The HSYK’s ‘chilling’ effect on judges

The word I chose in my headline, “chilling,” does not belong to me. It appears in the decision made by the European Court of Human Rights (ECtHR) with regard to the Sacit Kayasu case (a prosecutor who was removed from his job because he filed a court case against Kenan Evren, the leader of the 1980 military coup). The court said in its decision, in a source of shame for the Turkish justice system, that the imposition of a criminal sanction of that nature on an official belonging to the national legal service would by its nature have a chilling effect not only on the official concerned but on the profession as a whole.

Kayasu had prepared and filed a court case against those involved in the Sept. 12, 1980 coup. His acts resulted in the HSYK assessing financial penalties on him before ultimately removing him from his job. The ECtHR stated that was unacceptable for him to be left in a situation rendering him unable to practice law. An interesting overlap is that the Republican People's Party (CHP) is proposing a constitutional change in order to try those involved with the Sept. 12 coup. But the same CHP is denying that soldiers hold a guardianship position in the public arena. The ECtHR, however, states that the prosecutor who filed a legal case against the supporters of the Sept. 12 coup objects to his removal from his job due to accusations that he committed a crime against the military and further notes that he is no longer allowed to practice law. Under normal circumstances, the CHP should take Kayasu under its wing, but so far this hasn't been the case. Kayasu, and similar examples, prove to us the existence and the extent of military guardianship in our country. Contrary to what Deniz Baykal states, there does not need to be an intervention in elections in order for military tutelage to take place. Furthermore, civilian life is not made of up politics alone nor does politics comprise the elections alone.

The way of saving the judiciary from becoming involved in a controversial entanglement passes through a comprehensive judicial reform. The most crucial step to this end would be to establish an organic link between all institutions -- starting with the HSYK and the Constitutional Court, which claim to be part of the will of the public -- and the nation itself. If sovereignty really belongs to the nation and if the nation is exerting its will through institutions mentioned in the Constitution, then the formation of such a link would be inevitable. Judges in some Western countries are directly elected by the public; however, when it comes to Turkey, there is no contact or communication between judges and the people. The appointment of members to the Constitutional Court and the HSYK could be the minimum effort toward the establishment of such contact. We are among the very few countries where some members of the said institutions are not elected by Parliament. The fact that elections of Supreme Court of Appeals or HSYK members are based on a plain majority makes it inevitable that a judicial view is represented by the whole of these institutions. However, the law stands as the first sphere where democratic pluralism should prevail.