Turkey’s judicial problem: A new beginning


On Oct. 12, the elections held to determine the 10 new members of Turkey's Supreme Board of Judges and Prosecutors (HSYK) were finalized. The Judges and Prosecutors Association (YARSAV), which is known as a representative of former Kemalist elites; the Gülen Movement, headed by Fethullah Gülen in Pennsylvania, which aims at taking control of state institutions under the guise of a religious organization and the Unity in Justice Platform (YBP), which does not have close ties with the government in a political and socio-cultural sense but also represents those demanding a democratic and pluralist judiciary, participated in the elections.Unlike 2010, YARSAV could not show its presence during the elections. The real competition took place between the YBP and the Gülen Movement. The YBP won the election by taking eight seats out of 10. The HSYK currently has 22 members. Four of them are appointed from among academics and legal counselors by the president while the justice minister and undersecretary are ad hoc members. One member comes from the Turkish Justice Academy, three from the Supreme Court and two from the Council of State.Parliament does not have a role on the board and at least 15 out of 22 members are judges. When it is considered that the member from the Justice Academy and the undersecretary are also judges, it can be said that 17 out of 22 members of the HSYK are legal experts, which is hard to correlate with European standards. As the Venice Commission sets forth, a disproportionate representation of judges might cause problems such as professional solidarity or favoritism. Such issues are not the factors that make the HSYK elections important for Turkey. The real problem was the fact that the groups affiliated with the Gülen Movement, which obtained considerable positions in the most critical institutions in the country by implementing a long-term plan, had control of the judicial system – the most critical and top state institution in the country. As the judiciary has the strongest shields provided by the law, it is possible for this institution to attempt every kind of political move by hiding behind the shields of law and judiciary. All of the government's administrative decisions against the Gülen Movement, which had members in the army, police and central bureaucracy, could be blocked through the judiciary and all the actions taken against those illegal formations were in vain.Therefore the HSYK elections were of vital importance for democracy. The government, which cannot constitutionally intervene in the judicial system, indirectly got involved in the elections by supporting the YBP. But the Gülenist group nominated several members from YARSAV's list by collaborating with YARSAV. It became directly involved in the elections by issuing an independent list.More importantly, the Gülenists also nominated high-ranking court members they had assigned to the Supreme Court and the Council of State since 2011, using every available means of the judicial hierarchy.In order to guarantee the results, they also tried another method that is not very ethical. Having the concerns of not influencing the lower ranking judges and prosecutors, they brought forward the election of HSYK members that would come from the Supreme Court and Council of State to an earlier date. This election was supposed to have taken place after Oct. 12. The members that came from the Supreme Court were elected on Sept. 23 and those from the Council of State were elected on Sept. 29. They acquired all three members from the Supreme Court and one of the two members from the Council of State. They had a moral advantage on the eve of the main election that was to be held on Oct. 12.Despite all the constraints and plots, the first ranking judges and prosecutors did not deliver the judiciary into the hands of the Gülenist group, which has a totalitarian political philosophy, acts according to a strict hierarchy and sees the judiciary only as an instrument of power. This is a promising development for the judiciary, indicating that it will be rapidly normalized and the reliance on it will be reconstructed.