reach these aims, on the basis of objectivity, impartiality and transparency; in the light ofinternational documents; restructuring of HCJP according to the principle of broad-basedrepresentativeness; introduction of an effective objection procedure and of judicial review procedureagainst its decisions is foreseen. Proposal of Constitutional amendments prepared and announced by agroup of members of parliament also includes regulations appropriate to the principles mentioned.

In order to highlight the discussions related to restructuring of HCJP, a need for a detailedexplanation of attitude of Judicial Reform Strategy and Action Plan on the subject has emerged.

This booklet prepared to meet the mentioned need includes summary info on:

Formation of HCJP, Criticisms on this formation, Regulations on this subject in international documents, Formations of similar councils in European countries and Certain matters standing out in discussions related to the subject.

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1 Formation of HCJP and Critics on this Formation

HCJP is regulated under Article 159 of the Constitution. According to this article, theChairman of the Council is the Minister of Justice. Undersecretary of Ministry of Justice is ex-officio

member. 3 regular and 3 substitute members of the Council shall be appointed by the President of theRepublic for a term of four years from a list of 3 candidates nominated by Plenary Assembly of CourtCassation to each vacant post among its members. 2 regular and 2 substitute members shall be similarlyappointed from a list of 3 candidates nominated for each vacant post by the Plenary Assembly ofCouncil of State. A Deputy Chairman of HCJP is elected among its regular members. Though theChairman of the Council is the Minister; since the Minister rarely attends the assembly, the assembly isgenerally held under the chairmanship of Deputy Chairman and with the attendance of regularmembers, Undersecretary and senior substitute member.

The HCJP is competent with the admission of judges and public prosecutors within thecivil, criminal and administrative judiciary into the profession, appointment, transfer to other posts,

temporarily authorization in a different courthouse, promotion and designation to first class, allocationof posts, deciding against those whose continuation in the profession is found unsuitable, imposition ofdisciplinary sanctions, and dismissal from the post. Additionally, it performs other duties bestowed inConstitution and laws.

Decisions of the Council cannot be appealed at any court. Yet, the persons concerned haveright of review in order for a review within the same Assembly of 7 members; and unless they get aresult, they have right of objection in order to be reviewed in the Assembly of Objection Review of12 members with the attendance of substitute members.

Since the number of the members taking part in the objection procedure is less than thenumber of decision makers, this method is not regarded as an effective objection procedure.

In accordance with Article 16 of the Law on High Council of Judges and Prosecutors, LawNo: 2461, proceedings and relevant deliberations in the High Council are confidential.

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CURRENT FORMATION OF HIGH COUNCIL OF JUDGES AND PROSECUTORS

1982 Constitution

(High Council of Judges and Prosecutors)(7 Regular , 5 Substitute Members)

Minister of Justice

President

3 regular, 3 substitute

members elected

by the plenary of the

Court of Cassation

2 regular, 2

substitute members

elected

by the plenary of

the

Council of State

Undersecretary of the

Ministry of Justice

(Ex-officio)

Upon current formation of HCJP mentioned above:There are many criticisms raised in; various levels of internal public, Accession Partnership Document, essential document related to negotiations on full

membership between Turkey and the European Union, Progress Reports prepared by the EU Commission every year Consultative Visit Reports on Operation of Turkish Judiciary System having been

prepared for four times till now and these criticisms can be summarized as follow; All the members except Minister and Undersecretary are selected among Court of

Cassation and Council of State; therefore, the Council does not represent the whole judiciary, There is not an effective objection procedure against its decisions, The Council does not have a separate building and secretariat, The Council does not have an independent budget, Justice Inspectors conducting the inspection of the judges are not liable to the Council The Council does not have the authority to permit investigation on Judges and

Prosecutors There are exercises evoking the impression that the Council may make decisions under

the effect of other state institutions from time to time Presence of Minister of Justice and Undersecretary is not compatible with the

independency of judiciary.

