Prosecutor Öz files criminal complaint against PM for defamation campaign
Zekeriya Öz (Photo: Today's Zaman)
13 January 2014 /TODAYSZAMAN.COM, İSTANBUL
Prosecutor Zekeriya Öz, who until recently was leading one part of a major and ongoing corruption investigation before being removed from his post, has filed a lawsuit against Prime Minister Recep Tayyip Erdoğan for a defamation campaign, slander and false accusations aimed at discrediting the prosecutor in the eyes of public.
In the wake of mounting pressure on prosecutors and efforts to disrupt an ongoing corruption investigation that has extended to the Justice and Development Party (AK Party) government, several prosecutors involved in the probe submitted a criminal complaint last week in response to what they call libel intended to publicly discredit them.
Prosecutors Zekeriya Öz, Celal Kara and Muammer Akkaş filed a criminal complaint at the İstanbul Public Prosecutor's Office in which they said an intentional effort at character assassination had been launched against them and that they have become the targets of certain powers due to news reports published by some media outlets.
The prosecutors said those news reports include baseless accusations against the prosecutors that are impossible to prove and are aimed at humiliating the prosecutors in the eyes of the public.
“This recklessness shows that we will continue to be made into targets from now on and that this defamation campaign will continue based on groundless accusations and insults,” the prosecutors said in their petition.
Prosecutor Öz on Monday submitted a legal challenge to his reassignment to the Bakırköy Courthouse as the new deputy chief public prosecutor for Bakırköy, İstanbul, and left for annual leave on Monday.
Öz was removed from the major corruption investigation, which had led to the resignation of three Cabinet ministers, and reassigned to a position at the Bakırköy Courthouse last week. Ali Cengiz Hacıosmanoğlu replaced Öz to become İstanbul deputy chief public prosecutor.
Meanwhile, Öz is due to be investigated by Vedat Ali Tektaş, a chief inspector who oversaw the Deniz Feneri charity fraud investigation in 2011, according to a report on online news portal T24. The Supreme Board of Judges and Prosecutors (HSYK) recently launched an inquiry into claims that Öz went on a lavish trip to Dubai paid for by a leading businessman, claims which Öz has denied.
The Deniz Feneri case centered on accusations that the charity's administration was funneling money collected from workers of Turkish origin in Germany into various companies and businesses in Turkey.
In the meantime, Prosecutor Kara filed a criminal complaint against the pro-government Star daily for running false stories that aim to disrupt fair trial during the judicial process regarding the corruption investigation. The Star daily ran a story portraying the prosecutor stepping up pressure on high-level suspects in the case to force them to deliver testimony against their will about the government.
"During the investigation, I never questioned those suspects and names mentioned in the daily report. This is slander and lies, aiming to discredit me after Prosecutor Öz," said Kara, who expressed his fury over a series of reports in pro-government dailies that have launched a persistent smear campaign against the prosecutors of the case.
Kara said the suspects delivered their testimonies through their lawyers in the presence of two clerks, strongly refuting allegations of making pressure on suspects in the case.
The Star daily ran a story on Sunday claiming that the prosecutor was involved in a conspiracy against the government, pressuring suspects close to Iranian businessman Reza Zarrab, to make them say, "We received bribes on behalf of Erdoğan," as part of a deal to release them. The daily also claimed that Prosecutor Kara told the son of a minister, who is jailed pending trial as part of the corruption investigation into the alleged bribery and tender rigging, to "assign the blame on Erdoğan, make history."
The prosecutor said the claims are groundless and do not reflect reality, but aim to tarnish prosecutors. He said there is a deliberate strategy and campaign under way to intimidate prosecutors, as the pro-government's persistent efforts resulted in the reassignment of Prosecutor Öz to another post in the city.
In addition, Prosecutor Muammer Akkaş, who was removed from the graft probe before the second round of the investigation, also launched a criminal complaint against the İstanbul governor, deputy governor and police chief for not implementing court orders.
In a written statement about his removal, Akkaş claimed that he was blocked from proceeding with the probe in late December. He had ordered the detention of 30 suspects, including a number of parliamentary deputies and businessmen. The İstanbul Police Department, which has seen an extensive purge of its top officers in the past month, did not comply with the detention order.
