The High Council of Judges and Prosecutors in Turkey: Roundtable Discussion on Its New Structure and Operations Moderator Discussants Ali Bayramoğlu Ahmet İnsel İbrahim Okur Leyla Köksal Tarhan Mithat Sancar Uğur Yiğit Yücel Sayman The High Council of Judges and Prosecutors in Turkey: Roundtable Discussion on Its New Structure and Operations Türkiye Ekonomik ve Bankalar Cad. Minerva Han Sosyal Etüdler Vakf› No: 2 Kat: 3 Turkish Economic and Karaköy 34420, İstanbul Social Studies Foundation Tel: +90 212 292 89 03 PBX Fax: +90 212 292 90 46 Demokratikleşme Program› [email protected] Democratization Program www.tesev.org.tr Discussants: Design: Myra Ahmet İnsel, İbrahim Okur, Publication Identity Design: Rauf Kösemen Leyla Köksal Tarhan, Mithat Sancar, Page Layout: Gülderen Rençber Erbaş Uğur Yiğit, Yücel Sayman Coordination: Sibel Doğan Production Coordination: Nergis Korkmaz Moderator: Ali Bayramoğlu Prepared for Publication by: Printed by: İmak Ofset Basım Yayın San. ve Tic. Ltd. Şti. Koray Özdil, Levent Pişkin Atatürk Cad. Göl Sok. No : 1 Yenibosna Editor: Ferda Balancar, Belgin Çınar Bahçelievler/İSTANBUL-TÜRKİYE Tel: 0212 656 49 97 Translator: Fethi Keleş Copies: 500 Editor in English: Lis Amado TESEV PUBLICATIONS ISBN 978-605-5332-30-3 Copyright © November 2012 All rights reserved. No part of this publication may be reproduced electronically or mechanically (photocopy, storage of records or information, etc.) without the permission of the Turkish Economic and Social Studies Foundation (TESEV). All views and opinions appearing in this publication belong to the moderator and discussants and may be partially or completely against the institutional views of TESEV. TESEV would like to extend its thanks to the Swedish International Development Cooperation Agency (Sida), the Open Society Foundation, and the TESEV High Advisory Board for their contri- butions with regard to the publication and promotion of this report. Contents TESEV’S PREFACE, 5 1. POST-REFERENDUM STRUCTURE AND PRACTICES OF THE HIGH COUNCIL OF JUDGES AND PROSECUTORS, 8 1.1. HSYK’s Structural Transformation, 8 1.2. HSYK Election Process, 17 1.3. “Performance Evaluation” as a Scoring System, 25 1.4. Training Prospective Judges and Prosecutors and the Justice Academy, 29 2. HSYK’S OPERATIONS AND IMPACT ON ONGOING CASES, 33 2.1. The Operation of the New HSYK, 33 2.2. The Practices of the New HSYK and Controversial Cases, 34 3. JUDICIARY’S PROBLEMS BEYOND THE HIGH COUNCIL OF JUDGES AND PROSECUTORS, 42 3.1. Specially Authorized Courts, 42 3.2. Judicial Law-Enforcement vs. Administrative Law-Enforcement, 45 3.3. Strengthening the Defense, 47 3.4. Appellate Courts, 49 COMMON POINTS AND RECOMMENDATIONS, 52 CONCLUSION: ANALYSIS OF THE NEW HSYK AND ROUNDTABLE DISCUSSION, 53 ABOUT THE AUTHORS, 57 4 TESEV’s Preface Koray Özdil, TESEV Democratization Program One of the most critical areas of reform in Turkey’s to the HSYK elections, as well as of the subsequent recent history involves the judiciary, which has served election process. The HSYK instituted after the to corroborate the tutelary regime. With a discourse election received positive feedback thanks to the emphasizing that the judiciary itself must also be decisions it issued on the reinstatement of Ferhat bound by the “rule of law”, the Justice and Sarıkaya, the prosecutor removed from office for Development Party (JDP) took a number of steps having authored the Şemdinli indictment in 2005; and toward reforming the administration of supreme Sacit Kayasu, the prosecutor who was stripped of his judiciary bodies, as well as the judiciary in general. professional credentials in 2003 for having drawn up The constitutional amendments brought to the ballot an indictment against the perpetrators of the 1980 in the referendum of 12 September 2012 essentially coup. It has, however, ushered in a serious crisis of represented an initiative to transform the judiciary. confidence among the public with respect to the The amendments package was intended to equip the independence of the judiciary as a result of the ways in Constitutional Court and the High Council of Judges which prosecutors in the Deniz Feneri, Hrant Dink and and Prosecutors (HSYK) with a more pluralist Ergenekon cases were removed from office. structure. International reports drafted about the judiciary Expectations were particularly high that amendments reform in Turkey raised concerns along the same lines.1 concerning the HSYK would provide the judiciary with The reports had a positive approach toward HSYK’s a more democratic administrative structure, given new structure in terms of the representation of that HSYK has a substantial role within the centralist various levels of the judiciary. However, they critiqued hierarchical composition of the judiciary