Venice Commission supports reshaping Turkish high judiciary



A senior official of the 47-member Council of Europe advisory body on constitutional and legal reforms has said it is necessary for Turkey to increase the number of judges and chambers in the highest courts because of a huge backlog of cases.
In an exclusive interview with Today’s Zaman in Strasbourg, Thomas Markert, the secretary-general of the Venice Commission, also known as the European Commission for Democracy through Law, said establishing regional courts of appeal, accompanied by an increase in the number of judges and chambers in the high judicial courts, is absolutely essential and necessary for Turkey to overcome the backlog of cases.
“It is necessary to increase the number of chambers and judges in high courts because you have this huge backlog. This should be resolved as quickly as possible,” he said, stressing the urgent need to have regional courts start functioning in Turkey. “I was astonished to learn that in a big country like Turkey you do not have regional courts of appeal. They are in basically all European countries. Most cases should be handled by these courts,” he added.

‘It is necessary to increase the number of chambers and judges in high courts because you have this huge backlog. This should be resolved as quickly as possible,’ the Venice Commission’s Markert told Today’s Zaman, stressing the urgent need to have regional courts in Turkey

The secretary-general further underlined that only particularly important cases or cases that are important to the development of law should go to the Supreme Court of Appeals. “The function of the supreme court is to make sure that the law is interpreted in a uniform manner for the entire country, while most cases can be decided in the courts of appeal on the lower level,” he explained.

The government bill, submitted to Parliament earlier this week, proposed changes bringing the total number of chambers in the Supreme Court of Appeals from 32 to 38 and increasing the number of Council of State chambers from 12 to 15. A total of 197 new judges will be hired for the two judicial bodies. The new chambers will also take on the responsibilities of the Military Supreme Administrative Court (AY?M) as well as those of the Military Supreme Court of Appeals.

The new measures seek to lighten the burden of the high judiciary, which has to deal with an ever-growing number of appeals. The two bodies are currently overwhelmed by an enormous workload of, according to the latest figures, 2 million cases. If the law passes, 137 new judges will be assigned to the Supreme Court of Appeals and 60 to the Council of State.

The work overload and resulting failure of the high judiciary to hear cases in a timely manner caused a major crisis earlier this year, when many inmates convicted of murder, rape and other serious crimes, including membership in the terrorist organization Hizbullah, were released under a new law limiting the time of arrest. This has created a public backlash against the government and high judiciary in Turkey.

Uneasiness in high courts understandable

The Venice Commission secretary-general underlined that having the Constitutional Court review violations of fundamental human rights committed by the lower courts, including the Supreme Court of Appeals and Council of State, is necessary in terms of maintaining checks on the judiciary. “It is good to have a domestic court look at these violations, not only the Strasbourg-based European Human Rights Court [ECtHR],” he said.

Markert said criticism from higher courts in regard to individual complaints is understandable “because they were the last instance courts at the national level. Now they run the risk of their decisions being overruled by a different judicial body.” Recalling similar criticism in other countries that introduced direct complaints to the constitutional court, Markert said, “This is never easy, and it is normal that the highest court is uncomfortable with the new remedy.”

The Venice Commission official emphasized, however, that the power of the Constitutional Court is very limited as far as reviewing the lower courts’ decisions. “The Constitutional Court would not overrule lower courts in general, only on very specific constitutional issues. It is not the task of the court to correct every decision taken in the lower courts but to review cases where fundamental human rights violations have allegedly occurred,” he explained.

The constitutional changes adopted last year in a public referendum introduced the right to individually petition to the Constitutional Court. The draft law in Parliament seeks to regulate how this constitutional right will be exercised. In the past, only political parties represented in Parliament, the president, chief prosecutors of high courts, the parliament speaker, the chief of General Staff and state officials of similar rank could apply.

The presidents of the Supreme Court of Appeals and the Council of State oppose the proposed changes, saying the Constitutional Court will turn into a new appeals court with too much power. The government argues that the top court will only review cases where fundamental human rights were violated. Head of the Supreme Court of Appeals Hasan Gerçeker claimed that the bill, if passed, would create chaos within the judiciary.

“If tomorrow appellate courts are set up, then you will have local courts, regional courts of justice, the Supreme Court of Appeals, the Constitutional Court and the ECtHR. So you will have a judicial system with multiple levels. Let alone trials going on for long periods of time, there will be no end to them. You will have no way of knowing when a trial might be completed,” he said.

Council of State President Mustafa Birden also said if the bill restructuring the Constitutional Court passes, it will “maim in many ways” the country’s legal system. Birden claimed that overruling ultimate judicial rulings from high courts is contrary to established judicial principles everywhere. This bill is really upsetting to us,” he said.

However, government spokesman and Deputy Prime Minister Cemil Çiçek said high courts were opposed to the idea of giving individuals the right to apply to the Constitutional Court from the start, disagreeing with Gerçeker’s “Super Appeals Court” opinion.

ECtHR and Constitution benchmarks

The Venice Commission official stated that the first and foremost benchmark for the Constitutional Court in reviewing individual applications is the Constitution itself. Fundamental human rights articles such as freedom of speech, protection of privacy and the right to a fair trial should be criteria, he said. Noting that some of these rights may align with the articles of the European Convention on Human Rights (ECHR), Markert said it makes sense for the Constitutional Court to look at the case law of the ECtHR when interpreting various rights in the Turkish Constitution. Turkey is party to the convention, and Article 90 of its Constitution says the convention prevails over domestic legislation in the event of conflict.

Markert warned that a filtering mechanism should be introduced for individual applications to the Constitutional Court to prevent an overload of cases. “One should not make access to the court easy,” he said, suggesting the court should start reviewing only new cases after the law becomes effective. “It is important that the court should not start with the backlog of cases for the transitional period,” he noted.

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