Elephants in courtrooms–IV; The case Erbakan vs Turkey

ECHR: office Strasbourg France

For decades now, Islam is growing stronger in Turkey. ‘European’ judicial activism contributed to this.

Necmettin Erbakan (1926–2011), founder of Millî Görüş [1], former prime minister and mentor to Erdowahn, was one of the main forces behind the re-Islamization of Turkey. In 2006 a group of judges from the European Court of Human Rights – by a vote of 6 to 1 – very explicitly supported this man. The ruling dealt with the appeal by Erbakan he made in 2000. He was convicted in March 2000 for inciting hatred in 1994. The ECHR statement is an almost perfect illustration of what is wrong with ‘judicial activism’ and its relationship with ‘Brussels’. Take note: Erbakan was convicted but never spent a day in prison and he never actually paid the fine.
The motto of this ruling could have been ‘tolerance for the intolerant’.

Conquer Rome

Already in 2010 in my book Islamophobia? I wrote quite extensively about this Erbakan, a man who three times founded a party that was then banned not long afterwards (see the image in note 1).
His pupils (!) Erdowahn and Güll then took a different approach. For some time they pretended to be pro-Western, even accepting the ‘separation of mosque and state’. As far as they were concerned, Turkey was, so to speak, part of the ‘European community of values’, that imaginary body of ideas that people ‘in Brussels’ are increasingly using. Attempts have also been made to ban the AK (Erdowahns’) party, but these have failed – partly thanks to the EU – and we now know more about Erdowahn’s course.
But Erbakan was less subtle. For decades. 
I quote from my book (p. 169):

Erbakan said in 1989 to his [Milli Görüs] supporters in Arnhem (a Dutch city near the border with Germany): “The Europeans are sick. We have the medicine to make them better. We will conquer Rome. Europe will learn Islam from you.”
Apart from the rather curious remark about Rome (…) this quote can still be dismissed as an attempt to boost one’s own self-confidence by denouncing others.
More disturbing are statements by this man about Jews: in this area he beats the Iranian Prime Minister Ahmadinejad. In speeches he talks about the Jews/Zionists in terms like bacteria and diseases. They would organise conspiracies against the current Mohammedan world (“from Morocco to Indonesia”) as they had tried in the past through the “crusades organised by them [sic] which were finally stopped by the Turkish sultans and ancestors of Erbakan. In the Milli Gazette, the daily newspaper of one of the earlier parties he founded, articles were also quite recently written in which extreme hatred against the Jews was directly traced back to the Koran and other texts that have come down to us thanks to Mohammed.

Believers vs Unbelievers

Nine years later, Mr. Erbakan was convicted of incitement to hatred in his country. Not because of that speech in Arnhem, of course, but because of a speech he gave in 1994 in the context of approaching municipal elections in the south-east of Turkey. An area where the Kurdish issue -read: the struggle of and against the PKK- was running high at the time. The story was imbued with Mohammedan us-versus-them thinking. The other camp –all parties other than his– were all led by ‘the infidels’, according to him. Take a look at this passage from that speech:
From now on there are no longer twelve political parties in this country. There are two: [that of the] righteous (hak) and [that of the] unjust (batıl). The party that represents the just also represents [également] my brother’s faith in Bingöl.  It’s his own party called Refah. Who is part of the other party? The others. Who are the others?
All other than Refah are unjust. They can be considered as one single party.
Because they are in love with the unbelievers. They are not independent. They gain their power under the influence of the West, they receive Western instructions, they crush our people. They are all usurers, all exploiters, all oppressors and besides, [thus] we are going to leave the Islamic world and unite with the Christians, and the infidels will make our laws and rule us …

