Defense by Enes Güran’s Counsel for the Defendant
Law. Mahir Akbilek
The Procedure for Appointing Experts and Deficiencies in the Oath Records
Esteemed panel, we do not concur with the prosecution’s opinion on the merits. I will proceed heading by heading. Right now I will set out my remarks and defense regarding the narrowed base-station study. I want to start with the oath record. Esteemed Presiding Judge, the oath record dated September 3, 2024 — as you know, Article 64 of the Code of Criminal Procedure sets out the procedures for the appointment of experts. We are talking about a provision subject to strict formal requirements. Here the oath text is likewise expressed in the same way, and we understand from the wording of the article that an appointed expert must begin work after taking the oath. One can suffice with a single oath; that is, if there is a sequential assignment connected to the same main subject, a second oath is not needed. But an oath is necessary and logical for the commencement. The oath record dated September 3, 2024 — file no. 2024/46201, the number of the investigation file that is the source of all these problems — here the signatures of the persons named Mustafa AKARSLAN, Mukaddes SÜS and Hasan ÇAM, who appear as experts, are not visible on the text. However, there are two elements, two matters. The first: if we make use of the explanation in the supplementary report sent in response to our objection and in response to the questions set ex officio by the esteemed court, it becomes apparent that the expert went to the field twice: first round 29 and 30 August 2024; second round 8 and 9 September 2024. The reason for the second round is that the work had been carried out in the absence of Nevzat Bahtiyar. In terms of logic — because Nevzat Bahtiyar — before the midnight between September 8 and 9. Within the scope of this file, even the public prosecutors should not know it. Therefore the experts cannot know Nevzat Bahtiyar either, so they must have done the work on the basis of incomplete suspects. First problem: you have not taken the oath. How do you know you are going to start your duty? What is this capacity of foresight? You go on August 29 — with what authority do you go? Who authorized you? Moreover, it is a complete mystery on which province’s expert list you are registered. Whatever — you are in chambers, you come and go, you talk with certain persons. There is no principle of equality of arms. We do not even know that you exist. But regarding my client Enes Güran you are in fact witnesses giving adverse testimony; from our standpoint you are witnesses. You are the ones making the assertions.
The Legitimacy of the Expert Report and Its Evidentiary Quality
You are the ones claiming that, within the same house, my client Nevzat Bahtiyar is in a specific time loop. Your document does not bear the quality of an expert report; we cannot question you; we cannot see you. You first began your duty and only days later took the oath. In the oath record your signature does not appear. There is yet another problem, and it is a very big problem. Did you read the bottom of the same oath record? It says: “I have received the letter and the investigation file annexed to it.” Who says this? In our view, witnesses. For us these are witnesses. Mustafa AKARSLAN, Mukaddes SÜS, Hasan ÇAM, September 3, 2024. Now I will read the relevant part of these “experts” own supplementary report: “Regarding the Narin Güran murder, other than the HTS records in the file and Salim Güran’s first statement, no other piece of evidence was touched upon; no samples were taken from the statements; no record was taken regarding the camera footage. Only the data obtained as a result of the field work we carried out has been reported.” December 3, 2024 — signatures whose authorship is not clear, the same 3 witnesses. Esteemed Presiding Judge, whose mind is being toyed with? There is no such procedure. Is there? This? Is it legitimate? Is it defensible? Would a person defend this? Would a jurist defend this? Let anyone who defends this also look into what he is defending — we will talk afterwards about whether the views inside are technically correct. In terms of form, regarding the constitution of the expert panel, in terms of not complying with the ceremony, in terms of disregarding the law, this is a formation in disregard of our procedural law; this is a document. That is a problem in itself, a problem in itself. A forbidden piece of evidence — that is, in short, a forbidden piece of evidence must be removed from the file by your court through an interim decision. It must be sent back to those who produced it. The discretion is of course yours. Let us come to the scientific method followed. So says the supplementary report. It is angry with us. It says: “How dare you criticize me?” It says: “I did such a work that there is not a crumb of interpretation within it — you cannot find one.” There is no biology textbook that does not carry such a crumb within it. What kind of genius are you? What have you found that Japan has not found, that China has not found, whose citizens are about to have neural chips implanted — they are discussing this.