2. Relevant Regulations in International DocumentsThere are certain regulations mentioned in various international documents related to

judicial councils similar to HCJP. However, direct and concrete regulations on the formation of thiskind of councils are mentioned in

Remark no. 10/2007 related to the subject by Consultative Council of the EuropeanJudges

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Judicial Appointments Report 2007 prepared by the European Commission forDemocracy Through Law known as Venice Commission (VC); both of which arefundamentally configured within the body of the European Council.

Though these regulations will be dealt below substantially, the notable matter is that inmentioned documents not any single ideal model is proposed, but certain principles for theformation of judicial councils is determined.

These principles can be summarized as follows; The Council for the Judiciary is to protect both the independence of the judicial system

and the independence of individual judges. (CCEJ, 10/2007, Paragraph 8) The Council for the Judiciary, as guarantor of the independence of justice, shall also

regulate the courts, and judges in particular, enabling judicial functions to be exercisedoutside any control of the executive and the legislature, and without being affected by anyorder or opinion expressed by superior courts. (CCEJ, 10/2007, Paragraph 12)

The composition of the Council for the Judiciary shall be such as to guarantee itsindependence and to enable it to carry out its functions effectively. (CCEJ, 10/2007,Paragraph 15)

Prospective members of the Council for the Judiciary, whether judges or non judges,should not be active politicians, members of parliament, the executive or the administration.

(CCEJ, 10/2007, Paragraph 23) The Council for the Judiciary can be either composed solely of judges or have a mixed

composition of judges and non judges. In both cases, the perception of self-interest, selfprotection and cronyism must be avoided. (CCEJ, 10/2007, Paragraph 16)

If the Council for the Judiciary is composed solely of judges, members shall be electedby their colleagues in a method guaranteeing the widest representation of the judiciary. Alimited quota can be spared for the ex-officio members. (CCEJ, 10/2007, Paragraphs 17, 25,26, 27)

If there is a mixed composition, substantial proportion of the members shall be judgesthat are elected by their colleagues. (CCEJ, 10/2007, Paragraph 16)

Elections of the members that have judiciary origin shall not be allowed to beconducted by other organs such as execution and legislation. (CCEJ, 10/2007, Paragraph 31)

The non-judge members shall be selected among other outstanding persons in their professions. University professors, jurists and citizens of acknowledged status may bemember. (CCEJ, 10/2007, Paragraph 22)

Executive organ shall not have any role in the election of non-judge members, if theelection is conducted by the Parliament, it should be done through qualified majority. (CCEJ,Prg. 22)

A balance needs to be struck between judicial independence and self-administration onthe one side and the necessary accountability of the judiciary on the other side in order toavoid negative effects of corporatism within the judiciary. In this context, it is necessary toensure that disciplinary procedures against judges are carried out effectively and are notmarred by undue peer restraint. One way to achieve this goal is to establish a judicial council

with a balanced composition of its members. (VC, JAR, Paragraphs 27, 51) Although the presence of the members of the executive power in the judicial councils

might raise confidence-related concerns, such practice is quite common. For example, inFrance the President of the Republic is the President of the Council, the Minister of Justice isits ex officio Vice-President. In Turkey, the Minister of Justice and the undersecretary aremembers of the High Council of Judges and Public Prosecutor. Such presence does notimpair, in itself, the independence of the council, according to the opinion of the Venice

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Commission. However, the Minister of Justice should not participate in all the councilsdecisions, notably in the ones relating to disciplinary measures. (VC, JAR, Paragraph 33)

3. Formations of Similar Councils in the European Union

Judicial councils of the European countries do not have a monotype formation. Moreover insome countries such as Germany, United Kingdom and Austria, there are not such councils.

When the implementations in the European countries that embody councils similar to HCJPlike France, Italy, Belgium, Spain, Portugal, Ireland, Poland, Hungary, Bulgaria, Estonia, Latvia,Slovakia and Romania are analyzed;

these councils being formed in a mixed combination,

these councils being comprised of several members,

first instance courts and courts of appeal judges being predominantly represented inthese councils,

Parliaments electing members to these councils,

In some of these councils, President of the State and Minister of Justice being chairman

or deputy chairman of these councils are noted.The formations of the councils of the mentioned countries are shown below;

France

Within the formation of the French Council running only the proceedings of criminal andcivil judges and prosecutors Court of Cassation does not have a representative in the council, arepresentative from Council of State is present. Term of office for the members of the Council is 4years and they may be reelected.

