19 June 2013

Hadımköy Military Penitentiary

 İSTANBUL

 

 

Guido Raimondi

The President of the Second Section of the Court

European Court of Human Rights

Council of Europe

67075 Strasbourg Cedex, France                                                           

 

Dear Mr. President,

I congratulate your recent appointment and wish you success in your new post.

My name is Abdullah Can ERENOĞLU, Vice Admiral of the Turkish Navy. I have been detained since September 2011 in the political case known as Sledgehammer (Balyoz).

One of the most important cases that your Section has partially examined and will continue to examine is the case publicly known in Turkey as the Sledgehammer case, which claims that there was an attempted coup d’état in 2003 against the current government. We call this completely political case “the Slander of the century, Sledgehammer Case”. In this Case, hundreds of innocent and dignified people have been imprisoned based on fabricated unsigned digital documents whose origins remain uninvestigated.

Some defendants and I have applied (Application Number: 27641/12 ERENOGLU v. TUR) to the European Court of Human Rights (hereinafter “the ECtHR”) for arbitrary detention, lengthy imprisonment, and emphasized not having any other effective legal recourse to challenge the local court’s decisions (European Convention on Human Rights, Articles 5 § 1,5 § 2 and  5 § 3 ).

Your Section has given acceptability decisions to only two of these applications Çetin Doğan v. Turkey (Application Number: 28484/10) dated 10 April 2012, and Cem Aziz Çakmak v. Turkey (Application Number: 58223/10) dated 19 February 2013)) whose content we find legally groundless and worrying.

We assess that in both of these decisions of your Section, instead of ‟examining how human rights might have been violated”, it has been tried to put forward how the Turkish Court might have arrived a legitimate decision without any physical evidence to substantiate it.

Regarding this worrying situation;

  1. In order to create a negative impression about the applicants, those who prepared these assessments for the unbiased and independent Judges of the Court, have quoted large paragraphs from the indictment without verifying the validity of the claims contained therein,

 

  1. Despite the tens of expert reports proving that the evidence against the applicants are fabricated digital data, we understand that this issue which constitutes the essence of this case and all that it relies on, has not been sufficiently examined prior to these decisions of your Section.

 

Without examining the validity of the information in the indictment in the name of objectivity and equality of arms, how can we talk about the universal principles of law that ‟doubt is used in favor of the defendant(in dubbio pro reo)” and ‟presumption of innocence(habeus corpus)?”

 

Despite the fact that none of the digital data which are taken as evidence in this case have signatures (they are not even printed out, how can they have signatures?) the Acceptability Decision of your Section in the case Çetin Doğan v. Turkey (Application No 28484/10) dated 10 April 2012 states in paragraphs 11 and 12 ‟Again according to the Prosecutor, the Sledgehammer Group, in order to reach its goals for the second phase, have prepared auxiliary action plans. One of these action plans “the Oraj[(Orage)(fr.)plan” signed by General İ.F., Commander of the War Colleges, … “Suga  (Belay) plan” signed by Fleet Commander Ö.Ö., which was to be implemented by the Naval Forces in the second phase of the Sledgehammer plan.”

Oraj Planı Son Sayfası

5.     EMİR KOMUTA VE MUHABERE:

        a.     Emir Komuta:

        Oraj Hava Harekatı ikinci emre kadar Harp Akademileri Komutanlığı karargahından sevk ve idare edilecektir.

        b.     Muhabere:

                (1)   Sıkıyönetim ilan edilmeden önce tüm konuşmalara hassasiyet gösterilecek, harekatı deşifre edecek ve başarısını sekteye uğratacak şekilde telli ve telsiz vasıtalardan konuşulmayacaktır.

                (2)   Tüm raporlaşmalarda kriptolu cihazlar kullanılacaktır.

                        Rica ederim.

                                                                                               H.İbrahim FIRTINA

                                                                                                                                  Hava Orgeneral

Oraj Planı Son Sayfası

5.     EMİR KOMUTA VE MUHABERE:

        a.     Emir Komuta:

        Oraj Hava Harekatı ikinci emre kadar Harp Akademileri Komutanlığı karargahından sevk ve idare edilecektir.

        b.     Muhabere:

                (1)   Sıkıyönetim ilan edilmeden önce tüm konuşmalara hassasiyet gösterilecek, harekatı deşifre edecek ve başarısını sekteye uğratacak şekilde telli ve telsiz vasıtalardan konuşulmayacaktır.

                (2)   Tüm raporlaşmalarda kriptolu cihazlar kullanılacaktır.

                        Rica ederim.

                                                                                                  H.İbrahim FIRTINA

                                                                                                  Hava Orgeneral

                                                                                                   Harp Akademileri Komutanı

 

                                                      

Suga Planı Son Sayfası

b.   Emir-Komuta Münasebetleri :

                               Harekatın eylem safhası sona erinceye kadar EK-B’deki emir-komuta münasebetleri yürürlüktedir.

                               Rica ederim.

                                                                                                         Özden ÖRNEK

                                                                                                         Oramiral

                                                                                                         SUGA Kuvvetleri Komutanı

 

 The last pages of the fabricated plans named “Oraj” and ‟Suga” mentioned above are excerpted from the indictment as shown below exactly as they appear. As you can clearly see, there are signature blocks but no signatures. Contrary to the statements in the Second Section’s Decision, these digital data are not “signed”. This is the most evident proof that regrettably the information presented to you and honorable Judges of your section are slanders and do not reflect the truth.

 Similarly, paragraph 6 of the decision in the case Cem Aziz Çakmak v. Turkey (Application No: 58223/10) dated 19 February 2013, it writes: “In its indictment, the prosecutor in Istanbul also exposed that, at first, some general and high-grade officers of the First Army were involved in developing the plan Balyoz. He stated that, in a second step, the commander of the First Army and his initial team had contacted the commander of the military academies and the commander of the fleet, including schools and the respective bases were located in the area under responsibility of the First Army, as well as the commanders of the police and gendarmerie Istanbul, Bursa, and they all agreed to contribute to the preparation of the operation in question.” Even the indictment itself does not contain such statements. They are untrue and unacceptable.

