By TOLGA KUNTER
With the referendum held on 12 October 2010 in Turkey –which was, until recently, confidently progressing on her path of becoming a member to the European Union– public approval was received for making amendments in the Constitution to adjust it to EU standards. Before the amendments, the structure and functioning methods of HSYK (High Council of Prosecutors and Judges) were being commonly criticised by both national and international institutions. The European Union progress reports were constantly pointing out that the present structure of HSYK was far from providing an independent and impartial judiciary. Indeed, before 2010, HSYK used to often intervene in the ongoing judicial investigations and its members used to make political proclamations. In 2005, for example, Ferhat Sarıkaya, the Public Prosecutor who was investigating the case of bombing a bookstore in Şemdinli, had been dismissed from his profession on 20 April 2005, because he claimed that some army generals had formed a criminal organisation.
Another example happened to Istanbul Prosecutor Zekeriya Öz, who was expected to reveal the perpetrators of extrajudicial killings and severe human rights violations committed against the Kurdish citizens in 1990s and raised a hope that many murders and bombings that had been left unsolved until then, were going to be solved. The promotion of Prosecutor Öz, who had also initiated the Ergenekon investigations, was prevented by HSYK. To be able to close down this investigation, Istanbul Public Prosecutor Aykut Cengiz Engin, and his deputy Turan Çolakkadı, Prosecutors Zekeriya Öz, Mehmet Ali Pekgüzel and Fikret Seçen were tried to be transferred to other provinces. Meanwhile, Diyarbakır Public Prosecutor Durdu Kavak, who was investigating the case of Colonel Cemal Temizöz –blamed to have killed 20 individuals in Cizre– was also among the jurists who HSYK tried to dismiss from judicial profession.
In 2010, some changes have been made in the structure of HSYK with the purpose of creating an independent and impartial judiciary. As stated in a decree of the Constitutional Court, “the number of members of the Council is increased, the constituency of the HSYK elections is broadened; it is accepted that big majority of the Council’s members are going to be directly elected by their peer jurists; the Council will have its own secretariat and the Council’s independence has been reinforced by connecting the Inspection Committee to the Council. President’s authority to appoint members to the Council has been restricted, the Minister of Justice is forbidden to attend the works of the Council’s chambers and his absolute controlling power over the Inspection Committee has been limited. Opening the decisions of the Council to judicial inspection, although it will be partly, is seen as a step taken toward strengthening the state of law.”
On 17 October 2010, soon after the Constitutional amendment, the elections for HSYK memberships were held. HSYK reached a pluralistic structure with the members elected for the term between 2010 and 2014, from the Academy of Justice, the Cassation Court, the Council of State, from law academics, lawyers, and most importantly from the courts of first instance. The Council has been given a separate organisation, building and secretariat, and was allocated an independent budget.
Well, did all these ameliorations reach their goal of providing an independent and impartial judiciary?
It is not realistic to expect that the decades of accumulated problems of Turkey’s judiciary could be solved with the magic wand of a council that is elected for four years. However, we can say that the Council that had operated between 2010 and 2014 has carried Turkish judiciary to a significantly high level; has carried out very important structural changes; performed serious projects about enhancing the qualities of the judicial members; sent many judges and prosecutors abroad as part of the collaborations established with international institutions; contributed greatly to help judicial members attain a modern vision by providing them the opportunity of exchanging ideas at seminars held inside the country. It is a visible fact that the quality of the decisions given by the judicial bodies in this period of time was significantly high.
This new HSYK, elected for the 2010-2014 term, started its works by first bringing the judges and prosecutors in every province of Turkey together at “The Meetings for Analysing the Current Situation and Evaluating the Judiciary” to be able to pinpoint the main problems of the judiciary. These meetings created an excitement among the judges and prosecutors, whose opinions had never been asked much or paid attention by HSYK. The ideas that were put forward in these meetings have determined the course of actions of the HSYK for the mentioned term of duty.
First time in its history, HSYK had prepared a “Strategic Plan”. The plan was showing the activities and services that the Council was going to carry out in accordance with the aims and targets that the Council wants to achieve in the five years between 2012 and 2016. This was one of the steps that HSYK had taken on the way to become transparent and controllable.
