How the Messages Were Transferred?

How the Messages Were Transferred to the MEDAS Computer is Unclear, and Log Information Regarding Network Operations Has Not Been Provided.

(MEDAS: Mesaj ve Evrak Dağıtım Sistemi or Message and Document Distribution System.)

Certain security measures have been implemented on computers used by the Turkish Armed Forces. It is not possible to connect CDs or external drives to these computers. However, for some computers, CD reading can be enabled with special permission. It has been determined that there were two computers in the room from which the messages were allegedly retrieved: one MEDAS and one KARANET computer. According to the claims, the digital records related to the messages were created on the computer referred to as the KARANET computer. However, it is clear that sending a message would not be possible without transferring the data to the MEDAS computer, and no CDs or external drives can be connected to the MEDAS computer. Under these conditions, the only options are to send the digital documents from the KARANET computer to the MEDAS computer via email or to transfer them using a shared folder. At this point, the defendant Mehmet Partigöç raises the question of how the data transfer between these two computers occurred.

The defendant made various observations that could affect the case, stating, "Your Honor, you examined the General Staff Headquarters. Actually, there are no hard drives in the computers at the General Staff; everything is recorded on sections assigned to them on the main server, accessed using their own passwords. The people in the basement control it all. If someone came and took apart Hasan Hüseyin's computer, they wouldn't find anything there. Everything is on the main server. There are about 20 computers in the general and admiral branch, one of which is connected to the main server. For some reason, our officers chosen from the brightest among us in the general and admiral branch saved any information only to that place. The other computers and many other computers, they  had all saved it there…. You might say that for the message to be sent, the message computer needs to receive the data from somewhere. The message computer does not have the capability to read CDs or connect external drives. To transfer data to this place, to upload it here. This is also not possible, your Honor. I am explaining this specifically because this is the most critical point of the case. The boy did not transfer anything from here to there. There is no such email. The message computer is registered under the name Mehmet Demir. They have examined it, and there is no email sent to this message computer. So, who, where, and how was this message sent from? There are also reports. This is actually very easy data to access. Why hasn’t the General Staff provided this data yet?" (11).

As is known, according to Law No. 5651 and TİB (Telekomünikasyon İletişim Başkanlığı-Telecommunications Communication Presidency) regulations, each institution is required to keep log records and retain them for at least two years. These records should have been properly obtained and preserved by the prosecution. However, the expert report prepared on the matter does not include any such information, and despite the defendants' requests, these records have not been provided. Without this information, it is not possible to make any determinations regarding the martial law orders with absolute certainty.

Procedural Safeguards Were Not Followed in Obtaining the Evidence

In applications concerning claims of unreliable evidence, the European Court of Human Rights (ECHR) has almost entirely left the evaluation of events to the discretion of the national judge. However, in cases where there are serious doubts regarding the quality of evidence presented by the prosecution in criminal trials, the ECHR considers the procedural safeguards surrounding the obtaining and evaluation of such evidence, rather than reviewing the evidence itself (12). From this, it is understood that the ECHR does not examine whether the evidence is lawful. Instead, it examines whether there is a procedural legal framework that ensures the legality of the evidence and whether the relevant procedures were followed, considering the entire trial. In this context, the requirements of Article 134 of the Turkish Criminal Procedure Code (CMK-Ceza Muhakemesi Kanunu-) should have been followed. However, the imaging process was not carried out in accordance with these procedures, making the data affecting the decision questionable.

In this regard, the defendant's lawyer, in court, drew attention to the unlawfulness by stating, "The most important issue I would like to draw attention to is that despite the perception created in public and the position of my client in this case summarized by these messages, the computer from which the message was sent is unknown. The computer where the messages were stored has not been properly imaged, and no expert examination has been carried out. First and foremost, the computer from which the message was sent must be identified. It must be determined how the message in question was sent to that computer. Whether the Word documents found on the other computer came from a CD sent to my client or the CD clearly stated in the report as being created after July 15 should be clarified without any doubt. When the computer from which the message was sent is scientifically identified, it should be determined through an expert report where the information came from, whether by flash drive, disk, or by connecting remotely from another location. I reiterate all the requests for further investigation and emphasize the sensitivity here" (13). However, the court ignored these remarks without providing any justification.

Defendants' Requests That Could Affect the Essence of the Decision Were Rejected, and the Principle of Equality of Arms Was Violated

As mentioned earlier, there are no hard drives in the computers due to security reasons. The relevant departments carry out their activities on sections assigned to them on the main server. While it is highly unlikely that the messages were sent by the defendants, other possibilities, such as the actions of personnel with access to the server or remote desktop connections (which are now very easy to perform), were not investigated by the court despite requests. No justification was provided in the reasoned decision or during the hearing as to why these requests were not accepted.

At this point, the principle of equality of arms is at issue, as noted in the Turkish Constitutional Court's 2014 violation decision regarding the Balyoz case: "Thus, the applicants' right to request an extension of the investigation into the evidence supporting the charges against them was restricted, and the principle of 'equality of arms' aimed at revealing the material truth in criminal proceedings was violated."

Moreover, relevant ECHR rulings state, "Although there is no exhaustive definition of the minimum requirements for the condition of equality of arms, procedural safeguards appropriate to the nature of the case and commensurate with the risks for the parties must be in place. These safeguards may include the opportunity to a) present evidence, b) challenge the other party's evidence, and c) make statements on the matter in question" (14).

The statements and demands of the defendant Mehmet Partigöç, such as "And the only place where nothing happened that night, where no one intervened, was also where that main server was located. Whatever was done, it was done from there. Or by someone who could access the main server because, as you know, even the American elections were interfered with. There are statements from Alexander Dugin, Russia saying, we informed them in advance of this or that. Russia has some kind of knowledge, influence, or insight before this July 15 fiasco. Who accessed the MEDAS computer? This needs to be found out. There are a lot of expert reports, and they are nonsense. Have this examined. Why did Hüseyin Ömür record that information there? Because the place where it was recorded is not Hüseyin Ömür's computer but the server. How do we know that it wasn't the people there who recorded it on the server? Everyone with access to the server could have done it. There are many authorized personnel at the General Staff. Who accessed the MEDAS computer? This is not out there. Your Honor, without uncovering this, no one can accuse us regarding this case or this message. No one can accuse us" (15), also highlighting this reality.

As a result of these practices, the failure to investigate doubts in favor of the defendant, such as not extending the investigation to reveal the material truth, has prevented the truth about who prepared and sent the martial law messages from being uncovered.

Conclusion and Evaluation

The facts described up to this point reveal that it is unknown who prepared and sent the annexed document, the Annex B martial law appointment list, and how it was done, and that there are strong doubts about the authenticity of the document, which could undermine its credibility. In this context, the Annex  B martial law appointment list, which is cited as the primary basis for the arrests, loses its credibility and reliability due to the conditions under which it was produced. Every suspicion, unreliability, and falsehood regarding this document during the trial directly affects the justification for the arrests, revealing that these procedures are unjust and baseless.

Dilaver Derviş

Sources:

(11) Ankara 17th ACM, 2017/109 main, hearing dated 11-12/03/2019, defendant Mehmet Partigöç's SEGBIS statement, pp. 94-95.

(12) Cornelis / Netherlands, 994/03.

(13) Ankara 17th ACM, 2017/109 main, hearing dated 28/01/2019, defendant Cemil Turhan's SEGBIS statement, p. 57.

(14) H. / Belgium, §§ 49-55.

(15) Ankara 17th ACM, 2017/109 main, hearing dated 11-12/03/2019, defendant Mehmet Partigöç's SEGBIS statement, pp. 94-95.