A Guide to Understand the OdaTV Case – 4: Being a lawyer in an adjudicated trial

The soL news portal published a series of articles concerning the background and the ongoings of the infamous OdaTV case. Signed Yiğit Günay, the articles investigate the trial's judicial peculiarities as well as its political context and historical implications. Assuming the responsibility of providing English information on Turkey with a political perspective that is compatible with our stance, we decided to translate these articles for the English-speaking audience.

 

This fourth and last article of the series is freely translated from the Turkish original, titled “Odatv davasını anlama kılavuzu 4: Bitmiş davanın avukatı olmak”, published on December 31^st, 2011.

You can reach the previous articles by following the Odatv label.

I had the opportunity to attend one of the hearings of the Odatv trial last Friday [December 30^th]. Let me put it straight: As a juridical phenomenon, the trial is over, what's going on is a farce.

In this article series, I tried to demonstrate how the indictment was not worth a penny as a legal document. The whole indictment is based on digital documents which are proven by 4 different expert reports to be sent through virus activities; and, in any case, it is impossible to arrest someone on the basis of digital evidence. As a matter of fact, with what is in hand it would be impossible to write such an indictment, but the police and the prosecution pushed it really hard.

There are still many absurdities in the indictment, some of which Soner Yalçın mentioned in his defense on Friday. But I wasn't sure if they were worth writing about. On Friday, I got totally convinced.

It is an adjudicated trial. No excitement whatsoever. I couldn't help but compare it with the movie 12 Angry Men, where 12 jury members argue about a murder case. In the first look, there is a lot of strong evidence to sentence the suspect. Hence the skepticism of one of the jury members triggers hot discussions. And you hold your breath while watching it.

There is no excitement in the Odatv trial. And not only for the audience. You'd expect the defendants to be excited, but even they look rather indifferent. The most observable emotion in Soner Yalçın was doldrums. The indictment is so absurd that Yalçın has to explain that each one of the news items cited in the indictment are actually articles published in other newspapers and that they are not written by Odatv columnists. He goes through them one by one, and gives some 60-70 examples. Neither the police officers nor the prosecutor bothered to have a look at them, what excitement would you expect in such a trial? They even put the news item that reads nothing but the declaration of the Supreme Military Council to the appendix, and they considered it as an element of crime.

There is only one issue of concern at the moment: Will the panel of judges continue this nonsense, or will they release everybody? Next Friday when these demands are talked over, we will see the answer to that. [See the follow-ups at the end of the article -translator's note.]

Even this decision is not waited upon with “excitement”. The facts are pushing hard to one side of the scales of justice, yet Turkey has become such a country that the whole weight of facts may not affect the scale a tiny little bit. For decisions are not being taken according to the facts. The friends and relatives of the detainees do not expect the decision with excitement. There is the hope for the release, and the nausea accompanied by the thought of the continuation of this nonsense. And that nausea kicks out all the excitement from the minds.

Not only to the detainees and their family, the same mood of doldrum has gotten into the lawyers as well. When lawyer Hüseyin Ersöz was explaining international principles and examples on the ownership of digital evidence (a very well prepared presentation indeed), the chief judge interrupted him for a break; and Ersöz's mood was exactly the same as above mentioned when he said “You didn't find these useful, Your Honor?” The doldrum of a lawyer who thinks that despite of four expert reports on the infected digital documents claim, the panel of judges might as well not give a darn about the reports instead of providing more evidence or reasoning.

Yet the chief judge responded “No, on the contrary, I benefit from it a lot.” and added yet another “positive signal” to his friendly attitude. In this “predetermined trial” where no real arguments occur, everyone tries to deduce huge meanings from tiny little signals. When in the first hearing the judge expressed that he “will separate ascriptions from the facts” and as he has been trying to speed up the trial, some people got the expectation that releases will follow the defense statements.

We only hope that the expected releases happen. Let's see if this already ended trial will really end.

Saying that, I should add that the lawyers' situation is much more complicated. They not only think whether this absurdity will continue but also worry about if they will be the next target of it soon. For some of the lawyers are also “the secret accused” of this trial.

On page 61 of the indictment, the prosecutor used exactly these words: “The studies show that right after the photographs in question are published in ODATV, the lawyers of the accused in Ergenekon brought them forward in court in order to demand recusation and therefore tried to make the court inoperative.” The photos in question picture the judges, the prosecutor and the police officers involved in the Ergenekon trial dining together on a boat.

Odatv made the news of these photos. And they were sued with the charge of “identifying state officials as targets”. Soner Yalçın defended the photos by saying “This is news all around the world.” His lawyer Duygun Yarsuvat pointed out the dialectics in law, stated that the prosecution represents the thesis, the defendant antithesis and the judge synthesis, and finally exclaimed “The thesis and the synthesis are dining arm in arm on a boat on the offshore of Kandilli. Unbelievable!”

So the former judge of that trial, Resul Çakır, was engaged in a lawsuit with the Odatv News Editor Barış Terkoğlu. Hence, “the synthesis” and “the antithesis” were opponents. That's why the Odatv lawyers demanded a recusation.

The indictment says that in doing so the lawyers “used every trick to make the court inoperative”. It's not hard to see that this is an open threat towards the lawyers. I talked to some of them and they emphasize the fact that right before the raid towards the journalists in the KCK¹ trial, there was another operation where 70 lawyers were taken. They think that that operation also had a message and that they may have to face same kinds of suppression if the lawyers don't stand against these practices.

It's a tough job to be a lawyer in a trial that already ended. To realize, while you do your best to defend the truth that you know is not worth a penny, that you're also on the edge of a volcano as a secret accused.