in Turkey. In that the HSYK remained excessively control-prone addition, transforming the HSYK, otherwise a and centralist in comparison with similar councils in bureaucratic center of power, into a more democratic regimes based on the rule of law. participatory, pluralist body subject to civilian In light of all these developments, we decided to put supervision would insinuate other bureaucratic government entities could also undergo a similar together this study to assess the structure, operations mutation. The public support extended to the and practices of the new HSYK. As a matter of fact, we referendum had its origins in these hopeful previously published an academic and normative expectations and perceptions. Political groups evaluation of the HSYK in a 2010 report edited by opposing constitutional amendments, however, were Serap Yazıcı titled “Judicial Conundrum: Opinions and critical that the amendments would translate into the government gaining more influence upon the judiciary. 1 Hammarberg, Thomas, “Administration of Justice and Protection of Human Rights in Turkey”, 2012.Venice Following the referendum, even circles supportive of Commission, “ Interim Opinion on the Draft Law On the High Council for Judges and Prosecutors of Turkey” amending the constitution were intensely critical of (CDL-AD (2010) 42) and “Opinion on the Draft Law on 5 the decision the Constitutional Court made in regards Judges and Prosecutors of Turkey” (CDL-AD(2011) 004). Recommendations on Constitutional Reform in not attending the meeting were not included in the Turkey”. report, considering among other things the suggestions made to the effect by those in This report titled “the High Council of Judges and attendance. An exception to that concerned the Prosecutors in Turkey: Roundtable Discussion on its sections relating to the Deniz Feneri case. Roundtable New Structure and Operations” is based on exchanges about this particular case largely included discussions of the roundtable meeting attended by publicly available statements, and we thought it is representatives from judges and prosecutors important that different parties in attendance could professional associations such as YARSAV (The speak to the allegations regarding the case; therefore, Association of Judges and Prosecutors) and Demokrat we decided not to exclude those exchanges. Yargı (Democratic Judiciary Association), which adopted divergent positions over the course of the While there were sharp disparities in the roundtable referendum; one representative from HSYK, the direct based on organizational and political positions, addressee in the debate; and experts with diverse certain common points have emerged in regards to the opinions.2 With the roundtable, we intended to problems and recommended solutions concerning the generate direct discussion by experts and current status of the HSYK and the administration of practitioners of the field in a small group affording the judiciary. These common problem areas and sufficient time for speakers. As a result, we treated the recommended solutions are discussed under a current situation and practice through an insider’s separate heading titled “Common Points and perspective and in detail. This also provided a shared Recommendations”. We hope that this report and the platform where parties coming from varying political emerging recommendations contribute to the positions exchanged opinions regarding both the information and discussion platform necessary for the HSYK and several contested aspects of the judiciary democratic running of Turkey’s legal system. reform. The roundtable ensured that critiques were communicated to and discussed with the directly relevant parties through face-to-face conversations. Main discussion points for roundtable held in Ankara on 21 May 2012, and the report were drawn up in consultation with Ali Bayramoğlu, who has advised on this study. The minutes of the meeting were compiled and turned into a report by this study’s editor, Ferda Balancar. We made an effort to convey the content of the discussion as smoothly as possible into the report, keeping in mind the stylistic requirements of the report format. A substantial part of the discussions in the roundtable has been carried over into the report. However, sections where not-yet public information was shared about ongoing trials regarding individuals 2 In addition to these, we invited a representative from the board of directors of the Union of Turkish Bar Associations, the organization that represents the 6 defense litigator community in Turkey. Citing scheduling reasons, any representative was able to attend. Remarks and Recommendations on the New Structure of the High Council of Judges and Prosecutors (HSYK) 21 May 2012 Ali Bayramoğlu: