Civil judiciary: How civil is it?

There exist stories that only emerge when there is conflict. In Turkey recently, one such story emerged in the Supreme Board of Judges and Prosecutors, or HSYK, with an attempt by members to relocate the prosecutors carrying out the Ergenekon probe and the judges trying the case. The story started to get more interesting after we learned that the names of the prosecutors hearing the very crucial cases, where mentioned together with those of the Kurdish Democratic Confederation, or KCK, operations and Colonel Cemal Temizöz. This was a clear indication of interference in the final form of the highly anticipated yearly appointment list. Although the annually prepared list is generally released in June and the list itself is one of the very “routine” tasks of the Ministry of Justice, at the time these words are written, the board had yet to reach agreement on it.

This very momentous delay deserves to be the hero of our story as it sparked and directed the conflict, so we should search for the reason behind it.

Why did the HSYK members fail to reach agreement on the appointments and reassignment of prosecutors and judges?

Is it true that HSYK members have the determination to replace the prosecutors and judges hearing the Ergenekon trial without any reasonable explanation?

This is the one good thing about conflict; they give us an opportunity to notice an existing, but hidden problem. If we would like our story to have a happy ending, we should ask the right questions to remove the hidden points. 

We all know that the jurists hearing the Ergenekon trial have not fulfilled their term and that none of them are under investigation. So why has the request for replacements been made?

Can a photo of a meeting between a member of HSYK and a suspect in the ongoing Ergenekon investigation be assessed as evidence that the board is trying to bloc the Ergenekon probe by suggesting the replacement of prosecutors and judges in this critical trial?

In actual fact, the judicial system and the HSYK structure, in particular, have been under discussion for some time. To which law book do you refer to examine the role of the board in Turkey? The main criticisms to be found in the structure are that the Minister of Justice is the president and sets the agenda, its budget controlled by the ministry and it does not have its own secretariat, etc.

However, one should note that all these criticisms refer to the decision making process that constitutes the formal side of the law and none of them deal with the perceptions and rationalities of the judges and prosecutors. That's why the core question must be about the mindset of the judiciary.

The law and jurisdiction has developed a structure of immunity to attack, but the risk of it being damaged, even from within the institution itself, always exists. 

Since the HSYK, Turkey’s top judicial organ, is trying to replace judges and prosecutors hearing the Ergenekon case in Istanbul and the JİTEM killings case in southeastern Turkey, it clearly displays contempt for the court’s independent and impartial core. Unfortunately, this is not the first time that the reputation of this uncontestable core has been damaged. It is all too easy to recall the case of the two military personnel who were initially sentenced to 39 years each by a civilian court after being apprehended by locals in the streets of Şemdinli and accused over a bookstore bombing. The Supreme Court of Appeals, however, forwarded the case to the military court and after a retrial by a military court; the two were released on condition without being detained.

On the other hand, prosecutor Ferhat Sarıkaya, who prepared the indictment in the Şemdinli bombing case, was removed from his post in a HSYK decision, a similar situation that appears to be emerging in relation to the careers of the prosecutors currently hearing the Ergenekon trial. Two important circumstances resulted from the Şemdinli case; firstly, the termination of the professional career of a young prosecutor by HSYK; and secondly, the release of two military personnel. Not surprisingly, the chairman of the Supreme Court of Appeals has stated that the recent amendment to the Criminal Procedure Code, or CMK, which allows the trial of military personnel in civilian courts in peacetime rather than in military courts, was not in line with the Turkish Constitution. Ironically, as a practical benefit of the mentioned amendment, the Şemdinli case would be returned to the civilian court.

Through the course of Şemdinli case, the public started to question the perception of HSYK and the judiciary for the first time. Thus, one of the hidden points created by the story-tellers in our story was revealed by those listening. We have started to discuss the perceptions of judicial institutions instead of the judicial decisions by lifting the psychological protection awarded them. It points undoubtedly to an important development since the affect of decisions remains specific; but the perceptions are encompassing. As one, we as Turkish people, have suffered the side effects of the 367 decision, we have seen the consequences of the Şemdinli case decision and now we know enough to digest any other attempts of anti-democratic interference to the one address we need to rely on most.

When it comes to judicial independence and judicial impartiality, aside from the structure and functioning of HSYK, there are other important factors such as perceptions, rationalities and mindset of the judges and prosecutors. The report released by TESEV in 2007, which was later published in two books with additional studies; indicated that some judges and prosecutors interviewed openly stated that they protected the “interests of the state” when they were at stake. The study has also found that a substantial portion of Turkey’s judges and prosecutors have doubts about the legal reforms introduced as part of the country’s EU harmonization process. One of the most dramatic conclusions being draw is not just a few think this process is harming Turkey. The report was also important for the reason that it provided information on a widely-held public opinion that the judiciary is dragging its feet over the implementation of legal reforms introduced in the fields of human rights and democratization.

As you can see, our people have already started to challenge the conflicting story through their questions referring to the “mindset”. The “mindset” that leads us to “judicial etaism”…

They ask: How civilian is the judicial power?

I am hopeful there will be a happy ending to this story; continue to ask questions.

(Özlem Türköne is an Istanbul deputy for the ruling Justice and Development Party, or AKP, and also a member of Turkish delegation to the Parliamentary Assembly of Council of Europe, or PACE.)