The Scientific Basis of the Expert Methodology and Alternative Works
Our technological level is obvious. Are we to hide from the servant what God knows? Our technological level is obvious. For such a possibility to exist — will it be waiting for this case? So many cases were framed, so many became of public importance, so many were broadcast live. Is it going to wait for this case, and then none of us would be able to speak? There is no such thing. There are precious works. Esteemed Presiding Judge, what saddened us was the expectation that we believe in this without dispute. This saddened us very much, because a method of proof that is not conclusively proved, that has not been converted into a formula, that has not reached a certainty to yield the same result every time it is applied — moreover one that will penetrate such a precious, such an important area and affect even the future — expecting us to accept it without discussion, without debate, saddened us greatly. It was also defended — very seriously defended. Our discussion was discussed. “How dare you discuss.” In fact there was no need for the expert to even debate. That is, an expert who himself cites himself as his own source. Now, if you write a work, you make a bibliography; if you write a work, an article, it has peer review; you show your references one by one. You yourself cannot be your own reference. The first rule is that you show as references other people, other works. That is how we audit you. This report shows itself as its own reference. “I personally,” it says. There is another book as a reference. Such a thing admits of no analogy, does it not? It does not. There is a 2020 study, still valid, by our esteemed teacher Nazlı Güney — a joint study — with Mr. Levent Mazılıgüney, Mr. Koray Peksayar, and Mr. Berker Kılıç, a forensic informatics expert. A forensic informatics expert, a senior engineer, a forensic informatics expert, a senior engineer, a jurist. What fine titles. There is nothing hidden. This is a study dated June 10, 2020. A study dated June 10, 2020; this is a very comprehensive study. My colleague Mustafa Demir submitted this work as an annex in the petition he submitted between sessions — a petition in the nature of an objection and substantially a request for further investigation, also containing its own objections — so I will be very brief, very brief. As a matter of principle the study says: HTS terminals, HTS base-station towers, HTS terminals are generally built in Turkey on a honeycomb system. They are placed at intervals of about 10 km. Their purpose is to make communication more stable.
The Reliability of the HTS Data and the Claims of the Narrowed Base-Station Study
There is the claim of providing uninterrupted communication. A very fundamental thing has been forgotten. These are GSM companies. These are companies. This is being confused with the Information Technologies Authority (BTK). In fact, I think when this data is handed over digitally to BTK, there is no audit mechanism in between. That is, in the sense we understand, there is no root signature, no e-signature. It is not, after passing through an auditing board and having its validity and conformity with scientific principles checked, sent for public use or for judicial evaluation. Once the GSM company has sent what is requested from the data source it holds in-house to the BTK, the BTK can only formulate it. It sends it to the court file, and it becomes what we call HTS reports. Even while the evidentiary capacity, evidentiary strength, and probative force of the base-station data obtained as a result of HTS reports is disputed — and while the judicial principle that no absolute piece of evidence, no definite evidence, is suitable alone to base a judgment upon is not yet accepted, and while this discussion is ongoing — going beyond this and, moreover, saying that the address and moment at which the user — the mobile user — is connected to a particular HTS terminal — and that moment also carries a ±5-minute risk in HTS reports, that is, because this did not come before us as a very specific subject we had not had this occasion. We did not need to discuss it, but the literature treats even that raw data with a ±5-minute margin of error. Those concerned know this and use this data in this way. The narrowed base-station study goes ten steps further and says, “By making use of a past communication or data traffic of yours, benefiting from data embedded in the HTS terminal — that is, data kept registered there, I will talk about this in a moment, there is no such registered data — and from your past base-station location information, I will tell your location definitively, with a margin of only one meter, two meters of distance and a 1-minute time difference. Time is of no importance. It is enough that I have an HTS record concerning you for that date.” This is not possible. It cannot be done. You can do it live — and even then, on what conditions? We researched.
The Invalidity of the Expert Study and the Statement of Enes Güran
Esteemed Presiding Judge, let him open it — does the signal strength change within a minute? It does not. Let him not move at the spot he is standing, not move at all. Let him remain stationary; we will see whether your text is sacred or not. Whether it is indisputable or not — we will see. In your own mobile phone it will change. If there is an ABS-based iPhone user, let them open it and look. What we say will be confirmed. Therefore there is no such technology. Let those who want to believe believe; but under current technological means it does not appear possible. Unfortunately, we will continue with the current evidentiary methods, with the classical experts we know. By the way, esteemed Presiding Judge, normally the HTS narrowed study works, roughly put, in our client’s favor. He is at home; he states he was sleeping. Relatives of various ages who support his statement that he was sleeping are available. Also a more distant relative who does not live in the same household, not a first-degree blood relative, supports this statement. His phone too is motionless. If you look at the GPRS movements, it will be understood that there is no base-station data and that there is GPRS movement. But GPRS movement too is not reliable in the meantime. GSM companies record every 8 hours. It would be good if the colleagues also researched that. That is, the identifications there are also not suitable for such clear imputations. If these theories were correct right now, there would be no need for many trials. Robotic trials would already be held. The points at which the base-station report contradicts the other evidence in the file, the material evidence — my colleagues explained at length at previous sessions. Esteemed Presiding Judge, on that part, even though he is not my defendant, even though he is not my client, to draw attention at least to the serious, at least to the visible contradiction of the report, perhaps I can briefly touch upon it. The claim that Salim Güran at night went with a vehicle — an unidentified vehicle — to the point they refer to as the “burial area” has been refuted by more than one piece of material evidence. That is, it has been refuted with evidence auditable by the naked human brain without needing a technological device. And there is more beyond that. Besides, those who put forward this claim — those who claimed the defendant they named was in that vehicle — if only they had examined the DARAN-2 cameras more carefully.
