HSYK elections signal more independent, impartial judiciary

Undersecretary Kahraman cast a vote in HSYK elections.

October 18, 2010, Monday/ 16:51:00
The caste system in the higher judiciary cannot survive, and judicial bodies will act more independently and impartially, according to Turkey's leading jurists, who commented on yesterday's vote among more than 11,000 judges and prosecutors to elect new members of the Supreme Board of Judges and Prosecutors (HSYK).

The elections follow the ratification of the 26-article constitutional amendment package on Sept. 12, which envisages a change in the HSYK structure: increasing the number of HSYK members to 22 from the current seven. Members will no longer be elected only by the Supreme Court of Appeals and the Council of State.

Nearly 11,700 judges and prosecutors, in other words everyone from the top members of the judiciary to judges serving in the remotest areas of the country, went to the ballot box in the afternoon on Sunday. Judges and prosecutors who serve in ordinary courts voted to elect seven primary and four alternate HSYK members, while judges and prosecutors who serve in administrative courts voted to elect three primary and two alternate members. The president will elect four people from among academics and lawyers for the HSYK, while the Turkish Justice Academy will select one person from among its members. For most observers, the new HSYK structure will challenge the “caste system” in the higher judiciary.

“A cast system has dominated the higher judiciary since the military coup of 1960. Judges who ordered the execution of [former Prime Minister] Adnan Menderes after the coup later became members to the Supreme Court of Appeals and the Council of State. And they continued to elect one another to top judicial posts over the years. And in time the system turned into a caste system. But the caste system is being changed at the hands of a democratic mechanism,” stated Reşat Petek, a retired chief prosecutor.

The HSYK has for long been the center of criticism due to a number of controversial decisions. It recently moved to remove Ergenekon prosecutor Zekeriya Öz from the case as well as over 100 judges and prosecutors in the Sledgehammer, Poyrazköy Kafes and Temizöz cases. But the Ministry of Justice strongly resisted the move. Ergenekon is a clandestine criminal organization accused of working to overthrow the government.

Seven of the board's members resigned from their positions last week.

Petek also said Oct. 17 will stand as a turning point for Turkish judiciary. “The restructuring of the HSYK is an extremely important step. Most board members will be elected by judges and prosecutors. In this way, the board will have a more democratic structure. Today stands as a turning point for the impartiality and independence of the judiciary,” he maintained.

More than 11,000 judges and prosecutors went to the ballot box on Sunday afternoon to elect new members to the HSYK.

The results of the elections had not been available by the time Today's Zaman went to print. The voting continued till 5 p.m. For each ballot box, 100 voters were allowed to vote. A new ballot box was put in place when the number of voters exceeded 100.

A number of controversies surrounding the board's decisions, which many people felt were unfair, urged the government to facilitate broader representation on the board. The decision to overhaul the judiciary was supported by a clear majority of the Turkish people at the recent referendum on constitutional reform, which allowed for the revision of the HSYK's structure.

Mustafa Şentop, an associate professor of law at Marmara University, argued that the change in the structure of the HSYK is even more important than a constitutional change. For him, the justice system will be freed from the control of the higher judiciary with a change in the board's structure.

“Turkey stands at a turning point. The HSYK mechanism has to date remained under the control of the higher judiciary. Top jurists shaped a system for themselves, which in time turned out to become the biggest threat to the independence of the judiciary. With the change in the HSYK structure, the threat will be eliminated,” Şentop stated.

The professor added that he would rather people who did not specialize in law become members of the HSYK, as initially suggested by the constitutional amendment package. But the main opposition Republican People's Party (CHP) opposed to the suggestion and the Constitutional Court eventually nullified it. “Anyway, I still find the overhaul in the HSYK structure extremely important,” Şentop noted.

Retired military judge Kemal Şahin, secretary-general of the Democrat Judiciary Association, criticized the Supreme Election Board (YSK) ban on campaigning for candidates. He said judges and prosecutors were forced to vote on candidates without a “detailed idea” about their identities.

“Candidates should have been allowed to introduce themselves. No one had any idea on whom to vote for,” he complained.

Leading jurists cast vote, hope ‘improved' judiciary

Turkey's well-known judges and prosecutors went to the ballot box in their cities to elect the new HSYK members under intense scrutiny from the press.

Ergenekon prosecutor Zekeriya Öz cast his vote at the Sultanahmet Courthouse in İstanbul. He entered the courthouse from the back door in order not to allow press members to view him. İstanbul Chief Public Prosecutor Aykut Cengiz Engin was also at the Sultanahmet Courthouse. He told reporters that he hopes the election is beneficial for Turkey and the Turkish judiciary.

Oktay Kuban, a judge at the İstanbul 12th High Criminal Court, spoke to reporters after he cast his vote. He criticized the overhaul in the HSYK structure and said he cast a vote in order not to allow the board to become an undersecretary for the Ministry of Justice. Kuban came under the spotlight in April when he released 21 suspects accused of coup charges from prison.

The Judges and Prosecutors Association (YARSAV) head Emine Ülker Tarhan went to the ballot box in Ankara. She expressed criticism of the election method of HSYK members. For her, the method is not “fair.” “The executive body is not allowed to be directly engaged in the election of members of the judiciary anywhere in the entire world,” she argued.

İstanbul Deputy Chief Prosecutor Turan Çolakkadı also said he hopes the elections to be beneficial for Turkey.

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