These false evaluations about the indictment and those in the decision about Çetin Doğan were previously brought to the attention of the Court by his lawyers and other defendants who have read the decision. So the question is, how has it been possible for these false statements which do not appear in the case documents or the indictment, to be presented to the Presidency of the Second Section of the European Court of Human Rights? We believe that the answer to this question should be thoroughly investigated by the Section Presidency. Our impression is that these false and manipulative statements might have been prepared by officials who are appointed by the Turkish Government to certain positions in the Court with the purpose of preventing the case to result in our favor.

Our findings constitute hard evidence that the Judges of your Section are purposefully misinformed and manipulated in order to produce decisions against the applicants.

Dear President,

In paragraph 53 of the decision of your Section in the case Cem Aziz Çakmak v. Turkey (Application No: 58223/10) dated 19 February 2013, it writes: “He rested primarily for national courts to determine, in the next phase of the proceedings of the criminal investigation, if evidence were credible or dependents if they were the product of falsification likely to defame the interested, as it supports. Given the requirements of Article 5 § 1 of the level of factual justification required at the stage of suspicion, the Court finds that the criminal file contains information specific to satisfy an objective observer that the applicant could have committed the offense for which he was prosecuted.”

The applicants have proven in the local Court with over 2.000 counter evidence, 31 witnesses and 23 expert reports that the accusations against them are based on slanders and fabricated evidence. Despite our insistent demands, the local Court has refused to obtain expert reports for the digital data supposedly uncovered in the second phase of the investigation which it considered as new evidence on which it based its decision for our detention. For the applicants who have been held captive in their own country for over two years, these issues are vital. The fact that these fabricated digital evidence against us has been created after 2007, and not in 2003 as the indictment claims, has been proven not only by the tens of expert reports, but also by the Microsoft Corporation itself. In defiance of these scientific facts, the local Court has insistently refused to ask for an expert report on this fabricated digital data.

In light of these facts and findings, is it equitable for your Court to leave up to the higher national courts in subsequent phases of the trial the determination of the validity of the evidence against us? Furthermore, in light of these facts and findings, it is fair for your Court to conclude that the case documents contain enough information to convince an outside observer that the defendants are guilty of the crime?

This case sets a precedent in Turkish judicial history due to its reliance on digital data as evidence. The Turkish Republic does not have any laws concerning the use of digital data in courts as evidence.  Eleven Turkish forensic experts have stated that unsigned digital documents cannot be used as evidence. No national judicial body, including the local courts, has taken these expert statements into consideration. If the ECtHR does not make a decision on the validity as evidence of the digital data on a CD or Hard Disc which cannot be physically associated with any of the defendants, how will the Court be able to then decide if the Article 5 § 1-c of the European Convention on Human Rights is violated or not?

If people can be accused, arrested and sentenced based on unsigned digital data that is contained on a CD or a Hard Disc which cannot be physically associated with the accused, how can the rights of the people be protected against malicious conspiracies?

Eventually, it is clearly not expected or meaningful for the Second Section of the ECtHR to arrive at ominous decisions in the cases of Çetin Doğan and Cem Aziz Çakmak. We assess that the evidence in favor of the defendants are hidden from the Judges of your Section. The only logical explanation for this is that the Court officials who are reading the applicants’ complaints sent in Turkish do not convey entirely and correctly to the Judges of the Section and the appointed Judge the points that are in favor of the defendants.

On 5 and 6 April 2012, three scientific forensic experts specialized on information technologies have each individually proven to the National Court from the witness stand that the ‟expert report against the defendant” as mentioned in the Acceptability Decision by your Section (Cem Aziz Çakmak v. Turkey (Application No: 58223/10) dated 19 February 2013) ‟contains falsehoods and is manipulative”. This information was contained in the case files sent to your Section by the applicants, but has not been presented to the Judges of your Section. Should we see this as an innocent mistake or a manipulative and purposeful preparation?

Dear President,

Similar concerns regarding this case have been voiced by:

                – European Commission, Staff Working Document, Turkey 2012 Progress Report

                – United States Department of State, Turkey 2012 Human Rights Report

                – Freedom House, Turkey 2013 Report

While these institutions have serious doubts that this is a political case with no legal qualifications, how can it be possible for the Judges of the Second Section of the ECtHR over which you preside, to brush aside with naive excuses the complaints of the applicants that Articles 5 § 1 and 5 § 3 of the Convention are violated?

Dear President,

So with the foregoing, I tried to summarize the desperate situation that hundreds of individuals are faced with. Naturally our families also have been affected by its results. Hundreds of defendants of the Sledgehammer Case have been investigated, arrested, detained, charged, and imprisoned without the opportunity to exercise their due process rights.

 

In the beginning of the second decade of the 21st century, being imprisoned with these digital forgeries causes the Turkish justice system’s reliability to be seriously questioned. While annihilating the psychologies of children and spouses of the falsely accused, this case is also ruining the future of judiciary in Turkey.

Our sole demand is the ‟objective assessment” of the complaints regarding the Sledgehammer Case by the Second Section of the ECtHR over which you preside. For this purpose, we want to believe that you will seriously consider taking measures to disassociate from this case the officials appointed by the Turkish Government whom we strongly believe, as evidenced above in detail, are not impartial.

We would like to add with regret, that similar situations have presented themselves in the past regarding certain cases from Turkey, and the ECtHR have been able to surmount this problem by taking the case files from the Turkish officials and handing them over to Dutch officials. Similarly, we believe that in the Sledgehammer case also, the problem can be resolved by appointing regent Judge and officials from impartial countries to take over the examination of the case files.

Furthermore, we strongly recommend the consideration by your Section of objective assessments of the European Parliament, European Union, United Nations and other international observers regarding the Sledgehammer case.

Due to the severe violations of due process, justice and human rights, the ECtHR remain the only judicial institution that hundreds of people who are wronged in this case can trust. In order to arrive at a just decision, our trust in your Court to continue and our legitimate concerns to be addressed, we believe that it would be effective to hold hearings according to the Article 54/3 of the bylaws governing the ECtHR.