The Salim Güran Allegations and the Joint-Perpetration Discussion
Apparently they looked only at the lights of the vehicle. The duration of the vehicle’s stoppage at the place they designated as the “burial area” seemed strange to them, as far as we understand. But had they followed the vehicle’s movement, the vehicle was in fact — this is my opinion — searching around with — because, on a dark night, civilian people will be seen, silhouettes clearly human, with lights in their hands, most likely mobile-phone lights or small portable light-emitting devices; they are doing a search and sweep, as one would expect. If the movement of the vehicle too is watched attentively, it will be seen that it changes direction, turns on its headlights, waits — it does not simply stop there. They managed to rip it out of context, as if the vehicle came directly, took the shortest straight route, and stopped there. This was not elegant, because it can be followed. Before the camera recording it is standing; it is standing stationary there. Now, esteemed Presiding Judge, regarding the opinion on the merits, the matter of joint perpetration is a subject in need of explanation. Here too a very interesting new angle is being attempted. An attempt is being made to go beyond the will of the legislator; that the will of the legislator is being exceeded is apparent from their own definitions. A jurist can distinguish Article 37/1 from a provision concerning aiding, or can distinguish instigation from principal material perpetration and accessory — he knows these concepts. He cannot be expected not to know. Here it is indisputable that there are two constitutive legs regarding the institution of joint perpetration. In what was presented — both in the indictment and, I think, in a part of the opinion on the merits, without its basic and decision numbers — a definitional excerpt has been cut from the text of a Criminal General Assembly decision and inserted into the relevant paragraph of the opinion. This is normal, because the Criminal General Assembly of the Court of Cassation creates settled case law anyway; it is a mechanism of unification of case law. Once formed, the text is used until that view is abandoned. There is nothing strange in that, but we are of the view that it would have been more proper to indicate the basic and decision numbers with the date. Indeed, “the opinion on the merits” already means “in my view,” does it not? It means “according to me,” “in my opinion”; you will decide how it is — that is, precisely as to the imputed acts.
The Definition and Application of the Institution of Joint Perpetration
Now, esteemed Presiding Judge, in the opinion on the merits — in the written defenses submitted by the counsel of the complainant institutions, who repeated them orally in court, and likewise in the written and oral separate defenses of the counsel of the complainant ministry — the clear deficiency which, in my view, they have skipped, and which it is impossible to miss, is that in the institution of joint perpetration one cannot discuss only the element of the act. In the General Assembly of Criminal decisions on unification of case law which we have submitted, and of which I will now state only the basic and decision numbers and dates, as can clearly be seen inside them, both in the decision you must unite — that is a precondition — there must be a pre-execution decision of the offense. The moral element is first; then we discuss the act. Then the act is in question. Yes, that is correct. At the stage of the act, if necessary, the legislator has, under certain conditions, permitted the joint perpetrator to be punished even in cases where he does not directly participate in the act; otherwise we speak of instigation. You are directing, because under order and command, or after the completion of the offense, we look at your act. Are you an aider? Are you harboring a criminal? Are you collecting evidence afterward? That is a separate definition. A separate one. But in joint perpetration there must first be a meeting of minds in the decision, to be established by the applier. The minds were united in the decision. For example, one person takes a gun with him and forms an intent to kill Ahmet. He will convert this into general intent. He calls Mehmet and says, “Come with me.” Say Mehmet also calls Hasan. They are three. Say the person to be killed is sitting inside a cafeteria. Say it is a public place and inside this cafeteria there are other people, other citizens sitting. Truly, two persons enter, one stays outside. At the door let him perform the function we call look-out. The principal material perpetrator will fire with the gun; let the person who enters with him have no gun but a knife, and let him turn that knife towards the other persons sitting and prevent them from getting involved in the act that is about to take place, from stopping it or from attacking the perpetrator. Let the act be completed in this way; let the perpetrator achieve his purpose, let the victim be killed, let the persons be captured. Yes, here we speak of joint perpetration.
The Inadequacy of the Joint-Perpetration Claim in the Concrete Event
Yes, dominion has been established over the act. In our current practice, at the end of such a judicial chain, the conviction decision to be given locally will be upheld. Now, is your determination in the concrete event, esteemed prosecution, a determination of this kind? Are we speaking of such a determination? Let us make it more concrete. How, by what methods, and in what manner did Enes, Nevzat, Salim, and Yüksel take the decision to kill Narin as you have determined? You determined this decision, you showed it with evidence. Then, in your indictment, and later in your opinion, they began the act within the execution of this decision. There may also be a division of labor within that act. It may be like the example I just gave. One of the perpetrators may wait outside the venue, but the legal applier will assign him a role too. He will say: “Perhaps the victim could have fled; by holding that door, by standing at a point from which the victim could also see you, you destroyed the victim’s hope of escaping. You too established dominion over the act.” That is correct. Did you aim at this in the concrete event, is your determination of this kind? Because when we read the indictment and the opinion many times, we cannot see such a determination. Indeed, there is not even a clearly visible scenario; this is also very distressing, because an adjudication of an intentional-killing act is now taking place. A scenario is required. A scenario is required. There will be a scenario, and the subjects will take their seats one by one in that scenario during the adjudication, so that the 100% certain result — the one no one can contest — emerges. There is no determination of the moral element, no effort to discuss how the act took place; there is no concept — possible perpetrator — not in the statute, possible perpetrator does not exist, possible intent exists. But there is not even a narrative that, by accepting the possible perpetrators as perpetrators in advance, openly shows at every stage, including appellate stages, how they established dominion over the act — which of them by what act established that initially-determined dominion over the act. This is what I meant, esteemed Presiding Judge. I meant this; otherwise I had no intention, no aim of prolonging the adjudication. An early end would also be to my benefit; I would go home earlier, I would be less tired. Because we are doing a very extraordinary trial.
