The spirit of the convention is based on the sanctity of life, liberty and property as comprehensively formulated for the first time by liberal philosopher John Locke in the 17th century. To ensure the observance of the rights in the countries party to the convention, the European court was set up, and over the years emerged as the most effective rights protection mechanism in the world. The case laws of the court and additional protocol adopted by the council have resulted in the establishment a common law of human rights among the member states of the Council of Europe. The term period of the judge sent by Turkey in its capacity as a member of the Council of Europe is expiring. Thus the Turkish government has nominated three names for the post, all distinguished legal experts from the academia, to be selected by the Parliamentary Assembly of the Council of Europe (PACE). Among the government’s nominations is Professor Mustafa Erdoğan from Hacettepe University, who has been presented by some politicians from the Republican People’s Party (CHP) and some newspapers as scandalous. This is really a strange country or, to be more accurate, it is a country with some strange elite who do not understand even the basics of the notion of human rights. What constitutes a scandal for them is Professor Erdoğan’s uncompromising intellectual integrity, his stand for liberties, democracy and the rule of law.
The trial of individuals for their mere thoughts, preparations of memorandums for journalists by the military categorizing them as pro-military or anti-military, meetings where hate speeches are made by ex-army officers, and organizations of committees within the military with the aim to stage coups are all not scandalous, but to stand for democracy and human rights is?
Some think that Professor Erdoğan can not represent the Turkish state and Turkish national interests, ignorantly assuming that judges in the European court are “agents” of the states. This is not ignorance in fact, but a mindset. For them any public servant is supposed to represent the state and its interests. They are state-fetishists who are unaware of the liberal consensus since the French Revolution that “the aim of all political association is the preservation of the natural and undeniable rights of man.” They are not even aware of the fact that the courts in Turkey pass their verdicts on behalf of the people, not the state. I think the nomination of Professor Erdoğan is a significant step forward to get rid of this mindset in the country.
As envisaged by the convention, judges should be independent and impartial. I think these are the grounds on which Professor Erdoğan’s nomination is opposed by some: they do not want an independent and impartial judge in Strasbourg, but one who would be the mouthpiece of the Turkish state. Those ignorant journalists and some CHP deputies either do not know facts or they can only think in terms of ideological or state loyalties but not of the rule of law and liberties.
To nominate a judge to the Strasbourg court with a full commitment to the idea of human rights and the European Convention should be appreciated by the court and PACE. Professor Erdoğan’s nomination is a near revolution. For a change we will have sent a judge to the European court who has no other priority but human rights. His nomination is also significant given the orthodox conservatism of the Turkish judiciary as reflected in its opposition to the reform process since 1999.
He was criticized by some for standing up against the unlawful course of the Feb. 28 process in 1997. He personally suffered during those dark days, convicted for his speeches criticizing the notion of an authoritarian “republic without public.” Contrary to some critics this is not a liability but an asset for him. It only proves the professor’s commitment to democracy and human rights and his character that does not remain silent when the rights and liberties of others have been attacked.
Yes, he is not a Kemalist: he does not believe in an authoritarian republic in which some self-claimed enlightened elite have privileges over the people. These are Professor Erdoğan’s assets, not liabilities, and it is these that will be recognized by PACE when its members vote for the nominees.
Once appointed, we will be able to say even more confidently that “there are liberal judges in Turkey and in the European court.”