As a matter of fact, with this trial, we are all on the edge of a volcano. Truth lost so much meaning in this regime, yet if we watch it continue in this way and do nothing, and if this brutality is inured to, then we'll be in great trouble.

Follow-up:

January 5^th, 2012: The court rejected the release demands and decided the next hearing to be on January 23^rd. An Islamist TV channel (Samanyolu TV) announced the decision before the court's declaration.

January 23^rd, 2012: The court is dismissed after the defenses of Hanefi Avcı, Nedim Şener and Mümtaz İdil. The next hearing will be on Friday, January 27^th.

January 27^th, 2012: The court rejected the release demands unanimously. The hearing started on 11am and ended on 11pm. The next hearing will be on March 22^nd.

1  KCK: Koma Civakên Kurdistan (Union of Communities in Kurdistan). The legislature body of PKK active in Turkey, Syria, Iraq and Iran.

A Guide to Understand the OdaTV Case – 3: Barış Terkoğlu, and Journalism in Court

The soL news portal published a series of articles concerning the background and the ongoings of the infamous OdaTV case. Signed Yiğit Günay, the articles investigate the trial's judicial peculiarities as well as its political context and historical implications. Assuming the responsibility of providing English information on Turkey with a political perspective that is compatible with our stance, we decided to translate these articles for the English-speaking audience.


This third article of the series is freely translated from the Turkish original, titled “Odatv davasını anlama kılavuzu 3: Barış Terkoğlu ve gazeteciliğin yargılanması”, published on December 29^th, 2011.

Editorial note: Since this article contains references to many other issues in Turkish politics, we decided not to prolong the translation with many footnotes but instead skip some parts that are harder to catch from the context.

You can reach all the articles by following the Odatv label.

In this third part of our article series on the Odatv trial, we examine the parts of the indictment that are related to Barış Terkoğlu¹. The indictment is based upon nothing more than his journalist activities.




In our first article, we examined the first part of the indictment statement, ie. the part on the charges, the evidence and the offences claimed to be overtaken. The second part of the indictment consists of “the organizational positions of the suspects”. This part deals with each of the detainee separately and tries to illustrate their position in “the organization”.
So in this article, we will examine the claims about Terkoğlu based on the second part of the indictment.
Why Terkoğlu?
First of all; Barış is the only (OdaTV) detainee that I know personally, and he is actually a close friend of mine. As a matter of fact, this will make no difference. As in the previous articles, we will not make character analyses or hypothesize about political probabilities. We will focus on the indictment and evaluate the charges on the basis of law and reason. And this leads us to the second and the main reason for choosing Barış Terkoğlu: The section on Terkoğlu clearly demonstrates that in fact journalism is being judged.




Getting to know the mentality
Before examining the indictment, we shall focus on the mentality of this new regime, also referred to as the 2. Republic, that has been attacking the journalists. The most clear and simple illustration of this can be observed in Erkan Acar, the news coordinator of Zaman², who also wrote a book on the Odatv case titled “Karanlık Oda” (The Dark Room). In the introduction of the book, Acar writes: “A journalist was not pulling the trigger of a pistol or the pin of a grenade on behalf of the terrorist organization. But, perhaps even more effectively, he was able to take part in the propaganda section.”
So, it is not necessary to be involved in a violent action or to be armed; a person who writes in accordance with the politics of “the terrorist organization” can be more dangerous than hit-men or bombers.




Interview, as a criminal activity
The indictment is prepared with this horrifying mentality, a brief exposition of which we saw above. And it charges Terkoğlu only on the basis of his journalistic activities.
This part of the indictment first handles the phone calls between Terkoğlu and Yalçın Küçük.³ Based on the records, it tries to prove that Küçük conducts Odatv. The first conversation is between Soner Yalçın and Barış Terkoğlu, and it goes as follows:

SY: Professor Yalçın just called, he says you boys should interview him. Are you available tomorrow or the other day?

BT: Okay, sure. Did he mention the subject?

SY: Well, the latest developments, he said. You'd make a pre-interview to decide on how it'll go. You'd also say what you have in mind.

I don't know if it is necessary to say what a ridiculous situation this is, but let me give another example.
As you might remember, Mehmet Ağar⁴ was tried last September on the charge that he “established an organization with the aim of committing criminal acts” and was sentenced to 5 years in prison. Suppose you are journalist. You call Ağar while the trial continues, let's say in August, and make an interview. But guess what: it turns out you count as if you were a member of his organization.
On the other hand, if the matter is Küçük’s personal demand for the interview, then what would we say for the celebrities, who call the tabloid press “to get caught” in this or that spot? If such a celebrity is later accused of drug use, are we supposed to accuse the tabloid journalists of being the couriers? In fact, even giving such examples is against the solemnity of journalism. But they fit well into this weird indictment.
Later on, Terkoğlu calls Soner Yalçın and communicates Yalçın Küçük's request that Soner Yalçın calls him to talk about “reporting a news item on the circulation of the newspapers.”
Another conversation on the phone is when Terkoğlu calls Soner Yalçın, and says that it would be a good idea to include Hikmet Çiçek's⁵ article in the website and says that it is a good article. Then Soner Yalçın is convinced to publish the article without using the expression of “You've got mail from Silivri⁶.”
Yet another conversation is at the time when Yalçın Küçük launched a campaign arguing that the detainees of Ergenekon⁷ should be nominated in the parliamentary election.⁸ Ayhan Bozkurt wrote an article in Odatv about this issue. Yalçın Küçük criticizes this article in a conversation with Sait Çakır, another author of Odatv. Çakır calls Terkoğlu and says Küçük’s words “They should correct the text.”
Well, if nominating the detainees of Ergenekon is a crime, it is known that CHP committed it later on. Or else if asking for a correction in a news item is a crime, then it's amazing news for the people who work in editorial departments where they had been receiving hundreds of such emails and phone calls on a daily basis.
It goes without saying that these conversations are quite normal for the news editor of a newspaper. But as the person in question is Yalçın Küçük, the prosecutor regards all the connections as crime.