This new Council, which started office with elected members first time in its history, has given importance to training the judges and prosecutors: In 2011, of the total 12,040 judges and prosecutors, 493 (4.1%) had received master’s, and 95 (0.8 %) had received PhD degrees; while in 2014, of the total 14,810 judges and prosecutors, 2232 (15 %) had received master’s, and 112 (1 %) had received PhD degrees. This clear difference from the previous terms has also been apparent in the increase of the number of judges and prosecutors who learnt at least one foreign language. While the number of judges and prosecutors who know a foreign language in level A (90-100) was 40 in 2011, in 2014, this number has folded more than double and reached 84.
One of the targets stated in the strategic plan was stated, “In order the judges and prosecutors to be able to play effective roles in international institutions and courts, to adapt well to the EU laws, and attain a good command of the decrees of the European Court of Human Rights (ECtHR), facilities will be developed for them to be able to receive foreign language and post-graduate education in foreign countries.” For this purpose, projects had been prepared, which were conducted successfully. Before 2011, it was only a dream for the judges and prosecutors in service to go abroad for making occupational visits, or for receiving a post-graduate education. According to the statistical data, in 2011, only 136 judges and prosecutors were sent abroad for occupational visits. The years 2012 and 2013, however, were the booming years for the judges and prosecutors for going abroad. In total, 1380 judges and prosecutors –229 of whom for acquiring knowledge and manners, 79 for learning a language, 55 for receiving post-graduate education, 17 for carrying out internship and research, and 1000 for conducting occupational visits and attending international meetings– were sent abroad.
That HSYK had developed a project, titled “The Project of Raising Awareness About the Decisions of the European Court of Human Rights” to encourage the judges and prosecutors to take into consideration the decrees and interpretations of the ECtHR about the rights and freedoms guaranteed by the European Convention on Human Rights, while they perform their judiciary duties. As part of this project, hundreds of judges and prosecutors visited the ECtHR. The judges and prosecutors had been encouraged to quote ECtHR decisions in their verdicts and indictments. They were even asked to send their decisions in which they quoted ECtHR decrees to the Council for informative purposes.
One of the aims of “The Project of Holding Judicial Discussions Meetings”, which brought together the judges and prosecutors serving in the courts of first instance with the members of the Cassation Court and the Council of State, was proclaimed, “to ensure the coherence and consistency of legal decisions in practice and issue judicial verdicts in compliance with the jurisprudence of the ECtHR”.
We can say that one of the aims of those projects was to make the Turkish justice system reach a better level and help Turkish judges and prosecutors benefit from the experiences of the European countries, who have successfully put the universal values into practice. None of the earlier HSYKs had emphasised so much to the European and universal laws.
Another project that had been run by this HSYK was “The Project of Reinforcing the Relationship between the Mass Media and the Judiciary”. Within the scope of this project, press spokespersons had been assigned from among the judges and prosecutors, while press agencies had been established at the pilot courthouses in Ankara, İstanbul, İzmir, Diyarbakır and Adana.
These efforts of the time’s HSYK on the way to modernise the Turkish Judicial System were also closely observed by the EU’s judicial bodies. Indeed, the 2013 Progress Report of Turkey, prepared by the EU Commission, praised the efforts of HSYK by the following statements: “As regards the independence of the judiciary, the High Council of Judges and Prosecutors continued with the implementation of its 2012-16 strategic plan. In cooperation with the Turkish Justice Academy and other judicial bodies, it promoted training of a large number of judges and prosecutors all over the country, including on new legislation, human rights and judicial ethics. In cooperation with the Ministry of Justice, the High Council promoted the translation and publication of European Court of Human Rights (ECtHR) judgments, and notified the judges who had taken the relevant decisions of violations of the European Convention on Human Rights (ECHR) found by the Strasbourg Court. Such violations were taken into account in the professional evaluation of judges and prosecutors. The High Council organised legal consultation meetings, bringing members of first instance and higher courts together to compare notes on case law and try to ensure the coherence and consistency of legal decisions in practice. Overall, the predictability and transparency of the decisions of the High Council has been further strengthened. In its effort to provide the public with information on judicial matters, it assigned, and provided training to 62 spokespersons from among judges and prosecutors.”
According to the EU Commission, until 2013, the Turkish Judiciary System had attained a great progress in terms of independence, efficiency, and protection of human rights and fundamental freedoms, and Turkey was, to an extent, ready to apply the EU acquis and European standards in the judiciary area. From 2014 onward, however, aside from not making any progress, the present acquisitions have also started to be lost by the pressures exerted upon the judges and prosecutors. The situation has gone worse with the dismissals of judges and prosecutors, committed in 2016.
