In my interviews with both Secretary-General of the Council of Europe (CoE) Thorbjørn Jagland and President of the Parliamentary Assembly of the Council of Europe (PACE) Mevlüt Çavuşoğlu, during sessions both here in Ankara and later in Strasbourg, I distinctly remember how much emphasis the two men placed on the Venice Commission, the advisory body of the CoE, saying Turkey must work closely with the highly qualified jurists in the commission to bring the country’s code up to date with European standards.
Turkey was finally able to do so after a public referendum on major constitutional changes on Sept 12 won with landslide approval. During a conversation with Justice Minister Sadullah Ergin on the eve of the referendum, he told me that he had already instructed his staff to start working with the Venice Commission members in drafting major laws to accompany changes to the Constitution.
I later confirmed this with Thomas Markert, the secretary-general of the Venice Commission, who informed me that an official delegation from the Justice Ministry visited commission members and conveyed willingness to work with the commission in drafting major laws, such as laws on judges and prosecutors, the Supreme Council of Judges and Prosecutors (HSYK), the organization of the Ministry of Justice and the reorganization of the Constitutional Court after the introduction of the individual right to apply to the top court for human rights violations.
It was obvious from the tone of their speech that both Markert and the commission President Gianni Buquicchio were quite enthusiastic to work with Turkey and bring the country’s code in line with European standards. The same enthusiasm was also reflected in the latest opinion the commission adopted last week in Venice regarding the draft law on the HSYK. The interim opinion concluded that “the Venice Commission remains at the disposal of the Turkish authorities for any further assistance they may need.”
The HSYK law was approved by Turkish President Abdullah Gül the day after the commission issued its opinion. Nevertheless, the individual comments prepared by the rapporteurs that were transmitted to the Turkish authorities in mid-November 2010 were taken into account for the revised law at committees and the General Assembly of Parliament.
Additionally, Justice Ministry officials had already carefully examined the Venice Commission guidelines and applied them to the draft version before submitting it to the Cabinet in order to forward it to Parliament. The opinion, in fact, notes, “When studying Article 159 [of the constitution on the HSYK] and the draft Law on HSYK, it is evident that the Turkish authorities are familiar with the European standards laid down by the Committee of Ministers of the CoE and by the Venice Commission in its earlier reports and opinions.”
The conclusion of the opinion states that “the draft Law on HSYK reflects the criteria of the Venice Commission on a number of points, and should, in general, be welcomed as a substantive and definite step in the right direction.” It underlines that “the new HSYK is formally a much more independent institution than its predecessor, and the new system formally fulfills most European standards,” while adding the caveat that there may be some issues needing further attention.
The commission especially welcomes the increase in the number of HSYK members; the pluralistic composition of the HSYK, with 10 of the members elected by their peers; the institutionalization of the HSYK as a separate legal entity with public law status, administrative autonomy and its own budget, premises and staff; the transfer of power from the Ministry of Justice to the HSYK and the substantial reduction in the power and position of the minister of justice as president of the HSYK; the creation of an internal appeals system; and the introduction of judicial review against decisions that are still made by the president.
Though the commission officials openly endorsed constitutional amendments on the eve of the public referendum and welcomed the Turkish government’s official request to work closely on draft laws for constitutional changes, it did not shy away from criticizing the government on a number of points. I think these warnings should be examined carefully by Turkish officials, and I sincerely hope these friendly suggestions will factor into future revisions of Turkish law.
One thing is crystal clear in tackling the problems we face in the current Turkish judicial system: We need a whole new constitution. As the commission pointed out, this should be done on broader consensus, as much as possible. Buquicchio told me in Strasbourg that the 2007 draft constitution, later shelved by the government because the ruling party faced a closure case, was a very good one indeed. This draft may be a good start for engaging the parties, civic groups, jurists and general public in the discussion of a new constitution. The patchwork effort, fixing issues here and there in the current military-minded constitution, can only take Turkey so far.