I want to believe, sincerely, that you will do whatever is necessary to resolve this vital issue which I wanted to bring to your attention through this letter.

As a human being, I deserve the provisions of human rights. Thus, I would like to share my concerns on this sham case, and would appreciate any efforts including the sharing of this unlawful, out-of-date conduct in Turkey.

Respectfully,

                                                                                                                             Abdullah Can ERENOĞLU

                                                                                                                             Vice Admiral

 

Abdullah Can ERENOĞLU

Vice Admiral

HADIMKOY ASKERI CEZA VE TUTUKEVI

KANI AKMAN-1 KISLASI

34555 HADIMKOY-ISTANBUL/TURKEY

 

scales-of-injustice JUNE 2013

 

INFORMATION ABOUT THE SLEDGEHAMMER CASE

 

The case, known as “Sledgehammer (Balyoz in Turkish)” in Turkey, concerns an alleged coup d’état that supposedly took place between 2002 and 2003, and it is merely a political case more commonly called “the Slander of the Century, Sledgehammer Case”. Hundreds of innocent and dignified people have been under arrest for more than two years unlawfully and unfairly due to fabricated and anonymous digital data whose origins have been deliberately overlooked and ignored.

In this case, it is simply aimed to eliminate visionary, patriotic and innocent members of Turkish Armed Forces by manipulating the judicial bodies and referring to past coup d’états even though these people have no relation to them.

The “Sledgehammer Case” was litigated based on the allegations that the 1st Army Commander who was in office in 2003 tasked the then Commander of Turkish War Colleges, the Fleet Commander, Gendarmerie District Commanders of Istanbul and Bursa as well as some officers to design some supposedly “coup d’état plans” under the names “Balyoz (Sledgehammer), Suga (Belay), Oraj (Orage(fr.))  Sakal (Beard) , Çarşaf (Burqa) etc. and that he covertly tested them in a seminar held at the 1st Army Command on March 5-7, 2003. In other words, those who are tried at the Sledgehammer case were blamed not because they attended that seminar but they allegedly rehearsed a plan called the “Sledgehammer Security Operation Plan” at the said seminar covertly and were allegedly involved in the preparation of some plans.

During the early stages of this case, 364 members of Turkish Armed Forces and one civilian were tried, 250 of them held in custody. Although the total number of officers who attended the said seminar was 162, only 52 of them were charged with this allegation. Wasn’t it also necessary to blame the other attendants if there was allegedly a rehearsal for a potential coup d’état at the seminar?

Out of 325 Turkish Armed Forces members who were tried, and eventually, sentenced in this case with the aim of eliminating them from the Armed Forces, 273 officers did not attend the said seminar. Innocent people are denied their freedom merely based on anonymous digital data which are proven by many expert reports beyond any doubt, to be fabricated slanders and libels and which would in no event be considered as valid evidence in any State of law around the world.

At the Plan Seminar held at the 1st Army Command between 5 and 7 March 2003, the Command’s Operation Plan against the enemy was discussed in the light of the “worst possible case scenario”, including potential measures that the Internal Security Action troops would take following the declaration of a martial law against possible internal commotions and riots behind the battlefront while the army fighting against the hostile country. All presentations and speeches by the attendants were recorded under the order of the 1st Army Command during the seminar which lasted two and a half days, and thereafter they were kept at the premises of the Command. These actual recordings which have no bearing to any coup d’état were stolen and taken out of the headquarters years later by unscrupulous miscreants, who had somehow infiltrated into the government and the society, thus Turkish Armed Forces. In order to create an impression that there was a coup d’état attempt by the Turkish Armed Forces, some real documents stolen from the Commands were also blended with the fabricated digital documents so that everything would appear as real.

The said real documents stolen from various headquarters and units of the Armed Forces consist of official correspondence for various tasks and assignments which, in fact, have nothing to do with the case. The court inquired the relevant military institutions as to those documents, and was replied, quite naturally, that they were just legal and official correspondence that do not contain any criminal content.

In order to make the slanders more convincing, the forged digital documents were fabricated by using actual quotations from the speeches and presentations at the seminar held at the 1st Army Command on 5-7 March 2003.  However, neither seminar-related presentations, discussions and correspondence nor voice recordings revealed or included even the names of those allegedly rehearsed plans, such as “Balyoz, Suga, Oraj, Sakal, Çarşaf etc.” Because the entire set of those digital data were fully fabricated and this was verified by 31 public witnesses summoned and heard before the court in addition to those expert reports.

The said expert reports scientifically proved that such slanderous digital data were fabricated on a date which must be, at the earliest, later than 2007, based on actual speeches and presentations at the 2003 seminar as well as real stolen documents. The names of those who were tried were underhandedly written on these fabricated digital data without their consent and knowledge.

In their efforts to produce fabricated plans in 2007 and thereafter, the slanderers actually targeted talented and highly-esteemed officers with supreme qualifications who would have been otherwise appointed to certain positions at today’s command echelon. In order to achieve their goal, they embedded in, above-said fabricated plans and digital data linked to those plans, the names of certain talented and competent officers who were young in 2003 and of those who could be challenging adversaries or obstacles for the slanderers as well as of such highly competent military personnel, some of whom were retired but most of whom were still in active duty. Moreover, the slanderers also wanted to intimidate those officers who were not parties to the said case with a simple message that “they should be careful if they do not want to be apprehended based on further slanders and to see their lives ruined upon the publication of such shams in the media.”

Before and during this trial, there was and still there has been an intensive press policy to defame and disparage such personnel. There was an attempt to drive the public to a certain perception with the help of fabricated news, crooked information, illogical comments, unrealistic charges, and claims by exploiting all communication means offered by the media. In this respect, media actors whom we call as “coup d’état-mongers” penned articles based on past coup d’états or appeared at TV channels to incriminate the accused before the public in advance. In this way, not only was the presumption of innocence violated but also there were attempts to distance the Sledgehammer case from its essence so that the truth would be disguised.

Those who were tried in the case were indicted merely based on anonymous and slanderous digital data and were arrested unfairly, unlawfully and without any justice. They were also sentenced to an imprisonment up to 20 years following a totally figurative and arbitrary trial. The case files were sent to the Supreme Court of Appeals to be appealed and the process is currently undergoing.