In his statement on Dec. 30, Akkaş said the detention and search orders for 30 suspects he had received from a court have not still been implemented and that this delay may have led to the destruction of evidence and the escape of some suspects.
Erdoğan blasts judge who was kicked by AK Party lawmaker
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Turkish Prime Minister Recep Tayyip Erdoğan (Photo: DHA, Uğur Can)
12 January 2014 /TODAYSZAMAN.COM, İSTANBUL
Turkish Prime Minister Recep Tayyip Erdoğan has heavily criticized a judge who was hit with a flying kick by a Turkish ruling party lawmaker during a parliamentary commission debate on Saturday, accusing him of trying to make a statement without having the authority.
“First of all, you have no authority to speak there. Who are you? Know your limits. The place you need to talk is a different place,” the Hürriyet daily quoted Erdoğan as saying.
Erdoğan described Eminağaoğlu and people of his ilk as “militants” and not men of law.
Turkish parliamentarians threw punches and water bottles during the debate about government control over the appointment of judges and prosecutors, as a feud over the ruling party's handling of a corruption scandal intensified.
One deputy from the ruling Justice and Development Party (AK Party), Zeyid Aslan, leapt onto a table and launched a flying kick as others wrestled and punched each other, with document folders, plastic water bottles and even an iPad flying through the air.
When the scuffles broke out, parliament's Justice Commission was gathering to discuss a draft bill from the AK Party to give it more say over the judiciary.
The fight erupted when Eminağaoğlu arrived with a petition arguing the bill was anti-constitutional, but was not allowed to speak.
"If I am being kicked at here as a representative of the judiciary, all prosecutors and judges will be trampled on when this law passes," a ruffled Eminağaoğlu said after the ruckus.
Speaking about the proposal, Erdoğan said the parliamentary commission has concluded that the government proposal to restructure the Supreme Board of Judges and Prosecutors (HSYK) is not in violation of the Constitution. Erdoğan said the opposition has the opportunity to ask the Constitutional Court to reverse the decision after it is adopted by the Parliament.
Erdoğan has cast the wide-ranging corruption investigation, which poses one of the biggest challenges of his 11-year rule, as an attempted "judicial coup" meant to undermine him in the run-up to local and presidential elections this year.
He has responded by purging the police force of hundreds of officers and seeking tighter control over the judiciary.
One of Turkey's most senior legal figures joined the opposition on Friday in warning the AK Party that its proposed reforms to the HSYK would breach the Constitution.
Ahmet Hamsici, deputy chairman of the HSYK, earlier said greater government control over the body responsible for naming judges and prosecutors would contravene the basic principle of the separation of powers.
Justice Minister Bekir Bozdağ, who was in the room when the punches were thrown, hinted that the AK Party might back down if the opposition agreed instead to changes to parts of the Constitution governing the judiciary.
"If all political parties agree on a change in articles and announce it, it could be we withdraw this draft law," he said.
However, Bozdağ's comments drew jeers of disapproval from opposition deputies, and a senior source in the ruling party said Erdoğan had no intention of backing down on the bill.
"The AKP is trying to make its fascist regulation through violence. We won't allow this," said Muslim Sarı, a deputy for the main opposition Republican People's Party (CHP), who said an iPad had been thrown at him during the scuffles.
The recent developments have helped drive the Turkish lira to new lows and shaken investor confidence in a country whose stability has largely derived from Erdoğan's strong grip on power.
But it is the government's reaction, seeking tighter control over courts, police and even the Internet, that could do deeper long-term damage, not least to Turkey's ambitions to join the European Union and to its relations with Washington. Both are already critical of its human rights record.
The US State Department said this week it supported the Turkish people's desire for a transparent legal system, while the EU warned Turkey, a candidate for membership of the bloc, about threats to judicial independence.
and...
Kicks and punches fly as Turkish MPs debate judicial reform
Video footage shows AKP MP Zeyid Aslan doing his best Mortal Combat impression during a Justice Commission session.