The Abnormality of the Adjudication Process and the Request for Acquittal
Very precious but very extraordinary, truly very extraordinary. Let it at least be worth it; let the result we reach be worth it. Otherwise, my request for a reenactment site inspection had a reason. Esteemed Presiding Judge, when the prosecution does not put forward a scenario, the defendants put forward scenarios; indeed, witnesses come and put forward scenarios. In fact, the case that should have been opened together has been severed. Those who remained in the main file, in the main investigation file — they brought the remaining subjects to this adjudication. There they give statements as witnesses, but even this is debated outside. How can you bring these people here? How can you take their statements? They already have statements within the scope of this file in the main file, and they are being tried. Some of them are in prison. What value can their witness statement have? After this stage, can this be corrected? Can it hold a stitch? Can a garment come out of it? Time will show. In our view, there is of course a way. Esteemed Presiding Judge, the three decisions of the Criminal General Assembly, in our view, told us a lot — how the institution of joint perpetration should be applied, because, starting from Article 37 and going from A to Z, it is a good postulate, a good prescription. It can be applied verbatim — it is precious. We had submitted them to your esteemed panel in writing. I will not go into them. In brief, regarding the defendant Enes, it is said that an act — constituting the offense — whose manner of occurrence cannot be understood from the indictment and the opinion, has been participated in: with what qualifications, through which offense-constituting acts, and what is the appearance of the participation? Again, since no murder can be committed without a decision being taken even for a split second, without determining how he participated in that decision, and with the method we just criticized, evaluating it as joint perpetration and demanding and opining that this evaluation be accepted by the esteemed panel on behalf of the public — we are of the view that this must be rejected. Indeed, this is actually a ground for the return of the indictment. At the first session I tried to explain this, but of course the adjudication was going to proceed; it was already apparent. We surrendered. Let it proceed, let us explain further. Now, it is a ground for acquittal. The choice is yours; at this stage, since the indictment can no longer be returned, sübut (establishment of the offense) will be discussed. We have come to sübut, because we will discuss it.
Evaluation of the DARAN-2 Camera Footage and the Errors of the UKB
The DARAN-2 camera footage, esteemed Presiding Judge — the DARAN-2 camera footage — the UKB decryption clip; of course, apart from the UKB decryption clip, ordinary citizens made incredible video commentaries and translations. These raw images somehow reached them. That means they reached the media, reached journalists. Citizens who thought they understood IT, by making frame-by-frame evaluations on social media and claiming that they had enhanced the images, expressed mostly senseless views. Sometimes they are also persuasive. “Could this be?” They claimed they saw something that truly resembled this, and they shared these images. The problem in the UKB decryption clip, in our view, is that the DARAN-2 camera’s angle — that is, the actual angle to Arif Güran’s house — was not correctly determined. When the angle is not correctly determined — the distance of the camera to the target location being very far, and also the relatively low resolution of the camera as far as we understand — the raw data obtained is relatively low-quality; as a result, while they determined the place where the moving dark shape they considered to be Narin stood as “in front of the barn,” if the footage is examined again and the angle of the DARAN-2 camera is determined and looked at from this point of view, in fact the side wall of the barn would be seen, the house could not be seen, part of the house could be seen; most importantly, the slope will no longer be visible, and it will look like the continuation of Arif’s house’s garden — because topographically the camera can no longer see that incline; it cannot perceive it. When you zoom in, it cannot perceive it; therefore our claim is: yes, that shape resembles a human movement, that is true. In our view, that shape is not Narin, and the place where that shape stood is not in front of the barn. Moreover, we think we see two more shapes. We see a shape just behind Nevzat Bahtiyar’s house. On the slope, in the middle parts, it may be Nevzat, it could also resemble a woman. Specialist expert opinion is needed. Technical expert opinion is needed. And in fact, we believe there is another shape that we assume is Narin, one we consider has come out of the path. That shape is not going upwards; it is behind Nevzat’s house and its annex — we say behind, because it can also be on the slope. It can also be in the middle of the slope. It is a matter of point of view.