 Considering the fact that there is not a single evidence of which the fabricated nature has not been proven yet, we would like you to know that such digital data were not produced by these innocent people who are tried but were fabricated and serviced by a professional organization, the expertise of which is to fabricate sham and slanderous evidence.

The basis for the charges against the defendants before the court may be summarized as follows: First is the presence of the names of the accused embedded in the metadata details of the slanderous digital data. The second is the opinion that the members of the Court has derived from the similarity between the textual contents of these fabricated plans and the real speeches and presentations in the seminar.

Metadata contain the identification details of each article typed in a computer, which means that the computer automatically saves the company name where the computer is located, the user name, the creation and last access/edit times of the article. The simple fact that this data can be manipulated and altered at a later date by another user has been proven by tens of expert reports, not to mention, by the expert report penned by TUBITAK (Scientific and Technological Research Council of Turkey), in which the Court has a high level of confidence[1].  For this reason, it is quite easy to digitally fabricate any letter or article full of slanders and to edit the metadata in someone’s name. This is the true sham and fraudulence committed in this case. Someone comes up with a post-2007 fake and forged plan in your name in a computer; edits the metadata of these data and fabricates evidence by writing 2003 on the creation and last saved data sections which would underlie charges against you and your arrest. This is simply a crime against humanity committed with slander.

The members of the Court have rendered its decision based on opinions rather than evidence. Opinions have not been supported by single evidence and are the results that the Court has reached without any investigation. These opinions were deemed sufficient for arrests and indictments although they simply lacked evidence. Texts in these fabricated digital data were linked by the editors to the actual speeches and presentations in the seminar so that these slanders were presented to the public as if they were real.

TUBITAK employees, who issued an expert report only for the CDs that contain the forged documents upon the Court request, overlooked the findings and determinations as to the computer software used to create, edit and last save these digital data, and the versions of such software as well as those files that were created in the same computer environment. In fact, if these were also investigated, they would have been able to see that the software used to prepare the digital data were not yet in use in 2003 and that the digital data underlying the indictments were fabricated after 2003. As a matter of fact, the expert reports, issued upon the requests of the defendants, revealed and proved without any trace of doubt that CDs 11 and 17 containing the said forged digital data, the Hard Disc no 5 seized at the Fleet Command in Gölcük as well as Flash Disc confiscated in Eskisehir were manipulated to contain fabricated dates and times; that digital data which appeared to have been generated in 2003 and saved in CDS and Hard/Flash Discs revealed certain charts and fonts that did not exist prior to 2007 and that it would not be possible to even use such data as evidence before the courts.

The forgeries involved in metadata were soundly presented before the court. Such that, on that day and at that very moment when certain suspects were blamed by the prosecutors based on the metadata, they proved with substantial evidence that they were on assignment, at another location or abroad.

For example, it was revealed that certain naval officers who were allegedly attended a “secret” meeting held in Aksaz according to the prosecutor were actually deployed at the port of a foreign country, overseas or even they were underwater being filmed by the state television.

Moreover, an official letter from Istanbul Metropolitan Municipality proved that certain avenue and street names, referred to in so called reconnaissance reports issued in 2003 for bombing mosques, were actually given in 2006. It was officially proven that some university students in the lists consisting of the names of the “personnel to be detained” were at the age of secondary school then; and that certain people whose names were shown in the personnel lists of certain institutions for 2003 were found to have been registered after 2006.

Similarly, the ships which were allegedly assigned for the preparations of the alleged coup d’état were in fact under maintenance on that date; some officers who had passed away in 1998 and 2000 were shown as if they were supporters of the coup d’état in 2003 and more fraudulence and shams are all available in the formal hearing records and the Internet web sites related to the case. Considering the fact that the efforts to fabricate a plan at a date after 2008 which should appear as if it were prepared in 2003 would require a pool of many lies, there were almost 2000 shams, anachronisms, forgeries and fraudulence revealed in the said plans and correspondence similar to the ones above.

The Court persisted in refusing the demands of those innocent people under trial to hear experts or specialists who would confirm these allegations, and in doing so the Court simply violated the right to defence. It was very unfortunate that the members of the Court felt content with the incomplete and self-contradictory TUBITAK report and did not feel it necessary to deepen the investigation. In fact, this report merely made certain inadequate determinations related to the CDs, and it did not even consider whether or not the CDs containing the sham “Sledgehammer Security Operation Plan” were in fact created after 2003 and got pretended to have been prepared in 2003.

You can be sure that alleged coup d’état plans like “Balyoz, Suga, Oraj, Sakal, Çarşaf etc.” were designed after 2007 by an organization targeting Turkish Armed Forces and that criminal evidence was fabricated in a manner that they would appear to have originated in 2003, because this fact has been proven in many forensic reports issued by specialists in the field of information technologies at respected universities in Turkey (METU; Bogazici, ITU, Yildiz Technical University) as well as other consultancy companies that serve as independent advisors for the judicial systems of the United States and Germany including the European Court of Human Rights. 

  These expert reports confirmed the following:

  • Digital data that were saved in CDs no 11, 16 and 17 which were delivered by a journalist to public prosecutors,  in the Hard Disc no 5 which was allegedly captured at the Fleet Command in Gölcük, and in the Flash Disc confiscated in Eskisehir were created by using the typefaces “Calibri and Cambria”, which definitely did not exist in 2003; that those typefaces were first used along with the launch of Microsoft Office 2007 in January 2007; that it was not possible for the “last saved” dates of Office documents bearing “Calibri” references in CDs no 11 and 17 to be the years 2002 and 2003 although they appear to have been last saved in those years as those fonts did not exit then and “Calibri” was the default font in Office 2007;
    • XML tags present in the Powerpoint documents considered as criminal elements were not in use by the end of 2006 and only processed in Microsoft Office 2007 version.
    • In addition, (minimum) 120 retroactively dated files and folders were specifically copied onto the Hard Disc that was captured in Gölcük.
    • Out of the digital data available in CDs 11, 16 and 17 among (19) CDs delivered by the journalist:

v   68 digital data were fabricated in Microsoft Office 2007 (Office 12 ver.) which was launched on 30 January 2007; data were copied onto 12 digital data from those files fabricated by the same Microsoft Office 2007 (Office 12 ver.) program and the metadata of all digital data that allegedly constitute criminal elements were created by tampering with the computer’s system date and time,

v   In addition, digital data which were allegedly generated by various different personnel at different Headquarters and units, or in fact, at the Land Forces Command, Air Forces Command, Naval Forces Command, Gendarmerie General Command and Coast Guard Command were in fact fabricated at the same computer by using LINUX operating system which was very rarely used in our country in those years.

