Ankara unwilling to name a judge to European Court

Turkey, one of the founding members of the European Convention for the Protection of Human Rights and Fundamental Freedoms, appears unable to nominate a judge to the European Court of Human Rights (ECtHR) established by the treaty.

The Turkish government has been searching since April last year for a candidate to replace the court’s Turkish member. Turkey’s first nominees were rejected by the Parliamentary Assembly of the Council of Europe (PACE), a perfect example of the government’s unhealthy relationship with the rest of the world and especially with the West.

The Turkish government nominated three candidates under its complete political control. PACE rejected all three nominees - Famile Arslan, Basri Bağcı and Ergin Ergül - and invited Ankara to kindly abide by the court's nomination rules.

The incident was a first in ECtHR history; PACE had never before rejected even two, let alone all three nominees from a national list. Ankara came up with a second list but failed once again. Two of the candidates on the second list did not pass the assessment and had to withdraw from the list to avoid further humiliation.

Now Turkey has to nominate a new list of candidates by March 2019, and if everything goes accordingly, Turkey will have a judge on the ECtHR in April at the earliest.

Let us look at how the ECtHR appointment system works. First, there is a national selection procedure, in which each state determines a list of three qualified candidates to submit to PACE.

When selecting their three candidates, member states must ensure their national selection procedure is fair and transparent, for example, by issuing public and open calls for candidates. All candidates must have the relevant judicial qualifications and background, and are required to have sufficient knowledge of either English or French, and some proficiency at another European language.

To help ensure that candidates are qualified for the job, a multinational panel of experts extends confidential advice to the governments on the potential candidates before submitting the final list to the assembly. This panel, the Advisory Panel of Experts, advised against nominating the names on Turkey's first list, the one where all three nominees were rejected, but the Turkish government chose to go ahead and learned a lesson the hard way.

The Advisory Panel of Experts is comprised of seven members, chosen from members of the highest national courts, former judges of international courts, and lawyers of recognised competence. The former president of the Turkish Court of Cassation, Sami Selçuk, was a member of this panel. According to its reports, between the 2011 and 2016, the panel examined 46 candidate lists from 37 countries. They occasionally recommended against candidates, but never advised against the whole list of a state before Turkey.

Once the assembly receives the list of state candidates, a 20-person PACE sub-committee interviews each of the three candidates in person and scrutinises their CVs before recommending whether or not to accept the list. 

The subcommittee's criteria for the potential judges are: The candidate must possess high moral values, must possess qualifications required to be appointed to top judicial positions, and if they are jurisconsults (lawyers), they must have recognised competence in their areas

The moral attributes for judges are listed as honesty, a sense of responsibility, courage, dignity, diligence, discretion, respect, a clean criminal record, independence and impartiality. It is somewhat hard to come by these qualities when extra-legality is gradually, under the control of the politicians, becoming the norm in a country.

But the problem is a lot more profound. Despite all the adverse developments in Turkey, Ankara could still find perfectly capable jurists to nominate to the court. Some very competent Turkish jurists who know the court well announced their candidacy, but the government ignored them.

Ankara instead wants to nominate a judge to act as its spokesperson in Strasbourg, but Strasbourg keeps is not playing ball. According to the Cumhuriyet newspaper, one of the last three names suggested by the government, Selami Kuran was asked about the tangible effects of the 2016 coup attempt on the Turkish legal system during his interview with the sub-committee. The newspaper said he answered: "Over 250 people died that night, over 2,000 people were injured, the Turkish Parliament was attacked. What could be more tangible than that?" He was graded four out of 10 by the subcommittee and later had to withdraw his candidacy.   

Ankara's relations with European institutions established after World War Two is disastrous. The Council of Europe is one of these institutions. Turkey was removed from the monitoring process of the council in 2004 and placed back under a human rights probe in 2017. The reasons were the council's concerns over the state of democracy, the rule of law and human rights in Turkey. Only 10 countries out of 47-member states are monitored; Albania, Azerbaijan, Bosnia and Herzegovina, Armenia, Georgia, Moldova, Russia, Serbia, Turkey and Ukraine.

Turkey's awful track record with the ECtHR is another sign of its disastrous relationship with European institutions. Turkey's holds the first place for personal appeals to the court with 3,386 cases followed by Italy and Russia. Between 1987, the year Turkey allowed personal appeals to the ECtHR and 2017, the court ruled 2,988 times in favour of applicants, including the violation of at least one of the articles of the convention by the Turkish governments. Of these violations, 878 are judiciary abuses, 726 are related to the right to liberty and security, and 657 of them are violations of the right to property. Not surprising.

Former Soviet bloc countries that joined the Council of Europe after 1989 are having similar problems as well. It seems that democracy and the rule of law cannot be established in eastern European countries this way; that grafting European values does not work. In this sense, it is quite evident that the convention and the court are not institutions intended to bring democracy to undemocratic states, they only supervise benign deviations from democratic norms.

It is sad but not surprising that Turkey, a founding member of the Court, is in the same league with former communist countries. European values have not caught on in Turkey. The head of the International Relations Commission of the Russian lower house, recently suggested that Russia, which has a multitude of issues with the Council of Europe, leave before being expelled. Turkey apparently may follow suit.