Elected by President of Republic, President of Senate and President of National Assembly 3members shall be citizens of acknowledged status not belonging to legislative, executive and judiciarybodies.

France (18 Members)

President of the

Republic

President

Minister of Justice

Vice President

6 judges and

6 prosecutors

elected by their

colleagues

1 member of theCouncil of State

elected by the

Plenary

3 distinguished

citizens electedby the President

of the Republic, the

president of theSenate and the

Speaker of the Parliament

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Italy

Together with President of Court of Cassation and Chief Prosecutor of Court of Cassationthere are two high judges in the council so the proportion of the high judges is 4 out of 27

The term of office for the selected members is 4 years and each member is selected for

once.

Italy (27 Members)

President of the

Republic

President(Symbolic)

Chief Justice

and the Attorney General

of the Court of Cassation

(Ex-officio)

16 judges and prosecutorselected by their colleagues(2 from the Courtof Cassation and14 from the firstinstance courts)

8 members electedby the 3/5 of the

majority of the Parliamentamongst the lawyers

and jurists

SpainAll the appointments are made by the King upon the recommendation of the Parliament.

Term of office for members is 5 years and each member is selected for once.

Spain (21 Members)

Chief Justice of the

Court of Cassation

12 judges assignedby the King amongst

the candidates nominated

by the Congress and

the Senate

8 lawyers and juristsassigned by the King

amongst the candidates

nominated by the Congress

and the Senate

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Poland

In Poland, the Parliament appoints 4 persons among its own members, the Senate appointstwo senators among its own members.

Poland (25 Members)

The President

is elected by

the Plenary

Minister of JusticeChief Justice of the Court

of CassationChief Justice of the

Supreme AdministrativeCourt

(Ex-officio)

15 judges-

prosecutors

elected by theircolleagues

4 members of the

parliamentelected by its plenary,

4 members of the Senateelected by its plenary,

1 member assigned by thePresident of the

Republic

Portugal

The majority of the Council consists of non-judicial members. The term of office of themembers is 3 years.

Portugal (17 Members)

Chief Justice

of the Court of

Cassation

President

Member of the

Court of Cassation

Deputy Chief Justice

6 judges elected by

their colleagues

(2 from the Courts of Appeal,

4 from the first

instance courts)

2 members assigned

by the President of

the Republic and 7

members by the Parliament

(9 lay members)

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Though in some of North the European countries such as the Netherlands, Denmark,Finland a judicial council is not present, even the judicial members of the council that embodies amixed combination are appointed by the government; and as they mainly deal with the administrativeand financial management of the courts, they present an example for HCJP.

The Netherlands

All the members are appointed by the King upon the recommendation of Minister ofJustice.

The Netherlands (5 Members)

President

Amongst the

Council Members

3 judge members

assigned by the King

upon the proposal

of the Minister of Justice

2 members from bureaucracy(among the graduates

of economy,business management etc.)assigned by the King upon

the proposal of theMinister of Justice

Sweden

The members of the council, including the judges are appointed by the government.

Majority of the members are of non-judiciary origin.

Sweden (11 Members)

Director General

assigned by the

Government

President

4 judge

members

assigned by the

government

2 members of

parliament

assigned by the

government

1 lawyer

assigned by

the

government

2 syndicate

members

assigned by the

government

(professional

unions)

1 governorship

official

assignedby the

government

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4. Principles and the Model Proposed in Judicial Reform Strategy in Relation toRestructuring of HCJP

a. Objectivity, Impartiality, Transparency

To uphold these principles, following precautions are foreseen; Introducing the accessibility of all the decisions, while protecting the personal data Introducing an application procedure against the decisions of the Council Introducing judicial review procedure against some of the decisions.

b. Broad-Based Representativeness

As mentioned above, it is stated in international documents that the council may be formedeither solely of judges or in a mixed combination. However, it is recommended that judiciary councilsshall be formed in such a way as to ensure a balanced distribution of memberships in order to avoidnegative effects of corporatism perception within the judiciary.