The preparations to invent more criminals
One phone call is particularly interesting. Here is how the phone call between Barış Terkoğlu and Yalçın Küçük is explained in the indictment:

In brief, Barış Terkoğlu says: “Professor Yalçın” “excuse me, I'm trying to reach Deniz and Barış but their phones are either closed or out of service, I guess they're with you at the moment, would it be possible if I could talk to them” “well we are going to make an interview tomorrow evening, they knew if we are going to dine with Mr. Merdan, Merdan YANARDAĞ” and after a while Yalçın Küçük hands the phone to the lady named Deniz...

What exactly is the element of crime here? Nothing. Apparently, this conversation is included in the indictment to give the message that Deniz and Barış, the friends of Barış Terkoğlu, as well as Merdan Yanardağ, an author of soL⁹, may be declared “guilty” when necessary. By including these irrelevant conversations, the prosecutor quietly threatens them.




How does a journalist think?
Another instance from the indictment illustrates that Terkoğlu thinks like a journalist rather than a politician. A person on the phone proposes to write an article for “a call to the Kurds to nominate arrested people for the parliamentary election like CHP does”. Terkoğlu explains that this cannot be a news item and that they cannot make such a call. He says “I couldn't do that till now but we should first publish the details of the KCK¹⁰ case. As no one has read the indictment, neither of the sides show any interest.” and convinces the other person to write an item about the KCK indictment. The expected attitude from a news editor, isn't it?
Why is this included in the indictment? The answer is hidden in the sentence that was written in capital letters by the police officers who secretly recorded the call: “YOU BETTER WRITE ON THE KURDISH ISSUE AGAIN.” The news editor asks for an article about the Kurdish issue, and this becomes a crime. Moreover, Terkoğlu further suggested what could be written on the subject: “Like, we can look at the charges against Hatip Dicle. You may ask in the end if he's being punished in order to be kept away from politics. That can be one thing. I mean, you wouldn't recommend politics but just demonstrate that the Kurds are banned from politics by the indictment.” Suggesting a news item: crime.
We shall give another instance to Terkoğlu's journalism (and good journalism indeed) accounted as a crime. After an Ergenekon operation when Yalçın Küçük was arrested due to his visit to Bekaa for an interview with Öcalan; Terkoğlu emails Mahmut Şakar, one of the lawyers of Öcalan, and says “As you know, many Turkish journalists, politicians and researchers interviewed with PKK. However, the media supporting the government, especially the Islamist ones, create the impression that PKK only communicated with Kemalist-left journalists and authors. We would like to make a news item based on an interview with you (on the phone if you'd prefer) to learn about the Islamist people who communicated with Öcalan-PKK.” How would you call this other than a successful journalist reflex? Yet, right below this phone call, the indictment quotes the testimony of a secret witness which says it is known that inside PKK, Mahmut Şakar's words are considered as Öcalan's directives. Then a number of examples are given. Finally, it makes an email from a journalist to a lawyer look like a crime element.




At least you should doubt about the name of the document!
From the beginning I have been trying to show that Terkoğlu is declared to be a criminal due to his journalism activities. I shall now emphasize the most obvious example of this. The indictment cites the content of a document named “gündem toplantısı.doc” (Reunion on the agenda.doc) that was found in Barış Terkoğlu's home computer. It consists of “the considerations about news items to be published in ODATV” (indictment's words) done by Ahmet, Barış and Doğan. A reunion on the agenda as we know it. Here is what's inside. (I kept the capital letters of the police as they are.)

Ahmet: If the kids work on it, they can find interesting interrogation examples from ERGENEKON. Barış, what do you say?

Barış: All right.

Doğan: Why didn't the prosecutors of Ergenekon detain and interrogate Ağar? Is AKP blocking it?

Ahmet: That's also a good question, but if we write it directly, it would make us look like denunciators. Yet with a careful formulation, it would be a very good question. THE ERGENEKON PROSECUTOR IS NOT INTERESTED IN UNSOLVED MURDERS OR SUSURLUK.¹¹ HE JUST FOCUSES ON THE MILITARY. Ağar might not be included in Ergenekon for this reason.

Doğan: That a nice perspective too. I'm thinking maybe we can have a headline tonight.

Suggesting a news item (in a reunion on the agenda) that demands the unsolved murders to be investigated; also a crime. Don't the prosecutors know this is regular journalism? If not, don't they even get suspicious from the fact that the name of the document is “reunion on the agenda”?
The rest of the indictment is exactly the same as above, nothing against Terkoğlu beside his journalistic activities.
Except one thing. Ulaş Bayraktar, who got arrested in the Devrimci Karargah¹² operation, has Terkoğlu's number saved unnamed in his cellphone. Whatever that might prove...
And the conclusion: “Based on the detailed information and documentation above, the suspect Barış Terkoğlu is concluded to be a member of the Armed Terrorist Organization Ergenekon, that he acted in accordance with the directions he obtained from the suspects Yalçın Küçük and Soner Yalçın for the aims and strategies of the organization, that he used his media facilities to make black propaganda and to misinform the public; that he incited the population to enmity and hatred in order to create disorder ...”
I wonder who might claim that Barış Terkoğlu is not being tried for his journalism.¹³ And if one does, I wonder if he/she ever read the Odatv indictment.








You can reach the previous parts of the article series here:
What are the journalists accused of? What is the evidence?
Were the digital documents sent through virus activities?

