Haberal compensation ruling puts pressure on judges

November 06, 2010, Saturday/ 16:57:00/ TODAY'S ZAMAN
Observers are worried that judges will feel pressured by the high judiciary because the Supreme Court of Appeals threatened the independence of judicial bodies when it approved the pecuniary fine for nine judges who refused to release Ergenekon suspect Professor Mehmet Haberal from prison.

The Supreme Court of Appeals has approved a ruling by its fourth chamber ordering nine judges to pay TL 1,500 each to Ergenekon suspect Mehmet Haberal for refusing to release him from prison. Legal experts have criticized the decision, saying its rationale is highly disputable, and warned that it might have dangerous consequences as it puts pressure on independent judges. Haberal was arrested last year as part of an investigation into a clandestine terrorist group known as Ergenekon, which is charged with plotting to overthrow the government. Since his arrest he has not spent a single day in prison, arguing that his health does not allow him to. The professor is currently hospitalized at the İstanbul University Cardiology Institute due to complaints of chest pain.

In June Haberal's lawyers filed several appeals with various high criminal courts to have their client's “arrestee status” dropped due to his poor health; however, the appeals were rejected by the relevant courts. In response, lawyers filed a criminal complaint against the judges at the 4th Chamber of the Supreme Court of Appeals. The chamber decided to punish the judges, ruling that they each pay the former rector compensation for damages. Each of the nine judges was ordered to pay Haberal TL 1,500.

The Supreme Court of Appeals, which was hearing an appeal from the nine judges, upheld the compensation payment ruling yesterday. However, the amount to be paid by the judges is subject to change, as the Supreme Court of Appeals will take that issue up in a separate hearing next week.

Other charges pressed against prosecutors who had issued the initial detention warrant for Haberal were dismissed by the Ankara 22nd Court of Law. The reasoned opinion of this court emphasized that no compensation ruling could be made as long as Haberal's trial continued. In other words, the Supreme Court of Appeals violated this principle in its decision yesterday.

Dokuz Eylül University Dean Yusuf Karakoç commented that this was the first time such a ruling has been issued. He said it was simply wrong to issue such a ruling before Haberal’s trial was over and before it was clear whether Haberal is indeed innocent of the allegations directed at him. “The correctness of this ruling is disputable,” Karakoç said, noting that the ruling had created the impression that Haberal’s arrest and the ensuing trial were unfair.

“First the trial should end, and the person be acquitted. Certainly, in such a case those who have made him suffer arbitrarily can be sanctioned by various means, or be made to pay compensation,” he said, adding that the Supreme Court of Appeals decision would make judges uneasy in the future. “They will be worried that they too might be fined or even accused of abusing their authorities as judges. This would certainly influence judges who are hearing trials.”

He said high courts should avoid making decisions that could set a precedent in future cases. “It would be good to stay away from pressure that might obstruct individuals from performing their authority. It could be the right decision, but it looks like there was some other meaning as it was made at a time when the trial is still going on.”

Friday’s ruling has also come to show that the appeals court totally ignored an earlier medical report that showed Haberal to be in good health. The report, drafted by the İstanbul University Cardiology Institute, dates back to Oct. 16 of last year. It found media coverage only recently. According to the report, Haberal’s condition was evaluated by a group of professors and an associate professor who concluded that Haberal would not require further medical attention at the hospital. “Haberal can continue medical treatment as an outpatient, and return to the institute for a check-up in one month,” the report added.

According to Ahmet Gündel, a former prosecutor of the Supreme Court of Appeals, the appeals court decision against the judges is a “legal scandal.” For him, the decision spells a threat for the independence of the judiciary because all judges will feel pressured by the Supreme Court of Appeals.

Lawyer Kazım Berzeg said the decision was tantamount to ruling that there is no law at all in Turkey. “This ruling is certainly not legitimate. The Supreme Court of Appeals Legal General Council has violated Article 573 of the Legal Procedures Law that has been in place since 1926. With this decision, it changed its interpretation of this law, which has been the same since 1926. According to this law, no court can issue any penal sanctions against a judge for as long as a trial continues.” He said if the judges took the case to the European Court of Human Rights, that court would almost certainly find them right.

Haberal is accused of membership in a terrorist organization that planned to overthrow the government. The prosecution has demanded two consecutive life sentences without the possibility of parole and 22.5 years in prison.

Adnan Küçük, an assistant professor of law at Kırıkkale University, said the ruling was dangerous for judicial independence. “This ruling is pure pressure on the judges. No judge or prosecutor can be punished for carrying out his or her duties. Malicious intent should be established for sanctions to be issued. Here, in this case, there is a ruling that was based on an expert’s report.”

He said what happened to the nine judges was the same as what happened to Sacit Kayasu, a prosecutor who was disbarred by the Supreme Board of Judges and Prosecutors (HSYK) for attempting to prosecute the generals that staged the Sept. 12, 1980 coup d’état, and to Ferhat Sarıkaya, who was disbarred in 2006 for attempting to indict a force commander. “This poses a grave danger to judicial independence. Other judges are likely to consider this ruling by the Supreme Court of Appeals. The judges will now worry about having to pay compensation for carrying out their duties. Judges might be psychologically affected. If this happens, no one will ever be arrested in Turkey. A fair trial is not possible under these circumstances. It is a seriously problematic ruling.”

Bilal Çalışır from the Boğaziçi Lawyers’ Association said the decision will be etched in Turkey’s legal history under the name “The Haberal Ruling.” He said: “Special decisions that are based on who the person on trial is have been increasingly rife in recent times in the Turkish judiciary. There is no way this decision would be made for an ordinary suspect or a defendant in any case. I see this as a ruling unique to Haberal. This will perhaps be remembered in the future as the Haberal Ruling because it is not a ruling that can be explained within legal limits. Its legitimacy will be greatly discussed.”

He also expressed concern that judges might be hesitant in future decisions because of this ruling. He also recalled that the high judiciary has been working to free suspects in the Ergenekon trial. “The high judiciary’s stance on the Ergenekon trial has been obvious. One cannot forget earlier efforts by members of the Supreme Court of Appeals to release some of the suspects,” he said.

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