Ruling Justice and Development Party's (AKP) controversial lawmaker Zeyid Aslan leapt on a table and launched a flying kick as others wrestled and punched at each other, with document folders, plastic water bottles and even an iPad flying through the air, a Reuters correspondent in the room said.
When the scuffles broke out, parliament's justice commission was gathering to discuss a draft bill from the AKP to give the government more control over the judiciary.
The fight erupted when a representative of a judicial association arrived with a petition arguing the bill was anti-constitutional, but was not allowed to speak, witnesses said.
"If I am being kicked at here as a representative of the judiciary, all prosecutors and judges will be trampled on when this law passes," a ruffled Ömer Faruk Eminağaoğlu, head of the YARSAV professional association, said after the ruckus.
Erdoğan has cast the wide-ranging corruption investigation, which poses one of the biggest challenges of his 11-year rule, as an attempted "judicial coup" meant to undermine him in the run-up to local and presidential elections this year.
He has responded by purging the police force of hundreds of officers and seeking tighter control over the judiciary.
More than 10,000 people attended a rally organized by unions in Ankara organised by a labour union to denounce corruption, waving placards with slogans including "Bye Bye Tayyip" and "Tayyip's money is safe is shoe boxes," a reference to footages of hoards of cash found in suspects' homes during the corruption investigation. Some handed out fake dollar bills bearing Erdoğan's image.
Justice minister steps back
One Jan. 10 the acting head of the High Council of Judges and Prosecutors (HSYK) warned that the government's proposal would breach the constitution.
Justice Minister Bekir Bozdağ, who was in the room when the punches were thrown, hinted that the AKP might back down if the opposition agreed instead to changes to parts of the constitution governing the judiciary.
"If all political parties agree on a change in articles and announce it, it could be we withdraw this draft law," he said.
However, Bozdağ's comments drew jeers of disapproval from opposition deputies, and a senior source in the ruling party said Erdoğan had no intention of backing down on the bill.
"The AKP is trying to make its fascist regulation through violence. We won't allow this," said Müslim Sari, an MP for the main opposition Republican People's Party (CHP), who said an iPad had been thrown at him during the scuffles.
Erdoğan's supporters have cast the corruption probe as a smear campaign devised by U.S.-based Islamic cleric Fethullah Gulen, who exercises broad, if covert, influence in the media and judiciary through his followers. Many AKP officials consider the HSYK as dominated by members of the Gülen Movement.
January/11/2014
AK Party interference in judiciary ‘tantamount to civilian coup'
Turkish Prime Minister Recep Tayyip Erdoğan (Photo: Cihan, Atıf Ala)
12 January 2014 /ALİ ASLAN KILIÇ, BUKET YILMAZ, ANKARA
The relentless interference of the governing Justice and Development Party (AK Party) in the area of judicial authority in the aftermath of a corruption and bribery investigation that includes some members of the government has led to comments that the executive has staged a “civilian coup” by hijacking the judiciary and that the government is becoming increasingly authoritarian.
The sons of two former ministers are among 24 high-profile names, including some government officials and businesspeople, who were arrested in mid-December on corruption and bribery charges as part of the investigation.
When the corruption investigation erupted, the prime minister sought to discredit the investigation by calling it a “foreign plot” and “an attempt to damage the government made by a parallel state nested within the state.” He immediately ordered the removal of hundreds of police officers who contributed to the probe. The Supreme Board of Judges and Prosecutors (HSYK) initiated an investigation into four prosecutors involved in the corruption probe and two of the prosecutors were removed from the case. In addition, the government issued a proposal to restructure the HSYK. If adopted, the bill will give the government a tighter grip on the judiciary, according to legal experts.
Furthermore, in another incident in late December, a number of police officers who pursued and stopped a truck in the southern province of Hatay in early January on the suspicion that it was an arms shipment were removed from their duties. A prosecutor who wanted to search the truck was prevented from doing so and he subsequently handed the case over to another prosecutor in protest of the intervention in his investigation.
According to Altan, all those developments have precluded the judiciary and the police force from functioning independently. “Turkey is being governed by a coup government that has openly been defying the Constitution since Dec. 17 [when the corruption investigation became public],” he noted. He also said that members of the government will be tried some day for “staging a coup in order to prevent the judiciary from functioning.”
