HSYK defers appointment crisis but questions linger on its structure

On late Tuesday the board announced the appointments of 1,332 prosecutors and judges. The list, however, did not indicate the new positions of prosecutors and judges conducting the Ergenekon case, in which dozens of army members, businessmen and journalists are standing trial on charges of attempting to overthrow the government, as well as prosecutors conducting probes into illegal groups across the country.

The list is traditionally announced in June, but has been delayed this year amid questions over whether it would have a decisive impact on the Ergenekon case.

Last week HSYK member Ali Suat Ertosun sparked controversy when he proposed the removal of Ergenekon prosecutors and judges along with those who conducted a probe into the Kurdish Democratic Confederation (KCK), the urban arm of the terrorist Kurdistan Workers' Party (PKK), and into jailed Col. Cemal Temizöz, who has suspected links to hundreds of civilians killed by gendarmes in the 1990s in southeastern Turkey.

The proposals drew the ire of the justice minister, who sometimes did not attend HSYK meetings or left deliberations halfway through the meeting. The board is not entitled to make a decision on the appointment list when the justice minister or his undersecretary is not present at deliberations.

Justice Minister Sadullah Ergin stated in the early morning hours on Wednesday that the HSYK would continue to deliberate on the future of senior judges and prosecutors in the days ahead. The board is expected to convene for further deliberations today.

Jurists, however, draw attention to the fact that the HSYK has not reached a full compromise on the appointment list yet. They believe the recent deadlock has come as a clear sign that the board needs an immediate restructuring.

In the photo, YARSAV head Eminağaoğlu is seen at a restaurant with a group of friends, including Independent Republican Party Deputy Chairman Engin Aydın, an Ergenekon suspect. Jurists call for removal of HSYK, YARSAV members Jurists agree that both Supreme Board of Judges and Prosecutors (HSYK) member Ali Suat Ertosun and Ömer Faruk Eminağaoğlu, the head of the Judges and Prosecutors Association (YARSAV), damaged the independence of the judiciary when they met with individuals who are currently suspects in the Ergenekon case. They said both Ertosun and Eminağaoğlu should be removed from office as they have already lost their impartiality. Last week Turkish dailies published a photo of Ertosun in a meeting at Ankara's Kent Hotel with several Ergenekon suspects. Then a photo was published of YARSAV's Eminağaoğlu at a restaurant with a group of friends, including Independent Republican Party (BCP) Deputy Chairman Engin Aydın, an Ergenekon suspect. “These photos damage the trust in the judiciary. Jurists who have the prospect of dealing with a judicial case should not be in contact with suspects,” said Jurists' Union President Sinan Kılıçkaya. Gültekin Avcı, a retired public prosecutor, said both Eminağaoğlu and Ertosun should immediately be removed from their positions. Ahmet Gündel, a former Supreme Court of Appeals prosecutor, agreed, and added: “Eminağaoğlu is also a Supreme Court of Appeals prosecutor. A prosecutor cannot appear among individuals who are standing as defendants in a judicial case. This is against the law.”

“Ertosun's proposal for the replacement of Ergenekon prosecutors has brought with it serious questions about the HSYK's impartiality. Now, it is a must to make a change in the structure of the board. Parliament should immediately focus on this issue,” stated Reşat Petek, a retired chief public prosecutor.

Problems with the modus operandi of the board have been a source of concern for the European Union. The union has strongly underlined in its progress reports on Turkey's accession process that the lack of checks on the HSYK's decision-making power casts a shadow over the image of Turkey's legal system.

The HSYK is entitled to make changes on appointment proposals submitted by the Ministry of Justice, but it is not entitled to prepare a circular itself. Ertosun, thus, overstepped his authority when he proposed the replacement of senior prosecutors and judges, which analysts believe made it a must to establish a body that could oversee the board.

According to Mete Göktürk, a former chief prosecutor of the now-dissolved State Security Court (DGM), a change in the structure of the HSYK necessitates a constitutional amendment.

