2017 law governing Turkey’s Board of Judges and Prosecutors undermines independence of judiciary: UN special rapporteur

A law governing Turkey’s Board of Judges and Prosecutors (HSK) continues to have adverse effects on the independence of the judiciary and the separation of powers, Diego García-Sayán, UN special rapporteur on the independence of judges and lawyers, said in a letter dated September 14.

García-Sayán said the law falls short of the international standards enshrined in international human rights treaties to which Turkey is a party, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

The law is part of a series of constitutional amendments aimed at strengthening executive power with the introduction of what is called a “Turkish-style presidential system.” The amendments were approved in a referendum marred by irregularities on April 16, 2017. The Organization for Security and Co-operation in Europe (OSCE) had said the referendum lacked equal opportunities, media coverage for the contesting sides and international standards for a fair election.

According to the special rapporteur, one of the most important problems with the current HSK is the absence of judges and prosecutors elected by their peers on the board. Out of eight judges and prosecutors elected to the board, four are appointed by the president and four by parliament.

“This is not in line with European standards, which recommend that judge members of the council be elected by their peers and represent the judiciary at large, including judges from first level courts.” García-Sayán said. According to the current law it is sufficient for the party of the president to obtain a two-fifths majority in parliament to place the whole board under the control of the executive branch.

The special rapporteur also said the council should not be presided over by the justice minister and that the chair should be elected by the HSK itself from among its judge members.

García-Sayán recommended that the Turkish government reconsider the changes to Article 159 of the Turkish Constitution, which regulates the composition and functions of the HSK, “with a view to ensuring their compliance with existing international and regional standards relating to the independence of the judiciary and the separation of powers.”

Other recommendations of the special rapporteur include reviewing of the composition of the HSK to allow election of the members by their peers; removing the discretionary power of the president to select any members of the board; reconsidering the participation of the minister of justice and his undersecretary in the work of the board as ex officio members; and making the necessary amendments to the law to ensure that all decisions of the HSK in relation to the appointment, transfer, promotion, discipline and removal from office of judges and public prosecutors are subject to independent judicial review.

Turkey approved a constitutional reform package in the referendum in April 2017 that among other things introduced an executive presidency in the country. The reforms, which weaken parliament and greatly increase the president’s powers, are feared to be paving the way for a more authoritarian rule in the country without the necessary checks and balances.

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from SCF