Claims of a civilian coup also emerged in late December after the government made an overnight change in regulations governing “judicial police” -- law enforcement officers operating under the supervision of the judiciary. According to the amendment, police officers were required to report their activities to their superior officers within the police department and to other government officials in addition to the prosecutors that supervise them in criminal investigations. The amendment was harshly criticized by opposition parties and legal experts as it would prevent prosecutors and the police from conducting independent investigations. The Council of State overturned the amendment on Dec. 27.
A retired public prosecutor who served on the Supreme Court of Appeals, Ahmet Gündel, said that the government's plans to restructure the HSYK are part of a “very important process” that will lead to the country being controlled by a single power, namely the government. The prosecutor noted that unauthorized and unchecked control of the government over the country will bring with it “major danger and risk,” including the abolition of the principle of the separation of powers. “If the executive seizes control of the judiciary and the legislative, this means that the greatest disaster has occurred,” he added. The prosecutor was implying a government shift from a democratic system toward oligarchy.
Gündel also said he does not think that the opposition parties and civil society will remain silent in the face of the AK Party's plans to restructure the HSYK and allow the justice minister to dominate the board. “But the [AK] party seems determined to pass the bill in Parliament despite protests. However, even if the bill is passed, this does not mean that everything is over,” he said, and added that he expects the opposition parties to take the law to the Constitutional Court for annulment. “I believe the Constitutional Court will show the necessary sensitivity when discussing whether or not to annul this law aimed at ending judicial independence,” added the prosecutor.
The legislation forwarded to the parliament speaker's office by the AK Party last week allows the undersecretary of the justice minister to be elected as chairman of the HSYK. The bill also mandates that the board will no longer have the authority to pass decrees and circulars. Instead, the justice minister will be entitled to pass decrees and circulars on behalf of the HSYK. Furthermore, the board will be stripped of its authority to decide to launch investigations of HSYK members. This authority is again passed to the justice minister.
The bill has drawn the ire of legal experts and jurists amid mounting concerns over the gradual disappearance of the separation of judicial and executive powers and the ruling AK Party's firm position seeking to make the judiciary subservient to the government.
Engin Altay, parliamentary deputy chairman of the Republican People's Party (CHP), said the prime minister is acting with a mindset of “establishing his own dictatorship” and becoming the “single most powerful man” in the country. According to Altay, the separation of powers stands on three separate legs and the planned changes to the HSYK structure are aimed at damaging one of these legs -- the judiciary. “If one of these legs is damaged, the separation of powers will no longer work. And this will lead to the establishment of a new regime. This regime is called an oligarchy,” he said, and added that the prime minister wants to govern Turkey on his own like an emperor.
Hasan Cemal, a prominent journalist, believes Prime Minister Erdoğan established a “civilian tutelage” since the corruption investigation was revealed and he said that the government acts like a court of law and sought to discredit the investigation as an “ugly plot” against the AK Party. In a column he wrote on Dec. 27, Cemal said the prime minister wants people to close their eyes to his “coup-like activities” and focus instead on the activities of the Hizmet movement, inspired by Turkish Islamic scholar Fethullah Gülen.
Erdoğan may believe that the corruption investigation was orchestrated by a “parallel state” and a “gang within the state,” a veiled reference to the Hizmet movement. But according to Cemal, Erdoğan's claims that the corruption investigation was orchestrated by the Hizmet movement insult the public's intelligence. “[Prime minister], do not insult our intelligence any longer,” he said.
The bill has drawn the ire of legal experts and jurists amid mounting concerns over the gradual disappearance of the separation of judicial and executive powers and the ruling AK Party's firm position seeking to make the judiciary subservient to the government.
Engin Altay, parliamentary deputy chairman of the Republican People's Party (CHP), said the prime minister is acting with a mindset of “establishing his own dictatorship” and becoming the “single most powerful man” in the country. According to Altay, the separation of powers stands on three separate legs and the planned changes to the HSYK structure are aimed at damaging one of these legs -- the judiciary. “If one of these legs is damaged, the separation of powers will no longer work. And this will lead to the establishment of a new regime. This regime is called an oligarchy,” he said, and added that the prime minister wants to govern Turkey on his own like an emperor.