Lost in translation

The translation of the ruling from the European Court of Human Rights is mine; From French. The ECHR itself only came up with a French text! On their own website they mention the existence of (unofficial!) versions in Ukrainian and Turkish …
A press statement about the ruling has also been issued in English. Therein, contrary to the French text, the names of the judges are also accompanied by the countries of origin: Greece, Turkey, Denmark, Croatia, Bulgaria, Russia and Austria.
The English text, on the other hand, does not indicate, the French text does, that the Bulgarian and Austrian judges were women. The Austrian was the judge who disagreed with a (small) part of the ruling.
When you are busy for quite some time to read (with the help of Google Translate, Merriam-Webster and a few other tools) 20 pages of legal French and to translate some passages from it, you really understand the consequences of pretending that we are in “this part of the world” is suggested to mean speak the same language in a literal or metaphorical sense [2]. The translators of the European Court already give a hint: the French words ‘juste’ and ‘injuste are accompanied by’ the original Turkish words between brackets, just to be sure.

Directly into English, Google Translate translates the Turkish ‘hak’ to ‘right’ and ‘batil’ to ‘false’. That does not seem right, to say the least. Something similar applies to ‘egalement’. That is translated into the English ‘also’, while ‘equally’ would be much better. The French word ‘injuste’ is translated in one English line as ‘unjust’ and a little further on as ‘unfair’.
Perhaps the above seems to you like looking for nails at low tide, but I beg you to  really consider the following: in a room there are 8 or 9 people talking to each other in a language (French) that is not the mother tongue for any of them, and their conversation is about a speech given in Turkish. And of course it’s not just about the text itself, but also about being able to place it in the cultural context…
Take the term ‘loan shark’. The official (French) ruling uses: ‘usurier’. Google really has no idea what this French term stands for in Turkish and just returns the French word “usurier”. It would be a serious challenge to find out whether in the original Turkish text a word was used here that is used in Turkish and/or more specifically in the word usage of that Erbakan, to express some extra Jew-hatred or not. Possibly the Dutch translation ‘woekeraar’ happens to be a translation that accurately reflects what the Turkish text of Erbakan sounded like. Who knows?
However, a ‘loan shark’ or ‘woekeraar’ is someone who charges an outrageous amount of interest, while for fanatical mohammedans like Erbakan it is wrong to charge interest at all. In recent years, President Erdowahn has also increasingly issued statements about the Turkish economy in which this second view of interest on loans resounds. We just can’t know without extensive research. (By the way: I did start with the job mentioned above. In the note I describe the challenges you face when you get started with this [3]).

Forms of truth-finding

The ‘European’ Court obviously does not conduct such an investigation.
No, this is not expressed sharply enough: this ‘Court of Appeal’ does not do so by definition. 

After all, they are NOT concerned with assessing the actual – criminal or otherwise – events themselves, but with how the relevant judiciary and government have dealt with them. 

It is a kind of cassation case law. The Erbakan ruling in paragraph number 63 provides a truly delusional illustration of this. That paragraph appears in the “(b) Application of these principles to the present case” section of the second sub-chapter Findings by the Court, which in turn forms part of the “EN DROIT” chapter.

Because of the great importance of this passage, I quote the official statement in French and then give my own (very) free translation:

63. De plus, comme l’indique le Gouvernement (paragraphe 9 ci-dessus), il convient de tenir compte du fait que la population de la région a été victime de plusieurs actes tragiques perpétrés par des mouvements fondamentalistes au moment de la diffusion de ces propos à Bingöl (voir, mutatis mutandis, Zana c. Turquie, arrêt du 25 novembre 1997, Recueil 1997‑VII, p. 2539, § 10, et Sürek c. Turquie (no 2) [GC], no 24122/94 , § 37, 8 July 1999).


The Court agrees with the remark of the Turkish government that ‘one must take into account that the population of the region in question has been the victim of tragic acts by fundamentalist movements at the time of the comments in Bingöl’.
Strange in itself actually, and in my paragraph after my next one I will go into further detail on this enormity, but what follows in their paragraph 63? A reference to two other judgments of the Court itself!

With this reference to other issues that they approached purely procedurally too, this Court wants to indicate, as it were, that it really does have an eye for the context … How absurd do you want it to be?

(Here is the link to one of those own statements. There is no explanation at all about that context, just a similar short indication as in the statement criticised here.