1  Barış Terkoğlu: The news editor of Odatv.com

2  Zaman: A conservative newspaper that has organic relations to the Gülen movement.

3  Professor Küçük is accused of being the head of the organization.

4  Mehmet Ağar: Former police chief, politician and former government minister.

5  Hikmet Çiçek: Author and journalist. He is being tried in the Ergenekon trials under arrest.

6  Silivri: The location of the prison where the detained of the Ergenekon trial are held.

7  Ergenekon: The name of an organization, not yet proven to exist. Thus, we only refer to the Wikipedia article.

8  The discussion refers to the immunity of representatives in Turkey.

9  soL News Portal: The online news portal closely linked to the Turkish Communist Party.

10  KCK: Koma Civakên Kurdistan (Union of Communities in Kurdistan). The legislature body of PKK active in Turkey, Syria, Iraq and Iran.

11  Susurluk: We refer the reader to the Wikipedia article on the Susurluk scandal that took place on 1996.

12  Devrimci Karargah: Revolutionary Headquarters. An armed revolutionary organization in Turkey.

13  PM Recep Tayyip Erdoğan argued in a party reunion that “the journalists are tried not due to their journalistic activities or their thoughts but due to something else.” (February 18^th, 2011) Several commentators in the partisan media supported this claim. Later, Cemil Çiçek, the Speaker of the Parliament, repeated the same claim to the Norwegian PM Jens Stoltenberg when Stoltenberg asked him about the journalists in jail. (January 9^th, 2012)

A Guide to Understand the OdaTV Trial – 2: Were the digital documents sent through virus activities?

The soL news portal published a series of articles concerning the background and the ongoings of the infamous OdaTV case. Signed Yiğit Günay, the articles investigate the trial's judicial peculiarities as well as its political context and historical implications. Assuming the responsibility of providing English information on Turkey with a political perspective that is compatible with our stance, we decided to translate these articles for the English-speaking audience.

This second article of the series is freely translated from the Turkish original, titled “Odatv davasını anlama kılavuzu 2: Dijital dokümanlar virüsle mi geldi?”, published on December 26^th, 2011.

 In this second part of our article series on the Odatv case, we discuss if the documents claimed to be gathered from Odatv computers were embedded there through virus activities. As a matter of fact, whether they are sent through virus activities or not, the journalists should be released immediately.

The last expert investigation from the US is now complete. It states that the documents are infected. Are they really infected or not?

We should all be clear about one thing: It does not matter at all whether these documents are infected or not!

First: According to the Law on Criminal Procedures and the principles of international law, nobody can be detained on the basis of evidence by digital documents in the absence of an expert report. Second: Even when there is an expert report, digital evidence does not form a basis for the detainment, yet they can only be secondary evidence. Lawyer Serkan Günel explained me that “you first demonstrate all the connections of a person, and only then consider digital documents as supporting evidence.”

In our first article, we showed that the indictment constantly refers to the digital documents and that there is no concrete evidence for the activities of a “terrorist organization”.

Let us now focus on the most “suspect-able” person in the group: Kaşif Kozinoğlu. He was not able to survive the long period under arrest – which has become the trendy execution method lately. He was accused of providing confidential documents for “the organization”. And the only evidence for this are that one of the digital documents is named as “kozinoğlu3” and that there is a sentence in the document “koz.doc” stating “Let us bring up the documents obtained from Kozinoğlu about the congregation¹ operations in Russia and Uzbekistan, and evaluate the other documents Kozinoğlu gave.” By using only this document, the indictment argues that “it is understood that the suspect Kaşif Kozinoğlu is in contact with and delivered information to Soner Yalçın.”

Any concrete relation between Kaşif Kozinoğlu and Soner Yalçın (or anyone else)? No. Phone calls? A meeting somewhere? Absolutely nothing. There is just this document named after Kozinoğlu. We emphasized this in a news item published in soL, but what if Kaşif Kozanoğlu's name were a very common name like Mehmet Yılmaz? It is a piece of cake to create a document in the computer. One of the documents has your name, and the other one mentions you. No concrete evidence, and you find yourself under arrest.

This is only one of the examples. It gets even more complicated in the cases of Ahmet Şık and Nedim Şener.

Asst. Prof. Dr. Barış Erman (Faculty of Law , İstanbul Bilgi University) explains this situation in an interview to HaberVs: “If something is not one of the key elements of crime, it is called an “indication”. It is not and should not be possible to detain somebody based on indications. Let me put it this way: For instance, if I threaten somebody on the phone, then I commit a crime on the phone. A record of that phone call can be considered as evidence of my crime. (…) However, if I say “I threatened someone.” on the phone, this is not an element of crime because I am not committing any of the key elements of crime on that phone call. It is an indication of crime, but it is not the crime itself. The same applies for digital data.”

The main inconvenience here is that the prosecutor, i.e. the claimant, was supposed to prove that the suspect committed a crime but that process is now reversed in Turkey: now, the detained have to prove they are innocent. So – we should repeat this over and over – all the arrested journalists should be released immediately due to lack of evidence.

The story of the expert reports stating that “the documents are infected”

Now comes the virus issue...

Right after the first operation on February 14 when Soner Yalçın, Barış Pehlivan and Barış Terkoğlu were arrested, the lawyers of the journalists expressed doubts on the digital documents, the only evidence against the accused. So the lawyers took the document to the Computer Engineering Department in Boğaziçi University and asked for an expert report.

