Turkish President Recep Tayyip Erdoğan has appointed Basri Bağcı, who was deemed “unqualified” to be a judge at the European Court of Human Rights (ECtHR) by the Parliamentary Assembly of the Council of Europe (PACE), as a new member of the Constitutional Court.
Bağcı has been serving as a member of the Supreme Court of Appeals and prior to that as deputy undersecretary of Turkey’s Ministry of Justice. Erdoğan selected Yağcı from among three candidates nominated by the General Assembly of the Supreme Court of Appeals. The appointment was published in the Official Gazette on April 2, 2020. According to the Turkish Constitution the president appoints 12 of the 15 members of the Constitutional Court.
Previously, Bağcı, then a member of the Supreme Court of Appeals, was among three nominees proposed by Turkey to the ECtHR to replace Işıl Karakaş, the Turkish member of the Strasbourg Court who later became its vice president and whose tenure was about to expire. However, Bağcı, along with other two nominees, was rejected by the PACE committee responsible for selecting ECtHR judges on the grounds that the proposed names “lacked the necessary qualifications to be elected as an ECtHR judge.”
The selection of a new Turkish judge to replace Karakaş took some two years, causing diplomatic tension between Turkey and PACE, which successively rejected three lists of nominees submitted by Turkey, finding all or some of the candidates in the lists lacking. The impasse was finally resolved with the selection of Saadet Yüksel, an academic from the Istanbul University law faculty.
The Turkish Constitutional Court examines the constitutionality, in respect of both form and substance, of laws, presidential decrees and the Rules of Procedure of the Turkish parliament. With a constitutional amendment that took effect in 2010 the Constitutional Court was also authorized to review individual applications with respect to fundamental rights and freedoms within the scope of the European Convention on Human Rights after the exhaustion of ordinary legal remedies. In that capacity the Constitutional Court acts, in a sense, as a “national ECtHR” and is recognized as a legal domestic remedy by the ECtHR to be exhausted before lodging a complaint with the Strasbourg Court.
The new member of the Constitutional Court, Bağcı, is seen as a ruling Justice and Development Party (AKP) partisan. According to Barış Yarkadaş, a former MP from the main opposition Republican People’s Party (CHP), Bağcı, then deputy undersecretary of the Justice Ministry, played a leading role in filling judicial ranks with AKP partisans.
After a coup attempt on July 15, 2016 President Erdogan dismissed some 4,000 judges and prosecutors through state of emergency cabinet decrees. In a move to fill up the judiciary thus vacated, a change was made through one of the cabinet decrees to the examination system for selecting judges and prosecutors. With the new regulation put into force in January 2017 the stipulation to score 70/100 in the written examination was repealed, thus paving the way for appointment of lawyers with dubious credentials to the judiciary. As a result, many neophytes and AKP partisans were appointed as judges and prosecutors after interviews that lasted in some cases less than one minute. Bağcı chaired this interview commission in his capacity as the justice ministry deputy undersecretary.
The ruling party had made a similar move in high judicial bodies in July 2016. With new legislation the number of members of the Supreme Court of Appeals and the Council of State was reduced from 516 to 300 and from 195 to 90, respectively, and the tenure of all members of these high courts was terminated, with only those found to be acceptable after being properly “vetted” to be later reappointed by the president.
Those amendments and dismissals were criticized by the Venice Commission, an advisory body of the Council of Europe, and the wider international community, which found them disruptive of the independence and impartiality of the judiciary.