Moreover, the public prosecutor or the court did not order any expert report regarding the Hard Disc no 5 in Golcük or the Flash Disk captured in Eskisehir in spite of insistent demands in that respect.

To sum it up, these slanderous digital data were not originated in the past and adapted to the present but rather they were fabricated in today’s circumstances and adapted to the past.

Lawyers collectively refused to attend the hearings held on 5 and 6 April 2012 on account of the fact that the members of the Court simply ignored the “defence” and violated our “right of defence”. The members of the Court had no choice but to hear the experts who were invited by the defendants during those hearings in the absence of lawyers.

Tevfik Koray PEKSAYAR, Türker GÜLÜM and Prof. Ahmet Coşkun SÖNMEZ, forensic experts, whose names are listed in the annual lists of experts published by the Ministry of Justice made certain presentations in turn, and testified that although the digital data were created using Microsoft 2007 and later versions, the date and time of the computer were back-dated so that the year in which CDs were fabricated appeared as 2003. In addition, they underlined the fact that CDs submitted as criminal evidence were not rewritable CDs by their nature and that for this reason, after such a CD is created, its metadata and the files in its content could not be changed and in this respect, the allegations raised by certain circles that “these CDs were updated” were not realistic.

Official correspondence exchanged with the Public Prosecutor at the early times of the investigation revealed that many of these digital documents contained references to events that took place much later than 2003; but for some reason or other such evidence that would work in favour of the defendants was hidden from them and their lawyers. The digital images of CDs and Hard/Flash Discs were handed over to the defendants nearly one year after the commencement of the litigation and there was an attempt to gloss over and disguise all the evidence that would work in their favour.

The Court simply skipped the phase of the case proceedings where the evidence would be discussed, violating Turkish and International Laws. The ultimate intention here was to disguise and hide the material facts that would affect the course of the litigation. Although there were persistent demands by the defendants, no expert was appointed to examine the evidence and to evaluate the said expert reports. These justified and legal demands were simply overlooked and the Prosecutor was asked to submit his arguments and opinions regarding the “merits of the case”. The Prosecutor submitted his “opinion” which did not rely on any single material evidence, and demanded the Court to sentence all defendants, regardless of whether they were in custody or not, to imprisonment of 15 to 20 years.

The defendants’ demand that Retired General Aytac Yalman, who was in 2003 the Commander of Land Forces, be heard as witness before the court was rejected although according to the indictment he allegedly played a “key role in the coup d’état”.

The legal scandal committed in the “Sledgehammer” case because of collective arrests and collective trials turned into a legal disaster due to the sentences adjudicated by the Court on 21 September 2012. The 16-20 year sentences handed down by the court were not actually a surprise to the defendants because a legal outcome was never expected from such a political case.

 In brief, the Court:

  • remained silent in the face of the fact that certain evidence that were in favour of the defendants was kept under judicial custody and some were lost;
  • did not hand over the most significant evidence to the Defence for months;
  • did not evaluate and discuss the so-called evidence which was clearly fabricated, manipulative and slanderous;
  • did not appoint a forensic expert;
  • did not hear the witnesses of the defence;
  • overlooked nearly all demands of the defence although it simply fulfilled almost all demands by the Prosecutor;
  •  And in doing so, violated all laws and our right to defend ourselves in a trial without lawyers.

For this reason, the Court has stood against “science” and “reason” and burnt all bridges that would lead us to justice.

10th High Criminal Court which was actually annulled by way of a law enacted on 05 July 2012 upon a specific complaint by the Prime Minister of the Turkish Republic because “they turned out to be a state within the state” but whose “special power and jurisdiction” was sustained for the ongoing cases thanks to provisional articles, violating universal principles of law, made public its “Rationale for the Decision” nearly three and half months after the adjudication on 07th January 2013. Furthermore, inconsistencies in the rationale revealed that it is nothing but a “justification of a fabrication”.

      Against the due processes of law, selected excerpts of the rationale for the decision of the court, which did not contain a valid legal ground, was leaked to certain media before being submitted to defense and defendants, for manipulation of the public opinion along the wishes of the court. Defense and defendants learned about the rationale through the media as “breaking news”. This was another example of defense being been ignored throughout the judicial process.

 In the “Rationale for the Decision”;

  • No specific  evidence was provided for  each of  the  defendants  as  required  by  law,  linking  them  with  physical  evidence  to  the  crime. Thus, the judgment was imposed without bearing any link in terms of causality.
  • While how each defendant was involved in the slanderous crime should have been told in detail, there was a generalization applicable to all parties based only on the convictions of the court.
  • The Court deliberately changed the statements by the defendants in order to manipulate and direct the public opinion to think that the sentences are justified.
  • The charges for certain defendants were reworded/ changed deliberately as to the Indictment in order to mislead the “Supreme Court of Appeals” process.
  • In trying to defend and back up its violations of law The Court has included certain matters, determinations that have never been discussed in the course of the trial.
  • Because the Court failed to substantiate its opinions by facts, it relied on publicly available news articles without even the need to verify them.
  • The Court contended that the alleged coup d’état could not be  conducted  due  to  the heart  surgery  of  General  Çetin  Doğan,    the  primary  defendant  in    the  case,  who  was  then retired  at the  following Supreme  Military  Council  a  few  months  later.  Although  this  irrational  claim  of a  General’s  illness  interrupting  a  coup  plan was  never  discussed  during  the  hearings,  it  turned  out  to  be  the  basic  argument  of  ‘the rationale’. Apparently,  the  baseless  claim  of other  generals  preventing the  realization  of the plan  in the  indictment could  not  be grounded  in the  rationale  of the decision.
    • • Although nearly 2000 inconsistencies  and  anachronisms  which prove that alleged evidence was actually fabricated and shammed never appeared in both  the  “indictment”  and  the  “opinion  of  the  merit”,  it  was  claimed  in  the ‘rationale’  that  “The Defendants have updated the evidence.”  In fact, the Court had relied on the forensic expert report issued by TUBITAK (The Scientific and Technological Research Council of Turkey), and acknowledged that the  CDs  containing  the  primary  evidence  of  crime as set out in the indictment were  produced  in  a single session  in  2003  and they could  not  have  been  updated.

