When future scholars write the history of Turkey’s present-day travails, they will no doubt puzzle over why countless intellectuals, professing attachment to the rule of law, civil liberties, and liberal values, nevertheless supported show trials based on flagrantly fabricated evidence – thereby helping to legitimize them. Among these, Etyen Mahçupyan perhaps stands out. An intellectual of some standing until recently, he has written on the Sledgehammer case from the beginning. Not only has he supported the prosecution, he has steadfastly tried to downplay the mountain of evidence that shows the Sledgehammer CDs are fabricated.
Mahçupyan is entitled to his interpretations of the evidence and his own political preferences, of course. We do not quarrel with those. What we find reprehensible is how Mahçupyan consistently makes up facts – facts that one can easily look up and verify (or refute, as in his case). We have given a string of examples in previous entries (see here and links therein). In none of these cases, has he acknowledged his mistakes, apologized or published then a correction.
In view of this history, we are not surprised by the errors of fact in his latest piece. And we have no expectation that he will correct them. But we did want to make those corrections for the record.
Mahçupyan begins by claiming that the Supreme Court of Appeals cannot be accused of bias because its membership was appointed before the 2010 referendum. (It is widely understood that the AKP and Gulenists staffed the higher echelons of the judiciary with sympathizers following the changes made in the referendum.)
“I must note in advance that most members of the relevant chamber of the Supreme Court of Appeals had been appointed before the 2010 referendum — when constitutional amendments, particularly including those overhauling Turkey’s judicial system, were endorsed — and even before the AKP came to office in 2002, and that they unanimously upheld the local court’s decision. So it is hard to label the Supreme Court of Appeals decision as “ideologically motivated.”
In fact, four of the five members of the relevant (9th) chamber were not members of the Supreme Court of Appeals prior to the 2010 referendum, as can be easily checked by consulting the official gazette. All four were appointed on February 24, 2011. The fifth member was appointed in 2003, before the referendum (but not before AKP came to office, as Mahçupyan claims). The latter was elected to preside over the 9th chamber on October 24, 2011 – well after the referendum.
Whichever way one looks at it, the 9th chamber of the Supreme Court of Appeals was staffed and reconstituted following the 2010 referendum.
Mahçupyan also gets totally wrong the judgments to date of the European Court of Human Rights (ECtHR) on Sledgehammer. He writes
“As you may recall, the ECtHR rejected the claim that the digital data had been fabricated.”
Actually, no you cannot recall such a thing because it never happened. The ECtHR has not ruled on the defendants’ claim that the evidence against them is fabricated. It has not done so because that claim comes under Art. 6 (“fair trial”) of the European charter on human rights, and requires that domestic remedies be exhausted before ECtHR can render judgment. Defendants will not be able to take the case to ECtHR under Art. 6 until their final appeal – before the Constitutional Court – is rejected. (Even then, the ECtHR will not rule on whether the digital evidence is fabricated or not; it will rule on whether the defendants were given a fair trial – in particular whether the evidence on fabrication was properly evaluated by Turkish courts.)
The ECtHR did rule that initial detentions were legally justified, in the sense that the prima facie evidence cleared the necessary threshold. As the Court made clear, this ruling was not based on an evaluation of the evidence itself. It presumed that subsequent stages of the legal proceedings would provide the defendants with adequate opportunity to clear their names, which clearly has not happened. The ECtHR has in fact already raised questions on the legality of the continued detentions, directing specific queries to the government. (No judgment has yet been rendered on that part of the defendants’ complaint.) But, as mentioned above, the ECtHR has not yet undertaken an evaluation of whether defendants have received a fair trial.
Incidentally, the U.N Working Group on Arbitrary Detention (UNWGAD), which follows different procedures, has already ruled in favor of the defendants. Among other violations of due process, it found that the Turkish court had refused to examine evidence substantiating the forgery claims. Mahçupyan is naturally silent on the UNWGAD ruling.