ECHR head Spano's doctorate acceptance from Turkey is a 'sensitive issue' - AEAJ president
Within the scope of our new project we are publishing interviews with prominent European lawyers, judges, academics and executives of associations of lawyers or judges. Our sixth interview is with Ms Edith Zeller president of the Association European Administrative of Judges (AEAJ).
Q1: You are president of the Association European Administrative of Judges (AEAJ). Could you tell us about you and AEAJ and your work?
Ms Zeller: AEAJ, the Association of European Administrative Judges, represents administrative judges from all over Europe at all levels of administrative judiciary.
Promoting mutual understanding of different legal cultures, advancing legal redress of individuals (as well as for entities) in order to guarantee also access to administrative justice are necessary fundaments also to ensure the rule of law. Also strengthening the independence of administrative justice (which is often more at stake as in other areas due to the nature of the litigations, involving public authorities) plays a crucial role in democratic states.
In order to achieve the overall aims codified in its statutes, AEAJ pursues these goals inter alia by continuous networking between its members and partners and by exchange of views. Inter alia, AEAJ is also observer at the CCJE and CEPEJ, as both expert organs are highly relevant also for administrative judiciary.
Our seminars and workshops which we organise (from and for and with administrative judges) concern topics of relevance (in the areas of asylum and immigration, taxation, environmental law as well as issues of independence and efficiency of administrative judiciary).
Irrespective of these activities, it is equally important to have a joint standing in Europe, as we judges have many problems and tasks in common in all our countries. For our Turkish judge colleagues AEAJ is member of the Platform for an Independent Judiciary which consists of the four major judicial associations on the European level (AEAJ, EAJ, Judges for Judges, MEDEL). Also a part of this joint platform we have continuous mutual exchange with each other, which we appreciate!
AEAJ has as members national judicial associations of 19 European countries; from another 13 European countries (countries which are member of the Council of Europe).
Q2: Administrative judges mainly adjudicate on legality of decisions or actions of the Executive branch. Therefore, they could face additional challenges relating the independence and impartiality. Do you observe such patterns?
Ms Zeller: First, there exist various quite different concepts of institutional and procedural frameworks for judicial review of administrative decisions across Europe as well as concerning judicial organisation.
Secondly, administrative judiciary faces additional challenges as basically in almost all cases the executive power is party to the case – and allegedly wrong decisions by state authorities or allegedly inaction by the State is challenged before administrative courts, affecting often the enjoyment of fundamental rights and freedoms.
At the same time in many countries the (administrative) judiciary as state power depends on the executive power on the budget and court organisation (in those countries in which Judicial Councils exist the level of dependence is lower than in these countries in which the executive power is competent for judicial administrative matters and in some countries dependencies exist more towards the legislative power than towards the executive power – however it is a fact that the legislative power is more and more intertwined with the executive power).
Also because of this link it is of utmost importance to have strong fundaments of structural independence for administrative judiciary – be it also to avoid the appearance of partialities or subordinations so that also the trust of society in the independence of judiciary does not suffer any harm.
Q3: As the executive of a very important professional association, you are dealing with a wide range of issues. The worrisome decline in terms of the independence of the judiciary in the Europe Union is one of those (i.e: Poland, Hungary). In one of your articles you said “Systemic constraints of flagrant violations of judicial independence, like in Poland or Turkey—in line with an alarming, steadily increasing number of other European judicial systems coming under pressure—have not turned up abruptly, but have developed.” How can we detect similar developments in other countries before turning into a systematic problem? And, what should we do to prevent similar problems from spreading to other countries?
Ms Zeller: Let me first stress that some of these deformities could evolve either by making use of certain structural weaknesses in the respective judicial system or because politicians have referred to and simply copied structural weaknesses of other systems – ignoring that those weaknesses are balanced by other ways of mutual checks between the different State powers or that such weaknesses in other countries cannot be referred to as “best practises”. This practise goes hand in hand with – what has been openly monitored by the Secretary General of the Council of Europe in his report “State of Democracy, Human Rights and the Rule of Law” of 2017 as being – “a race to the bottom”, which affects also the independence of the judiciary in Europe.
These are the reasons why it is urgent to spotlight also those systems which are not (yet) under open attack as well as critically analyse each of our own judicial systems. Institutional checks and balances in between the state powers must be critically analysed.
In our context the main question remains how robust each of our judicial systems is in order to be locked up against undue influences or other means which destroy the independence of a judiciary. It is first of all important to strengthen the various safety locks to safeguard and protect structural independence in each of the European countries. As the systems are quite diverse there is not one and only recipe. It is relevant to disclose and shed spotlight on our respective structural weaknesses and warn openly. These safety locks to protect judiciary should be on a legal basis on the highest possible level (constitutional provisions).
For prevention it is also important to safeguard proper initial and continuous trainings in between of judges to raise awareness for needs of judicial conduct and judicial structures.
For prevention is also important to have an exchange in between colleagues from all over Europe. Closing up judges within one system without enabling free exchange among peers from other countries will hamper to get a full bird eye’s view on the own system. Also the exchange with justices from the international courts is very fruitful in this respect and can also contribute to a better understanding.