The councils in European countries are formed in accordance with principle of Broad-

Based Representativeness, nearly in all of them members of judiciary holding posts in first instancecourts and Court of Appeal are represented predominantly; and in addition to these members, thesecouncils have representatives from high judiciary, lawyers and citizens of acknowledged status.Furthermore, members selected by the Parliament hold place in many of these councils.

In Judicial Reform Strategy , to realize the principle of broad-based representativeness, thenumber of members of the Council should be increased and additionally, following are foreseen;

members selected from among rapporteur judges of the Constitutional Court, fromamong their own members directly by plenary assemblies of Court of Cassation andCouncil of State ,

members selected from among the first class judges and prosecutors by all the judgesand prosecutors that hold posts in first instance courts,

members selected from among the lecturers in universities on branches of law, politicsand economics and high rank executives by President of Republic,

hold place in the Council.

c. Introduction an Effective Objection Procedure and of Judicial Review Procedure against theDecisions

The fact that decisions of HCJP cannot be appealed and there is not an effective objectionprocedure is one of the criticisms raised against the Council. The ineffectiveness of the currentobjection system and the fact that this current system violates the European Convention of HumanRights is confirmed by Kayasu decision of the European Court of Human Rights.

In order to introduce an effective objection procedure, Judicial Reform Strategy envisagesthat the Council shall operate in chambers; and in case of any objections filed against decisions achamber, the examination on the objection shall be conducted in the plenary assembly which themembers of that relevant chamber does not attend, and judicial review on some decision would becomepossible.

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Restructuring the Council in chambers and division of tasks among these chambers,especially in the context of investigation permission for and disciplinary investigations, remove thedrawbacks on centralizing all authorization of proposal and decision. That is to say, one of thechambers proposes investigation permission about judges and prosecutors; whether a disciplinarysentence will be rendered or not at the end of that investigation is up to the decision of anotherchamber; in case of an objection, in the absence of the chamber that has taken the decision the PlenaryAssembly will step in.

PRINCIPLES RELATED TO THE RESTRUCTURING OF HCJP

The Principles Designated in theJudicial Reform Strategy

Broad Based

RepresentationPrinciple

Effective Appeal

Procedure Againstits Decisions

Objectiveness,

Transparency,Impartiality

Formation of several

chambers and plenary

Introduction of judicial

remedy against

disciplinary

sanctions

Constitutional Court

Court of Cassation

Council of State

Representation of

first instance and appeal

courts judges and

prosecutors

Selection amongst

lay members

Access to decisions by

protecting personal

data

Selection amongst lay

members

Presiding of the

Minister of Justice

solely to the plenary

DISTRIBUTION OF MEMBERSHIP PROPOSED MODEL OF HCJP

Consolidated Formation of the HCJP (22 Members)

Minister of Justice

President

5 members elected

by the high courts

(3 from the

Court of Cassation

and

2 from the Council

of State)

10 members

elected

amongst

first class

judges and

public prosecutors

1 member elected

by the

Turkey Justice

Academy

4 members

assigned by the

President of

the Republic

Undersecretary

of the Minister of

Justice

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DISTRIBUTION OF THE MEMBERS ACCORDING TO THE RECOURCES ANDSELECTORS IN THE PROPOSED MODEL

President of the HCJP

Ex-officio member

President of the Republic(4 regular)

Turkey Justice Academy (1 regular, 1 substitute)

Court of Cassation(3 regular, 3 substitute)

Council of State(2 regular, 2 substitute)

First class general courts(7 regular, 4 substitute)

First class administrative courts (3 regular,

2 substitute)

Minister of Justice

Undersecretary of the Ministry of Justice

Amongst high ranking bureaucrats,

jurists,academicians and lawyers

Amongst the members of the Plenary

Session of the Justice Academy

Amongst the members of the Court of

Cassation by its Plenary Session

Amongst the members of the Council of

State by its Plenary Session

By the judges and prosecutors of all general

courts amongst first class judges and

prosecutors of those courts

By the judges and prosecutors of all

administrative courts amongst first class

judges and prosecutors of those courts

FORMATION OF HCJP IN CHAMBERS AND THEIR DUTIES IN THE PROPOSED MODEL

President

Plenary

First Chamber7

Second Chamber

7

Third Chamber7

Appointment

Transfer Authorization

Other tasks

Inspection

Granting permission

for investigation

Promotion

Discipline

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5. Status of Minister of Justice and Undersecretary