Hasan Cemal, a prominent journalist, believes Prime Minister Erdoğan established a “civilian tutelage” since the corruption investigation was revealed and he said that the government acts like a court of law and sought to discredit the investigation as an “ugly plot” against the AK Party. In a column he wrote on Dec. 27, Cemal said the prime minister wants people to close their eyes to his “coup-like activities” and focus instead on the activities of the Hizmet movement, inspired by Turkish Islamic scholar Fethullah Gülen.
Erdoğan may believe that the corruption investigation was orchestrated by a “parallel state” and a “gang within the state,” a veiled reference to the Hizmet movement. But according to Cemal, Erdoğan's claims that the corruption investigation was orchestrated by the Hizmet movement insult the public's intelligence. “[Prime minister], do not insult our intelligence any longer,” he said.
http://www.todayszaman.com/news-336282-hsyk-opposes-govt-proposal-say-planned-changes-violate-constitution.html
HSYK opposes gov't proposal, say planned changes violate Constitution
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Members of the parliamentary commission of justice had an argument in the conference hall at Parliament while discussing the new HSYK bill. (Photo: Mustafa Kirazlı, Today's Zaman)
10 January 2014 /ANKARA, TODAY'S ZAMAN
Fifteen members of the Supreme Board of Judges and Prosecutors (HSYK) have voiced strong objection to a proposal by the governing party to restructure the board, saying the proposal violates the Constitution.
Earlier this week, the Justice and Development Party (AK Party) issued a proposal to restructure the HSYK which was slammed by critics on the grounds that the bill will give the government a tighter grip on the judiciary.
The HSYK is the body responsible for appointments in the judiciary. It has 27 members.
The legislation allows the undersecretary of the justice minister to be elected as chairman of the HSYK. The bill also mandates that the board will no longer have the authority to pass decrees and circulars. Instead, the justice minister will be entitled to pass decrees and circulars on behalf of the HSYK. Furthermore, the board will be stripped of its authority to decide to launch investigations of HSYK members. This authority is again passed to the justice minister.
The bill has drawn the ire of legal experts and jurists amid mounting concerns over the gradual disappearance of the separation of judicial and executive powers and the ruling AK Party's firm position seeking to make the judiciary subservient to the government.
On behalf of 15 members of the board, HSYK Deputy Chairman Ahmet Hamsici issued a 66-page statement on Friday in which he said the proposal seeks to destroy the independence of the board as well as the separation of powers in the country. According to the statement, if adopted, the bill will place the HSYK under the order of the justice minister. In addition, it will make members of the board dependent on the executive, thus it will “politicize” the board. The HSYK members also complained that the government is moving away from a number of changes it made to the structure of the HSYK following the Sept. 12, 2010 referendum. The changes sought to bring the Turkish judiciary in line with EU standards.
In a counter-statement, the HSYK said Hamsici's statement reflects his personal opinion and it is not an “institutional statement” on behalf of the board.
The statement came hours before the parliamentary Justice Commission began discussing the proposal. If the commission accepts the proposal, it will send it to Parliament's General Assembly for discussion and voting.
The HSYK members also complained that the AK Party proposal ignores the principle of the rule of law as well as the independence of courts and guarantee of judges. The statement was sent to the chairman and members of the parliamentary Justice Commission as well as media outlets.
According to the proposal, the HSYK will comprise two separate bodies: One will include an 11-member board of judges while the other will be made up of a seven-member board of prosecutors. If adopted, the bill will allow Parliament and the justice minister to have more say in the election of the members of both of the HSYK bodies.
According to the HSYK bill, the topics to be discussed by the HSYK during the board's meetings will be selected by the justice minister. The minister will also decide whether to allow the board to discuss matters that do not directly concern the HSYK during its meetings. In addition, judges and prosecutors will seek the permission of the justice minister if they intend to travel abroad for purposes such as training and attending courses.
