The Supreme Board of Judges and Prosecutors (HSYK), the antidemocratic structure of which will change if a proposed set of constitutional amendments is approved in a referendum scheduled for Sept. 12, is playing its last trump card by attempting to give preference to its suggested appointees.
The HSYK is still reviewing an appointment list submitted to it by the Ministry of Justice that includes new appointments for 1,325 judges and prosecutors. According to sources, the HSYK is prepared to disregard the Ministry of Justice’s previous decree in deciding judges and prosecutors’ appointments and remove those who are currently assigned to the Ergenekon, Sledge- hammer, Cage and Poyrazköy cases.
The suspects in these cases are being accused of attempting to overthrow the government. If these individuals are reassigned to other locations, it would be a violation of the law because the Ministry of Justice’s decree does not include any new appointments for senior judges and prosecutors and all the judges and prosecutors assigned to Ergenekon and similar trials hold seniority. The HSYK, whose members often speak in defense of Ergenekon suspects, have tried in the past to reassign jurists presiding over such trials.
HSYK board member Ali Suat Ertosun prepared his own list in the summer of 2009 in a similar attempt to reassign judges and prosecutors in the Ergenekon case. By preparing a completely different appointment list from that of the Ministry of Justice, Ertosun violated procedure and the law.
If the 26-article constitutional amendment package is approved by the public in the Sept. 12 referendum, the composition of the HYSK is going to change to a large extent. The number of members on the board, which still comprises seven people including the justice minister, the undersecretary, three judges from the Supreme Court of Appeals and two judges from the Council of State, will increase to 22. The board will consist of two chambers, and decisions taken by the board will be open to appeal. The reform package would prevent the HSYK from employing arbitrary practices and from creating similar lists in defiance of basic procedural methods, and, sometimes, even laws.
Cognizant of their situation, HSYK members are making one last effort to meddle in the appointments of several judges and prosecutors in advance of the referendum and possible implementation of the new constitutional amendments. According to information that has leaked from the board, board members are trying to add new people to the list prepared by the Ministry of Justice, even though there are no senior judges or prosecutors in the 2010 summer decree.
Even though board members are not authorized to do so according to HSYK bylaws, the board members from the Supreme Court of Appeals and the Council of State presented another appointment list to the government in the summer of 2009. Because of the list crisis in 2009, the most recent decree was kept for review by the board until July 13. But when Justice Minister Sadullah Ergin was not removed from the list, the board members who attempted to force a new list with different appointments took a step back.
The HSYK has been reviewing the decree on appointing 1,325 judges and prosecutors prepared by the justice minister for two weeks and has not yet discussed the appointments with the government. The board convenes every Tuesday and Thursday to discuss agenda items.
However, the board has not asked the justice minister and undersecretary to convene to discuss the decree even though it’s mid-July. There are rumors that the board will interfere with the Ministry of Justice’s appointment list, as it did last year, present an alternative list of appointments and attempt to remove judges and prosecutors presiding over critical cases such as Ergenekon.
However, the list prepared by the ministry does not include prosecutors leading the investigations into the Ergenekon, Sledgehammer and Cage cases, or other unsolved murder cases, or the judges examining these cases.
If suspicions are correct, then board members are once again targeting prosecutor Zekeriya Öz, who is leading the investigation into Ergenekon, and his two associates. One of the plans being discussed regards Öz, who the HSYK wanted to reassign in the 2009 summer decree, and his promotion to the rank of chief prosecutor and appointment to another city in Anatolia. In this way, Öz will be removed from a case he has become an expert on not because of ineffectiveness, but because of a promotion.
Among the other prosecutors and judges whom the HSYK is supposedly considering reassigning by promotion are Ergenekon prosecutors Fikret Seçen and Mehmet Ali Pekgüzel and judges presiding over the Ergenekon case Hasan Hüseyin Özese and Sedat Sami Haşıloğlu.
Main crisis to occur in fall decree
The Ministry of Justice’s summer decree on the appointment of judges and prosecutors is known to be far-reaching; however, a second decree concerning 300-500 judges and prosecutors is set to be issued around October and November and is known as the fall decree.
The Ministry of Justice prepared a summer decree that impacts 1,325 judges and prosecutors in light of the Sept. 12 referendum. This year the list does not include the appointment of senior judges or prosecutors. The ministry wants the HSYK, which will hopefully become more democratic after the referendum, to decide on critical appointments. As a result, there is a high chance that the five members from the Supreme Court of Appeals and the Council of State will do everything they can to impact the fall decree, because the establishment of the board following the referendum is expected to be problematic.
If the constitutional amendment package is approved in the referendum, a new board will have to be formed within 30 days. The members of the Constitutional Court will also increase from 11 to 17. HSYK members predict that it will take until the end of October or mid-November for the new board to be constituted because a new adjustment law will be necessary since the Constitutional Court annulled the amendment regarding the election of members to the HSYK and the Constitutional Court. Assuming that closing this loophole will take time, HSYK members are looking to the fall decree as their last chance to make a move. The fall decree, which will include the reassignment and appointments of senior judges and prosecutors, will be a war over position for current HSYK members.