Row Over HSYK Reveals Institutional Weaknesses

The intersection of politics and the judiciary is difficult for many countries, but has been partiuclarly problematic for Turkey. Among one of the many thorny issues pertaining to Turkey's judicial system is its appointment of judges and prosecutors through the High Council of Prosecutors and Judges (HSYK). The HSYK appoints all judges and prosecutors, and usually a list of appointments is announced each June. However, the ongoing Ergenekon investigation, as well as investigations into war crimes committed by the Turkish gendarmerie (the military police force) have brought increased importance to the appointment process. Last week, HSYK member Ali Suat Ertosun sparked a firestorm of controversy when he indicated that prosecutors involved in the Ergenekon investigation of crimes committed by individuals alleged to be members of Turkey's "deep state" might not be re-nominated. Though there have been justified concerns about the politicization of the investigations, Turkish government officials and civil society groups strongly protested Ertosun's declaration.

Justice Minister Sadullah Ergin and Justice Ministry Undersecretary Ahmet Kahraman also sit on the HSYK, a seven member board established by Article 159 of the constitution. The board is chaired by Ergin, and oversees the appointment, transfer, and dismissal of Turkey's judges and prosecutors as the justice minister. The other five members of the HSYK are nominated by the president, the Supreme Court of Appeals, and the Council of State. (For a summary of Turkey's judicial system, click here.) There have long been concerns about the criteria used to select prosecutors, as well as the Council's representation of the judiciary as a whole. From the EU Commission's report of Turkey's progress toward accession:

Concerns remain about the impartiality of the judiciary. On some occasions senior members of the judiciary made public political comments which may compromise their impartiality in future cases. As regards independence, there has been no progress on the composition of the High Council of Judges and Prosecutors or on the reporting lines of judicial inspectors.

The selection criteria of judges and prosecutors was amended in December 2007, though complaints persist that the criteria are open to subjective interpretation.

Institutional conflict within the Turkish state is often summarized as occuring between the elected executive/legislative branches of the government and the judiciary. The judiciary has long been home to pro-status quo politicians often seen as representative of the Kemalist old guard, and to some extent, the political and legal legacies that came into effect after the 1980 coup. This understanding of institutional conflict was manifested in the AKP closure case of last year when the Chief Prosecutor of the Supreme Court of Appeals filed a case to close AKP for violating the constitution and the Law on Political Parties. The power of the judiciary was also on display in April 2007 when the Constitutional Court invalidated the election of President Gül, claiming a two-thirds quorum of 376 PM's was needed to elect the president. The Constitutional Court also has the authority to veto legislation, including the headscarf amendments of last year and law creating an office of ombudsman. The ideological orientation of the judiciary is also evinced by the composition of the Judges and Prosecutors Association (YARSAV).

The appointment of judges and prosectors has always been a polemical process within Turkish politics, especially alongside accusations against AKP for allegedly abusing its executive power to appoint judges and prosecutors sympathetic to what are seen as its Islamic-oriented politics. The Ergenekon investigation has only served to heighten these accusations as many public opinion leaders critical of the party have characterized AKP as using the investigation to destory its political enemies and ensure its dominance over the state. The Ergenekon investigation is being led up by top prosecutor Zekeriya Öz, whose position, alongside other Ergenekon prosecutors, is among those rumored to be in jeopardy. Other prosecutors' whose replacement is rumored appeared on a list published by Bugün:

A Turkish daily released the names of judges and prosecutors Ertosun wished to replace on Monday.

According to the Bugün daily, Ertosun demanded the replacement of Ergenekon prosecutors Zekeriya Öz, Mehmet Ali Pekgüzel and Fikret Seçen.

İstanbul Chief Public Prosecutor Aykut Cengiz Engin and Deputy Chief Prosecutor Turan Çolakkadı are also on the HSYK member's list.

Bugün also wrote that Ertosun is not pleased with the head of the Diyarbakır High Criminal Court, Dündar Örsdemir. Örsdemir is well known for his investigations into unsolved murders in the Southeast.

The HSYK member also demanded that Murat Gök, a prosecutor who conducted various probes into criminal organizations in the Aegean city of İzmir, be removed from his position.

Rüstem Eryılmaz and Resul Çakır, the judges who ordered the arrest of Col. Dursun Çiçek -- whose signature was found on a highly disputed action plan against the Justice and Development Party (AK Party) and the Gülen movement, are also on Ertosun's list.

Though Çiçek was arrested on suspicion of links to the plot, he was soon released after an appeal by his lawyer.

Ertosun also demanded the replacement of İdris Asan, a judge at the İstanbul 9th High Criminal Court. Asan has ordered the arrests of several Ergenekon suspects.

Alleged HSYK interference in the Ergenekon case was also on display this January when HSYK announced that it would be appointing more prosectors to İstanbul in an effort allegedly designed to stifle the investigation.

In contrast, public opinion leaders on the other side of the political equation have criticized the institutional structure of the HSYK as allowing for too much executive involvement. CHP deputy chair Onur Öymen has said it is impossible for the HSYK to act independently when the Justice Ministry is not only on the council, but chairs it. Many taking this side of the issue have argued for the removal of executive influence over the HSYK, and subject to particular scorn is the rule that the HSYK cannot meet without being called by the justice minister. Criticism of the HSYK's institutional arrangement also includes its lack of an independent secretariat and dependence on the Justice Ministry for its budget.

The release of the list by the HSYK will continue to be delayed until some sort of consensus is reached between Ergin and Ertosun. For newspaper coverage of the deadlock, see these articles from Hürriyet and Today's Zaman, the latter of which levelled insinuations that Ertosun and YARSAV head Ömer Faruk Eminağaoğlu are affiliated with Ergenekon.

Debating larger institutional arguments are two op/ed's recently published in Hürriyet. The first is authored by Rıza Türmen, columnist for Milliyet and former ECHR judge, and the second by Özlem Türköne, an AKP MP and memberof the Turkish delegation to the Parliamentary Assembly of the Council of Europe (PACE). While Türmen argues the HSYK should function more independently of the judiciary, Türköne assesses the politicization and establishment bias of the HSYK and the judiciary. The two columnists talk past each other, though both bringing up valid points and arguments for meaningful reform.

Worth looking to is TESEV's 2007 report on the independence of the judiciary. TESEV also recently released a book on people's perceptions of the judiciary (see report in Turkish).