Minister of Justice is responsible for the implementation of the judicial policy in thecountry in general and bears the political responsibility of these issues. Whereas, HCJP holds a positionthat directly affects the judiciary policy of the country in the general as its duties and authority requires.As the accountability of Minister of Justice to the public and the parliament requires, Judicial ReformStrategy envisages that Minister of Justice hold a seat in HCJP.

In addition, since the responsibility of auxiliary services to judiciary is on Ministry ofJustice, HCJP operating in close contact with Ministry of Justice presents great importance. In currentformation, due to HCJP secretariat proceedings being run by Ministry of Justice, this close contact ismaintained sua sponte. As the proposed formation of HCJP envisages a distinct secretariat for theCouncil, the need for the close cooperation between HCJP and Ministry of Justice will become moreapparent and stand for greater importance. With the view of maintaining this cooperation in a healthyway, Ministry of Justice holding place in the Council is regarded as appropriate.

Though it is alleged with insistence by certain part of the public opinion that Minister ofJustice and Undersecretary shall not be in the Council and demands of the European Union regardingthis issue are in this way, there is not any recommendation that Minister of Justice and Undersecretary

be out of the Council in the progress reports on Turkey prepared by the EU Commission. Only in thereports of 2003 2006, the presence of Minister and undersecretary is mentioned as a fact. In thereports prepared in and after 2007, this issue was not raised and together with mentioned criticisms thatthe Council fails to represent the whole judiciary with its current formation became prominent.

The direct critic pointed by the EU upon the presence of Minister of Justice andUndersecretary is mentioned in only Advisory Visit Reports on Operation of Turkish Judiciary Systemprepared in years 2003, 2004 and 2005.

Nevertheless, in the report prepared in 2008 at the end of the consultative visit, it isrecommended that Minister of Justice not attend the Council and the chairmanship be left toUndersecretary of Ministry of Justice.

At this point, the nature of the mentioned reports must be touched upon. Advisory reports,prepared by independent experts on behalf of the EU Commission, are, as their names suggest, ofconsultive quality. Even the EU Commission does not regard the points in these reports as binding foritself.

Accession Partnership Document and Progress Reports are documents devised by theinstitutions of the EU themselves and reflect the official attitude of the EU.

In this context, in order to assess the attitude of the EU towards the status of Minister ofJustice and Undersecretary in HCJP, Accession Partnership Document and progress reports especially2009 Progress Report are quite essential. That is to say, Judicial Reform Strategy that envisages thecontinuation of presence of Minister of Justice and Undersecretary was submitted to the European

Commission in September 2009, and after this document has been examined, in the Progress Reportpublished on 14th September 2009, the content of Judicial Reform Strategy is evaluated as illustratingthe appropriate path to be followed for the reforms.

In Judicial Appointments Report (2007) of Venice Commission mentioned above, currentformation in our country was exemplified in relation to the subject of executive representativespresence in judicial councils and to the expression that Minister of Justice and Undersecretary aremembers of HCJP. Such presence does not impair, in itself, the independence of the council, according

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to the opinion of the Venice Commission. is noted.In the new formation; as Increasing the number of members as compared to the existing number The Council shall be formed in chambers and Minister of Justice does not participate in

operations of chambers,but only carries chairmanship of the Plenary Assembly, Transferring some authorities used by the Ministry to the Council, Establishing a strong General Secretariat for the Council, Separate building and budget for the Council, Leaving permission of investigation and inspection of judges and prosecutors to the

Councilare taken into consideration, presence of Minister of Justice and Undersecretary in the council will notgo beyond a more symbolic status.

6. Presidents selecting member to HCJP

HCJP composed of only judges has been a matter for criticism, forming the councilscombination in a mixed nature with the attendance of non-judicial members is recommended with theaims such as ;

strengthening democratic legitimation easing the perception of cronyism of judiciary to outside strengthening the transparency and accountability by public.