This “updating of the evidence” allegation also ignores the following statement made by the Turkish Republic of the Minister of Defence on 03 January 2013[2]: “Since it had not been introduced yet at the time, it was not possible that Turkish Armed Forces could have used Office 2007 Microsoft program in documents found in the CDs, fundamental “evidences” of the Case, that it is claimed they were created in a single session 2003”.

Tevfik Koray PEKSAYAR, Türker GÜLÜM and Prof. Ahmet Coşkun SÖNMEZ, the forensic experts on judicial information technologies, scientifically proved in their joint expert report dated 13 March 2013 that the update allegations were groundless.

In addition to those, as the most important evidence the members of the court claimed that the Turkish General Staff informed the Court that originals of the slanderous digital data, which were found during searches at the Fleet Command Headquarters in Gölcük and in the house of a Retired Air Force Colonel’s son in Eskişehir, existed in related military corps themselves

Since the beginning of judicial process Turkish General Staff (TGS) remained silent not to prejudice the due course of justice, though broke silence upon the latest statements of the court regarding the rationale. TGS made a public statement claiming that no argument related to existence of original documents was true. Therefore, the Court had to accept the contradiction by denying its own statements in the rationale for its decision.

Thereafter Turkish General Staff’s statements, Ali Sirmen[3], a columnist in Cumhuriyet, a Turkish daily newspaper, penned an article, in which he argued that “In the past coup periods, jurists evaluated the rationale of decisions as unjust, unlawful, based on insufficient proofs, however, for the first time, rationale of court’s decision is accused of falsehood.” In other words, rationale for the decision is identified with falsehood.

In addition, Ertuğrul OZKOK[4], another columnist in Hurriyet, a Turkish daily newspaper, stated that “It seems as if his rationale has been written for not being approved by the Supreme Court of Appeals and it transforms to a court’s defence against defendants rather than the rationale of Court’s decision.”

Ruhat MENGİ[5], a columnist in Vatan, a Turkish daily newspaper stated that “Lives of hundreds of people and their honors that they protected for life time should not be at the hands of Assized Courts with Special Powers which were annulled by reason of making arbitrary decisions and being unlawful. Turkey has been undergoing a disgraceful period in terms of jurisdiction because of these Assized Courts with Special Powers and this shame should be cleansed as soon as possible”..

Orhan Bursali[6], another columnist in Cumhuriyet, a Turkish daily newspaper commented on the Court decision as follows; “ungrounded, unproven, arbitrary, consistent with unlawful and vengeful administration they followed, consciously false, interpretation of documents not lawfully but arbitrarily and not being able to find rationale for their decision.”

The Turkish Republic; which claims to try to stop human rights violations in its neighbours and demand for their people fairness, law and freedom, could not prevent human rights violations, unfair and unlawful treatment of its Armed Forces, on the contrary it holds innocent and dignified people captive in their own country with the help of judiciary instead of searching for and capturing the plotters.

Moreover, in its official defence argument sent by The Ministry of Justice of the Turkish Republic to the European Court of Human Rights and United Nations Working Group on the Arbitrary Detention (UNWGAD), the Ministry alleged that the documents containing the “slanderous Suga (Belay), Oraj (Orage(fr.))” plans were actually “signed” which is totally unreal.

All these statements and explanations have substantiated inconsistency, groundlessness, unlawful practice of the Sledgehammer Case and how it is used for taking revenge of former coups d’états from innocent people under the pretense of putting an end of the military dominance and ensuring democratization of Turkey. Now the truth is naked, revealed and the “salt now stinks”, as a Turkish proverb goes.

Intellectuals, scientists, politicians, non-governmental organizations and agencies with the task to ensure fair and equal treatment all around the world do not have the right or privilege to bury their heads in the sand. If there is anyone who does not agree with the explanations in this respect, they should be suspicious and investigate the truth.

On the other hand, despite knowing the truth, if the opposite is defended and it is claimed that “a junta inside the Turkish Armed Forces is cleansed off and purged and that in this way Turkish democracy has progressed”, this would mean the destruction of justice.

It is inhuman to believe that the imprisoning of innocent people deliberately by their own state in an unlawful and unfair way is “a mandatory act for the sake of democracy”.

Although the defendants are military personnel, they are, before everything, human beings, and an equitable and free life that everyone deserves should not be denied to them.

It is obvious that in a country with no justice and freedom, the democracy will never prevail.

Our objective is to ensure justice by opposing against the unlawfulness, unfairness and injustice, to reveal the truth and to ensure that those who have committed this crime against humanity be judged by fair and independent judicial bodies.

We kindly ask you to give support to these justified demands.

Respectfully,


[1] There are two separate reports issued by TUBITAK (Scientific and Technological Research Council of Turkey) employees and experts appointed for this case. These two reports are in contradiction with each other. Moreover, although it was proven by tens of expert reports that digital data that were allegedly created in 2003  bear such fonts and symbols available at Microsoft Word software which was not launched until 2007, one cannot find such a determination or finding in TUBITAK reports and contrary to these findings, TUBITAK reports argue that the software related to digital data are in conformity with 2003 year software. It was proven that TUBITAK expert reports are full of evaluations that are not true or scientific so that they are not reliable. In spite of insistent demands that a new expert report should be issued to make up the inconsistencies between the Reports and that the material truth should be revealed, these demands were all refused by the court and the court based its decision on these TUBITAK reports which were the results of the inadequate surveys and full of unrealistic arguments.

