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JUDICIARY /
Statement
The Coalition is Challenging the Judicial Selection and Appointment Regulations at the Constitutional Court
The Coalition for and Independent and Transparent Judiciary is representing the interests of three claimants and is claiming unconstitutionality of regulatory norms for judicial selection and appointment.
The current legislation authorizes the High Council of Justice to appoint judges through a secret ballot without providing any justification. The candidate appointment (or rejection) decisions are not subject to judicial review. The secret ballot excludes any possibility of providing justification for appointment decisions.
Therefore, the applicants participating in the competition are not able to protect their interests in the court in the cases when their rights are violated (discriminatory treatment, procedural violations etc.) The Coalition believes that in the absence of justified appointment decisions and the appeal mechanism the existing institute of judicial appointment becomes unconstitutional. The challenged norms are not in conformity with Paragraph1, Article 42 and Paragraphs 1 and 2, Article 29 (the right to appeal and the right to hold a public office).
The fact that judicial appointment is the competence of High Council of Justice guaranteed by the Constitution does not exclude the possibility of a judicial review of these decisions. Furthermore, the candidates’ right to appeal the Council’s decisions is in accordance with the European standards[1].
Therefore, the Coalition is applying to the Constitutional Court with a claim of unconstitutionality of the judicial appointment institute, which does not provide for the requirement to justify the Council’s decisions and the mechanism for appealing them. Before reaching a conclusion on these issues, the Coalition is addressing the Constitutional Court with a motion to suspend the norms under the claim in order to avoid an irremediable result of vacancies being filled through an unconstitutional mechanism. This result will render the current claim meaningless, even if satisfied, because no vacancies will be available.
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[1] 2012 Dublin Declaration http://www.hcjp.gov.tr/news/sunumlar/yargi-bagimsizligi/ayka/ayka-Paul-Gilligan.pdf ; OSCE Report on Judicial Selection in Kirgizstan http://www.osce.org/odihr/89289?download=true Venice Commission Opinion http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD%282011%29019-e
