One of the fundamental safeguards of the rule of law is undoubtedly the presence of an impartial and independent judiciary. The equal application of the law to all citizens can only be ensured through judicial independence. While judicial independence has always been a challenge in Turkey, the executive's control over the judiciary has become increasingly evident over the past decade, particularly after the 2017 constitutional amendments. Judicial independence has also been a key focus since Turkey was placed back under monitoring by the Parliamentary Assembly of the Council of Europe (PACE).Within this framework, the Chair of the PACE Monitoring Committee formally requested an opinion from the Venice Commission on April 18, 2024, regarding the structure of the Council of Judges and Prosecutors (HSK) and the procedures for electing its members.[1] The Venice Commission adopted the opinion, prepared by rapporteurs, during its 141st Plenary Session on December 6–7, 2024. Comprising 123 paragraphs, the opinion thoroughly examined the HSK’s structure, the sources and selection processes of its members, its functioning and powers, as well as the composition and authorities of its Inspection Board and General Secretariat.The Venice Commission emphasized that, according to European standards, at least half of the members of a judicial council should be judges elected by their peers. It highlighted that none of the members of the HSK are elected by judges and prosecutors, which is inconsistent with these standards. The Commission underscored that the purpose of having council members elected by judges is to protect the judiciary from political interference, ensuring that the judicial members of the Council represent only the perspective of the community of judges and prosecutors. Additionally, it noted that the selection of non-judicial members is intended to strengthen the Council's external legitimacy and mitigate the negative effects of corporatism, thereby achieving a pluralistic and democratically legitimate composition.The Venice Commission noted that while eight members of Turkey’s HSK are judges or prosecutors, they are not elected by their peers but rather appointed by the executive and legislature. It acknowledged that these eight members are determined based on political preferences, which means they cannot truly be said to represent the judiciary. Taking into account the President’s position after the 2017 constitutional amendments, the Commission emphasized that at least ten of the HSK’s 13 members are effectively chosen by the executive, resulting in significant political influence over the judiciary.In response, the Venice Commission recommended that at least half of the HSK members be elected by judges and prosecutors from various levels of the judiciary. It also advised that constitutional and legal amendments be enacted to establish a system ensuring adequate diversity in terms of gender, minorities, and geographic representation. Furthermore, the Commission proposed the removal of the Minister of Justice and the Ministry’s Undersecretary from the HSK.The Venice Commission recommended increasing the total number of HSK members as well as the number of non-judicial members selected by the Parliament. It also advised the introduction of legislative amendments to prohibit the selection of candidates with clear political ties to the executive or legislative branches. Additionally, it suggested that organizations such as the Bar Association and universities should conduct a pre-selection process for candidates to be elected by the Parliament through a Joint Committee.The Commission proposed guaranteeing the tenure security and functional immunity of HSK members through constitutional and legal safeguards. It recommended that grounds for dismissal and sanctions be narrowly and clearly defined, explicitly excluding reasons unrelated to the exercise of judicial duties.Furthermore, the Commission advised ensuring that the HSK Chairperson is an impartial individual elected by the members themselves, limiting the Chairperson's powers, and subjecting all Council decisions to judicial review. It also called for the elimination of personnel transfers between the Ministry of Justice and the Council, preventing political influence over appointments of the General Secretary, inspectors, and rapporteur judges and increasing the transparency of the Council's internal operations.While the Commission's findings and recommendations are essential for an independent Council and judiciary, it is currently unrealistic to suggest that the political will necessary to implement these changes exists in Turkey today.

The Freedom Observer

Furthermore, the Commission advised ensuring that the HSK Chairperson is an impartial individual elected by the members themselves, limiting the Chairperson's powers, and subjecting all Council decisions to judicial review. It also called for the elimination of personnel transfers between the Ministry of Justice and the Council, preventing political influence over appointments of the General Secretary, inspectors, and rapporteur judges and increasing the transparency of the Council's internal operations.

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