Turf battle in high judiciary

I did some laughing of my own when I heard officials from the Supreme Court of Appeals make the unconvincing argument that cases would take too long to reach the Strasbourg-based European Court of Human Rights (ECtHR) if and when Turkey introduced the individual right to complain to the Constitutional Court, the highest court in the land.

The remark could almost pass as the joke of the day if they did not try to make it sound like this was actually a bad thing for either Turkey or the court in Strasbourg. What baffled me more is that this is the first time I heard high court officials in my country try to make themselves out to be advocates of the ECtHR. It is usually the other way around as most of their decisions have been overturned by the Strasbourg court, then they would criticize the ECtHR, saying justices in Strasbourg, in all their naiveté, did not understand the special conditions in Turkey.

Is it not bizarre to hear them arguing for the prerogatives of the Strasbourg court, opposing the individual right to petition to the Constitutional Court, while the ECtHR cheers for the changes, which would certainly reduce the number of cases ending up in their laps? Hopefully an effective national remedy in the form of judicial review by the top court in Turkey will take some of the load from the shoulders of the overburdened ECtHR. After all, Turkey is number one in the judgments rendered by the court and number two in cases ending up in the ECtHR.

I asked Jean-Paul Costa, the president of the ECtHR, late last month in Strasbourg how he would react to judicial reform in Turkey and whether he would be unhappy to lose one of the court’s biggest clients. He and others sitting on the bench broke out in laughter, saying they would be more than happy to see the cases from Turkey reduced dramatically following the reform.

Why can’t we be frank and admit that this is all about the high judiciary turf battle against the encroachment of the Constitutional Court, which has been increasingly critical of the Supreme Court of Appeals and Council of State’s flagrant disregard of violations in fundamental human rights. If the high judicial bodies did their job to keep lower courts in line with the European Convention on Human Rights (ECHR) and focused on individual liberties instead of revering artificial state interests, then we would not be seeing such a large cache of cases ending in Strasbourg. What happens instead is that they simply turn a blind eye to the revised Article 90 of the Turkish Constitution, which says the convention prevails over domestic law in the case of conflict.

That is why Constitutional Court President Haşim Kılıç lashed out at the high judicial bodies last week during a swearing-in ceremony for a new member of the court. He said, “Allowing individual applications to the Constitutional Court is an important method for seeking one’s rights,” adding: “No one can defend the current situation of the high judiciary, which stems from debates under the guise of the independence and impartiality of the judiciary. It would be disrespectful for members of the judiciary to claim that some circles are trying to seize the judiciary due to debates over the appointment of members of the judiciary.”

The chief justice openly targeted Supreme Court of Appeals President Hasan Gerçeker, who recently argued that allowing individuals to directly submit applications to the Constitutional Court would prevent the court from functioning efficiently. Gerçeker said individual applications would make the top court a “super appeals court.” “If such a claim does not stem from a lack of knowledge, then I’d say it stems from an effort to make individual applications ineffective,” Kılıç said.

I think we all should feel for Mr. Gerçeker and try to understand him, no matter how difficult it may seem. He is more concerned than ever, as he should be, now that the top court will be reviewing his court’s decisions on landmark human rights and freedom cases, whether or not they fit the articles of the Turkish Constitution and/or the ECHR. Venice Commission Secretary-General Thomas Markert said the same thing in Strasbourg during an interview with me. He said the same thing happened in other European countries when the right to individual complaint was first introduced.

Now we see another controversy brewing up in the Luxembourg-based European Court of Justice (ECJ), where justices do not want to see ECtHR judges overrule their decisions. Costa was crystal clear in the press briefing last month, saying that they would not waive the right to review the ECJ’s judgments if an applicant was not satisfied with the Luxembourg court ruling and appealed to the ECtHR. As Protocol No. 14 came into force last summer, following the Lisbon Treaty, we may see the EU be subjected to the convention’s laws on human rights and external monitoring, as its member states currently are.

Again it is all about the turf battle, just like the one we are seeing in Turkey now. But no matter what happens, strengthening the judicial review mechanisms and even the double layer of protections, running parallel at the national and international levels, would be a welcome development for the 800 million living in the Council of Europe’s member states. The electorate’s demands for fundamental human rights, freedoms, rule of law and democratic principles are sine qua non for any government who wants to stay in power. We have even started to see the wave of change in authoritative regimes in the Middle East.

Therefore, it is a futile attempt by the Supreme Appeals Court in Turkey to resist these changes. The final arbiter in the turf battle will be the people and they spoke loudly last year in the referendum, when voters approved major constitutional changes in a landslide “yes.”

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