Opinions of the Venice Commission
Peace judges are formally lawful judges and are appointed by a judicial council. However, upon close examination their jurisdiction and their practice give rise to numerous concerns.
The official purpose of establishing peace judgeships was to enable peace judges to devote sufficient time to the drafting of the reasoning of human rights sensitive matters. However, this goal was not implemented properly and the peace judges are bogged down with work not related to ‘protective measures’.
Another official purpose of establishing peace judgeships was to avoid that the same judge decide first on protective measures, then on the merits. According to this reason, it is difficult to understand why the criminal judgeships of peace are necessary at the investigation phase, while at the prosecution (trial) phase the same judge can take protective measures and then decide on the merits without being biased.
The system of horizontal appeals among a small number of peace judges within each region or courthouse is problematic, prevents the unification of case-law, establishes a closed system and cannot be justified with the need for specialisation.
There are numerous instances where peace judges did not sufficiently reason decisions which have a drastic impact on human rights of individuals. Their heavy workload does not leave them sufficient time to provide sufficiently individualised reasoning, notably in cases of detention and when shutting down Internet sites.
Therefore, the Venice Commission recommends:
1. The competence of the criminal judgeships of peace on protective measures during the investigation phase (‘protective measures’) should be removed. Ordinary judges should be entrusted with the protective measures on personal liberties during the investigation and prosecutorial phases.
2. If the system of peace judgeships were retained, in order to live up to the goal of specialisation of the peace judges, they should be relieved of all duties that do not relate to ‘protective measures’, notably the blocking of Internet sites and traffic offenses which take up a considerable amount of their time. Consequently, they should no longer have any jurisdiction on the merits and real appeals should be introduced in these matters, including the blocking of Internet sites.
3. The horizontal system of appeals between the peace judges should be replaced by a vertical system of appeals to either the criminal courts of first instance or possibly to the courts of appeal.
4. For persons who have been detained on the basis of insufficiently reasoned decisions by peace judges prosecution should request their release as soon as possible, unless a trial court has taken over responsibility for their detention.
Measures taken by the State
The State did not take any measures to follow the opinion.
On 22 December 2020, the European Court of Human Rights adopted its judgment in the case Selahattin Demirtaş v. Turkey (no. 2), no. 14305/17. The Court found violations of Article 5 § 3 (right to be brought promptly before a judge), Article 3 of Protocol No. 1 (right to free elections) and Article 18 (limitation on use of restrictions on rights) in conjunction with Article 5 § 3.
In its judgment the Court referred to four opinions of the Venice Commission:
1. CDL-AD(2016)002, Opinion on articles 216, 299, 301 and 314 of the Penal Code of Turkey
2. CDL-AD(2016)027, Opinion on the suspension of the second paragraph of Article 83 of the Constitution of Turkey (parliamentary inviolability)
3. CDL-AD(2017)005, Turkey - Opinion on the amendments to the Constitution adopted by the Grand National Assembly on 21 January 2017 and to be submitted to a National Referendum on 16 April 2017
4. CDL-AD(2017)004, Turkey - Opinion on the duties, competences and functioning of the criminal peace judgeships
The case concerned the arrest and pre-trial detention of Mr Selahattin Demirtaş, who at the time of the events was one of the co-chairs of the Peoples’ Democratic Party (HDP), a pro-Kurdish political party. The Court Court found that the judicial authorities had extended Mr Demirtaş’s detention on grounds that could not be regarded as “sufficient” to justify its duration.
Although Mr Demirtaş had retained his status as a member of parliament throughout his term of office, the Court found that his inability to take part in the activities of the National Assembly as a result of his pre-trial detention constituted an unjustified interference with the free expression of the opinion of the people and with his right to be elected and to sit in Parliament.
The Court found that it had been established beyond reasonable doubt that the extensions of Mr Demirtaş’s detention, especially during two crucial campaigns, namely the referendum and the presidential election, had pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate, which was at the very core of the concept of a democratic society.
The Court supported the finding of the Venice Commission that the impugned unprecedented and once-off constitutional amendment had been aimed expressly at specific statements of MPs, particularly those of the opposition, and that it was thus a “misuse of the constitutional amendment procedure”. MPs could not reasonably have expected that such a procedure would be introduced during their term of office. The interference with the freedom of expression had not therefore been foreseeable, in violation of Article 10 of the Convention.