Let us open a parenthesis here to elaborate on the seizure of the digital documents. In a police raid, the police is supposed to copy all the content in the computers at the location, take the copy, and leave the original and a copy of the original for the suspect. Normally, this same procedure applies to all documents obtained from CDs or harddisks, but this did not happen. Fortunately, the “digital documents” were not found in a CD. If the claims are true, then the police used a more advanced method so that instead of embedding any ‘data’ they brought with themselves, they sent the documents through virus activities. (By the way, the lawyer Hüseyin Ersöz conveyed to me that according to a police officer from Istanbul PD Anti-Terror Section, the Anti-Terror Section has only 4 of those copying devices and there are 4 more in the Cyber-Crimes Section. So, the whole Istanbul Police Department has only 8 copying devices. In today's Turkey where journalists – and other “suspects” – are put in jail in 20-30 people at a time, it is practically impossible for the police to follow the required procedures in order to use digital documents as legally valid evidence.)

Was Ahmet Şık's book confiscated in order to inhibit expert reports?

We say “if the claims are true”, yet these claims are verified by four different expert reports. Let us return to our main discussion. The lawyers gave the copy to Boğaziçi University. An investigation was launched under the supervision of Prof. Dr. Ufuk Çağlayan. When Çağlayan just finished the preliminary examination, on March 23, the prosecution decided to seize drafts of Ahmet Şık's not yet published book. The police carried out raids into several locations where they thought they could find copies of the book. While it was itself scandalous that they confiscated a non-published book from the market, there was another eye-catching point in the prosecution's directions. According to the orders of the prosecutor Zekeriya Öz, anyone who had a copy of the book would count as committed the crime of aiding the terrorist organization.

After this matter, Prof. Dr. Ufuk Çağlayan delivered the copies without even waiting for the police to come and take them. So, the Odatv lawyers were deprived their rights to prove their claims on virus activities.

Reconsidering the events today, the question arises as to whether the prosecutor's order aimed at blocking the expert report. Odatv lawyers expressed their concerns in that direction. It is clear that an almost finished book that has been shared with several friends cannot be destroyed. Thusly, an electronic copy of the book was soon uploaded to a website and the prosecutor's order became inoperative. (Months later, the book was published and no one raised a voice against it.)

While Ufuk Çağlayan delivered the copy to the police, he finished his preliminary examination. In his examination, Çağlayan points out there is a strong suspicion that these “confidential documents” were sent to the computer by a virus attached in an email and that this email deleted itself soon after the download.

As we said previously, detainment on the basis of digital documents is not acceptable. But it is even less acceptable for the detained to stay in jail when there is an expert opinion against the reliableness of the documents.

METU says “virus”.

Nevertheless, the court did not release the detained. Then the lawyers of Müyesser Yıldız, another employee of Odatv, sent the copies in her computers to Middle East Technical University (METU). In Yıldız's computer, the documents such as “Ulusal Medya 2010” (National Media 2010) and “Hanefi.doc” were found, but she did not have a copy of the book “İmamın Ordusu” (The Imam's Army, Ahmet Şık's book mentioned above – translator's note). Hence the lawyers did not deliver this copy to the police.

The report prepared by the faculty members Prof. Dr. Göktürk Üçoluk and researcher Gökdeniz Karadağ in the Computer Engineering department of METU reads as follows:

1. It is possible to secretly transfer documents to a computer while taking a copy. (This statement verifies our claims. Digital documents are not reliable and therefore cannot constitute sufficient evidence. But instead, today's twisted mentality asks the suspects to prove not-guilty.)
2. Thus, we observed that the documents were not created on October 4^th, 2010 as seen at the first sight but on February 14^th, 2011. (Looking carefully, this is date of the first operation when Yalçın, Pehlivan and Terkoğlu were arrested but there was no legal action against Müyesser Yıldız.)
3. The computer is adjusted so that it can be controlled from outside via a virus.
4. These viruses were sent from chptbmm@gmail.com.
5. Although this mailing address resembles the official address of the CHP² and has the gmail extension, it is sent via the jangomail servers.

Meanwhile, the Odatv lawyers were trying to take back the other computer images by arguing that the upload of Ahmet Şık's book online has made the withdrawal order inoperative. Finally, the court accepted the applications. But the images were delivered 42 days later than this decision. Apparently, some people were trying to delay the investigations, or perhaps getting prepared for something else.

The similarities in the report from the US about “CHP” and “Jangomail”

The lawyers sent the copies to experts again. The investigation of Yıldız Technical University confirmed that the documents were sent through virus activities. However, the lawyers had sent the copies to a juridical IT company in the US as well. The results were announced yesterday (December 25^th – translator's note). In the report, Joshua Marpet, the executer of the investigation, made a time-line of the copy. He spotted documents with no date on them. Examining closely, he saw similar documents that do have dates and concluded that they are the residues of these. But some of them were very suspicious. Marpet remarked that especially the documents that end with the command sed.exe and grep.exe were most likely placed by the creator of the virus, since these lines do not belong to Windows but to Unix- or Linux-based operating systems. Marpet also found numerous “badwares” such as viruses, trojans and worms. Some of these were complex and of a rare type. In this context, Marpet expressed that “The Odatv computers were seized and the owners were not allowed to take the machine back.”

Afterwards, Marpet examined the features of the viruses and concluded that the computer was not infected by a general virus attack but was specifically targeted at. And then, we focused on how this targeting occurred. He determined that the viruses are sent via email and probably through the documents “Ataturk_ekrankoruma.scr” (Ataturk_screensaver.scr) and “Duyuru.pdf” (Announcement.pdf). Interestingly, both of these documents were seized from Barış Terkoğlu's email address and were sent from “basinbirimi@chp.org.tr” (mediasection@chp.org.tr). However, Marpet realized that the offical chp.org.tr website uses “bmx.is.net.tr” servers for webmail services whereas the emails were sent to Terkoğlu through “jangomail” servers.

That is to say, the reports from METU and the US agree that the viruses were sent by a common method. The infected emails were sent to Müyesser Yıldız and Barış Terkoğlu from email addresses that resemble CHP's official addresses and that use jangomail servers. Hence we may conclude that there is the same agency behind these virus activities.