By taking these recommendations and criticism into account, selecting members from among lecturers,high ranking officials and lawyers in symbolic numbers is envisaged. The number of members that willbe selected to 21-membered Council from among afore mentioned resources is 4 and 15 members will be selected by judicial members from among themselves. Even though ex-officio memberUndersecretary who is a first class judge is not considered, majority of the Council will be composed ofjudicial members as envisaged in international documents.

In current composition of the Council except Minister of Justice and Undersecretary,members nominated by Court of Cassation and Council of State are selected by President of Republic.Since selection of judicial members of the Council by judicial members is recommended, the authorityof President of Republic is abolished, instead of this, selection of a few number of non-judicialmembers is left to President of Republic.

Casting the parliaments for the selection of non-judicial members especially in the contextof democratic legitimation is recommended by Venice Commission and implementations in thiscontext are present in European countries. In the matter of our country, as the fact that President ofRepublic is selected by the public is taken into consideration, non-judicial members selected byPresident of Republic is evaluated as a contribution to democratic legitimation.

7. Whether an Election Atmosphere will emerge within the Judiciary

There are justifiable criticisms on the possibility that an election atmosphere may emergeand this situation may give rise to undesirable groupings especially in the process of determining themembers that are prescribed to be selected among first class judges and prosecutors.

The mentioned elections are foreseen to be conducted under the surveillance of HCJP, andbringing a ban on propaganda similar to Law no. 38 of Court of Cassation is considered. In this

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context, the nominees will present themselves by publishing their resumes in a standard form onwebsite of HCJP or a special website designed for the election; except this, with the aim of propagandano open or secret hall meetings can be held, no promises can be given, no brochure or promotion canbe distributed.

Concerns on a permanent election atmosphere within the judiciary is baseless. This isbecause, the term of office for members of the Council is enshrined as 4 years, all 10 regular and foursubstitute members that will be elected from among first class judges and prosecutors are determined

by elections that will be held each four years, in case of a discharge of a member in between twoelections the substitute will step in.

In the functioning of the new Council, the obligation to gather the full member number willbe abolished, quorum for meeting and decision will be maintained; the duty of the substitute memberwill be filling the seats of the members who are not able to attend the meetings and servingpermanently as a regular member in case of a permanent discharge of any regular member, but notattending the Assembly of Investigating Objections.

8. Composition of the Council according to the 1961 ConstitutionFrom time to time the composition of the Council according to the 1961 Constitution

comes up during the discussions on restructuring of HCJP. In order to be able to make a comparison

and provide information about the formation of the Council at that time and the alterations that theCouncil underwent, the formation prescribed by the 1961 Constitution and the alteration brought in1971 are illustrated in the table below;

FORMATION OF HIGH COUNCIL OF JUDGES ACCORDING TO THE 1961CONSTITUTION (18 Regular, 5 Substitute Members )

1961 Constitution (High Council of Judges)(18 Regular, 5 Substitute Members)

President is elected

by the Plenary

6 regular and 2

substitute members

amongst the plenary

of the Court

of Cassation

6 regular and 1

substitute

members amongst

first class judges

3 regular and 1

substitute members

selected by TGNA

amongst the high

court members or

those bearing the

prerequisites of

candidacy

3 regular and 1

substitute members

selected by the Senate of

the Republic amongst

the high court

members or

those bearing the

prerequisites of

candidacy

Considering the fact that in the context of Judicial Reform Strategy and Action Plan, theproposed Council composition model resembles the one in the 1961 Constitution, criticisms that thismodel was tried and proved to be dysfunctional are raised. The main problem at that time is known to

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stem from the introduction of the obligation that members from various resources must start their officeat the same time all together; and from the fact that two-level Assembly and Court of Cassation failedto carry an election and determine members, despite timely selection of first instance courtrepresentatives.

As the democratic maturity level our country has reached from those times to nowadays istaken into account, such a trouble is not expected. In case of such circumstances with a remotepossibility, regarding;

increasing the number of members, diversifying the member resources, prescribing an operation method in chambers, abolishing the obligation of full number of members,

a probable delay in determining some part of members is not considered to be a drawback.