Reinterpretation of the Camera Footage from the Defense’s Perspective
We consider that that one is calling to the other, because it is standing there, on top of the hill, and the shape the UKB thought to be Narin is descending, coming downwards. From the slope downwards. What does the UKB think it is? It thinks it is coming from Arif’s house’s garden towards the trees. That is not so. Point of view. It is just that simple. A perspective can affect a result as much as the place from which you look at an object, and we consider that Narin went towards the person calling from the area close to Nevzat’s house. We think so; at least we feel so. It may have happened in this way. It is possible — it seems a possible scenario. So, how will the esteemed court do this? You will not be able to do anything, because you are at the decision stage. You will render a decision. The further investigation period is over. We are now submitting our defenses against the opinion on the merits. After your decision, we will try to enhance this image with our own means. Actually, there are places from which we expect results — universities, institutions. It does not look like we will make it in time. Temporally it seems quite unlikely. There is a very short video that a citizen sent us, esteemed Presiding Judge. There is a sketch, and there is a video. With your permission let us play it on the slide. It corresponds to 1.5–3 minutes. It has voice commentary. We will mute the sound. That is his own commentary, because that is his own commentary.
Three-Dimensional Image Analysis and Interpretations of Location
He brings it to perspective. Now, esteemed Presiding Judge, when the three-dimensional image is brought into the shape the camera would see, it will be understood that what is called “the garden” is in fact the slope. The place he has marked in green is Nevzat’s house and its annex. That place is in fact a slope, not a garden. It is not in front of the barn. If you look carefully, you will see the barn from the side wall. What is thought to be a roof, that whiteness, is the side wall of the barn. After all, the front wall of the barn was narrow compared to the side. This seemed a little strange to us. When we consider the angle, it becomes reasonable. Now we understand the reason. At 15:12:38 he is calling — at his side, in the upper right corner, the one we think is Narin, the one we think is about to finish the path, is Nevzat. Do you see the perspective? The house seems as if it is further in front. That person you see in front of the barn is the one identified by the UKB. He moves up and down. There is also another person whom you think is a woman on top of Nevzat’s house. We think her face is turned towards Narin. By the way, because the camera’s quality is of low quality, there is a late capture of movements. The moment a person captured in the camera image turns, more than one person can even become visible. The image capture of this camera recording is late. You see the slope as a garden. He will come to the slope and descend downwards.
Rejection of the Existing Evidence and the Lack of a Connection with Enes Güran
Esteemed Presiding Judge, since they have been touched upon in the opinion, I will go through them very briefly. There are headings present. For example, the matter of the hair sample that is the subject of the mitochondrial DNA report. This evidence is not a piece of evidence directly concerning Enes; considering the lengths of his own hairs identified, it does not directly concern him. For this reason we will suffice with stating that it is not legally possible to establish a causal link between the act and Enes through any scenario or through any hypothetical acceptance proceeding from this piece of evidence. Listening in on the gendarmerie, causing two power lines to touch each other to cause a big fire — one of our colleagues indeed said “two very big fires.” Diyarbakır has seen very big fires, esteemed Presiding Judge. Real fires: houses were destroyed, villages were evacuated, people died, people were devastated. It is known that TEDAŞ’s maintenance and transmission lines are old, that they need updating and expansion, and that reinforcement activities are not being carried out enough in the region. Likewise, in the region, because agricultural irrigation is very intensive, being within the GAP project — let us not get the wrong idea — due to this, it is known that the existing system is insufficient and there is overloading; it is already known, even unfortunately widespread in our region, that this can reach fault levels. The nature of the fires that from time to time occur in the village has been determined by the law enforcement; they are not fires that can be called “big fires.” It is being understood — at least accepted by the prosecution — that these fires were evaluated as intended to obstruct or divert the direction of the law enforcement’s search and sweep activities, that is, as a sin against delaying or preventing the finding of Narin’s body. We do not accept this characterization either. It is not possible for us to accept the characterization. Again, under this heading there is no concrete imputation regarding Enes; indeed therefore we suffice with stating that Enes did not participate in the acts alleged here and evaluated as resulting in this way. Listening in on the gendarmerie and the slipper matter have been much discussed. There is no causal link between that matter and Enes; there is no imputation of the esteemed prosecution in this direction. As for connecting Enes directly — if indirect perpetration is going to be used, “indirect perpetrator” means you are an indirect perpetrator. That is, in fact X organized this; you also participated in X’s organized act. In this direction we will not even consider it. There is no such imputation, because we also do not accept the manner in which the prosecution has defined the slipper incident. In the meantime we reject that too. In our view, sociological identification would be very important in such a case. That is, if we think that the family of a missing person are people like us, and that their reflexes to a joyous or painful event would be like ours, we are very likely to be mistaken. They may display different behaviors, they may have different cultural elements; indeed even two people do not resemble each other. Communities do not at all resemble each other; their cultural differences are sharper. If only they had been evaluated within their own narrow culture. In this case, finding that slipper and thinking it could be Narin’s…
The Biased Course of the Investigation and the Concealment of Mobile Base Stations
Yes, esteemed Presiding Judge, that this investigation has entirely turned into a prejudice — very quickly turned into a prejudice — and then when the subsequent work, the written records, the contents of the interview records, the way the view reflected in the summary was conveyed to the public, and again the reflexes the judiciary showed at the investigation phase, are evaluated as a whole, it is seen that an ordinary criminal-justice process is not in operation. This also affects the hour-by-hour examination, as evidence, of the materials placed before us. Indeed, the esteemed panel also determined: on August 21, 2024, data was submitted to the effect that, in addition to the telephone call at 15:08, there was also a WhatsApp call. This data was used in cross-examination. Later it was understood that this was a misunderstanding — but of course, had this not been understood, it would perhaps have affected the decision as an expert opinion. We face such a sensitive matter, one that must be sifted and refined to reach a conclusion. In this framework, let me give a small example of these base-station studies, esteemed Presiding Judge. The expert claims that, because the location — specifically the part where Arif’s house is — in this Tavşantepe region is high, he received signals from 22 base stations. He also states that this would yield a much higher-quality data flow. The party counsels too defended this. A very strange adjudication. On our side, other defendant counsels are also behaving like the prosecution. We get the impression that only our client is a defendant — that is, those with the surname Güran are defendants — and all the others are speaking on behalf of the public, on behalf of everyone. This is first and foremost contrary to material truth. There are other defendants as well. Within the scope of this file, only members of the Güran family are not being tried. When, during search and sweep activities, it was realized — determined — that communication was problematic at many points in this Tavşantepe village, in order to eliminate this difficulty, mobile base stations were brought here and stationed in different points. One of these mobile stations was in the field behind Arif’s house. It is stationed just behind a field, a garden. Indeed, that area is also one of the regions where there were difficulties in data traffic. The expert should have mentioned the mobile base stations.