The arguments of the partisan media

Well, these all were the work of independent expert committees. There is also the “indictment” front. In the first investigation, Ufuk Çağlayan from Boğaziçi University (who returned the copies due to book-withdrawal orders) expressed in his preliminary examination that there is strong suspicion for virus activities. On April 10^th, Zaman³ published a news item emphasizing that “It has been neglected that the expert report says 'The hard disk of the computer could not be examined.'” Of course, it was not the defendants but the prosecution that should have proved the evidence to be valid under such suspicions. The presumption of innocence was forfeited, and it became ‘innocence’ which was to be proven now.

Afterwards, in September, Zaman interviewed Ufuk Çağlayan on the phone and published a news item quoting “I said this is not how a report is prepared.” where Çağlayan explains that his investigation was incomplete. Zaman also broad-casted the sound record of the phone call. As can be guessed, Çağlayan was once again stating that his investigation was incomplete because the copy was seized. But Çağlayan was uneasy that his name appeared in media so frequently, so he didn't continue the debate later on.

The indictment was made public in September and it stated “(...) the Technical Report is not based on the examination of the copy of the digital media, comments that are based on assumptions do not constitute a juridical IT investigation...” so as to override the expert report from Boğaziçi. This adds to the suspicions about the link between the book confiscation and seizure of the copies.

As for the METU report on Müyesser Yıldız's computer, the Ministry of Interior said that according to their expert report it is not possible to embed a data on a computer during the copying process and that the mentioned documents were opened several times before the police raid.

A police set-up?

We shall now mention two significant events that took place meanwhile. First, we shall have a glance at what happened to Müyesser Yıldız. When taken into custody, she was asked about the “Ulusal Medya 2010” document in her interrogation. The proceedings of the interrogation reads that she was interrogated “about the 'Ulusal Medya 2010' document that was found in your computer”. Again according to the proceedings, they give many details about the document. Now, this interrogation ended on March 6^th, at 12:30 am. Ten minutes after, at 12:40 am, the proceedings were handed to the lawyer. But the search of Müyesser Yıldız's computers ended (and therefore these documents were obtained) at 1:00 am. If all these times are correct, how did the police know what was in Yıldız's computers?

There is another one, told by the lawyer Serkan Günel: “In the police interrogation [after the first operation], we were asked about the news items, the meetings of Soner Yalçın with the others, and the reunions. But in the prosecution period, they had a call from the police saying there is more evidence. In Odatv offices, since the times of the documentary 'Oradaydım' (I Was There), there should be at least some 2-3 Tera-bytes of data. It is impossible to skim them in one month. Well, when they told us “We checked the evidence, you may now take those that have no elements of crime”, it was already 6 months anyway. You are finished with searching for evidence in 6 months, but somehow you happened to find a word document that is the source of all the charges within the very first 2 days?”

These two details point out to the possibility that the documents, which are reported to be sent through virus activities by 4 different expert reports, were loaded by a police set-up.

While the second hearing will begin today (December 26^th) and the detained will give their defense, we will examine other perspectives of the case in our next articles.

1  In Turkish politics, “the congregation” commonly refers to the “Gülen movement”.

2  CHP: Cumhuriyet Halk Partisi – Republican People's Party. The main opposition party in the Grand National Assembly.

3  Zaman: A conservative newspaper that has organic relations to the Gülen movement.

A Guide to Understand the OdaTV Trial – 1: What are the journalists accused of? What is the evidence?

The soL news portal published a series of articles concerning the background and the ongoings of the infamous OdaTV case. Signed Yiğit Günay, the articles investigate the trial's judicial peculiarities as well as its political context and historical implications. Assuming the responsibility of providing English information on Turkey with a political perspective that is compatible with our stance, we decided to translate these articles for the English-speaking audience.

This first article of the series is freely translated from the Turkish original, titled “Odatv davasını anlama kılavuzu 1: Gazeteciler neyle suçlanıyor, kanıtlar neler?”, published on December 23^rd, 2011.

The first hearing of the Odatv trial was cut short for the evaluation of the recusation demand; so, in a sense, the trial will start on the second hearing on December 26^th.

The characteristic of such uncountable cases nowadays is that they have long indictment statements and thousands of pages of – mostly unnecessary and irrelevant – appendices so that there is a huge information pollution over the cases. So much so that even though the trial is followed closely by the public, everybody is confused about what are the indictments of the Odatv trial accusing 14 people, one passed away in prison.

While only days are to go for the defense statements, we start a comprehensive article series in soL about the indictment statement and its background.

In this first article, we will emphasize on the evidence in the indictment and the activities of the alleged organization that are considered crime.

To begin with, we would summarize the logic of the indictment. The prosecution states that 14 persons (most of which are journalists) are the media settlement of the Ergenekon¹ organization, the very existence of which has not been proven. The charges in the indictment have the following patterns: They refer to digital documents all of which are said to be gathered from the computers in the Odatv office – determined to be highly suspicious by various expert reports. These documents contain general expressions on the struggle opposing the AKP². Afterwards, several news items and books are exemplified, that are claimed to be directed by that content. Then, some phone calls are included as supportive elements. Thus, the charges are based on the digital documents, which were determined to be sent by virus activities.

Who are the accused?