With the amendment made in 1971, justifying above mentioned problem, High Council ofJudges was reformed in the way that all members would be comprised of Court of Cassation membersas shown in the table below.

FORMATION OF HIGH COUNCIL OF JUDGES AFTER THE AMENDMENT OF 1971

(11 Regular, 3 Substitute Members)

1971 Amendment (High Council of Judges)(11 Regular, 3 Substitute Members)

PresidentElected amongst the members

of the Plenary.

(Minister of Justice presides

the Council and

votes if he requests so)

All members

Elected by the plenary

of the Court of Cassation.

The amendment of 1971 had remained in effect until 1982 Constitution, in 1980s the

Council became to be called with the name of the Chairman and to ease the drawbacks resulted fromthis Council comprised of only judges, the current formation of the Council was regulated with theattendance of Minister of Justice and Undersecretary.

9. Overall EvaluationSummary information about

Current formation of HCJP and criticisms upon this formation, Recommendations noted in international documents related to judiciary councils similar to

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HCJP, Formations of judiciary councils similar to HCJP in European Countries and New formation of HCJP within the context of Judicial Reform Strategy and Action Plan,

is presented above and explanations are made on some topics in order to enable the prescribedformation to be better understood.

These explanations show that the proposal on restructuring of HCJP;

meets almost all of the criticisms made on current composition of the Council, (Contrary tocriticisms, while presence of Minister of Justice and Undersecretary is recommended,reasons of this are clarified in detail.)

is compatible with the principles put in international documents to a great extent, (to agreat extent is noted, because even these documents do not force a single ideal model butjust determines general principles including many exceptions depending on the situations.)

is compatible with the formations of judicial councils in European Countries in terms ofprinciples such as approximate numbers of members, member resources, selection ofmembers etc.

contrary to baseless assertion by some circles, does not embody any single statement thatchanges the status of judicial members or harms tenure of judges,

envisages the succession of term of office of current HCJP members. The number of members foreseen to be selected by President of Republic is symbolic,

majority of the Council will be composed of judicial members.

This booklet in which considerations related to new composition of High Council ofJudges and Prosecutors are shared is submitted to public with the hope of overcoming the deficienciesand diminishing baseless discussions.

TABLE OF NEW MEMBERS OF HIGH COUNCIL OF JUDGES AND PROSECUTORS

1. Number of MembersCurrent formation is composed of 7 regular, 5 substitute members, whereas in new

amendment, the formation forsees 21 regular and 10 substitute members.

2. Member Resources Current Formation

1982 Constitution (7 Regular, 5 Substitute Members)

Number Selector

Minister of Justice 1 Chairman

Undersecretary of Minister of

Justice 1 Ex officio Member

Court of Cassation3 Regular3 Substitute

President of Republic

Council of State2 Regular2 Substitute


Total 7 Regular 5 Substitute Members

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Proposed Formation

Number Resource Selector

Minister of Justice 1

Lecturers, High RankOfficials and Lawyers

4 Regular Among Lecturers, HighRank Officials andLawyers


Undersecretary ofMinister of Justice

1 Ex officio Member

Constitutional Court1 Regular1 Substitute

Among Reporters Constitutional Court

Court of Cassation3 Regular2 Substitute

Among members ofCourt of Cassation

Plenary Assembly ofCourt of Cassation

Council of State1 Regular

1 Substitute

Among members of

Council of State

Plenary Assembly of

Council of State

First Instance Judiciary7 Regular4 Substitute

Among first classjudges and prosecutors

Criminal and civiljudges and prosecutors

First InstanceAdministrativeJudiciary

3 Regular2 Substitute

Among first classadministrative judgesand prosecutors

Administrative judgesand prosecutors

Total 21 Regular 10 Substitute Members

3. Term of Office

As in current composition, members of the council are selected for 4 years and re-electionis possible.

