Ergenekon case haunts tense HSYK meeting

The controversy seems to have emerged over whether the decision made by the Supreme Board of Prosecutors and Judges (HSYK) would affect the judges and prosecutors conducting the ongoing trial of Ergenekon, a clandestine criminal group charged with plotting a coup d'etat. On the eve of the meeting, many in Turkey expressed doubts about the impartiality of some members of the council and raised the possibility that the HSYK may change the course of the Ergenekon case by replacing the judges and prosecutors involved in the case.

The appointment list, which is traditionally announced in June, has been delayed this year, increasing questions about whether it will have a decisive impact on the Ergenekon case, in which retired top generals and both retired and active duty military personnel of various ranks as well as tens of other defendants are standing trial for planning to topple the democratically elected government.

A last-minute move reportedly made by HSYK member Ali Suat Ertosun has increased these doubts, and Justice Minister Sadullah Ergün had to postpone an overseas trip to focus on the meeting. To the amazement of many, Ertosun has proposed the removal of all of the prosecutors and the two of the judges in the case, which is widely believed to be a milestone in the history of Turkish democracy. The HSYK decision had not been announced by the time Today's Zaman went to press on Wednesday.

The Supreme Court of Appeals claims that the appointment of HSYK members by the president or by Parliament has a negative impact on the structure and identity of the board.

According to information obtained by Turkish daily Zaman and published yesterday, the discussions in the council reached a stalemate after Ertosun's proposal. Justice Minister Ergin attended to the council's Monday meeting with the draft list that was earlier agreed upon but was appalled by Ertosun's move, and the final decision was put off. Ertosun demanded the replacement of Ergenekon prosecutors Zekeriya Öz, Mehmet Ali Pekgüzel, Nihat Taşkın, Ercan Şafak, Murat Yönder, Fikret Seçen, and Kasım İlimoğlu as well as two of the three judges hearing the case. It was also learned that Ertosun is not pleased with the prosecutors in the trial of the Kurdish Democratic Confederation (KCK), the urban arm of the terrorist Kurdistan Workers' Party (PKK), and demanded their removal from their case as well.

EU not pleased with HSYK decision

None of the prosecutors and judges have ever been subject to any kind of investigation, and their performances were also highly acclaimed by jurists in the country. The council's member's recent move has aroused immense concern in Turkey over whether the HSYK is trying to derail major ongoing cases and shape their outcome. Explaining why the decision was not going to be promulgated on Tuesday contrary to what Minister Ergin had announced earlier, HSYK Vice Chairman Kadir Özbek said they had “a sensitive agenda” and thus it might not be finalized that day. Prime Minister Recep Tayyip Erdoğan met with Ergin and the ministers of internal affairs, foreign affairs and defense as well as state ministers Cemil Çiçek and Ali Babacan on Wednesday to discuss the recent developments.

Ertosun's previous proposal to have the trial heard by a court other than the currently posted İstanbul 13th High Criminal Court was rejected because there were only three votes in favor in the seven-member council. Minister Ergin and Justice Ministry Undersecretary Ahmet Kahraman are members of the council, where decisions are made by majority vote.

The HSYK was bashed by the European Union in the annual progress reports prepared by the European Commission examining Turkey's performance in undertaking reforms required for long-sought membership in the 27-nation bloc. The 2006 report was critical of the HSYK's decision to disbar Ferhat Sarıkaya, a civilian prosecutor who ordered the arrests of two noncommissioned officers and a terrorist PKK member-turned-informant who were caught red-handed bombing a bookstore in Şemdinli, southeastern Turkey, and also prepared a number of indictments against army commanders for their alleged links to this incident. “Questions were raised on the independence of the HSYK in the aftermath of the publication in March 2006 of the indictment on the Şemdinli bombing” was the reaction of that year's report to this infringement. It was later claimed by Saygı Öztürk, a journalist and author, in his new book titled “Death Wells: Şemdinli Incidents from Allegations to Reality,” that Sarıkaya was disbarred following an order from the General Staff.

‘This non-juridical intervention should not take place'

There has been immense countrywide reaction to the possible removal of judges and prosecutors from the ongoing Ergenekon case. Speaking to Today's Zaman, jurists and academicians cautioned that such a move would certainly be “non-juridical and interventionary” and that the HSYK should refrain from giving the impression of a march in that direction, let alone making such a decision.

Ayhan Sefer Üstün, spokesman for the Parliamentary Constitutional Commission, said it would be noncompliant with the universal principles of law if those judges and prosecutors were removed from the case. “In law, there is the principle of natural judge to sustain the impartiality and independence of the trials. Now, if those judges and prosecutors who have been following the case from the beginning are replaced, then this principle would certainly be violated and the case would be directly interfered with. Such a violation will call for critical decisions from the European Court of Human Rights, too,” he said, adding, “It will also deeply harm the image of the justice system in the country, and that is why no one could dare to do such a thing.”

Nonetheless, Üstün did not completely rule out the possibility of the decision being realized after having recalled the Şemdinli case. “This is less likely, but considering the fact that the HSYK made the notorious decision in Şemdinli, it can try the same thing here again,” he noted. Commending the judges' respect for defendants' rights during the hearings, Üstün said in his years of experience as a jurist he could tell that in the Ergenekon trial, the judges paid unprecedented attention to the rights of the defendants. “Time after time, even the threats addressed to the court's council by the defendants, whose defenses took days, were listened to with patience,” he concluded.

Ümit Kardaş, a retired military judge, argued that the Ergenekon case has been handled very carefully and with respect to juridical values and principles. “Thus, an attempt to replace them without having just cause will harm the justice system's image in the eyes of people. What we are talking about here is a very extensive and highly significant case. If a new group of judges are appointed there, a very long time will be lost just for them to understand the complex relations documented in the thousands of pages of indictments. While we are well aware of the adverse impact of replacing the judges of an ongoing trial even in ordinary cases, it is really unperceivable why it should be done here in Ergenekon,” said Kardaş. In a similar reaction to that of Üstün, Kardaş also made reference to the Şemdinli case and expressed his concerns about the fate of the Ergenekon trial, too. “Unfortunately, we saw how the HSYK behaved in the Şemdinli incident. It made very heavy decisions under very heavy military pressure. Accordingly, there emerged a public distrust in HSYK decisions. If the council repeats the same mistake, it will cause further and this time irreparable erosion of its credibility,” he asserted.