The statement itself

The actual statement can be summarised fairly briefly.
First of all, The Court reminds in paragraph 55 that it -The Court- is very important … There is a good chance you don’t believe me, so I beg you to fact-check me here.
Visit this pdf and go to page 13/14. There you read after iii:

Verification of the “necessary in a democratic society” nature of the impugned interference requires the Court to determine whether it corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (Sunday Times v. United Kingdom (…)). In determining whether such a “need” exists and what measures should be adopted to meet it, the national authorities enjoy a certain margin of appreciation. However, this is not unlimited but goes hand in hand with a European control exercised by the Court, which must decide in the last resort whether a restriction is compatible with the freedom of expression as protected by Article 10 (see, among others, Nilsen and Johnsen v. Norway).

See Note [4] for the official, French text.

Paragraph 61 speaks of “societies of today” [sic] and Mr. Erbakan’s “reducing diversity, inherent in any society, to a simple dichotomy into ‘believers’ and ‘unbelievers'”. [5] 
It becomes suspiciously illegible in paragraph 69. For the sake of precision, I first reproduce it again in the illegible official version:

69. Enfin, la Cour observe qu’outre sa condamnation à une amende de 220 000 TRL, le requérant s’est vu infliger une peine d’un an d’emprisonnement, assortie de l’interdiction d’exercer plusieurs droits civils et politiques (…). Il s’agissait là assurance de sanctions très sévères pour un homme politique notoire. Il convient en Privé de noter que, par sa nature même, une telle sanction produit immanquablement un effet dissuasif, et le fait que le requérant n’a pas exécuté la sienne ne saurait rien changer à cette conclusion (…). En effet, le sursis de la peine et l’extinction ultérieure de l’action pénale dont a bénéficié l’intéressé (paragraphes 35 et 36 ci-dessus) n’est que la conséquence de l’arrivée du terme du sursis et notamment de l’absence de commission d’une infraction de même type.

So, in addition to a fine, Erbakan was initially given a one-year prison sentence and his political rights were stripped away. The court calls that a lot for a well-known politician. According to the court, it could have a deterrent effect. And they note that the fact that he has not served his sentence does not change that …

Indeed, the suspension of the sentence and the subsequent termination of the criminal proceedings from which the applicant benefited is only the consequence of the expiry of the term of the suspension and in particular of the absence of the commission of an offence of the same type.
Explicitly this court notes at the end that it does not rule on compensation for Erbakan because he had not asked for it …

And then there is paragraph 67, which at first sight seems sensible. In plain, non-legal language, it says here that the Turkish government’s action against Erbakan’s contested statements came too late after those statements. The Turkish state “n’ont tenté d’établir que cinq ans après”: so only five years after the verdicts were steps taken. It is striking that those five years are not correct, it was more than four years, but not five. Those five years are what Erbakan made of it…

The Context of Political-Religious Struggle: Burnt Alive

That paragraph 67 brings me back to that enormity of the previous paragraph. In principle, this Court does not engage in truth-finding. One considers something, and argues purely legal, so mainly by referring to numerous other legal judgments, often of one’s own. There is a conscious abstraction from the political reality, from the actual and shifting power relations.
This touches upon the essence of judicial activism: the perilous illusion of ‘the law’ as leading in the change of society. And in a way the axe to the roots of the Trias Politica. And yet. Yet they add a dash of context. In paragraph 10 in the chapter ‘Circumstances of the case‘. My translation of that part:

10. The government focuses [in its defence, apparently] on the situation at the time in the region where the statements were made. Geographically, one finds the city of Bingöl in the southeast of Turkey, in an area where terrorist attacks were regularly committed.

This city is also the base of Hezbollah, an extremist Islamist organisation that had carried out several (ii) terrorist attacks. Furthermore, the speech was delivered six months after the events in Sıvas that killed thirty-three people as a result of arson. In addition, the people of the region have been victims of several similar tragic acts by fundamentalist movements.