“HSYK decisions are not under legal control, which sometimes leads to serious problems. However, a change in the structure of the board is not possible unless the Constitution is amended,” Göktürk said.

Göktürk also stressed that a specially authorized prosecutor or judge cannot be removed unless he has committed a serious crime or a grave mistake with a probe he is conducting. “Otherwise, the society will be uneasy and lose its confidence in judicial bodies,” he added.

In the meantime, HSYK Vice President Kadir Özbek said the board by no means intends to interfere in the judiciary. "All HSYK members have years of experience in their profession. We would never have the intention to interfere in the judiciary," he noted.

Prime Minister Recep Tayyip Erdoğan, however, said unexpected developments have blocked HSYK deliberations.

"Such circulars are prepared by the Ministry of Justice and submitted to the HSYK. The HSYK then holds deliberations over the proposals and decides on appointments. However, unexpected developments have taken place. A proposal other than that of the Ministry of Justice has emerged. I cannot comment on that. The HSYK has reached a compromise over around 1,300 judges and prosecutors. I hope the full appointment list will be issued soon," he added.

The fact that prosecutors and judges working on the Ergenekon and KCK cases have not been removed so far has boosted hopes that the justice minister will not bow to any internal or external pressure to that end. The prospect of the removal of Ergenekon prosecutors had drawn the indignation of jurists and analysts, who said it would deal a serious blow to the case, which is referred to as the case of the century in Turkey. They also said such a move would allow illegal groups in the country to go unpunished and prosecutors would be hindered from any future effort to reveal their existence.

Highlights from the partial appointment list

Some judges, who sent shockwaves across Turkey earlier this year with controversial rulings, have been removed from their positions and reassigned to new duties.

Among them are Necat Ede and Selda Kutluata, both judges at the İstanbul 12th High Criminal Court. They had released retired Gen. Hurşit Tolon, an Ergenekon suspect, due to “old age and poor health.” Both Ede and Kutluata were appointed to the Bakırköy Courthouse.

A past voice recording in which the wife of retired Gen. Şener Eruygur, another Ergenekon suspect, discussed the release of her husband with a doctor at the Gülhane Military Academy of Medicine (GATA) put the impartiality of the İstanbul 12th High Criminal Court into question.

In the voice recording, Muazzez Eruygur said: “[Ergenekon prosecutor] Zekeriya Öz is in close contact with the İstanbul 13th High Criminal Court. This court blocks our demands. The 12th and 14th high criminal courts are ours. The Ankara, İzmir and İstanbul Bar Associations said they were ready to assist us.”

Hasan Basri Zamanis, a public prosecutor at the Bakırköy Courthouse, was also removed from his position and appointed to the Şişli Courthouse. Zamanis was better known for launching several investigation against journalists, who prepared news stories about the Ergenekon probe.

Is HYSK's next maneuver to establish new Ergenekon court?

The Star daily claimed yesterday that one of the reasons the HSYK deliberations on the yearly appointment list have been stuck in a deadlock is the board's new attempt to establish a new specially authorized court in Ankara to try Ergenekon suspects.

The HSYK reportedly asked for the appointment of Osman Kaçmaz, the judge of Sincan's 1st High Criminal Court, as the chief judge of this new court.

Kaçmaz is better known for his controversial ruling against President Abdullah Gül. Kaçmaz ruled in May that Gül should stand trial in a decade-old fraud case. His ruling came as an open violation of the Constitution, which stipulates that presidents cannot be put on trial except for treason.

The HSYK's alleged attempt to establish a new Ergenekon court has been interpreted as a new maneuver to change the course of the case.

Various circles which frequently express their opposition to the Ergenekon case have been calling for the case to be heard at a new and specially authorized court in Ankara.

Şamil Tayyar, a Star columnist, asked why a new court would be needed in Ankara to hear the Ergenekon case. “There is already a specially authorized high criminal court in Ankara, the 11th High Criminal Court. … According to one comment on the issue, they want to entrust Ergenekon suspects to safe hands. As Ankara is the center of all military headquarters, a new court [which would hear the case] is of high importance,” Tayyar stated.