‘Judicial coup’ shows urgent need to overhaul legal bodies

The need for reform was voiced by Justice Minister Sadullah Ergin on Wednesday. On Thursday, Deputy Prime Minister Bülent Arınç reiterated the call for reform during a press conference in Ankara. Arınç said the government hopes to make comprehensive changes to the judiciary through a reform package.

The HSYK stripped specially authorized Erzurum prosecutor Osman Şanal of his extraordinary authority due to his probe of Erzincan Chief Public Prosecutor İlhan Cihaner, who is currently in jail. The board also stripped another specially authorized prosecutor in Erzurum, Tarık Gür, and public prosecutors Rasim Karakullukçu and Mehmet Yazıcı of their powers.

The decision sparked indignation in various segments of society as it cast doubt on the impartiality and independence of the judiciary. The deputy prime minister called the HSYK move a “shame for democracy” and expressed the government's intention to pass judicial reform, saying: “We are of the conviction that judicial reform should absolutely be undertaken. A constitutional change and judicial reform that will get our country in line with the EU [norms] and contemporary Western countries should be undertaken. We [the government] have always expressed our expectations to that end.” The Justice Ministry completed an EU-driven reform package making changes to the judiciary and submitted it to the Cabinet for approval in August. The package introduces comprehensive changes in line with the requirements of the EU, including a change to the structure of the HSYK, increasing its number of members and changing how they are elected.

It also seeks to create an appeal mechanism for HSYK decisions, which are currently final and not subject to further judicial review. The changes regarding the HSYK’s structure fall under efforts to strengthen judicial independence. The bill introduces a new structure that would guarantee the HSYK’s objectivity, impartiality and transparency in line with international practice.

During his speech Arınç directed harsh criticism at the board for its decision to strip the prosecutors of their authority.

“A heavy blow was dealt to the judiciary by the HSYK. We deem it a blow against our mindset of freedom. On what right and authority does the board depend when interfering in the judiciary?” asked an angry Arınç. Arınç was accompanied by Justice and Development Party (AK Party) parliamentary group deputy chairman Bekir Bozdağ and Haluk İpek, an AK Party deputy chairman.

Cihaner was arrested on Wednesday on charges of membership in a terrorist organization and falsification of documents. The prosecutor was taken into custody on Tuesday after a thorough search at his office and house as part of the ongoing probe into Ergenekon, a clandestine group nested within the state and the military. The group is accused of working to overthrow the government.

Arınç stated that the HSYK decision was highly political, went beyond the “red lines of the judiciary” and violated the Constitution and the law. “The decision blocked the independent operation of the judiciary. This is a heavy blow to the judiciary by the judiciary itself. All courts have been placed under undue pressure by the HSYK,” he remarked.

Cihaner’s arrest came in the wake of an investigation by Şanal. Şanal was interrogating the Erzincan prosecutor over his probe into a number of religious communities in the city. Last year, Justice Ministry inspectors uncovered irregularities in the probe. An investigation was launched into Cihaner on the grounds that he failed to inform the justice minister about his probe into the İsmailağa religious community and the Medine Foundation. Cihaner allegedly carried out the investigation illegally, in violation of established legal practice, and overstepped his authority.

“This ongoing chaos which undermines the independence of the judiciary by the judiciary itself should be ended. Turkey is not a country of judges. Turkey is a democratic country governed by the rule of law and will remain so,” the deputy prime minister continued.

Arınç also complained that the HSYK made the decision without even evaluating the Cihaner probe file. According to most jurists, the board cannot decide whether Şanal overstepped his authority without discussing the details of his probe. A prosecutor can be removed from his position or stripped of authority only after an investigation; however, no investigation was launched into the prosecutor.

“I’d like to direct a few questions to the esteemed members of the HSYK. Has any investigation into those prosecutors reached you? Do you have any evidence that points to an abuse of power by those prosecutors? On what legal grounds did you make such a decision? Why did you make such a decision without an investigation into the prosecutors?” Arınç asked.

Justice minister calls HSYK decision ‘unlawful’

Justice Minister Ergin called the HSYK decision “unlawful.” He said the board totally ignored the Constitution and the Code on Criminal Procedure (CMK). “The HSYK has no judicial duty or authority here. Despite this, the board engaged in an assumption of authority,” he complained. The minister’s remarks came on Wednesday after a lengthy meeting with Prime Minister Recep Tayyip Erdoğan.

“We see such attempts that could sweep the judicial system into chaos as a major blow to the independence of the judiciary. After this interference in an ongoing judicial process, it has been revealed once again that judicial reform should immediately be implemented,” the justice minister remarked.

Ergin underlined that the HSYK is an administrative body and has no authority to have a say in judicial matters. “The right to seek redress against judges, prosecutors and courts belongs to prosecutors, suspects and defendants. The HSYK decision is an open assumption of authority. It is unlawful and is against the Constitution and all law,” he noted. He also said the decision was aimed at intimidating other prosecutors and judges.

“The decision violated Article 138 of the Constitution, which stipulates that judges shall be independent in the discharge of their duties; no organ, authority, body or individual may give orders to courts or judges relating to the exercise of judicial power, send them circulars or make recommendations or suggestions. … Prosecutors and courts are now under heavy pressure from the high courts and the HSYK. It has become extremely difficult to be impartial and independent in the judiciary,” the justice minister added.

He also criticized statements by the heads of the Supreme Court of Appeals and the Council of State, which supported the HYSK decision.

The prosecutor’s office of the Supreme Court of Appeals announced on Wednesday that they had initiated an examination into Cihaner’s arrest. The court later said the HSYK decision was totally “lawful.” Council of State President Mustafa Birden expressed full support for the board and called on the public to act with common sense in the face of developments that are of vital importance for the country.

HSYK Deputy President Kadir Özbek expressed disappointment in the justice minister’s remarks on Thursday. “The justice minister delivered a very harsh statement. That was a statement we did not expect from a justice minister. It portrayed us [the HSYK] as though we were against the law,” he stated.

Also on Thursday, main opposition Republican People’s Party (CHP) leader Deniz Baykal spoke to reporters on the HSYK decision and lashed out at the arrest of Cihaner, saying Turkey had witnessed a first in its history. “For the first time ever, Turkey witnessed a [police] raid at a courthouse. A public prosecutor was arrested for the first time by another prosecutor,” he said, and claimed that a prosecutor can be prosecuted only by Justice Ministry inspectors.

“In this case, a senior prosecutor is prosecuted by a low-ranking prosecutor. … What’s the crime of that prosecutor that led to his arrest? The public needs to be persuaded, at this point. What’s the deal? Why are we faced with such a picture? This [the arrest] is related to an investigation by the prosecutor,” the CHP leader said. Baykal also claimed that the prime minister had earlier phoned Cihaner to demand that he release all people he had detained as part of his probe into the religious communities in Erzincan.