—Tarik Olcay, University of Glasgow
The “Bill on Amendments to the Law of the Council of State and Other Laws” (Danıştay Kanunu ile Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun Tasarısı), purports to be aimed at adapting the judiciary to the launch of regional appellate courts. Accordingly, the number of chambers in these two supreme courts, namely Danıştay (the Council of State) and Yargıtay (the Court of Cassation), are considerably reduced, as the Ministry predicts that their workload will be cut down by 80% to 90%. While the eventual launch of regional appellate courts might be welcome following a more than a decade-long stall after initial legislation establishing them, and a necessary adjustment justifiable, the bill seems to fuel the serious concerns as to the independence of the judiciary and the rule of law in Turkey generally, as it introduces largely controversial and possibly unconstitutional reforms. Although this is another omnibus bill containing several problematic provisions, I restrict my analysis in this post to the most imminently worrying proposal—the dismissal of supreme court judges.
Rather unsurprisingly, judicial appointments in Turkey have been a political battlefield. The governing AKP (Adalet ve Kalkınma Partisi) had often accused the judiciary of militant application of the Kemalist ideology. Yet there have been sharp shifts in the stance of the judiciary over the past decade with reforms to the structures of supreme courts and judicial appointment mechanisms. During this period, President Erdoğan and the AKP have been increasingly accused of counter-politicising the judiciary, making arbitrary judicial appointments, and setting up ad hoc courts to persecute dissidents. There is a general sentiment now in Turkey, especially after the victory of AKP-backed Yargıda Birlik Platformu (Platform of Union in Judiciary) in the HSYK (Supreme Council of Judges and Prosecutors) elections in 2014, that the judiciary coming more and more under the influence of the President and the AKP. The reforms proposed in this latest bill do little to alleviate this worry.
The bill decreases the number of chambers in Danıştay from 17 to 10 and judges from 195 to 90, the number of chambers in Yargıtay from 46 to 24 and judges from 516 to 200, limits these judges’ term of office to 12 years, introduces an oral exam in addition to the written exam for judgeship and prosecutorial office, and launches a system of assessment whereby Danıştay and Yargıtay will evaluate the lower court judgments they review.
Arguably, the most controversial proposal is to strip nearly all the current members of Danıştay and Yargıtay of their duties while shrinking these courts. The bill provides that upon its coming into force, all Danıştay members are removed from office, except for its president, chief public prosecutor, vice presidents, and presidents of chambers. Likewise, all Yargıtay members are removed from office, except for its first president, chief public prosecutor, deputy first presidents, deputy chief public prosecutors, and presidents of chambers. Eventually, this amounts to the potential unseating of 639 supreme court judges, 174 in Danıştay and 465 in Yargıtay. The seats are then to be filled by the President’s direct appointment (a quarter of the seats in Danıştay) and the HSYK (the rest of the seats in Danıştay and all seats in Yargıtay) within five days of the bill’s coming into force. Most of the deposed judges are expected to be reassigned to lower courts across the country. Furthermore, as the YSK (the Supreme Board of Election), the body responsible for the administration and judicial oversight of elections, consist of six Yargıtay and five Danıştay members, it will be automatically dissolved and its new members will be elected from the two newly formed supreme courts. It is with this unprecedented dismissal that the bill is vehemently criticised as being “the final nail in the coffin” of the independence of Turkish judiciary and regarded as grossly unconstitutional.
Recently, the trend of the “transfer of judges against their will” has been a persistent criticism voiced against Turkey. Especially since the corruption probes against four AKP ministers in December 2013, there have been massive reshuffles of judges and prosecutors, and two criminal court judges have even been arrested. Yet the dismissal of nearly all supreme court judges seems to be the most audacious of all “transfer of judges”. With respect to this move, the government states in its report that in the Constitution there is no specific security of tenure of supreme court judges in addition to the general security of tenure of judges and that, therefore, as long as they are reassigned elsewhere as judges, there is no breach of the security of tenure.
Although the Turkish Constitution does not explicitly mention any specific protection for supreme court judges, it grants them a distinct status as it refers to them individually as ‘Yargıtay members’ (Article 154) and ‘Danıştay members’ (Article 155), and collectively as “members of higher judicial organs” alongside other “judges and prosecutors” (Articles 68, 76). This suggests that these are two different statuses and that dismissing and reassigning supreme court judges to lower courts is an instance of status change and downgrading.
The government has failed to explain how the blanket dismissal and potential downgrading of judges to lower courts are compatible with the constitutional principles of the rule of law (Article 2), the independence of the judiciary (Articles 9, 138, 140, 154/5, 155/5, 159/1), and indeed with the security of tenure (Articles 139, 140).
There is a highly likely prospect that the bill will be brought before the Constitutional Court for annulment, but even if this most controversial part of the bill is found to be unconstitutional and struck down by the Court, which can only review legislation ex post, it will be of no effect as to the dismissals and appointments of judges, as the decisions of the Constitutional Court do not bear retroactive effect. The Court may go further than invalidating the provisions and regard them “null and void”, which would not only invalidate the provisions but also all their effects from the moment of enactment. However, the Court has never delivered such a judgment in its history and it is disputed whether it has the constitutional authority to do so. Eventually, by creating two supreme courts with judges assigned all at once by the executive and the HSYK, the bill seems to practically vindicate the mounting concerns regarding the independence of the judiciary in Turkey.