Hamsici also underlined in his statement that most of the articles included in the bill violate international law, including the criteria set by the Venice Commission, the Council of Europe's advisory board that seeks to uphold the constitutional principles of democracy, human rights and the rule of law, as well as some previous opinions of the Consultative Council of European Judges (EEJC) and a decision of the Committee of Ministers of the Council of Europe on the independence of judges. According to Hamsici, while reports prepared by national and international law bodies have so far recommended that the authority of the justice minister and his undersecretary over the HSYK should be restricted, the AK Party bill seeks to extraordinarily increase the authority of the two men. “The bill will inarguably make the justice minister the single authority over the board," he said.
The HSYK deputy chairman also stated that the ruling party wants to pass the planned changes to the HSYK structure in Parliament though it is fully aware that they are against the Constitution.
Justice minister calls on opposition to cooperate for constitutional amendment to change HSYK
Justice Minister Bekir Bozdağ has called on the opposition parties to cooperate to introduce a constitutional amendment to restructure the Supreme Board of Judges and Prosecutors (HSYK).His call was welcomed by the main opposition Republican People’s Party (CHP), which is open to a legal amendment concerning the top legal body.
"We are sincerely ready to offer a member to any commission that is being considered to be set up. If you are sincere, then submit your proposal, and let's negotiate it tomorrow," said CHP parliamentary group deputy chairman Engin Altay.
Bozdağ also lambasted an HSYK official over a press statement the institution released that was critical of the government proposal seeking to strengthen executive powers over the judiciary. "Every day we see a press statement [by state institutions]. Politics should be left to politicians," Bozdağ said regarding the HSYK statement about the government’s proposal.
He also said motions about four ministers who have been implicated in an ongoing graft investigation had reached the Ministry of Justice and that officials are working on the documents before referring them to Parliament.
Reactions to HSYK statement
Parliament Speaker Cemil Çiçek, speaking on Friday about the HSYK statement, said Parliament will examine whether the bill violates the Constitution once the bill hits the General Assembly. He also said he views the discussions over the content of the bill crucial. “Everybody should express their opinion openly. If necessary, Parliament will invite legal experts and related institutions to consult their opinion [about the bill],” he noted.Foreign Minister Ahmet Davutoğlu said the HSYK bill hopes to “clarify some ambiguous points in the judiciary and executive.”
Independent deputy Ertuğrul Günay, who recently resigned from the AK Party, said the ruling party's plans to make a change in the structure of the HSYK violate the Constitution and the principles of a democratic state governed by the rule of law. He called the plans an “unfortunate attempt" that will cause huge damage to the rule of law in Turkey. He also said the HSYK bill will make the legitimacy of the AK Party government controversial.
The opposition, on the other hand, continued to raise its voice against the bill.
Republican People's Party (CHP) leader Kemal Kılıçdaroğlu said, “Every judicial expert knows that the AK Party's HSYK proposal violates the Constitution.”
In a press conference he called in Parliament, CHP Deputy Chairman Faik Öztrak claimed that the HSYK will become the “high board of Prime Minister Recep Tayyip Erdoğan and Justice Minister Bekir Bozdağ” if the bill is adopted. He also said the prime minister is violating such principles as the rule of law and the independence of the judiciary in order to impede an investigation into corruption and bribery claims.
In addition, CHP Deputy Chairman Akif Hamzaçebi said his party will take the HSYK bill to the Constitutional Court for annulment if it is approved in Parliament.
Planned changes to the HSYK have come amid a heated debate over the future of a corruption and bribery investigation, which has also involved some AK Party government members. The sons of two former ministers are among 24 high-profile names, including some bureaucrats and businesspeople, who were arrested in mid-December on corruption and bribery charges as part of the investigation.
Since the launch of the investigation, the government has faced fierce criticism of interfering in the area of judicial authority to impede the investigation.
Ankara Bar Association Chairwoman Sema Aksoy said the HSYK will no longer be an independent institution but will instead become a “department of the Justice Ministry” if Parliament adopts the bill on the restructuring of the HSYK.