The former attacks concern the decades-long ongoing struggle of the Kurds against their status as second-class citizens, and more specifically against the – also violent – struggle of the PKK for independence.
The description of Hezbollah is remarkable. It is particularly striking that in the enumeration “extremist, Islamist” [note: islamist, not islamic] the adjective “Shiite” is missing. This is important because Turkey is dominantly Sunni and the Sunni-Shia conflict is the longest ongoing conflict in world history.

Contrary to what is said about this by too many observers, there has been no real separation of ‘mosque and state’ in Turkey since the foundation of that state. The position of power of ‘the mosque’ did change drastically: the state became more or less in charge of the mosque instead of the other way around [6] AND the Turkish state thus favours one version of Mohammedanism.

The comment about the city of Sivas actually is even more strikingly incomplete. Very painfully incomplete. 

The meeting in a hotel set on fire by a lynch mob was organized by Alevis.
That is the sub-sect of Mohammedanism that is most strongly disadvantaged in Turkey. This sub-sect somewhat conforms to the image of Islam as a whole in the West… This is even more true of the Alawites, the sect to which Assad of Syria belongs (But don’t confuse the two!). However, the reason those people were burned alive there was not because it was a meeting of Alevis, but the rumour that a translator of Salman Rusdie’s Satanic Verses would be present…

The more context you take into consideration, the more understandable the then Turkish action against Erbakan becomes!

The watershed

To do exactly the opposite of what this court does I enlarge the context a bit and thus give it more meaning, a few comments about how things were in Turkey at the time and how Erbakan’s presidency ended under the influence of the army.

Apart from the hopeless conflict with the Kurds, the country was also otherwise in a bad state. The economy was poor and crime and corruption were rampant. Much of it was drug related. That corruption had even reached the army.

Faced with all these problems, Erbakan and Demirel returned to the momentum of the aftermath of the First World War. More in particular to the zeal of the then sworn enemy of the father of the fatherland Kemal Mustapha: the terrible Enver Pasha, who was sentenced to death in absentia because of the Armenian genocide. They had his remains transferred from Tajikistan and Erbakan gave a speech at his reburial, which was accompanied by an extreme nationalistic demonstration that attracted more than a million people.

In doing so, Demirel and Erbakan achieved a dramatic -in my view the most dramatic- change of course in the existence of the Turkish republic. A change that led, among other things, to Turkey supplying the new leader of the OIC and allowing the AKP to come to power.

Turkey has always been about a precarious balance from the start between secularism and Western orientation on the one hand and mohammedan fundamentalism AND extreme nationalism on the other. That balance was never stable and has been completely disrupted.

“Under the influence of the military”: a post-modern coup, or a coup-light Erbakan had succeeded Mr. Yilmaz as prime minister and was succeeded again a year later by the same man. He was ousted from his position by the army, but it was not a coup in the normal sense of the word. A memorandum was drawn up in February 1997 by the military. However, parliament was not dissolved and no elections were held: a new government was formed by other parties.

A number of parties insisted that the deputy prime minister now become prime minister. That deputy prime minister was none other than the extremely nationalist Tansu Çiller (I wrote about her extensively on the Dutch website VerenOfLood.nu before in a section entitled The Occupation of Northern Cyprus). However, President Demirel again appointed Mesut Yılmaz as Prime Minister of a coalition, now including the Social Democrat Bülent Ecevit …

That ‘military memorandum’ was, in a sense, a response to events related (again) to Israel and to Shiites… : “On 31 January 1997, protests were arranged by the Sincan municipality in Ankara, against alleged Israeli human rights violations that took place in the guise of an “Al-Quds night”. The building in which the event took place was plastered with posters of Hamas and Hezbollah.

Judges versus statesmen

Dealing with the loss of that strange and shaky Turkish balance is definitely not the task of judges and certainly not for judges of this type of  court. By this I refer to the fact that they are essentially ‘cassation judges’ who do not seek to establish the truth, but also to the questionable staffing of that Court. People who tell themselves that a country with a very different kind of culture and history can be steered through legal activism in the direction of the same ‘ideal rule of law in the future’.

