The government gets its share of the blame as well for not acting promptly in its attempt to reform these institutions as required by EU membership criteria. Amid calls for a major comprehensive legal overhaul in Turkey, the Supreme Board of Judges and Prosecutors (HSYK) has recently emerged as the number one agency that many would argue needs urgent review and reform. “Reform in the judicial system should be carried out quickly. Turkey should swiftly adopt European Union standards in this area,” Turkish President Abdullah Gül said last week after the HSYK handed down a highly controversial ruling to strip the powers of prosecutors who were probing an alleged plot involving a senior commander, a prosecutor and intelligence officers in Erzincan province in the eastern part of Turkey.
The EU has criticized the HSYK in the past, including in its latest progress report issued by the commission last December, saying: “Concerns remain about the independence, impartiality and efficiency of the judiciary. As regards independence, there has been no progress on the composition of the HSYK. The Şemdinli case, transferred to the Van military court following a decision by the Supreme Court of Appeals, is pending. The dismissal of the civilian prosecutor previously in charge of the case, together with the handling of the case to date, raised questions about the independence of the High Council.”
At an extraordinary meeting last week, the HSYK decided to revoke the extraordinary authority of Erzurum specially authorized prosecutor Osman Şanal as well as that of another specially authorized prosecutor in Erzurum, Tarık Gür, and public prosecutors Rasim Karakullukçu and Mehmet Yazıcı.
The commission also lambasted senior members of the judiciary, the military and the association of judges and prosecutors who have made statements that are likely to put the impartiality of the judiciary at risk in important cases. After the recent decision by the HSYK, the heads of high judicial bodies including the Council of State, the Supreme Court of Appeals and the Association of Judges and Prosecutors (YARSAV) all made statements defending the controversial dismissal decision for the prosecutors. The Justice Ministry is strongly against the decision, arguing that the board has overstepped its authority and hampered the ongoing investigation.
Osman Can, a Constitutional Court rapporteur and the co-chairman of the newly established Judges and Prosecutors Association for Democracy and Freedom, told Sunday’s Zaman that the HSYK, with its current structure, is the product of military coups, stressing that the institution should be restructured so that its members are elected by Parliament.
“Western democracies experienced similar problems years ago, and the members of their HSYKs are to a great extent determined by their parliaments. We need a change in Turkey to make it possible for Parliament to have a say in the members of the HSYK. Half of the members of the HSYK should be elected by Parliament, while the rest should be determined through elections among the new judges and prosecutors,” Can remarked.
In an interview with Sunday’s Zaman last month in Strasbourg, Thomas Markert, acting secretary of the Venice Commission, the advisory body of the Council of Europe, also criticized the composition of the HSYK and the way the members are elected to the board. “In Turkey what is unusual is that the HSYK is very much composed on the basis of proposals coming from higher courts. If you compare it with the situation in other countries in Europe, all judges are able to elect representatives to a board,” he said, stressing that it is not acceptable for only superior courts to be able to designate representatives of the board.
He also proposed that there might be a possibility to have some people in the HSYK, who may or may not be judges, be elected by Parliament in order to have what he called “accountability to society.” Markert further emphasized that lower courts, unlike constitutional courts, which may be a bit political because of their nature, in almost all countries should be less political. In Turkey the HSYK along with other higher judiciary bodies such as the Council of State and the Supreme Court of Appeals are often accused of being overtly political.
Sui generis institution
The Justice Ministry’s action plan for judicial reform, which was adopted in August 2009, was applauded by the EU as “a positive step ahead both in terms of the consultative process followed before its approval but also of its content that broadly provides for the right direction for reforms.” The proposed changes to the structure of the HSYK, however, made some people uneasy, with tweaks that include increasing the number of board members from seven to 21 and giving Parliament a voice along with the president in their selection.
The Supreme Court of Appeals and the Council of State oppose the plan, which they say will eliminate the independence of the judiciary in Turkey. Dismissing these claims, the Justice Ministry argues there is no HSYK-like institution in EU member countries. In many European countries, parliaments have a say in the selection of high judges as well as the executive branch. There are no examples outside Turkey’s HSYK, which is a product of the country’s Sept. 12, 1980 military coup, of such institutions in European countries where appointment works the way it does here.
For example, in France, Italy, Spain, Portugal and Poland, the head of the executive branch, Parliament and justices of the courts of first instance all have the direct right to appoint members to the institution. In countries such as Holland and Sweden, the ruling administration determines the institution’s members. In Germany and England, where there is no institution equivalent to the HSYK, the ruling administration and deputies are influential in the appointment of judges. As for Turkey, the Supreme Court of Appeals and the Council of State determine the five main HSYK members. Under the current system, observers say Turkey’s higher courts exercise undue influence on judges and prosecutors.
In the Justice Ministry’s draft reform, the selection of board members is distributed across wider grounds. The Supreme Court of Appeals and the Council of State will maintain their selection power, but along with this, Parliament and the president will be able to choose from among a pool of law school faculty and attorneys. The 12,000 judges and prosecutors in the country will also select a candidate from amongst themselves. The HSYK will be rearranged into a two or three-house structure. The EU also criticizes HSYK decisions for being not open to judicial review.
Government is accomplice
The government shares some of the blame for not pushing hard enough in a timely manner for adopting comprehensive legal reforms in line with the action plan. In 18 bills proposed in the Justice Ministry’s action plan for the harmonization of laws with the EU, not a single one of them has been passed by Parliament. Only laws on the commercial code and obligations were introduced to the floor, while the rest have either remained in commission or are waiting for submission in either the Prime Ministry or on the desk of the justice minister.
Some of these laws require constitutional amendments, such as a draft law on the Supreme Court of Appeals, and as such it proves to be very difficult to pass in Parliament. However, others require a majority, which the ruling Justice and Development Party (AK Party) currently enjoys. Though internal procedures in Parliament give the opposition plenty of tools to block or delay bills, the government can use its majority in commissions or on the floor to overcome most of these challenges. Enacted laws still run the risk of annulment by the Constitutional Court after a petition from the opposition. The top court last month abolished a law allowing civilian courts to try military personnel for major crimes.
Many concede, however, that the government could have pushed the agenda harder and much earlier. “We could have submitted some laws like the State Secrecy Law to the general floor,” Ahmet İyimaya, the head of the Justice Commission in Parliament, told Sunday’s Zaman. “Even if we do not succeed at getting them enacted, or they manage to have them annulled by the Constitutional Court, the blame would be shifted away from us and would land on the opposition or high judiciary,” he emphasized.