Justice Academy criticise HSYK proposal
Head of Turkey's Justice Academy and member of the Supreme Court of Appeals Hüseyin Yıldırım criticized the HSYK proposal, arguing that the new law will end the duties of chairman, deputy chairmen, head of the education center, its deputy heads, judges, experts and all other administrative and auxiliary personnel in a way that could be unseen at "extraordinary times," referring to coup periods.Yıldırım said this situation will not be in line with the rule of law and the principle of security. He stressed that the HSYK proposal will result in serious personal damages and loss of rights.
In the meantime on Friday, two board members of the Jurists Union Foundation (HBV) announced their resignations, claiming that the foundation adopted a “political stance” in the face of recent developments in the country.
Lawyers Hayrettin Açıkgöz and Hasan Basri Aksoy, when announcing their resignations, argued that the foundation recently moved away from its position to defend and protect democracy, human rights and the rule of law, and instead became an actor that works to legitimize the activities of the executive.
In a statement on Dec. 26, the HSYK harshly criticized an overnight change in regulations governing “judicial police” -- law enforcement officers operating under the supervision of the judiciary, saying it is in violation of the Turkish Constitution. The HSYK said a regulation that asks police chiefs to notify civil administrative chiefs who have no judicial position about investigations ordered by prosecutors is an open violation of principles of independence of the judiciary and checks and balances as well as openly violates the Turkish Constitution and relevant laws of the Code on Criminal Procedure (CMK).
The HBV slammed the HSYK the same day, arguing that the board sought to “interfere in the judiciary” with its statement.
Which constitutional articles does the HSYK bill violate?
The Justice and Development Party's (AK Party) planned changes to the structure of the Supreme Board of Judges and Prosecutors (HSYK) are an open violation of Article 138 of the Constitution, which deals with judicial independence.Article 138 of the Constitution says: “Judges shall be independent in the discharge of their duties; … No organ, authority, office or individual may give orders or instructions to courts or judges regarding the exercise of judicial power, send them circulars, make recommendations or suggestions. … No questions shall be asked, debates held or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.”
In addition, they violate Article 159 of the Constitution, which puts forward that the HSYK shall exercise its functions independent of the courts. However, the bill seeks to pass most authority of the board to the justice minister, who is a member of the government. This means that the judiciary will be put under the control of the executive.
The bill also violates Article 2 of the Constitution, which stipulates the principles of the rule of law and the separation of powers. Legal experts say the executive will tighten its grip over the judiciary, and thus the separation of the judicial and executive powers will be damaged if the bill is adopted in Parliament.
Article 2 is as follows: “The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk and based on the fundamental tenets set forth in the Preamble.”
With the bill, the government seeks to remove from duty the secretary-general and his aides, the head of the committee of inspectors and his aides, all inspectors, investigations judges and administrative staff working for the HSYK. New names will be appointed to their positions by the justice minister if the bill passes in Parliament. The bill also prevents the removed staff from seeking legal redress. This situation violates Article 36 of the Constitution, which says: “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures. No court shall refuse to hear a case within its jurisdiction.”
Turkish Parliamentary Speaker launches probe against ombudsman over secret meeting with prosecutor
An investigation has been launched against Turkey’s first ombudsman over the reports, Parliamentary Speaker Cemil Cicek said. AFP Photo
Parliamentary Speaker Cemil Çiçekhas said he has launched a probe into Turkey’s first ombudsman, Nihat Ömeroğlu, over reports that he threatened former Istanbul Chief Prosecutor Zekeriya Öz on behalf of Prime Minister Recep Tayyip Erdoğan over the graft probe.
“After reading such reports, I’ve started an investigation as the ombudsman is working subordinate to Parliament. The ombudsman demanded to be investigated as well. We are now looking at who [will carry this investigation out] and how it will be conducted, as this is a very new case for us,” Çiçek told reporters Jan. 10.
One of Turkey’s most controversial prosecutors, Öz was recently reassigned to a passive position after he coordinated a massive corruption and graft probe that has engulfed Erdoğan and members of his government. Earlier this week, he said Erdoğan assigned Ömeroğlu and İsmail Rüştü Cirit, a member of the Supreme Court of Appeals, to meet him and threaten him to stop the operation. Ömeroğlu and Cirit confirmed they met Öz in Bursa on the eve of the new year but that they were not assigned by anybody and did not convey such messages to the prosecutor. The Prime Minister’s Office also denied Öz’s claims.