For prevention the expert organs of the Council of State play an important role: European standards are the joint yardstick for all national judicial systems. International judicial associations play a big role in this framework. Media plays an important role in this respect as well. Other stakeholders in this field, like specialized lawyers and academics are also important partners.
To detect: Here all what has been listed as preventive measures also counts as a measure to detect structural weaknesses in a judicial system. Weaknesses concern e.g. single provisions in organisational laws but also institutional imbalances in between judiciary with the other two state powers. One has to look at the whole picture and not only on some aspects alone.
Again, judicial associations play a central role. There are so many different puzzle pieces which all together need to be pieced together. These pieces must be put together and are intermeshed like cogs in a machine. Each of these pieces is needed to make the machine work: each of these pieces plays a role in maintaining a continuous high qualitative, efficient and independent judiciary.
Q4: Rule of law is one of the values the European Union is founded on. An independent and impartial tribunal is guaranteed by Art. 6 ECHR and Art. 47 of EU Charter of Fundamental Rights. However, legal texts cannot ensure this principle is observed. Support and vigilance of fellow citizens are essential. How can we better explain that the independence of the judiciary and lawyers exists to ensure the right to a fair trial of individuals to fellow citizens and secure their support?
Ms Zeller: In practice people often only realize when there is no independence any more. It is easier to see the relevance when you lack it; to acknowledge the relevance when you have it (more or less) any way is not so evident. Those who do not live in a free democratic society would appreciate to have independent judges. Therefore, abstractly spoken, it is relevant to raise awareness.
It starts with the understanding about the rule of law concept. This is highly complicated, but human rights education, education in what is a state governed by the rule of law must be done on a broad basis.
Furthermore, independence and impartiality are deeply linked. Impartiality of a judge is perceived by fellow citizens. In order to have impartiality there must not be any dependence, any special relation of the judging person to one of the parties to the case. The appearance of independence and respective judicial conduct can also contribute to show what independence is for. We judges must try to explain it to our fellow citizens in a clear and understandable language – also our judgements must be clear and understandable.
Recently an illustrative metaphor has been presented in an article: independence of judiciary can be compared with the need to have a referee in a soccer game. The referee must be independent, players and fans must trust the referee that he/she is independent and impartial so that they accept his/her clear decisions. Only then a successful sportive event can take place.
I also want to stress the important role of media in this context, as awareness raising basically works only via different media channels. In our nowadays world judicial issues are not “sexy issues” in general, except there is something sensational in it for a short time. The alarming increase of attacks on independent media and the work of independent journalists seemingly are not promising signals for future developments.
Q5: AEAJ, for a long time, has been running campaigns about Turkey and Poland. You have great insight into the situation in Turkey and Poland, especially relating to the legal profession 5 as a whole, what are the lessons we can learn from these two countries? What would you like to say to our European colleagues as to how they could help their Turkish and Polish colleagues?
Ms Zeller: The situation of Turkish judiciary is incredible and I still cannot find appropriate words for what has been going on since 2016 –starting already before the attempted coup d’etat took place in July 2016.
Turkish colleagues who stood up and who stand up for an independent judiciary in Turkey are and always will be my true heroes!
I am glad that the Council of Europe has awarded the president of YARSAV (the independent judicial association of Turkish judges and prosecutors) – Murat Arslan – with the Vaclav Havel Human Rights prize in 2017. Murat Arslan, like so many other Turkish colleagues, has been imprisoned since 2016 and is undergoing a longstanding imprisonment. Many Turkish colleagues did not get fair trials, they suffer from illegal dismissals and – even worse – they are bullied in detention or have to fear inhuman and degrading treatments eventually up to torture in prisons. Only recently the Platform for an independent judiciary has openly warned and addressed Turkish and European politicians in this respect.
Let me summarise in a more abstract way: before 2016 and after the attempted coup d’etat in 2016, many Turkish judges have made efforts to protect the independence of judiciary. However, many of these judges have been persecuted. At the moment it cannot be assumed that there is an independent judiciary, but there is hope for the future: first, the role model effect of those who have been unjustly dismissed and imprisoned as well as secondly those active judges who resist the pressure which is put on them and by this they also contribute to an independent judiciary. Thus, I am convinced that also thanks to the perseverance, hard work and dedication of so many Turkish colleagues Turkey will return to the root of a democracy governed by the rule of law. But let me also be clear: we will also need international pressure, respective political understanding and a dedicated public opinion to effectively change the current situation.
Both, the Turkish and Polish situation have not come up suddenly and at once, but developed and deteriorated by and by:
- There is clear evidence that the Turkish attempted coup d’etat was not the reason but only the occasion for the mass dismissals and mass arrests of Turkish judges and prosecutors. This was highlighted several times by the Platform for an Independent Judiciary and each of our associations had carefully watched and openly addressed the alarming signals ahead of the events of July 2016 in Turkey.
- The Polish judicial reform process started with a media campaign of governmental leaders and some media against judges several years ago. With the reform of the Constitutional Court which has also contributed to pave the way for the judicial reform of the Judicial Council (as well as of the Supreme Court) the Polish government wanted to give check, as it goes without saying that with court presidents and/or with judicial councils governments have the most effective and long lasting influence on judges.