The Partiality of the Expert Report and the Protection of Nevzat Bahtiyar
He should have mentioned them, because in the first-period work on August 29 and 30, those mobile base stations are still active, functioning. The body has not been found; above all, the communication needs of people working with great effort at search and sweep activities in the field, including AFAD, continue. Call traffic must continue healthily. In our research we saw that the work was carried out while the stations were established, and that even this was not written, that it was made invisible, was disregarded. This is a bad two-facedness, a malicious two-facedness. Because in order to appear “good,” he writes that he had the other officers above Arif’s house — at the top of the hill where Arif’s house is — turn off their mobile phones so as to avoid signal confusion. The same expert, that is, sensitive enough to have 4–5 mobile phones turned off, so respectful of human rights and the human future; but a whole mobile station, as if it did not exist — that is, if we did not know, they would pass this off to us as if there were no mobile station. This is malice. This report is a propagation of that. Indeed the cause of this report — the cause of its creation — is prejudice. A prejudice’s — note that I do not say “scenario”; a scenario is something else entirely, you explain that it is real, you present it together with evidence; indeed it may turn out to be 100% true, or some part of it may turn out to be true. That is already what a scenario is. But if you are a captive of a prejudice — if you say in advance that the victim was killed by members of the Güran family, that Nevzat Bahtiyar is a poor, pitiable man; that in respect of the allegations that Nevzat Bahtiyar’s family members and the women members of the Güran family committed the same categorical offense, even though the findings are crystal clear, you provide protection to his family members through state means; and if his family members, coming to this venue to testify as witnesses swinging their arms and laughing under their mustaches at the parties, act with the psychology of “you cannot do anything to me anyway; I will come here, say what I want, decline to answer questions I do not want, and walk out this door swinging my arms and leave” — of course Nevzat Bahtiyar will be at ease and come before you with a ninth scenario. Let us then define lying. What is a lie? Language is very important. Language is quite important.
Nevzat Bahtiyar’s Contradictory Statements and His Motivations
It is both our means of communication and our means of naming objects — that is, of establishing dominion over them. In all modes of thought, great value is placed on language. Is Nevzat Bahtiyar lying? They say that because he is afraid of someone or some people, he confesses part of the truth to you, and within the unfolding process — because it is their expression I used it — they say that Nevzat Bahtiyar, in each statement, reveals the truth a little more openly and thus in fact serves adjudication, that is, he repents. They say he is a perpetrator showing effective remorse. Nevzat Bahtiyar is pushing the truth further and further away from us, piece by piece; with every attitude and every statement he pushes us a little further. I too cannot guess what his aim is; I too cannot perceive it; but it is very clear that what he narrates is not the truth. Why is a lie told in case of necessity? A lie is a defense tool. It is a method of temporarily averting, by brute force, the power of money, power, cleverness, etc., a danger directed against you and your relatives that you cannot overthrow — a danger like vis major, as defined in the law. A lie is a defense reflex; it shows vitality. A person lies because he needs to. But why would Nevzat Bahtiyar have such a need? In one of his statements he says, “I received the body at the tree area at the lower part of the village”; in another statement, although he knew Enes was sleeping inside, he says “I took it from the house”; in yet another statement, he even denied that he had taken it from the top of the barn. I was very surprised. That is, what they call the opening over the barn, the window, is actually not a window but an opening in the roof. He had stated that he dropped her from there, that he entered from what he called the door used for waste discharge below. He even said, “In order to appear humane, I put her down slowly. I had also put her down slowly, from above, slowly.” Why would he feel the need to say this? What interest can a defendant obtain from such a lie? What benefit can this have to him? If Nevzat Bahtiyar confuses minds, the benefit is great — but the benefit to himself is incredible. Money cannot buy it.
