Speaking on the condition of anonymity, a senior justice official told Today’s Zaman that ministry filed the appeal because the HSYK decision violated a number of rules and regulations governing the conduct of prosecutors and judges. “First of all, the investigation in Erzurum was supposed to be kept confidential as dictated by the law until the indictment was accepted by the court,” he said, questioning how the HSYK got its hands on the documents related to the case. “The board has no authority under the law to request the details of the investigation,” he underlined, adding that the HSYK needs to explain how it obtained the confidential documents.
The HSYK decided on Wednesday to strip Erzurum prosecutor Osman Şanal of his special authority because of his investigation into now-jailed Erzincan Chief Public Prosecutor İlhan Cihaner on charges of membership in a terrorist organization and falsification of documents. He was also investigating 3rd Army Commander Gen. Saldıray Berk, who had allegedly conspired with Cihaner.
The same official also stressed that the HSYK cannot adjudicate on matters related to misconduct and procedural violations during an investigation. “The claims of non-compliance can only be referred to judges and courts to determine their validity,” he said, noting that the appellate process had been circumvented in this case. “The HSYK simply can’t take up the issue ex officio, which it unfortunately did in this case,” he said. There was no precedent for this abrupt act, and the HSYK has been accused of devising a new rule that has no basis in the law.
The senior justice official also pointed out problems with the decision. “The prosecutors who were stripped of powers have not been subject to any complaints or faced disciplinary action. Therefore, it is hard to understand how the HSYK can make a decision to take prosecutors off the case and file criminal complaints against them.”
There is not a shred of evidence that prosecutors have mishandled the case so far. “Even if there is, this is definitely not the way to handle it, and the HSYK certainly has no jurisdiction to arbitrate on that,” he underlined. According to established practice, a prosecutor can be removed from his position or stripped of authority only after an investigation. However, no investigation had been launched into the prosecutors.