Yalçın Küçük, Soner Yalçın, Barış Terkoğlu, Barış Pehlivan, Doğan Yurdakul, Müyesser Uğur, Coşkun Musluk, Sait Çakır, Ahmet Şık, Hanefi Avcı, Nedim Şener, Kaşif Kozinoğlu (lost his life in prison), Mümtaz İdil, İklim Bayraktar

Crimes charged in the indictment

Establishing and Administering an Armed Terrorist Organization, Being a Member of an Armed Terrorist Organization, Inciting Hatred and Animosity among the Public, Procuring Confidential Documents relating the security of the State's, Procuring Confidential Documents Banned to be Made Public, Violation of the Right to Privacy, Keeping Database of People on an Illegal Basis, Attempting to Affect Judiciary

OFFENCES CLAIMED TO BE COMMITTED

1- The activities aimed at inciting hatred and animosity among the public

The indictment claims that the journalists have undertaken activities aiming at inciting hatred and animosity. First, the document titled “Yalçın Hoca ile görüşüldü” (Met with Professor Yalçın), claimed to be collected in Odatv computers, is referred to. In summary, the document depicts the desire for making people to hold demonstrations against AKP. The indictment also states “In the news items published at ODATV website, it is understood that they on one hand made publications of the declarations of the leader of the terrorist organization PKK³ aiming to make the people pour out into the streets, and on the other hand created the perception as if there were a civil war in our country.” Five news items in Odatv are exemplified afterwards. One of them has the title "Öcalan Diyarbakır’daki Kürtlere, Mısır’daki Gibi Sokağa Çıkın Dedi" (Öcalan Told the Kurds in Diyarbakır to Go Out to the Streets as in Egypt) that published the declaration of Öcalan without comment, with reference to Fırat News Agency⁴. It is well known that lately such news items are reported in several media institutions, and mostly in the exact way referring to Fırat News Agency. Another news item has the title "Türkiye’de İç Savaş Mı Var" (Is There a Civil War in Turkey). This is in fact an article. It is written by İsmail İlkan, on a topic discussed by Barış Zeren in Odatv and Fatih Yaşlı in soL News Portal⁵. The topic does not refer to people fighting between each other, rather it is a theoretical discussion on how to name the ongoing struggle between AKP and its oppositions inside the state and in the power domains. Yet another news item has the title "Birileri İç Savaş Hazırlığı Mı Yapıyor" (Do Some Prepare for a Civil War?) and criticizes the new law authorizing the Security General Directorate and the National Intelligence Organization to buy heavy weapons. So it has nothing to do with encouraging the people to fight.

Why do I tell these so long? Here's why: All along the indictment, many news items – many absurd examples of which will be mentioned later – are recorded as “evidence” just due to the connotations of their titles, although they contain nothing that can be considered ‘crime’. Apparently the police officers set to search the words such as “Öcalan” and “civil war”, and listed all the results down. It is clear that this nonsensical method of charging can be used in the archives of any newspaper and that therefore any news item can be counted as crime.

Following these news items, some phone calls are quoted. One of those phone calls of the journalists to “incite hatred and animosity” is as follows:

Person X: The Internet connection is still cut in Egypt, I talked to Osama this morning. He says this revolution will be for the good and that this man should have gone long time ago.

Ayhan Bozkurt: Civil rebellions are good things. If it were to happen in Turkey too... Were there be a civil war, dear, yes, a revolution... The socialists seizing the power in Turkey...

Person X: It takes a long time, long time...

If these words of Bozkurt are listed as crime, then it is a crime to ask for the people to demand its rights and to ask for a revolution – even in personal conversations. As a matter of fact, this is indeed the mentality behind the preparation of the indictment.

That's all for the evidence...

2- The activities aimed at provoking the Turkish Armed Forces to launch a coup

Another crime attributed to the journalists in the indictment is military coup provocation. In this section, after pointing out four digital documents with titles "Ulusal Medya 2010" (National Media 2010), "Bilinçlendirme" (Awareness Raising), "teRTEmiz" (Spotlessly Clean⁶) and "darbe.doc" (Coup.doc), several news items are mentioned.

Let us examine one of them. The document “darbe.doc” found in Odatv computers, contrary to other referred documents, does not consist of some directions; as far as understood, it is a draft of a news item. It signifies that after the searches conducted at the houses of high ranking military officers, there is a rumor on military intervention. The indictment points out that, just after the day the document is created, Odatv published a news item titled “'Darbe olacak' söylentilerinin ardında ne yatıyor?" (What lies beneath the rumors about a military coup?”) and that the content is parallel to that document. We read the mentioned news item in Odatv website. We really see that the same sentences appear both in the website and in darbe.doc. But Odatv editors added two more paragraphs at the end of the news item. Here are those two paragraphs:

“Besides all these, military authorities think that such a 'coup' is not possible and that these rumors are spread to create public opinion.

As Odatv.com, we do not regard such speculations possible and that Turkey will pass the democracy test with success. However difficult the process is, we trust in the superiority of law.”

Unless one forces one's self to read into intentions, this news item was supposed to provide evidence that Odatv not only did not aim at a military coup provocation but the exact opposite.

In this section again some headlines and phone calls are quoted. One of these phone calls is between Soner Yalçın and Oray Eğin. From this call it is understood that Oray Eğin decided upon his article for the next day with advice from Soner Yalçın.

3- The activities to support the PKK terrorist organization that is controlled by the armed terrorist organization Ergenekon

Here is another charge: In this section, there are long citations to the – not proven yet – indictment of the Ergenekon trial. Then, the ancient history “evidences” that prove nothing for Yalçın Küçük ruling the PKK are brought forward: Some photos of Öcalan and Küçük taken in the beginnings of 90s, and some assertions of a secret witness comprising the 90s only. The obviously weak claims are strengthened by the digital document titled “Hocadan Notlar” (Notes from the Professor). In the document, Odatv is advised to make news favouring Öcalan and the PKK.