[2] Cumhuriyet, a Turkish daily newspaper, 04 January 2013

[3] Cumhuriyet, a daily newspaper, the article dated January 2013

[4] Hurriyet, a daily newspaper, Ertuğrul ÖZKÖK, the article published on 08 January 2013

[5] Vatan, a daily newspaper, Ruhat MENGİ, the article published on 10 January 2013

[6] Cumhuriyet, , Orhan BURSALI, 08 January 2013, the article published on 08 January 2013

Originally posted on Balyoz Davası ve Gerçekler:

There is a story today in the Chelsea Record about Arsenal Consulting, the forensic firm that identified the digital forgery in the Sledgehammer CDs. Here is Mark Spencer, the president of the company:

“Those responsible for forging these documents went through a significant amount of effort trying to be consistent. It was the consistency that surprised me. We’ve dealt with a lot of forgeries in the past and I’ve never seen something like this. Basically, I would say ‘they’ were crafty and consistent.”

The story continues:

“Spencer said that upon their initial investigation, things looked legitimate, but in hindsight it was only because the forgers had been so thorough.

Upon a deeper analysis of the CDs, Spencer said hidden in the documents were references to the Calibri font – something just about anyone who has used Microsoft Word is familiar with – as well as references to a particular type…

View original 332 more words

Posted: May 1, 2012 in Uncategorized

Originally posted on Balyoz Davası ve Gerçekler:

Paul Krugman has posted a piece by Dani on his New York Times blog that updates the situation with respect to the Sledgehammer trial.  Here is an excerpt:

“Erdoğan has recently distanced himself from the Gülenists, in part because of his party’s discomfort with their judicial manipulations. But he has yet to withdraw his support from the case against the military officers or to take action against the worst legal abuses taking place. (See here for a good recent overview.) Meanwhile, journalists who pry into such matters are silenced. Turkey currently holds more journalists in prison than China and Iran combined. Only recently have foreign journalists begun to penetrate the fog that surrounds the case and report on the blatant forgeries (see accounts in the New Yorker, Newsweek, and London Times).

The travesty that the trial represents reached new heights last week when the judge ruled…

View original 136 more words

 

Sir, I am one of the 250 officers (including 55 serving admirals and generals) arrested in the “sledgehammer” case, charged with attempting to overthrow the government of Turkey through force and violence in 2002-03. I have been detained since September 16 2011 and still do not know the detailed grounds for my continuing detention.

The whole case has originated from unsigned and unprinted digital materials. All of the defendants have strongly denied the allegations. There are countless anachronisms revealed in these digital documents by the responses of various agencies in the investigation phase. New evidence recently unearthed by Turkish and US technical forensic experts shows that the CDs (the incriminating documents they contain) could not have been created or edited in 2003 (as the prosecution maintains).

The European Union parliament committee on foreign affairs, in its 2011 progress report on Turkey, commented on the sledgehammer case, noting that it was “concerned about the allegations regarding the use of inconsistent evidence against the defendants in these cases”. It called on the commission to “closely follow the aforementioned cases and to publicise the findings in more detail in an Annex to the 2012 progress report”.

In my own case, I have been accused because my name appears in lists in two of these files. Before being accused, I was never aware of the files and lists, nor consented to the inclusion of my name in any such list. In fact, during the period in which these files were created I was in hospital for an operation and subsequently on medical leave.

So far, the trial judge has ignored the defendants’ pleas for the introduction of forensic evidence or the calling of two witnesses who would clear them. The travesty reached new heights last month when the judge ruled to move to the final stage of the trial, bypassing defendants’ requests for examination of the prosecution’s evidence. Yet there are countless anachronisms, inconsistencies and physical impossibilities on which the case rests. A guilty verdict has become virtually certain.

The sledgehammer case will eventually collapse under the weight of its collective absurdity. But the damage caused will extend far beyond the suffering of hundreds of innocent individuals who have been locked up under false pretences. At the moment, it is unclear who benefits, but it is clear that the costs and liabilities are rising not only for Turkey, but also for Nato.

A. Yasin Turker, Captain, Turkish Navy, Maltepe Military Prison, Istanbul

First of all, let me introduce myself to you.  My name is Abdullah Can ERENOĞLU, Vice Admiral of the Turkish Navy who has been detained since September2011 inthe political-military case known as Sledgehammer (Balyoz) (File Nuber: 2010/283). This case is one of the trials run by Assized Courts with Special Powers (a.k.a. Specially authorized courts-ACSPs) in İstanbul. With this short letter, l would like to draw your attention to the extensive dysfunctions and injustices in the judicial practice of ACSPs in Turkey, taking the Sledgehammer Case as an example.

In the case, 365 retired and active duty military personnel have been tried, and 250 of them have been detained in prisons for more than a year. These officers have been accused of “attempting to overthrow the (then newly-elected) government in2003”. Since the Turkish Military has actually overthrown governments during the course of the history of the Turkish Republic, there exists a strong stereotyping by the judicial and political sphere so that officers are unfairly labelled as possible offenders in this so-called coup plot. Unfortunately, some media outlets have tried to influence the public opinion on the Sledgehammer case by repeatedly running stories based on flimsy and fabricated evidence which are not legally acceptable.

There are thousands of pages of indictments in this case which are filled with absurdities and contradictions, containing no convincing proof that the coup plot ever existed. There is no sound or reliable evidence for a fair trial, only manipulated digital data files in the form of Compact Discs which were delivered by a journalist, and some tape records of a legal military seminar from 2003. None of the documents have signatures or other authenticating features. None have been traced to the computers used by defendants. Prosecutors say that the metadata – the names and time stamps on the files – prove the documents’ authenticity, even though such metadata can be easily manipulated by altering the system clock and usernames on a computer. Most people have been accused and held in custody on the grounds that their names are somehow written on one or more of the digital data files. It’s almost funny that  in parts of the files the officers even seem to have spelled their own names wrong.

