Turkey’s ad hoc ECHR judge says state tops individual rights

The sole judge not to back the European Court of Human Rights (ECHR) ruling that Turkey had violated the rights and freedoms of academic and commentator Mehmet Altan and journalist Şahin Alpay argued the survival of the state took precedence over the rights of individuals.

Ergin Ergül, the lone Turkish judge on the panel of seven appointed by the Parliamentary Assembly of the Council of Europe, was the only dissenting voice in the ECHR judgment this week that also ordered Ankara to pay 21,500 euros in compensation.

A Turkish court sentenced Altan to three life sentences on Feb. 16 on charges of “seeking to overthrow the constitutional order by force”. Alpay is under house arrest and is barred from leaving Turkey while his trial on similar terrorism charges continues. The pair are accused of being part of the media arm of the Gülen movement that Turkey says carried out the 2016 failed coup.

The European court ruled Turkey had violated the rights of Altan and Alpay to liberty and security, and their right to freedom of expression. But Ergül disagreed, making the court verdict a majority decision.

The Turkish government appointed Ergül, an expert on public administration law, to the ECHR on an ad hoc basis in February, which it is allowed to do when, as in this case, its national judge at the court, Işıl Karakaş, was recused from the case.

Ergül’s appointment was criticised as a compromise of the court’s impartiality as he was still working as a deputy undersecretary in Turkey’s Ministry of Justice. He was also appointed as state administrator of Koza Altın, one of many companies seized by the Turkish government for links to the Gülen movement.

Ergül’s dissenting opinion, included in the ECHR verdict, reveals a statist perspective of human rights that demands violations of rights be assessed differently in the light of extreme conditions such as coup attempts, or threats to the state.

Making extensive reference to the coup attempt in which some 240 people were killed, Ergül cited the Preamble of the Statute of the Council of Europe, which says, “the pursuit of peace based upon justice and international cooperation is vital for the preservation of human society and civilisation”.

Ergül then referred to the 14th century Arab historian Ibn Khaldun.

Khaldun, he said, “a great thinker, legal scholar, historical philosopher and sociologist and the founder of the science of civilisation (umran), explains in his masterpiece “Muqaddimah” that “one cannot imagine a (state) without civilisation, while a civilisation without (a state or) authority is impossible and that human rights violations (or injustices) ruin civilisation, and the ruin of civilisation leads to the complete destruction of the state”.

Ergül said there were striking similarities between Khaldun’s perspective and that of the Council of Europe without providing an explanation of how he reached this conclusion.

“These words and principles assume full significance during a state of emergency following an attempted military coup … most serious violations of fundamental rights tend to occur during such periods,” he wrote.

Ergül then praised the Turkish people, who took to the streets to foil the coup, for demonstrating “how a people can preserve democracy, the rule of law and civilisation and take control of its own destiny”.

Ergül defended Turkey’s actions after the coup and said they were justified, as from Khaldun’s perspective, the coup could have led to the destruction of state or even the ruin of civilisation.

Turkey gave notice of a derogation from the European Convention of Human Rights days after the coup and the declaration of the state of emergency. “The applicant’s complaints do not concern rights from which no derogation is permitted,” Ergül said.

The proportionality of the measures taken in the context of the derogation, he said, warranted “a careful examination in the light of the threat to the life of the nation and to the rule of law, democracy, the constitutional order and human rights in Turkey”.

“The exigencies of the situation of a public emergency threatening the life of the nation” should be a priority in evaluating the cases regarding violation of rights following a coup attempt, Ergül said.

Referring to the Gülen movement, which encouraged and helped graduates of its many schools and universities to take positions in the civil service, judiciary, military and media, Ergül said the cases of Altan and Alpay were extremely complex due to the significant role of the Gülenists’ media wing “in concealing the organisation’s illegal activities and in legitimising the actions that gave rise to the despicable attempted military coup”.

Therefore, in the cases of Altan and Alpay, he said, “the measures taken were strictly required by the exigencies of the situation”.

According the 2018 Turkey report of U.S.-based non-governmental organisation Freedom House, by the end of 2017, 60,000 people had been arrested in Turkey, 110,000 people had been suspended or dismissed from public sector jobs and 150 media outlets shut down under the state of emergency powers.

According to the New York-based Committee to Protect Journalists, 73 journalists were in prison in Turkey as of December 2017. The U.S.-based World Justice Project meanwhile put Turkey 101st out of 113 countries on its 2017-18 Rule of Law Index.