Nevzat Bahtiyar’s Possible Aim and the Mistakes of the Law Enforcement
If he confuses the minds and thus enables his statements to be seen as sufficient evidence, or at least as an important part of the evidence, for the conviction of the other defendants — members of the Güran family currently in detention — in the advanced stage he will likely either acquire the qualification of aider — I say this in the sense of his expectation — or be evaluated as a perpetrator who darkened evidence. With this aim he is confusing minds. If, as he claims, he had made contradictory statements because he was afraid of Salim, he would not have mentioned Salim in his first statement. As we are used to, he would not have stated Salim’s identity openly, but would have spoken of a person in a manner clear enough to let him state Salim later; then, in later stages, he would have said, “The person I spoke about at that time is the defendant Salim who is here.” And we would have believed him. The panel too would have said, “Yes, that could be.” No such thing. You are already saying Salim. You would not say at the outset, you would not say it in advance; you have also made great use of the law enforcement, great use. And that law enforcement — we heard of “gossip” as a thing for the first time. Can gossip be a source of information in criminal adjudication? We knew there was a source of information called intelligence work; it used to propagate into criminal trials. Intelligence information whose manner of acquisition and evaluation is not explained in the file — these exist in other trials too, but in the village and neighborhood studies, labeling rumors as “hearsay” and then saying that the female defendant had a relationship with a brother-in-law whose name could not be identified, and showing that finding as the basis for a request for the determination of communications — as an extraordinary security measure under CMK 135 — of course Nevzat Bahtiyar will hear this. Nevzat Bahtiyar did not continuously pray alongside Arif. As he himself claims, “If I had found the opportunity, I would have taken the body out of there, left it by the side of a road, and ensured it reached his family.” Here too he is appealing to emotions. There is a notion — “let him at least have a grave.” “Let him at least have a grave” is the phrase of parents who have fallen into hopelessness, the phrase of the relatives of missing persons. “Let my son, let my daughter, let my brother at least have a grave.” He is appealing to that emotion.
The Probability of Nevzat Bahtiyar Being the Perpetrator and His Family’s Attitude
That is, we have come to a stage where there is, to a great extent, a very strong probability that the perpetrator of this matter is himself. In that sense, as a conviction, he is also provoking the other defendants. He is trying to influence the esteemed court. As a defendant he has the right to lie; we have no objection to that. But his lie is not about himself. His lie is of a nature to endanger the security of others, to result in interference — legal interference — with their right to liberty. He is operating a very dangerous mechanism and is receiving support. He has legally confessed with his own mouth. He said, “After my family was safe.” It is not possible for this person’s family members not to be aware of the act this person committed. There is no way. If they are not aware, why would they feel the need to conceal his movements during the day of August 21, 2024? If Nevzat, in the stages, as he has claimed, shared his secret with no living being other than himself, why would his wife Gazal feel the need to say that he was not in the village that day? Why would his brother Mehmet feel this need? Why would his son Ferhat feel this need? So much so that these statements, taken at three in the morning on September 9, 2024 — except for Mehmet, whose was taken later — are being corrected on the next morning at 11 with an additional information-taking record template. Why? Because the night statement was taken; the narrative structure was completed. The family members must also, according to this new narrative, be re-modified. Reason requires this. Unfortunately, the law enforcement could not properly fulfill its duty on the judicial-police side; that is the result. One must not shy away from confessing this. This is not intended to insult them. They have certainly worked in good faith. Why should they have any other purpose? We cannot speak of any enmity between them and any of these defendants. We have no evidence of that either. The incident has propagated throughout society. Most likely, the actors here are also human, are parents, possess the human mind. That is how they perceived it.
The Prejudice in the Law-Enforcement Work and Sociological Labeling
After contacting the family, after contacting the family members, they felt that — as is known in doctrine, in cases of missing children, yes, the child is sought, considered missing — but immediately, just a click behind the brain, the possibility that the child has been harmed by family members is not turned away from either. This possibility is also taken into account. Probably they thought so too. The way the family members behaved when the law-enforcement personnel came into contact with them also probably seemed strange to them. That is why I mentioned sociological labeling: attention to this could lead the investigations to a healthier point. And then they worked with this aim. They looked for this, their eyes sought this. They sought the strangenesses of the family; that is why the slipper seemed strange to them. They thought: “We carried out search and sweep activities here an hour, two hours, earlier — how is it that we cannot find it and this boy went and brought it? He must have taken it away. He has another aim. These people made the child disappear.” When the muhtar walked around among them, of course we must have asked questions, esteemed Presiding Judge. All villagers ask questions, and by the way, as they ask questions they say, “They are listening to the gendarmerie.” That is, after the first notice at 20:43 on August 21, 2024, is it really thought that there was no one in Tavşantepe village who sought Narin, who wondered about her? Is there no one who loved this child? Will no one be curious about what happened to this child? Would someone who asks that be listening to the gendarmerie? What more natural than someone asking, “What did you do, commander? How are we doing?” As far as we understand, the law enforcement, anxious that family members approaching them with this intention would supply intelligence, that this information would be conveyed to the suspected perpetrators, and that the suspected perpetrator would then redirect the investigation, converted this, as it was used to, into a series of records. The General Directorate of Security would not have done this. Their work methods are different. They do not spoil the paperwork. Too much paperwork creates the danger of missing a simple truth — and has created it. At present, it has created it. We also need to discuss the binding force of these records, it seems. I listened to some of my colleagues here. I listened with sorrow. Since when does a jurist treat a record kept by a law-enforcement officer as if it contains a definitive document?
