The HSYK also stripped another specially authorized prosecutor in Erzurum, Tarık Gür, and public prosecutors Rasim Karakullukçu and Mehmet Yazıcı of their authorities. The board also decided to file criminal complaints against Gür, Karakullukçu, Yazıcı, Şanal and Sinan Kuş, the chief prosecutor in Erzurum.
“This is a scandalous decision in the name of law. The HSYK has moved to block the investigations being carried out by those five prosecutors. This is a very grave decision made in the name of law,” stated Ümit Kardaş, a retired military judge.
Jurists argue that the HSYK made the decision without even evaluating the Cihaner probe file. According to most jurists, the board cannot decide whether Şanal overstepped his authority without discussing the details of his probe. A prosecutor can be removed from his position or stripped of authority only after an investigation. However, no investigation was launched into the prosecutor.
Erzincan Chief Public Prosecutor İlhan Cihaner was arrested early yesterday on charges of membership in a terrorist organization and falsification of documents. The prosecutor was taken into custody on Tuesday after a thorough search at his office and house as part of the ongoing probe into Ergenekon, a clandestine group nested within the state and the military. The group is accused of working to overthrow the government.
Cihaner's arrest came upon an investigation by Şanal. Şanal was interrogating the Erzincan prosecutor over his probe into a number of religious communities in the city. Last year, Justice Ministry inspectors uncovered irregularities in the probe. An investigation was launched into Cihaner on the grounds that he failed to inform the justice minister about his probe into the İsmailağa religious community and the Medine Foundation. Cihaner allegedly carried out the investigation illegally, in violation of established legal practices, and overstepped his authority.
The arrest spurred the HSYK into action. The board gathered for an extraordinary meeting on Wednesday. The justice minister did not attend the meeting. The ministry was represented by Undersecretary Ahmet Kahraman.
Prime Minister Recep Tayyip Erdoğan invited Justice Minister Sadullah Ergin to his office yesterday afternoon to discuss the HSYK decision.
“I am not sure why the HSYK made such a hurried decision. I would expect it to send a delegation to Erzurum to examine the investigation into Cihaner. Instead, they gathered rapidly and made a rapid decision. This is not a legal practice we are accustomed to. It has sparked suspicion. The board acted like a political body. It sparked suspicions over whether it made a partial and prejudiced decision,” said Mete Göktürk, a former chief prosecutor of the now-dissolved State Security Court (DGM).
The prosecutor's office of the Supreme Court of Appeals also announced yesterday that an examination was initiated into Cihaner's arrest. The court's chief prosecutor, Abdurrahman Yalçınkaya, told the private NTV news station that the protection of a democratic state governed by the rule of law depends on the independence of the judiciary.
“We will continue to protect the gains of the republic,” he told the station. No other details were immediately available about the examination.
Cihaner's lawyer, Hamit Sekman, appealed his client's arrest on Wednesday afternoon. “Such [arrest] decisions are not uncommon after detentions. That was not a surprise for us. An individual who is interrogated may get arrested,” he noted. Sekman also added that his client was in good condition.
There are claims that Cihaner launched the probe into the religious communities as part of a suspected military plot to undermine the power of the Justice and Development Party (AK Party) government.
Titled the “Action Plan to Fight Reactionaryism,” the plot mentions a subversive plan by the armed forces to overthrow the government. According to the plan, munitions and bombs would be planted in the houses where followers of some religious communities lived, and these weapons would later be found during police searches. Thus, these religious communities would be categorized as an “armed terrorist organization.”
The weapon-planting conspiracy had been put into operation in Erzincan; however, after the exposure of the plot, unidentified parties dumped munitions into a reservoir in the city. An investigation into the weapons led to the arrests of three National Intelligence Organization (MİT) officials, two military officers and one noncommissioned officer. The conspiracy is believed to have been prepared by 3rd Army Commander Gen. Saldıray Berk, Erzincan prosecutor Cihaner and the gendarmerie regiment commander in Erzincan.
The Judges and Prosecutors Association (YARSAV) also stood by Cihaner yesterday. Emine Ülker Tarhan, the association's head, claimed that Cihaner had committed the alleged crimes while on duty and thus needs to be interrogated by the Supreme Court of Appeals. The association, however, remained silent in the face of the HSYK move against Şanal.
Future of Şanal's probe uncertain
It is, however, not certain how the HSYK decision will impact the probe Şanal has been conducting against the Erzincan prosecutor. According to Kardaş, the HYSK decision will not enable Cihaner to be released from prison.
“All legal proceedings Şanal dealt with thus far will go untouched. But the HSYK decision is aimed to intimidate jurists. Can we speak about the independence of probes from now on? The HSYK has put its legitimacy into question,” he said.
Former Justice Minister Hikmet Sami Türk, however, said Cihaner may be released at any time.
“The court ruling for [Cihaner's] arrest will go untouched. But we are going through troublesome times. … Only chief inspectors of the Justice Ministry can decide to remove prosecutors of their special authorities. … The Erzurum Prosecutor's Office has to assign a new prosecutor to the Cihaner probe. This probe will continue. It cannot be blocked,” stated Professor Ersan Şen, an academic at İstanbul University.
Şen also asked whether the HSYK decision aimed to close the Cihaner file. “Turkey has been witnessing firsts in its history. Such decisions bring question marks to minds,” he added.
A new Sarıkaya incident?
The HSYK move against Şanal is strongly reminiscent of a similar move against former public prosecutor Ferhat Sarıkaya.
The board was the center of fierce criticism in 2006 when it disbarred Sarıkaya after he ordered the arrests of two noncommissioned officers and a Kurdistan Workers' Party (PKK) member-turned-informant who were caught red-handed bombing a bookstore in Şemdinli in southeastern Turkey. Sarıkaya had also prepared a number of indictments against army commanders for their alleged links to the incident.
The disbarment of Sarıkaya had spurred jurists to seek the establishment of a body that could act as a check against HSYK decisions.
“This is a judicial scandal. This is a second Sarıkaya incident. As a jurist, I am ashamed [of the HSYK decision]. The board got involved in a judicial process as if it were a party. This is not acceptable. … It is not possible for us to reach European law norms with such an ideological point of view,” noted Gültekin Avcı, a retired public prosecutor.
Avcı also said a new prosecutor was likely to be appointed to the Cihaner probe. “However, the probe has been interrupted. That's like an operation. In other words, that's a halt in the probe. This is probably the most fierce blow to investigations conducted thus far as part of the Ergenekon probe,” he added.
Osman Can, the co-chairman of the Democratic Judiciary Association, agreed with Avcı on the "Sarıkaya incident."
"The judicial process [against Cihaner] was initiated in accordance with the law. A court made a ruling in line with the process. … However, the HSYK has directly interfered in the judiciary. This is a second Şemdinli incident. This is how we see the issue," he noted.
According to Mustafa Şentop, a professor of constitutional law, Şanal did not overstep his authority with his probe into the Erzincan prosecutor.
"If a jurist is accused of abuse of authority, he is tried at the Supreme Court of Appeals. However, the case with Cihaner is not the abuse of power. He is accused of membership in a terrorist organization. So? He will not be tried at the Supreme Court of Appeals. In such cases, specially authorized prosecutors are entitled to investigate a prosecutor," he said.