HSYK stands up as guardian of illegal organizations

Analysts agree that a move to remove specially authorized prosecutors or judges from their positions without a valid reason is a strong sign of a will of the HSYK to block any effort to reveal shadowy networks within the state. They believe that the main objective of the board is to divert the course of the Ergenekon case, in which retired top generals and both retired and military personnel of various ranks on active duty as well as tens of other defendants are standing trial for planning to topple the democratically elected government.

According to analysts, the removal of Ergenekon judges and prosecutors would deal a serious blow to the case, which is referred to as the case of the century in Turkey. They fear that with such a move illegal groups in the country would go untouched, which will most probably hinder other prosecutors from any effort to reveal their existence in the future. A recent attempt by the HSYK to replace judges and prosecutors conducting the Ergenekon trial has been a source of indignation for many, who called on the board to refrain from any move that could negatively impact on an ongoing judicial process.

Then arrived claims that the board was planning to replace prosecutors who were conducting a probe into the urban arm of the terrorist Kurdistan Workers' Party (PKK) and another prosecutor who was carrying out an investigation into jailed Col. Cemal Temizöz, who has suspected links to hundreds of civilians killed by gendarmes in the 1990s in southeastern Turkey. The HSYK's controversial attempts to change the course of Turkey's top three investigations has hindered the board from issuing its yearly appointment list for judges and prosecutors, which is traditionally announced in June. The board's deliberations on the list have so far turned up a blank.

“An attempt to replace prosecutors conducting such important investigations will create question marks in people's minds. These prosecutors have wide knowledge on the investigations they are carrying on. When they are replaced by new ones, the new prosecutors will not have much chance to gather so much knowledge on the investigations, which will be a cause of great fury for society,” stated Ergin Cinmen, a lawyer.

Süleyman Arslan, the president of the Rule of Law Association, claimed that the HSYK would turn into an illegal body if it decides to remove the prosecutors in question from office.

“It would also mean interference in the judiciary by a legal body, which would damage people's trust in the Turkish judicial system. Furthermore, the prospect of replacement of famous prosecutors brings a question to minds over whether the HSYK has shadowy links [with illegal bodies],” he remarked. Another point jurists are worried about in the event of removal of prosecutors is the prospect that such a move would prolong the process of critical trials.

“The Ergenekon trial would be delayed for at least two years if prosecutors conducting it are replaced. How will new prosecutors have enough time to deal with details of such a huge case?” asked Sacit Kayasu, a former prosecutor.

Jurists have also labeled the HSYK's move to change positions of Ergenekon prosecutors and judges a "pirate attempt" as the board members have no authority to prepare individual proposals for the appointment of judges or prosecutors.

Jurists warn against another Şemdinli scandal

Ümit Kardaş, a retired military judge, warned that Turkey may witness another Şemdinli scandal in the event of a replacement of Ergenekon prosecutors. “What has happened to Ferhat Sarıkaya in the Şemdinli case boosts our concerns. There have always been similar attempts since the very launch of the Ergenekon investigation. The replacement of Ergenekon judges or prosecutors would be tantamount to sabotaging the case. Judges and prosecutors in critical cases should not be removed unless they commit a scandalous mistake,” Kardaş remarked.

In 2006, the HSYK disbarred Sarıkaya, a civilian prosecutor who ordered the arrests of two noncommissioned officers and a terrorist PKK member-turned-informant who were caught red-handed bombing a bookstore in Şemdinli, southeastern Turkey, and also prepared a number of indictments against army commanders for their alleged links to this incident.

Reşat Petek, a former chief prosecutor, agreed, adding it would be scandalous to remove specially authorized prosecutors before their term-in-office ends. “We have no trust in the HSYK as it made scandalous decisions on some prosecutors in the past. … Prosecutors conducting the Ergenekon case have special powers and cannot be removed before they complete their three years in office. The HSYK is about to make an administrative decision, not a judicial one,” the prosecutor stressed.

Former chief prosecutor of the Supreme Court of Appeals Sabih Kanadoğlu, however, stated in a past conference in Germany that the Ergenekon case was destined to end in failure and turn out to be a Şemdinli-like trial. He also called in January of this year on the HSYK to increase the number of Ergenekon prosecutors to at least 40. Jurists also agree that the removal of a specially authorized prosecutor or judge from his position without a strong reason goes against principles enshrined in the Constitution. “You need very strong reasons to replace a prosecutor with special powers before his term in office ends. A prosecutor who has not even undergone an investigation due to a probe he is conducting cannot be removed from office,” they remark.

According to jurists, the HSYK has overshadowed the independence of the judiciary with its recent moves. “The moves have violated Articles 138 and 139 of the Constitution, which rule on the guarantee over the independence of judges and prosecutors,” they agree.

Possible change in HSYK structure looms in horizon

The Sabah daily claimed yesterday that a deadlock which gripped Turkey following a delay in the HSYK appointment list is the result of a war of tactics within the board, adding the deadlock could be resolved through a comprehensive change in its structure.

According to the daily, the Justice Ministry submitted its proposals for appointment of more than 1,500 judges and prosecutors to the HSYK on June 15. The board has, however, since then been kept in a deadlock over whether to approve the list. As the board was deliberating on the list, HSYK member Ali Suat Ertosun proposed on July 13 the removal of all of the prosecutors and the two of the judges in the Ergenekon case, which is widely believed to be a milestone in the history of Turkish democracy. The HSYK's move to replace the figures conducting the Ergenekon case has drawn the ire of Justice Minister Sadullah Ergün, who declined to attend the board's meeting on Wednesday. The board is not entitled to make a decision when the justice minister i s not at its meeting. According to Sabah, the Justice Ministry is planning to include a pledge in its Judicial Strategy Document, which will be submitted to European Union in a bid to reform Turkey's judicial system, to change the structure of the HSYK. The ministry is planning to charge an institution with the duty of monitoring the modus operandi of the board. The European Union has strongly underlined in its Turkey progress reports that the fact that HSYK decisions are not controlled by another body overshadows the image of Turkey's legal system. The content of the planned change has, however, not been disclosed.

* Bayram Kaya, Arif Bayraktar, Hüseyin Keleş, Dilek Hayırlı and Nergihan Çelen contributed to this report.