The activation and modernisation process of the Turkish Judiciary System, which had gained a great acceleration with the HSYK elected on 17 October 2010, came to a halt in 2014.
The biggest corruption interrogation in the history of Turkish Republic, held between 17 and 25 December 2013 – which is publicly known as the 17-25 December investigation, also covered some family members of the then PM Recep Tayyip Erdoğan, some ministers and sons of ministers– has been a milestone for the judiciary as it has been for many other fields. To be able to cover up the investigation, Erdoğan openly intervened in the judiciary. He dismissed the judicial members who were conducting the investigation, and what is more, he blamed those who were carrying out the investigation for “plotting a coup against the government”.
Following 17 December 2013, the Turkish judiciary has become the main target of Erdoğan and faced his punishment. He made successive assaults to tighten his grip more on the judiciary. First he issued a law that changed HSYK’s structure. As soon as this law came into force, all staff members of the HSYK, including the Secretary General, deputies of the Secretary General, President of the Inspection Committee and his deputies, inspectors, inspecting judges and the administrative staff, have been made redundant. In their place, new staff members, all of whom were appointed by the Minister of Justice –now carrying the title of the President of HSYK– came into office. This law, which the EU has also heavily criticised for the reason that it annihilated the judicial independence, was revoked by the Constitutional Court on 11 April 2014. However, this annulment decree did not have a retrospective effect, so the actions had been taken by the government until that time were already enough to change the structure of the HSYK.
The judiciary, which had been defended by Erdoğan until 17 December 2013, who was being harshly criticised by mostly leftist politicians because of the high profile Ergenekon and Balyoz cases –hearings of which were extremely difficult even for a western country, equipped with a well-developed judicial system; after 17 December 2013, started to be heavily criticised by Erdoğan himself and tried to be domineered. It is not possible to say all of the procedures followed in Ergenekon and Balyoz cases were correct. However, considering the clearly publicised evidence, to claim that these cases as a whole was wrong is nothing more than ridiculing even an average mind. Let alone, the Ergenekon case had started in 2007, well before the 2010-2014 HSYK. Although this can be a subject of another study, we must confirm here this: The number of judicial members who were running such high profile cases in those days was not more than 100. Even if one would admit that those cases were completely wrong, condemning nearly 14,000 judicial members and HSYK members who had carried out very successful works, just because of the 100 judicial members, is surely far away from any kind of reason.
Being already suppressed by a part of the opposition, on one hand, and by the government, on the other, the judiciary became completely defenceless when Erdoğan waged war against the judiciary after 17 December. Everybody started to compete with each other to prove how bad the judiciary of that time was. However, the only material at the hand of the opposition was a few cases like Ergenekon and Balyoz, while the material used by Erdoğan was only the 17-25 December interrogations, which he described as “coup” and closed them down even before they had been brought to action. While they were harshly blaming and criticising these cases and the judicial members who were hearing the cases, nobody had even seen the 14,000 judicial members who were throwing their hearts and souls to justly resolute millions of cases and investigations. The very serious efforts of that time’s HSYK on the way to achieving an independent, impartial and efficient judiciary were completely ignored by everybody in that dusty brownout. All in all, the judiciary was subjected to a kind of political lynching process.
Erdoğan has captured the judiciary actually with the 12 October 2014 HSYK elections and officially, with the Constitutional Referendum held on 16 April 2017. With the excuse provided by the coup attempt on 15 July 2016 –which is called by many authorities as “the controlled coup” – 5000 judges and prosecutors have been dismissed from their profession and many of them have been detained. Among the detained jurists, there are also the members of the 2010-2014 HSYK and three members of the current HSYK.
The 2010-2014 HSYK that was harshly and unjustly criticised by both the opposition and the government because the cases were not heard as they wanted, had certainly made tremendously more contribution to the Turkish Judicial System than its predecessor and successor HSYKs. The projects that were started at that period of time have greatly changed the judiciary members’ line of vision. These contributions can easily be seen at many decisions given by the members of the judiciary at the time. In that period, Turkish judges and prosecutors have signed many decisions that comply with the universal laws and the European standards.
Had the 2010-2014 HSYK made mistakes? Surely it must have done. Were there any wrong actions at some adjudications? Surely there must have been. After all, the members of the Council, and those who are carrying out the investigations and hearing the cases are human beings and human beings can make mistakes at any time. However, it would be a serious unfairness to ignore the big development that the Turkish Judiciary System has attained during that time and bash down the constructors of that development as a whole, on the account of few individual mistakes.
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