Dealing with the challenges posed to the civilised world by the wannabe sultan Erdowahn and his supporters is more a matter for politicians, rather: for people for whom the designation “statesman” would not be a mockery. 

The extent to which this (Actually not so European) court is concerned with judicial activism is most clearly reflected in paragraph 75 of the ruling. A paragraph that does not immediately stand out when read superficially:

In the first phase of the judicial approach to Erbakan, a military judge was also involved. He was replaced by a non-military judge, but the verdict on the reliability of a cassette tape as evidence did not change afterwards …

And Brussels

This ruling of the ECHR is a crucial case. Let me remind you once again that this court, despite using the same flag as the EU, actually has nothing to do with the EU. 

‘In Brussels’, however, people have no problem with the possible confusion. On the contrary. Whenever a Europhile says “Europe” when he or she means “the EU”, it is not a mistake, but an intentional contribution to this kind of confusion.

AFBEELDING …

A few years ago, this Commission Staff Working Document was produced ‘in Brussels’ and sent to, among others, the European Parliament. As an explanation to note 85 we read there:

In line with Article 52(3) of the Charter, the EU’s approach to this right and its limits takes inspiration from the case law of the European Court of Human Rights. Namely, that the right to freedom of expression extends to speech which “offends, shocks or disturbs the State or any sector of the population” but that States may “sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance”.

Finally

About the main character in this text Wikipedia mentions: “Necmettin Erbakan claimed that the process was planned by “Zionists”.
In October 2016, Tuncay Özkan claimed that the 28 February process was prepared and organised by the Gülen movement.” 

Yes, that Gülen movement whose members in European countries were being arrested and abducted to Turkey with the cooperation of the relevant government.

No, Turkey is not a European country. 
Nowadays Erdowahn, for example, openly ignores rulings of that same ‘European’ court.

NOTES:

1). The Dutch wikipedia text about Millu Görus was clearly written by a sympathiser of Mohammed’s teachings. The English version, however, is part of the series on ‘Islamism’. That version also includes an illuminating image: one that very strongly relates this organisation to Necmettin Erbakan AND to Erdowahn and Diyanet.


2). The expression ‘this part of the world’ is quite loaded here. In an earlier episode in the ‘dossier’ on judicial activism, I wrote about is thus: the Court we are talking about belongs to a club of 47, partly non-European countries. So definitely not about the 27 EU countries.
3). The ECHR provides 6 links to Turkish translations of the ruling in the Erbakan case. I visited all of them and searched (“Arama”) on all six websites those links took me to, by the term “Erbakan” and some of them by the case number. Neither Turkish government sites, nor those of universities, nor those of activist lawyers led me to a Turkish translation of the ECHR ruling.The Turkish Ministry of Justice, Human Rights Department did return one more search result with Erbakan, apparently an annual report from 2017, but following that link results in a 404 error.
4). “La vérification du caractère « nécessaire dans une société démocratique » de l’ingérence litigieuse impose à la Cour de rechercher si celle-ci correspondait à un « besoin social impérieux », si elle était proportionnée au but légitime poursuivi et si les motifs fournis par les autorités nationales pour la justifier sont pertinents et suffisants (Sunday Times c. Royaume-Uni (…)). Pour déterminer s’il existe pareil « besoin » et quelles mesures doivent être adoptées pour y répondre, les autorités nationales jouissent d’une certaine marge d’appréciation. Celle-ci n’est toutefois pas illimitée mais va de pair avec un contrôle européen exercé par la Cour, qui doit dire en dernier ressort si une restriction se concilie avec la liberté d’expression telle que la protège l’article 10 (voir, parmi d’autres, Nilsen et Johnsen c. Norvège).”
5). On that strange, non judicial concept of ‘society of today’, see also, if you wish, the section Crime that is “out of date”, about the Vice President of the Court, the German Mrs Angelika Nußberger in previous episodes in this series
6). Be sure to also consider the position of Diyanet.

Original Dutch text February 2, 2019. This English version is slightly more focused and extended.

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