It has been proven in court that most of the evidence in this case has been fabricated. There are many anachronisms (approximately over 1500) in the digital files. (Please see the next page for a few examples.)  During the investigation and the trials, all of the defendants stated that there was no coup plan in 2003, and most importantly 31 court summoned witnesses confirmed the defendants statements.

Furthermore, there are several expert reports from Universities, impartial forensic experts, and the Turkish Armed Forces concluding that the digital data files on the incriminating Compact Discs and Hard Discs have been manipulated and tampered with. For example, a report issued recently by Arsenal Consulting, an American computer forensics company for law firms, corporations and government agencies, underlines that some digital documents which were allegedly created in 2003 according to the indictments, contain the Calibri font and XML tools (Windows Microsoft Office 2007) which was not even put on the market in 2007. Arsenal concluded that the dates and times related to documents on these CDs had been forged and that they has serious concerns about their authenticity.

Today, the Assized Court with Special Powers for this case aims to go to verdict immediately without regarding the defendants’ one important demand from the court:

- To duty an objective and independent computer forensics expert team to analyze whether the digital data files are legally acceptable by Court.

I kindly assure you that my fellow Admirals, Generals and Officers in the military prisons are  people of unmatched integrity, dignity and respectability .

       25, half of the existing active duty Admirals, as well as best Commodores and Captains who served Turkish Navy with great pride and honour are now behind bars.  The only way that such a group of individuals could possibly be accused and tried in a case like this is by framing them with fake evidence, which is unfortunately what has happened to us.  We are struggling to prove something we have never committed. Once,  French

Cardinal Richelieu said the following:

“Bring me someone’s handwriting and I can condemn him to the death penalty.”

Now I adopted this saying to the current legal practice, as following:

“Bring me some fake digital data and I can create a huge legal case to condemn innocent people.”

In the meantime, on behalf of my fellow prison mates, I encourage you to come yourself or to send your colleagues to observe trial sessions of the Sledgehammer (Balyoz) case in Silivri/İSTANBUL court rooms. We have nothing to hide and no fear since all accusations arise from fake digital data files.  Our clear consciences arise from being right and innocent. We are now in the beginning of the second decade of  the 21st century, and these forgeries heavily damage the integrity of the Turkish justice system.

Thank you for reading this letter. It was sent to let our voices be heard on an international level and create awareness regarding the injustice we are encountering. We think that we, as military personnel but more importantly as individuals, deserve the provisions of  justice and human rights. In any true and just court of law it would come to light through the investigation of evidence that the accused in this case have obviously been framed and are being detained and tried for reasons beyond our knowing. We would appreciate any action that you may take to support  the victims and their families in this case.

I would like to express my profound gratitude for your interest and concern.  I wish you all the best with my most sincere regards.

Abdullah Can ERENOĞLU

Vice Admiral

 

Enclosure  :

A few examples from the pile of anachronisms in the Case’s evidence

 

For more details on the subject:

  • http://cdogangercekler.wordpress.com/category/celiskiler-ve-kanitlar/
  • Gareth H. Jenkins, Between Fact and Fiction: Turkey’s Ergenekon Investigation, (Washington D.C.:Silk Road Studies, August 2009), p. 11
  • Gareth Jenkins’ articles “Ergenekon, Sledgehammer, and the Politics of Turkish Justice: Conspiracies and Coincidences”
  • Harvard University Prof. Dani RODRIK’s article “Ergenekon and Sledgehammer: Building or Undermining The Rule Of Law, Turkish Policy Quarterly, VOLUME 10 NUMBER 1

Correspondence:

Koramiral Abdullah Can ERENOĞLU, 3. Kolordu Askeri Ceza ve Tevkifevi, Hadımköy Müdür Yardımcılığı, Kani AKMAN-1 Kışlası 34555 Hadımköy-İSTANBUL/TURKEY

Enclosure

A few examples from the pile of anachronisms in the Case’s evidence

Some digital files include the plans (That was claimed to be prepared in 2003) plotting the bombings of the two Istanbul mosques during Friday prayers. But it was clearly proven that the names of the streets mentioned in those plans were given in 2006 and 2007, according to the official letter of the Istanbul Metropolitan Municipality.

One of the digital documents, which had last been saved on April 5, 2003 according to a police report, includes quotations from what it described as the “current” Armed Forces Personnel Act. Yet the passages quoted include amendments that were not made until 2005. (Changes to Law No. 926 of June 15, 2005, published in the Turkish Official Gazette of June 20, 2005.)

Another digital document refers to NATO’s southern region command as CC MAR NAPLES. But in March 2003, it was the Headquarters Allied Naval Forces Southern Europe (HQ NAVSOUTH). It was not called CC MAR NAPLES until July 2004.

Some digital files contain countless documents prepared when their alleged authors were on duty abroad (or out at sea) and had no access to the computers on which they were alleged to have been produced.

Some digital files contain verbatim extracts from a lecture first delivered in 2005, refer to an organization founded in 2006, and criticize the government then for activities that it did not undertake until many years later.

A digital document has a list of newspapers, including “Gürcü Ekspres (GURCU EKSPRES)” that was not established until September 12, 2003 and “İlk Adım (ILK ADIM)” was founded August 15, 2005.

A digital list of NGOs shown as being sympathetic to a coup in 2003 includes the “Türkiye Genclik Birliği (TURKIYE GENCLIK BIRLIGI)”, which was not founded until 2006.

Another digital document, dated February 2003, refers to an NGO named Liberal “Avrupa Derneği (AVRUPALI DERNEGI – Liberal Europe Association)”. In 2003, it has a completely different name, “Hür Demokratlar Derneği (HUR DEMOKRATLAR BIRLIGI – Free Democrats Association)”. Years later, in 2006, it changed its name to “Liberal Avrupa Derneği (LIBERAL AVRUPA DERNEGI – Liberal Europe Association).”

A digital document of the list of pharmaceutical companies that would be taken over during the so-called coup includes “Yeni Recordati İlaç (YENI RECORDATI ILAC)” However, in March 2003, the company was called Yeni İlaç.(YENI ILAC) It did not take its new name until it was bought by an Italian company in October 2008. The name of the company changed from “Yeni İlaç” to “ Yeni Recordati İlaç” in August 2009.