HSYK to continue to be a source of crisis in future
by
ADNAN KÜÇÜK*

The meetings of the HSYK concerning the appointment and transfer of judges and prosecutors conducting critical cases, particularly the Ergenekon case, lasted about eight-and-a-half hours and ended on July 27, 2009. Hard negotiations were conducted during these meetings, and eventually the judges and prosecutors of the critical cases and investigations remained on their respective cases. It was decided that the Justice Ministry should launch probes into the complaints about these judges and prosecutors and that the board would take action according to the outcome of these investigations. Can this agreement solve the problem? Answer: No.

The problem is only postponed. The groups who try to exert pressure concerning the Ergenekon case and other critical investigations will now wait for the fall decree. Moreover, the probes launched by the ministry into these judges and prosecutors will continue to put psychological pressure on them. In conclusion, the HSYK-centered basic problem is still there. In this article, I would like to discuss the negative impact of this mechanism that the HSYK is employing against judges and prosecutors on the judicial independence and guarantees afforded to judges and prosecutors.

In the selection of HSYK members, the political institutions and the executive are largely bypassed. Parliament and the government are not allowed to appoint members to the board. The justice minister is the president of the board and the justice undersecretary is an ex officio member of the board. For each of the remaining five members, the Supreme Court of Appeals nominates three people, and the Council of State nominates two people. The final appointment, lasting for a term of four years, is made by the president. For every person nominated to HSYK posts, the general assemblies of the Supreme Court of Appeals and the Council of State hold individual voting sessions. Actually, the law concerning the establishment and functioning of the HSYK does not specify this method (Articles 5 and 6), but the general assemblies of the Supreme Court of Appeals and Council of State have adopted this convention. This implies that the people nominated by the Supreme Court of Appeals and the Council of State for appointment as HSYK members are decided by the majority at the said institutions. This effectively prevents people with diverse mindsets from being appointed as HSYK members. Moreover, all members of the Supreme Court of Appeals (Article 154 of the Constitution) and three-fourths of the Council of State (Article 155 of the Constitution) are elected by the HSYK. Thus, the HSYK is shaped by these two supreme courts while the HSYK determines their members. This mechanism ensures that a certain ideological orientation becomes dominant at these institutions, and all diverse tendencies are blocked. This is called co-optation, or a sort of caste system. The practices conducted within the framework of this mechanism effectively divide the judicial community into two groups: those who can be elected as members of the Supreme Court of Appeals and the Council of State, and those who cannot. The same applies with respect to being elected to the HSYK. Judges and prosecutors are trapped inside this mechanism as the judges and prosecutors of a certain mentality are largely denied the possibility of being elected as members of the HSYK, the Supreme Court of Appeals and the Council of State. Furthermore, the HSYK members are allowed to be re-elected, which paves the way for solidarity between the HSYK and the Supreme Court of Appeals and the Council of State. In addition, in order to secure their re-election, an HSYK member may opt to act in a manner that would be favorable to the groups holding the majority at said supreme courts.

The HSYK has the last say in the appointment, transfer and promotion of judges and prosecutors, in the evaluations concerning the performance of high-profile judges and prosecutors, disciplinary probes and other personnel rights. The transactions conducted by the board in connection with the personnel rights of judges and prosecutors are not subject to judicial review. On the other hand, confidential or public documents concerning the employment records of judges and prosecutors can play a decisive role in these transactions concerning personnel matters. Based on confidential records, judges and prosecutors may be appointed, or disciplinary penalties issued may change. They may also be transferred from one location to another without their legally specified term in office being completed -- two years in the fifth region, three years in the fourth and third regions, five years in the second region and seven years in the first region. In other words, these confidential records, whose objectivity cannot be determined, may play a central role in the victimization of judges and prosecutors. These actions that may victimize judges and prosecutors are conducted by the HSYK and are completely exempt from judicial review.

I would like to ask this pointed question, "If the process of preparing such confidential records about judges and prosecutors without their knowledge is prone to all sorts of subjective assessments, if a certain ideology can easily become dominant at the HSYK, if the HSYK has the power to deprive the judges and prosecutors who refuse to adopt this dominant ideology of their employment rights or at least this is the perception among judges and prosecutors, and if the HSYK's actions concerning these rights are not open to judicial review, then can we still talk about the existence of guarantees afforded to judges and prosecutors?"

I seriously doubt that the answer to this question is yes. Moreover, the efforts exerted in violation of laws and regulations by HSYK members to ensure that the judges and prosecutors dealing with the Ergenekon case, with the investigations into the KCK and with the unsolved murders in the Southeast are removed further add fuel to suspicions. In the past, the HSYK sacked prosecutor Ferhat Sarıkaya, who prepared the indictment for the Şemdinli case, and Sacit Kayasu, who indicted coup general Kenan Evren and other pro-coup generals. In this case, it is hard to say that judges and prosecutors enjoy some sort of protection in the performance of their duties. All this shows the extent of threats employed by the HSYK against judges and prosecutors. This board, which, under the Constitution and the HSYK law, is supposed to act in a way to secure judicial independence and guarantees afforded to judges and prosecutors, functions in quite a reverse manner, or at least, there are doubts about their intentions. In these conditions, it is not very likely for the HSYK to properly fulfill the functions it is supposed to perform with respect to fairness and rule of law.

The HSYK must be reformed in order to restore guarantees afforded to judges and prosecutors, rectify the above-mentioned defects, eliminate the co-optation and introduce pluralism to the composition of the board. It would suffice if we adopt the models currently implemented in the developed Western democracies, which have diverse systems. None of them has the model we currently employ. By using these countries as a model, we can do the following:

 * The members of the HSYK must be elected by the supreme courts, by other judges and by prosecutors -- who do not work at the supreme courts by Parliament, by the government, by the president and by the Justice Ministry. In this way, diverse ideological viewpoints should be represented at the board, and pluralism can be ensured.

 * A judicial review of the actions by the HSYK must be introduced. This will bring guarantees to judges and prosecutors against the actions of the HSYK, thereby making sure that judges and prosecutors can act more independently and act without fear from penalty in connection with their decisions.

* The use of confidential employment records for judges and prosecutors in transactions relating to the personnel rights or in disciplinary probes about judges and prosecutors must be stopped; instead, objective and open criteria must be introduced. If these criteria are vague, it is impossible for judges and prosecutor to fulfill their duties securely and to guarantee judicial independence.

If these proposals are not implemented and if necessary amendments to the Constitution and laws are not made, the problems stemming from the judiciary will continue to have a greater toll on our democracy, and the HSYK will continue to act like the sword of Damocles over judges and prosecutors. In such a case, it will be highly unlikely to have positive outcomes from the Ergenekon case or from other critical cases or investigations. Strictly speaking, if we do not want these cases and investigations to be covered up just like the Susurluk and Şemdinli cases, and if we really desire to have an uncorrupt country, then the above-mentioned proposals must be implemented, and the composition of the HSYK must be changed so that the judges and prosecutors dealing with these critical cases can boldly proceed with the fulfillment of their duties. For this reason, we must stop waiting for the fall decree but solve this problem as soon as possible. If this can be done, this will come as a great relief both for the judiciary and the country.