And once again, examples from news items... For instance, the one titled “Öcalan'dan özür dile Başbakan” (Prime Minister, Apologize to Öcalan!). Apparently the police officers saw this title and put it immediately to list of “evidence”. We click the link, and see that it is an article of Özdemir İnce published in Hürriyet⁷ newspaper. Should we say Odatv people caught it in the neck because of Özdemir İnce, or should we say “What a ridiculous indictment!” ?

In this heading – after quoting some phone calls that are completely irrelevant to the accused crime – there is yet another evidence. An advice note providing displays of Yalçın Küçük. The person who wrote the advice note and also claims to be an old TGB⁸ sympathizer, has told the prosecutor that “Yalçın Küçük publicly made PKK propaganda in a conference organized by TGB in Gebze”. The police officers watched the video. And, from the full length conference video, they came up with this single sentence to support the claim: “The Gülen movement⁹ digs a pit for the PKK and the others both in Mosul and in Diyarbakır; it gets them into hot water.”

This is not all that there is in terms of evidence. From an email between Barış Pehlivan and Soner Yalçın “it is understood that Soner Yalçın himself did not give permission to the publication of a news item related to the sexual experiences of female PKK members who were mistreated and aggrieved”. Here is another evidence that Odatv people are administrators of the Ergenekon organization that controls the PKK! It makes no difference if the editor could not verify the news and did not trust the source. It is itself a crime for people not to publish a news item, for we all see a variety of claims published with no verification whatsoever in the partisan media!

And we're not done yet, there is another email “proving” the support for the PKK. The subject of the email sent to Barış Pehlivan is “firat haber ajansi” (firat news agency). And its content is as follows: “Hello Mr. Barış. In the last weeks, you have been publishing several news on Öcalan without referring to our agency. We would be pleased if you could give citation. Fırat News Agency”

It is a bit unclear whether the prosecutors charge Odatv for stealing news from Fırat News Agency. If so, should we deduce that the prosecutors also support the PKK?

4- The activities to direct the politics

Another charge is trying to shape legal politics. Here the activities are split into two, to the ones towards AKP and the ones towards CHP¹⁰:

a) The activities towards AKP

This section starts by referring to the two documents “teRTEmiz” and “Hocadan Notlar”, and then some news items are cited.

This part of the indictment is crucially important; since it demonstrates that any news criticizing the AKP is considered as crime. Indeed, all kinds of AKP criticisms (including frauds) are listed as evidence. Here is the reasoning: In the mentioned two digital documents, common AKP criticisms of all opposition movements are given. Therefore, as they are once declared as “organizational instructions”, all the news items become criminal activities.

For instance, in the document titled “teRTEmiz”, there is a line about “explaining AKP's practices and stating how horrible the situation has become”. The prosecutor then listed some headlines. One is as follows: “Nothing will remain the same with the Bag Law”. We click on the link. The news consists of the declarations of United Public Laborers' Confederation and the CHP parliamentarian Tayfur Süner. It is now a crime to make news about declarations of labor unions and representatives, even without comments.

b) The activities towards CHP

This is the only section of the indictment that makes one think there is an organized activity. It seems that both Yalçın Küçük and Soner Yalçın support a certain wing in CHP. This is mainly based on phone calls.

It is known that Küçük and Yalçın both became hopeful with Kemal Kılıçdaroğlu¹¹ for a time. In this period, as is well known that different wings tried to seize the power of the party, they both worked for exerting their influence into CHP.

But is there any founding to show that these were done due to directions from a “terrorist organization”? No... Let us put this aside.

The rest of the indictment

In the rest of the indictment statement, the following four activities are listed: Activities related to Halk Tv¹² as part of the media settlement, the activities aimed at influencing the Ergenekon investigation and the lawsuit process, procurement of information and documents related to state security, illegally recording personal data and the violating the right to privacy.

We will treat these headings in the further articles where we deal with the accusations towards the suspects.

The essence of the matter: The digital evidence

To summarize, the crimes mentioned in the indictment are solely based on the digital documents that are claimed to be found in the computers in the Odatv office. These are the only concrete evidence.

In our next article; we will deal with the issues of whether these digital documents are transferred to the computer via virus activities, how the expert reports are obtained, what the police has done to prevent the expert reports, and how the partisan media elaborated on the subject.

1 We try to give brief information on the names of the organizations mentioned in the text. Since there is no sound evidence for the existence Ergenekon, we only refer to the Wikipedia article.

2 AKP: Adalet ve Kalkınma Partisi – Justice and Development Party. Led by Recep Tayyip Erdoğan, the party is in government since 2002.

3 PKK: Partiya Karkerên Kurdistan – Kurdistan Workers' Party. An armed Kurdish organization established in 1978 that fights for an autonomous Kurdistan and greater cultural and political rights for the Kurdish population in Turkey. It is listed as a terrorist organization by several states including Turkey.

4 Firat News Agency: Founded in 2005, the agency focuses on the Kurdish issue. Although it is not officially stated, the agency is commonly associated to the PKK.

5 soL News Portal: The online news portal closely linked to the Turkish Communist Party.

6 The letters “RTE” in the title are in capital letters. RTE is also a common abbreviation in the media for the prime minister Recep Tayyip Erdoğan.

7 Hürriyet: A mainstream newspaper.

8 TGB: Türkiye Gençlik Birliği – Turkey's Youth Union. Founded in 2006, it is a legal youth organization that has a nationalist political agenda. It defines itself to be neutral to left-right worldviews.

9 Gülen movement: A transnational illegal Islamic organization lead by Fethullah Gülen.

10 CHP: Cumhuriyet Halk Partisi – Republican People's Party. The main opposition party in the Grand National Assembly.

11 The leader of CHP since May 2010. His leadership emphasized the left-wing views in CHP.

12 Halk Tv: People Tv. A television channel belonging to CHP.