“I know Zekeriya Öz from his internship days at Bursa Courthouse. We have been together many times in Istanbul and in Bursa. I repeat: Claims that I was assigned by the prime minister, that I have threatened him and that I asked him to stop the operations are out of the question,” Ömeroğlu said in a written statement late Jan. 9.
Ömeroğlu was elected by Parliament as the country’s first ombudsman upon the government’s nomination. His closeness with the prime minister is well-known.
Cirit, on the other hand, said he knew Öz and his family and met with them in Bursa for a dinner, but added that he never urged him to suspend the operation. A member of the supreme judiciary, Cirit is known to have acquitted Erdoğan in one of his earlier cases.
It remains unclear how Çiçek’s investigation will proceed, as the regulations do not spell out how such a probe should be conducted.
“We ignored, we forgot or we never thought the ombudsman could also commit a crime. But now there is such a situation,” Çiçek said
Turkey's top judicial board confronts gov’t on move for more control
The Supreme Board of Judges and Prosecutors (HSYK) is at the center of the battle over control of the judiciary.DAILY NEWS photo
On the day a parliamentary commission started debating a draft law to curb its powers to the advantage of the government, the Supreme Council of Judges and Prosecutors (HSYK) issued a strongly-worded statement describing the move as “unconstitutional.”
“With the legal amendment, the board will report to the Justice Ministry. This amendment is against the Constitution and the formation of an independent body,” the HSYK’s acting head, Ahmet Hamsici, said in a written statement on Jan. 10.
Hamsici issued the 66-page long statement as an individual, as the government had already annulled the HSYK’s authority to issue statements without the consent of the justice minister. Despite the strong reactions against the proposed amendments by the HSYK and opposition parties, Parliament’s Justice Commission had already begun deliberations on the bill by late afternoon on Jan. 10.
Just hours before the panel’s meeting, Parliament Speaker Cemil Çiçek expressed his own concerns about the bill’s compatibility with the Constitution. “The first thing that the Justice Commission should look at is the proposed law’s compatibility with the Constitution,” Çiçek told reporters.
According to Hamsici, with the proposed law the HSYK, which was recently reformed to be a more autonomous power, will be subordinate to the Justice Ministry and the executive branch.
“This is in violation of the independence of this council, which was provided by a constitutional amendment,” he said. The HSYK was reformed in 2010 in line withEuropean Union norms in a bid to strengthen the independence of the judiciary, a key principle for the maintenance of the rule of law.
Risk of 'politicization'
The government-drafted bill was also criticized by Hamsici on the following grounds:
- Many of the amendments it introduces contradict international documents and reports about the establishment of supreme judicial bodies like the Venice Commission, the Consultative Council of European Judges, and the European Networks of Councils for the Judiciary.
- The new amendment allegedly aims at the transformation and politicization of the HSYK, undermining an efficient objection system, which is a key element for judicial independence.
- As the justice minister will be the sole authority in selecting inspecting judges, deputy general-secretaries and members of the Inspection Council, the HSYK’s independence will be compromised.
- The proposed law is against the constitutional principle of the rule of law. Article 138 stipulates the independence of judges, and direct or indirect interventions on this will be in violation of the Constitution. The Constitution also endorses the separation of powers, but the drafted law decorates the justice minister with significant and fundamental powers that normally belong to the Justice Board. The proposal will therefore make members of the board subordinate to the executive power.
- Although international bodies often ask the government to restrict the authorities given to the minister and his undersecretary, the proposal is totally contrary to such recommendations. The minister’s authorities have been strengthened in an extraordinary way and he will effectively become the board’s sole authority.
- If the bill is approved, the mandates of all HSYK members will come to an end, and the minister will have to appoint all new members within two or three days. Although the Constitutional Court would be able to suspend the execution of the law upon a quick application, this will have no meaning. The ruling party is aware of that neither the new nor the old form of the HSYK could exist under such conditions, but is still moving ahead with the plan.
The new plan comes only three years after the AKP government reformed the body in line with the EU’s advice, amid a graft scandal that targeted a number of high-ranking officials.
January/10/2014
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