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RENEWALS IN HCJP BROUGHT WITH CONSTITUTIONAL AMENDMENTS

Current Formation of HCJP Proposed Formation

Status of Minister Chairman of HCJP May attend all assemblies Have right to vote in all

subjects

Chairman of Plenary Assembly Shall not attend Chamber

Assemblies

May vote only in PlenaryAssembly

Status of Undersecretary

Ex officio Member Assemblies shall not be held if

does not attend

Ex officio Member May hold a position only in one

of the chambers There is not an obligation on his

attendance, Assemblies may beheld even in his absence

Inspection Board Accountable to Minister ofJustice

Appointed by Minister Functions and investigates upon

the order of Minister

Divided into two;1. Justice Inspectors Accountable to Minister Appointed by Minister1. Inspects Justice Chambers (such

as Enforcement, Notary,Detention Houses) and RepublicProsecutors in terms of administration.

Shall not inspect Judges andProsecutors in terms of judicialfunctions.

Authorized by Minister.

2. Inspectors of the Board Operates as liable to the Council. Appointed by the Council. Together with regular inspection

and supervision, conductsinvestigations of Judges andProsecutors

Authorized by proposal ofrelevant chamber and approval ofChairman of HCJP.

Method of

Operation of theCouncil

Assemblies with the attendance

of all 7 members Revivals are run by itself Upon objection, assemblies

with 12 members together withthe attendance of 5 substitutemembers.

5 substitute members does not

Operates in 3 chambers and

assemblies with determinedquorum. Upon objection, revivals are run

by all members except thedecision makers.

Objection Assembly is a new one,so the decision may change.

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stand for a chance to alter thedecision arithmetically.

Secretariat Run by General Directorate ofPersonnel of Ministry ofJustice.

A secretariat liable to the Councilis formed.

Drafts are prepared here,proceedings are run here.

GeneralSecretary

None Appointed by Minister of Justiceamong 3 nominees proposed bythe Council.

Inspection andInvestigationProceedings

Proceeded by Inspection Boardliable to Minister with theapproval of Minister

Proceeded by Inspectors of theCouncil with the proposal ofrelevant chamber and theapproval of Chairman of HCJP.

SupervisionProceedings

Conducted by Inspection Boardliable to Minister.

Conducted by Inspectors of theBoard appointed by the Counciland liable to Council.

Representativesof Court of Cassation andCouncil of State

3 Regular, 3 SubstituteMembers of Court of Cassation,

2 Regular, 2 SubstituteMembers of Council of Stateby President of Republic.

3 Regular, 2 Substitute Membersof Court of Cassation,

1 Regular, 1 Substitute Membersof Council of Stateby their own plenary assemblies.

Judges andProsecutors ofFirst InstanceCourts

None 7 Regular, 4 Substitute Membersfrom Criminal and CivilJudiciary,

3 Regular, 2 Substitute Membersfrom Administrative Judiciary.

Selection Method Members, except Chairman andUndersecretary, are selected byPresident of Republic among 3 persons nominated to eachposts by their own institutions.

4 Members are selected byPresident of Republic amongLecturers, High Rank Officialsand Lawyers.

15 members are elected withsingle ballot single vote electionaccording to their resources.

Samples inEurope

Not any sample Compatible with many samples.

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Explanation !

Information and explanations that are noted in this booklet include points in Judicial Reform

Strategy and Constitutional Amendment Proposal that had been prepared by a group of MPsand announced on 22nd March 2010.

In Constitutional Amendment Proposal submitted to Turkish Grand National Assembly on 30 th

March 2010;

the point noted in the Booklet that selection of 1 regular and 1 substitute member amongreporters by commission of Constitutional Court is altered as selection of 1 regular and 1substitute members by Plenary Assembly of Turkish Academy of Justice to HCJP.

In addition;

On 13th April 2010, in Turkish Grand National Assembly Justice Commission; the points noted inthe booklet that selection of 3 Regular, 2 Substitute Members among members of Court ofCassation and selection of 1 Regular, 1 Substitute Members among members of Council ofState are altered as selection of 3 Regular, 3 Substitute Members among members of Court ofCassation and selection of 2 Regular, 2 Substitute Members among members of Council ofState to HCJP.

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Restructuring of HCJP by Ministry of Justice

Documents

Transcript of Restructuring of HCJP by Ministry of Justice