One does not need to have studied law, anyone who knows how to read will see that the HSYK was not right when they read the legislation. The board reached the decision according to the Criminal Procedures Law Article 250/3. That article indicates that only the Supreme Court of Appeals can prosecute top-level judges and prosecutors. But what the authorized prosecutor in Erzurum was doing was related to the section regarding the preliminary investigation. The Criminal Procedures Law Article 251 grants this authority to prosecutors. It states that the investigation related to a crime that falls under the scope of Article 250 can be conducted by prosecutors assigned by the HSYK to carry out investigations and prosecutions for these types of crimes. Public prosecutors can conduct an investigation even if these crimes are conducted while on duty or because of their duty.Moreover, Judges and Prosecutors Law No. 2802 affirms this authority. In fact, it does so in two articles. Article 88 states that judges and prosecutors cannot be arrested, searched or interrogated except when they are caught in the act of committing a crime that falls under the jurisdiction of the high criminal courts. Likewise, Article 94 grants the same authority, stating that “the preliminary investigation of crimes committed that fall under the jurisdiction of the high criminal courts will be conducted according to general provisions. The preliminary investigation will be conducted directly by authorized public prosecutors.”
While different supplementary laws mandate that specially authorized prosecutors have the authority to conduct an investigation, it’s hard to understand what the HSYK’s resolve that the prosecutors exceeded their authority is based on. I wish they had provided a more elaborate explanation. The facts that make the HSYK’s decision controversial are not limited just to this. The decision injures the legal guarantees for judges and prosecutors. Taking action against prosecutors without conducting a proper investigation will harm the justice system. Judges and prosecutors are certainly subject to the HSYK’s administrative audit. But when procedures are ignored, questions will be raised about arbitrariness.
The similar decisions the HSYK made previously were found to be in breach of the European Convention on Human Rights by the European Court of Human Rights, which exhaustively criticized them. In Kayasu v. Turkey, the European court had found that Turkey -- or more correctly, the HSYK -- violated the convention by debarring Sacit Kayasu, who had demanded that the coup generals of Sept. 12 be tried. In its reasoned decision, the court said that “the imposition of a criminal sanction of that nature on an official belonging to the national legal service would inevitably, by its very nature, have a chilling effect, not only on the official concerned but on the profession as a whole.”
Moreover, all the actions of the five prosecutors which the HSYK cites as justification for its decision were approved by the courts. Thus, the HSYK undermined the principle of guarantee for the judges working in those courts. This guarantee is defined in Article 4 of Law No. 2802 as follows: “Judges perform their duties according to the principles of the independence of the courts and the guarantees for the profession of judge. No authority, organ, institution or person can issue orders, instructions, circulars or advice to courts or judges in the exercise of judicial powers and authorities. Judges are independent in exercising their duties. They make their decisions according to laws and the rule of law.” The principles of guarantee and independence, granted by the Constitution and detailed in the relevant law, apply to other judges and administrative boards as well. No one can claim that the decision to strip prosecutors of their powers is not intended to intimidate judges as well.
In addition, the principle of natural justice was also violated. This principle signifies the court that is entitled to hear a specific incident when it happens. Prosecutors, too, are part of the courts. When you disrupt natural justice by appointing new prosecutors or judges, a worse violation occurs. Moreover, the law reads: “The judges and prosecutors working in these courts cannot be appointed to other places or positions for a period of three years unless they justifiably demand it.” This provision is binding upon the HSYK. That said, the messages of support from the Supreme Court of Appeals and the Council of State go into the void.
Benzer Haberler 