Suggested Citation: Tarik Olcay, Resetting the Turkish Judiciary, Int’l J. Const. L. Blog, July 1, 2016, at: http://www.iconnectblog.com/2016/07/resetting-the-turkish-judiciary
 The bill was swiftly approved on June 17 by the Justice Committee in Parliament and has been sent for deliberation in General Assembly on June 21.
 For the text of the bill, see http://www2.tbmm.gov.tr/d26/1/1-0726.pdf (in Turkish). Also, see Justice Committee report, https://www.tbmm.gov.tr/sirasayi/donem26/yil01/ss400.pdf (in Turkish).
 This is a fairly dubious argument especially for administrative courts, as regional appellate courts are already in operation in the administrative judicial system, and the reforms in this bill concerning administrative courts are as to the jurisdictions of these courts and Danıştay.
 Law No. 5235, enacted in 2004, was the initial legislation establishing the civil regional appellate courts. There have been amendments to the initial setting, most notably in the Law of Civil Procedure, enacted in 2011.
 For examples of such judicial practice, see Necati Polat, “A Tradition in Delivering Injustice: Judiciary and Rights in Turkey”, Insight Turkey, Vol. 13, No. 4, 2011, pp. 75-81, http://file.insightturkey.com/Files/Pdf/insight_turkey_vol_13_no_4_2011_polat.pdf. For a more detailed account, see Asli Ü. Bâli, “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example”, Virginia Journal of International Law, Vol. 52, No. 2, pp. 235-320, http://www.vjil.org/assets/pdfs/vol52/issue2/Bali_Post_Production.pdf
 International Commission of Jurists, “Turkey: the Judicial System in Peril”, June 2016, pp. 18-19, http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2016/06/Turkey-Judicial-System-in-Peril-Publications-Reports-Fact-findings-mission-reports-2016-ENG.pdf
 For criticisms related to the judiciary in the era of the Ergenekon and Balyoz (Sledgehammer) trials, see Tulin Daloglu, “The Trials of Turkey’s Legal System”, January 4, 2014, http://www.al-monitor.com/pulse/originals/2014/01/ergenekon-turkey-gulen-akp-trial.html. For a study on the post-2013 judiciary crisis in Turkey, see Ergun Özbudun, “Pending Challenges in Turkey’s Judiciary”, January 2015, http://www.iai.it/sites/default/files/gte_pb_20.pdf
 For some of the criticisms, see Kemal Kılıçdaroğlu, leader of the main opposition: http://www.hurriyetdailynews.com/chp-head-criticizes-law-schools-for-remaining-silent.aspx?pageID=238&nID=100698&NewsCatID=338; Prof Sami Selçuk, former President of Yargıtay: http://www.cumhuriyet.com.tr/haber/siyaset/555209/Tabuta_son_civi.html (in Turkish); Prof İbrahim Kaboğlu, constitutional law scholar: http://www.birgun.net/haber-detay/anayasa-ya-aykiriliklar-yogunlasirken-116270.html (in Turkish); Prof Metin Feyzioğlu, President of the Union of Turkish Bar Associations: http://www.sozcu.com.tr/2016/gundem/feyzioglu-yargida-reisci-yapilanma-istemiyoruz-1286471/ (in Turkish).
 European Commission, Turkey 2015 Report, November 2015, pp. 56-57, http://ec.europa.eu/enlargement/pdf/key_documents/2015/20151110_report_turkey.pdf; Venice Commission Declaration on Interference with Judicial Independence in Turkey, 20 June 2015, http://venice.coe.int/files/turkish%20declaration%20June%202015.pdf; Parliamentary Assembly of the Council of Europe, Resolution 2121 (2016), The functioning of democratic institutions in Turkey, 22 June 2016, paras. 5, 32-35, http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=22957&lang=en; British Institute of International and Comparative Law, Human Rights and the Rule of Law in Turkey, December 2015, pp. 31-34, 57-59, http://www.biicl.org/documents/852_turkey_scoping_report_-_biicl_-_final.pdf?showdocument=1
 The most recent one happened earlier in June. See news report: http://www.hurriyetdailynews.com/turkish-govt-shakes-up-judiciary-with-decree-shifting-more-than-3700-judges-prosecutors.aspx?pageID=238&nID=100164&NewsCatID=338
 In the similar recent Polish case, the Venice Commission criticised the provision that enables the Sejm to depose judges of the constitutional court. Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland, 11 March 2016, Opinion no. 833/2015, CDL-AD(2016)001, para. 94, http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)001-e
 Spokesperson for the CHP (Cumhuriyet Halk Partisi), the main opposition party, declared that they would take the legislation to the Constitutional Court for annulment. See http://www.hurriyetdailynews.com/chp-to-apply-for-cancellation-of-judiciary-bill.aspx?pageID=238&nID=100793&NewsCatID=338
 In 2014, the Constitutional Court invalidated many provisions of the law restructuring the HSYK. The provisions dismissing all secretarial, supervisory and other auxiliary personnel, among them assistant judges, were also struck down, yet, the annulment did not have any effect on the dismissal of the personnel and the already appointed new staff, as the judgment did not have retroactive effect. See news report: http://www.hurriyetdailynews.com/turkeys-constitutional-court-overturns-controversial-judicial-bill.aspx?pageID=238&nID=64902&NewsCatID=338
 Leading Turkish constitutional lawyer Prof Ergun Özbudun suggested the Court would “discuss” giving a judgment of ‘null and void’. See http://t24.com.tr/haber/prof-ergun-ozbudun-yargitay-ve-danistayda-degisiklik-teklifi-tam-anlamiyla-bir-tasfiye-kanunu,340428 (in Turkish).