Origins of the judiciary’s problems
by
Ahmet Gündel*

Thus, it is obvious that the HSYK shapes both the high judiciary and the organization of the courts. Formerly, the justice minister could order prosecutors to launch public actions, but this authority was later removed. Judges and prosecutors fulfill their duties independently of any influence from the executive.

The HSYK was established to ensure judicial independence and impartiality pursuant to Article 159 of the Constitution. But how has the board performed so far in terms of protecting judicial independence and impartiality with loyalty to the Constitution? Let us now answer this question.

The HSYK is chaired by the justice minister. The justice undersecretary is an ex-officio member of the board. Of the five remaining members, three are elected by the Supreme Court of Appeals and two by the Council of State.

As can be seen more clearly in recent years, the board has experienced polarization between the ministry side and the judiciary side. In the elections of the high judiciary, the justice minister is authorized to nominate only a small part of the members, while all the other positions are nominated by the high judiciary. The Justice Ministry has tended to appoint people from its own staff and those who whom it shares a similar ideology. This applies to the high judiciary camp as well. For instance, the Justice Ministry is entitled to appoint three or four members of the 30-member Supreme Court of Appeals, while the rest are appointed by the high judiciary. Important criteria such as professional qualification, promotions, impartiality, objectivity, honesty and professional research have been largely ignored in the elections of the high judiciary and judicial courts. Instead, other criteria that would lead to arbitrariness have been taken into consideration for many years, and this eventually resulted in the emergence of ideological concentrations at the Supreme Court of Appeals and the Council of State. Currently, the dominant elements of these two high courts come from this concentration. This ideological structure is influential in electing the presidents and chief public prosecutors of the Supreme Court of Appeals, the members of the Constitutional Court, some members of the HSYK, the Supreme Election Board (YSK) and the members of a number of other important organizations and bodies.

The HSYK and the high judiciary have failed to exhibit a good record in this country. During periods of military interventions, they opted to side with the subversive generals, not with the democracy that would grant them independence. Recently, they have maintained this attitude with respect to the Ergenekon investigation and the like, meddling with the judicial process at critical moments. They have also failed to defend the rights of many judges and prosecutors who were illegally profiled and labeled by shadowy networks, exhibiting scandalous indifference to these illegal activities. They have played a major role in creating a repressive atmosphere by making statements under the pretext of defending secularism and lending support to democratically elected governments. They have not refrained from clashing with the values and beliefs of the general public. They have even spoken their minds about the matters about which they might have to decide in the future and politicized the judiciary by issuing politically motivated decisions.

While they have defended an association they established to oppose the government as if it were an opposition party, they have exhibited antidemocratic attitudes toward another association that advocates democratic values and its executives. This is clear proof of what they understand from impartiality.

I think I should also touch on the relations between the high judiciary and the HSYK and the judges and prosecutors of judicial courts.

I will restrict my analysis to the members of the judiciary working at the Ankara courthouse.

The judges and prosecutors who work at the Ankara courthouse are mainly those who have acquired a certain seniority and who are entitled to elect members to the Supreme Court of Appeals. When they are first appointed to the Ankara courthouse, they start to work at a low-level court and then they are promoted. For instance, a judge who is appointed to the Criminal Court of Peace attempts to become a judge of the Criminal Court of First Instance and then a judge at the High Criminal Court.

Given the fact that they are rated very weak, weak, average, good and very good by the Supreme Court of Appeals and that these ratings are used as criteria in their future promotions, the judges and prosecutors feel the need to go to the Supreme Court of Appeals to conduct lobbying activities by expressing their respect for the members and department presidents at this court. Similarly, they also go to the HSYK to conduct similar lobbying efforts and tell the members of this board that they want to be promoted to a higher position or be elected as a member of the Supreme Court of Appeals. Meanwhile, they have to wait for hours in lines and most of the time; they return without receiving what they sought and with their pride wounded. Indeed, the HSYK members have already made up their minds about who will be elected as members of the Supreme Court of Appeals or who will be appointed to important positions in courts. If a judge or prosecutor can secure the support of even one member of the board, he cannot be beaten.

When some members of the Supreme Court of Appeals are appointed to the HSYK, the three members who originally came from the Supreme Court of Appeals have to take into consideration certain demands of this court. Otherwise, when their terms of office at the board end and they return to the Supreme Court of Appeals, it will very unlikely for them to be elected as a president of one of the chambers of this court.

This is the main course of relations within the judiciary.

Thus, one can clearly see that the judges and prosecutors serving in judicial courts are extremely dependent on the Supreme Court of Appeals, the Council of State and the HYSK. The future careers of the judges and prosecutors is determined by the board, while the fate of members of the board is shaped by the Supreme Court of Appeals and the Council of State. This is the generally overlooked major obstacle before judicial independence and impartiality. While popular parlance is biased on the emphasis of the judiciary's independence against the external world, especially the government, no mention is made about the inner independence against the higher judiciary and the HSYK.