Thanks to the bravery of Polish judge colleagues and Polish judicial associations as well as the media awareness and also the efforts of European institutions to restore the separation of powers Polish judiciary has not been made checkmated – yet. It would be a disaster also for Europe if this erosion would still advance.
What can we European judges do?
- Dissemination of information, addressing also the relevant political players, exchange of information with colleagues and communication/exchange with colleagues in Europe. We are all members of a European judiciary.
- Support the activities of our judicial associations (also on the international level) and be active members of these associations, “many hands build a house”. Judicial associations play an important role.
- To contribute in activities like “march of 1000 robes” organised by our Polish colleagues in January 2020. This initiative made me proud being a European judge, it was a truly touching moment to see so many Polish citizens (Polish civil society) in line with Polish judges demonstrating together for the rule of law. This is not obvious, chapeau!
- To support the platform for an independent judiciary in Turkey, especially to donate to the fund – this is organised and effectuated most efficiently by IAJ /EAJ!
Let me give a metaphor of what we can do – a weather forecast: On the one hand side we have a high: there is an increasing awareness in Europe, also by the European institutions, about the significance of judiciary and the significance to safeguard the independence of judiciary. On the other hand we have an absolute natural disaster and ongoing tornado in Turkey, which has already extinguished the rule of law and independent judiciary. We have a deep low pressure in Poland, which does not move and might cause also low-pressure areas in some other countries in Europe. So I would say that the weather condition is really changeable, seeing several low pressure areas arising which could surmount to affect us all. We should be aware of it and take our umbrellas out in order to protect our European colleagues. We must work together to get rid of the low-pressure areas affecting some of our colleagues and we must support the victims of the tornado in Turkey. Media reports for further weather forecasts should be given independently and regularly in order to see weather changes in time so that umbrellas can be opened quickly.
Q6: Since 2016, Turkish judiciary started to establish relations with Russia, China and Venezuela. Turkish judges were sent to China for training. Turkey’s High Election Board which is a high court signed a cooperation protocol with its Russian counterpart. Recently, the President of Turkish Court of Cassation held a meeting with his Venezuelan counterpart. Do you think COE/ECtHR correctly see and understand these signs?
Ms Zeller: A priori is this a question of politics. Foreign relations of a country depend on many different reasons. I do not comment on this issue as for us judges it is relevant to have exchange and dialogue with other judge colleagues from other countries, irrespective of the concrete political structure. However, for sure it is a fact that autocrats turn to learn from and have exchange specifically with other similar regimes.
Thus when Turkish judges are only sent to China for judicial trainings but not to European training institutions this is one-sighted. Therefore it depends also on the kind of exchange judges have and can have.
A free and open exchange between peers – even if they come from countries with different political and justice systems – is always to be welcomed.
This shows that it is important to have truly independent training institutions for judges and the option for judges to have a free exchange with peers as well as again the importance of judicial associations
Q7: In the cases of Alparslan Altan and Hakan Bas the ECtHR decided that detention of judges without respecting procedural steps laid in the Law on Judges and Prosecutors infringes the principle of judicial independence. However, the TCC in its recent judgement refused to comply with these decisions. In your opinion, should the ECtHR cease to consider the TCC as a source of effective remedy?
Ms Zeller: Clear answer: yes. In the actual situation there is no independent judiciary in Turkey and there is no effective national remedy! Interestingly the ECtHR practise shows a multilayered approach with respect to different cases, e.g. see the case (Appl. no. 3321/67, 3322/67, 3323/67 und 3344/67) of Denmark, Norway, Sweden and the Netherlands vs Greece.
Q8: AEAJ is running campaigns on judicial integrity. In a podcast named ‘Upholding Judicial Integrity’ you said ‘conduct of each single judge and independence are deeply linked’. Relating to this, Would you like to comment on the ECtHR President Mr Spano’s decision to accept an honorary doctorate from Istanbul University which sacked some 200 academics under Turkey’s recent emergency rule. It has sparked wide criticism in Turkey and Europe.
Ms Zeller: I do not know background details of this case. It is legitimate to criticise, however it would be necessary to know more details and listen to all sides.
A judicial conduct is the relevant factor to measure judicial integrity. The president of ECtHR is a judge and has acted in his position primarily as a judge (i.e. elected by his peers to be court president). Presidents of international courts enjoy specific public awareness.
The Human Rights Lecture of Mr Spano which he has held in front of Turkish apprentice judges highlights important issues and must be definitely seen positively against the background that dialogue and communication must be upheld at many levels: primarily with all colleagues from all countries but also with state representatives (as he is representing ECtHR).
However, it is indeed a sensitive issue to accept an honorary doctorate in the actual situation, namely that the president of an international court accepts honorary academic dignities of a member country whereas at the same time about thousands of judges of this country are imprisoned without guarantees of a fair trial. Also, the effects on the appearance of independence must be kept in mind which again might influence trust of society into an independent judiciary.
(A version of this interview was originally published by The Arrested Lawyers Initiative and reproduced by permission.)