Judicial independence and the HSYK

Independence of the judiciary is a pillar of democracy. It is a vital assurance of the rule of law, separation of forces, and human rights; an indispensable condition for a fair trial. Impartial and independent decision of judges, beyond all else, depends on having a judicial institution independent from executive and legislative powers. The main element of judicial independence is to have assurances preventing political power from influencing the judiciary.

Democratic states achieved this through constitutional regulations and the formation of councils consisting of judges mostly, or entirely, that are independent from government.

HSYK needs to be independent

Article 159 in the Constitution regulates the authorities of the Supreme Board of Judges and Prosecutors, or HSYK. The seven-member board serving independently is chaired by the justice minister as undersecretary of the Justice Ministry being a permanent member. The other five members are selected from among candidates nominated by the president, Supreme Court of Appeals and the Council of State. The appointment, transfer and dismissal of judges and prosecutors from office, in addition to deciding on disciplinary matters, are among the many tasks undertaken by the board.

The HSYK is key to judicial independence. For this reason, it should, first of all, be independent itself. So it is worth discussing to what extent the board in Turkey is independent.

First of all, the HSYK has no authority to select its own chair. The chairman is always the justice minister. The justice minister’s membership to the board is also seen in some other countries. However, in addition to the minister, the undersecretary of the Justice Ministry is also a board member. Therefore, the executive power is influential over this judicial body. In reality, the tasks of HSYK do not require the minister and the undersecretary to sit on the board. If the goal is cooperation with the executive power, this can be achieved through other channels. The minister, for example, may simply attend meetings upon invitation, without the power to vote.

Another drawback when it comes to judicial independence is the decision stated in the HSYK law, numbered 2461 that states, “The board convenes in the Justice Ministry. The tasks of the board are conducted by the Justice Ministry.” As a result of this, the HSYK has no building, no budget and no office of general secretary. It is on duty function as a department inside the Justice Ministry and all works are handled by ministry officials.

Up to the minister

Could it be possible to talk about the independence of an institution that has no control over its own decision and fails to take care of its own business?

HSYK meetings are at the discretion of the justice minister. There are no regular meetings. If the minister doesn’t wish, the board cannot convene.

There are some other sides of the issue that can be criticized, including that the decisions made by the HSYK are immune from judicial supervision and that judges and prosecutors are accountable to the same board. In the light of all these, one can clearly say that legal amendments for the restructuring of the HSYK and a new operation mechanism are needed for judicial independence in Turkey.

Decisions of the European Judges Advisory Council under the Council of Europe are vital in order to determine the minimal common denominators valid in Europe. In decisions approved by the c ouncil in 2001, existence of very different systems in Europe is recognized as the decisions dwell upon two elements: Having objective criteria for the appointment and promotion of judges and conducting this through an independent body outside the executive power.

Besides, it is foreseen in the decisions that a large part of this body should consist of judges democratically selected by other judges.

In the analysis cited in the council report dated 2007, it is stated that independence of the judiciary, execution and legislation are principally under guarantee and that the execution may, however, seek ways to control the judiciary indirectly. The same report reads that in independent councils the role of ministers varies between the chairman and being left outside the board.

Respect for judiciary

We learn through the press that the government plans amendments in the HSYK law. We’ll see whether this change will bring out more robust assurances for the independence of HSYK or increase the government’s influence over the board. The resulting amendments will be a sign of the respect the government has for judicial independence.

(Rıza Türmen is a former judge at the European Court of Human Rights, or ECHR, and a columnist for daily Milliyet in which this piece appeared on Friday. It was translated into English by the Hürriyet Daily News & Economic Review's staff.)