Severe struggles among the power centers' military-led, staunchly secular elite and the political authority have currently centered on the judicial system, which has always been problematic but which was seriously politicized under the 1982 Constitution dictated by the coup leaders of Sept. 12, 1980.
Question marks over the fairness of trials coupled with long periods of detention without prosecution have long been raised but not resolved. Professor Ahmet İnsel from İstanbul-based Galatasaray University says that Turkey has been ranked among the top nations, at about 54 percent, in terms of the number of people arrested and whose sentences have not been finalized. Professor İnsel quotes, in an article published in a Radikal supplement on Sunday, a recent study released by the International Center for Prison Studies (ICPS) operating within London-based King's College. He joins with those in Turkey who see an urgent necessity for a fundamental reform of the Turkish judicial system. The ongoing controversy surrounding the appointments of judges and prosecutors by the Supreme Board of Judges and Prosecutors (HSYK) stands as an important example of this urgent need.
As this column was written, HSYK met yesterday for yet another in the series of long and controversial meetings of the past three weeks to complete the appointments. But this process was deadlocked when some members of the board insisted on appointing to different provinces the judges and prosecutors who are overseeing the Ergenekon deep state trial as well as other cases that involve alleged criminal acts committed by active duty or retired officers in the war-stricken Kurdish-dominated Southeast.
Justice Minister Sadullah Ergin and his undersecretary, as part of the seven-member HSYK, have been resisting changes of judges and prosecutors investigating Ergenekon and other cases that involve criminal acts related to the extrajudicial killings of mainly Kurds in Turkey's ongoing 24-year fight against the outlawed Kurdistan Workers' Party (PKK).
A senior judge from the court of appeals, despite his anti-government stance, recently told me that Ergenekon prosecutors and judges should retain their posts for the sake of this investigation and that the trial should be conducted with the original judges. “If they are replaced with new judges and prosecutors, any rulings to be made by new jurists on Ergenekon will raise serious question marks in the public over the fairness of the trial,” he said.
There are about five senior retired generals as well as active duty and retired officers in addition to high-profile academics, journalists, businessmen and a union leader accused of fomenting armed unrest to topple the government and who are either being tried or awaiting indictments to be tried as part of the Ergenekon investigation.
At the center of the controversy surrounding the HSYK's prolonged and deadlocked meetings stands the trial of the retired four-star generals who are allegedly involved in the coup plans to unseat the political authority. It is the first time that retired and not active duty generals, as well as active duty officers have been put on trial over the alleged major roles they played in instigating armed disorder.
Some HSYK members are suspected of seeking the replacement of Ergenekon judges and prosecutors to enable the early release of former generals once the new names are appointed. It is then no coincidence that former prosecutor Vural Savaş, known for his hawkish and pro-establishment stance, told a panel in Antalya at the weekend that “[the] HSYK was our last trump card” in his defense of Ergenekon suspects.
Judicial reform is among the most important criteria of Turkey's European Union membership bid. It requires changes in the 1982 Constitution, and the current government has not been able to do this mainly due to the obstacles erected as a result of power struggles.
The HSYK is the making of the 1982 Constitution dictated by the then coup leaders. Its decisions are not open to the judiciary while files about judges and prosecutors are kept secret, making them an easy prey to power struggles. The “Sarıkaya syndrome” has already taken thousands of judges and prosecutors hostages of fear for their careers, if not their lives. Ferhat Sarıkaya was stripped of all his duties by the HSYK when he wrote an indictment in 2006 in his capacity as Van prosecutor over a bomb attack against a book store in Şemdinli in which two noncommissioned officers were also accused of being involved. His indictment also accused several regional commanders as well as then-Turkish Land Forces Commander Gen. Yaşar Büyükanıt, who retired last year as the Turkish chief of general staff, in both the Şemdinli bookstore attack as well as in other alleged illegal acts in the region. Sarıkaya's whereabouts are not known, and he could not even take the HSYK decision to a court.
While Sarıkaya was stripped of all his duties by the HSYK as punishment for his indictment implicating the top generals on active duty, the two NCOs were released pending trial when their case was transferred to a military court from the Van civilian court which had sought 39 years imprisonment for each NCO.
A study conducted this year in May by the Turkish Economic and Social Studies Foundation (TESEV), an İstanbul-based liberal think tank, has revealed the trauma that has engulfed Turkish judges and prosecutors due to the expulsion of Sarıkaya by the HSYK from his profession. It is unfortunate that the then-justice minister of the current government, as a member of the HSYK, did not resist this board's decision against Sarıkaya.
Research conducted among 51 judges and prosecutors by TESEV showed that prosecutors have indicated that anything can happen to them if they do not safeguard the “political balances” while executing their professions. The current state of the judiciary in Turkey is among the “mother of all problems and instabilities,” that needs urgent attention.