The Binding Force of Law-Enforcement Records and Allegations Regarding Phone Records
Quote-unquote, that record may contain a definitive datum; this is possible; possible — but since when is this valid for every record? If it is written, if “record” is written at the top, if a law-enforcement signature is at the bottom, can this be a perspective that is indisputable? For a jurist, can there be such a thing? If one were to act on this principle, we would have nearly 200 joint perpetrators here today. You would be trying all of them, because the view dominant in the law-enforcement records could not help but propagate into the indictment and the opinion on the merits; there, we said language is very important — almost — the meaning of “almost” is known; it does not encompass the whole, it means “almost all of the whole.” Therefore, if you mean over 50%, it is a word you can use. “Almost” — the statement that family members “almost all” deleted their phone records is not correct information. This is not correct information, esteemed Presiding Judge. If we look at it proportionally, even just for these four defendants before you, three out of four defendants are family members, one out of four is an outsider. Enes has not deleted any data from his phone; Yüksel has not deleted any data from her phone. Why does your formula not work? When we look at the broader scope of the investigation, the number is six. You will not be able to exceed six. Does the family consist of nine persons so that you can use the phrase “all of them deleted their phone data”? These are legal texts. With these texts you are requesting, on behalf of the public, that a person be sentenced to a very heavy custodial prison sentence. Then the choice of words must also be paid attention to. That is why wording is very important, esteemed Presiding Judge. Since — as dominates our defense in general — the manner of participation attributed to Enes in the imputed act has not been explained, we are expected to explain it, or the esteemed panel is expected to discover it.
The Incompetence of the UKB and the Call for a Scientific Approach
As to the presumed participation in the presumed act and in the decision to commit the offense, evidence qualified to write reasoned decisions — whose characteristics are enumerated one by one with care in the Code of Criminal Procedure, evidence free of every kind of doubt, not obtained in violation of the law, suitable to base a judgment upon, a reflection of the right to a reasoned decision — shows against our client, in this context, that the narrowed base-station study, these pieces of evidence — this is our evaluation — that at least through the supplementary report, since the esteemed court drafted the supplementary report, has been accepted as a view showing that the court takes the view here seriously. Sufficing with the content of the supplementary report, at the decision stage, in the discussions as to whether it is material evidence and whether it can be the basis of the judgment, as a supporting factor — if only — our request was this, our thought was this: there are many of our universities with qualified technical equipment and with manpower, with brainpower, on this subject. There, competent expert persons existed who could have examined this claim from the standpoint of whether it is possible or not, could have shown it to us in a way we can understand, and, if possible, could have turned its limits, its margin of deviation, the scientific criteria on which it must rest, and its field of application into a report. Indeed the law offers this possibility too: it says that if there is no expert with the qualification you are looking for on the expert list in your judicial area, you may procure this person from other area lists. If you see that you cannot find him on those lists either, then, provided that you administer an oath, you may appoint as expert the person whom you consider competent, even if outside the list; he must be a real person. You cannot bring an institution. You appoint the person as expert, you have him take the oath. He is now a public official. At that moment, is the UKB — Ulusal Kriminal Büro — an expert in this sense? Can it be accepted as an expert? This company had two opportunities. It had two opportunities, and it wasted both. On both occasions it became adverse publicity. At least we will treat it that way. This company has exceeded its purpose. It has behaved like a party. An expert must, above all, be impartial. So much so that you can even reject an expert. There is such an institution as the rejection of an expert. You can reject him. Rejection of a judge — you know, esteemed Presiding Judge, we can reject judges. We can also reject experts. That is how important an institution it is, that impartial it must be.
The Omissions of the UKB and Commentary on Enes Güran’s Wounds
This company called UKB could not find even the noteworthy data that ladies sitting at home on social media could find in the DARAN-2 camera analyses. Again, an analysis was presented. An image, a camera image, was presented to them. The voice data of what is called a “meeting” relating to the incident named “the shepherd incident” was submitted. “Make the Turkish language comprehensible, and translate the Kurdish into Turkish, remaining faithful to the original” was said. If only it had been sent to the gendarmerie. The gendarmerie organization, I swear, does a nicer tape — that is, at least you understand who is speaking with whom. “Who is it? First person, second person, third person” — it would have categorized. The UKB did not even categorize. Moreover, it put the conversations of the first person and the second person on the same line, that is, disregarded orthography. It translated Kurdish incorrectly; it fell victim to its own presumption that it was mostly translating correctly. By the way, the word “prosecutor” is not there. Esteemed prosecutor, the word “prosecutor” does not appear there. The subsequent narrative looks correct, but we could not understand from where they heard the word “prosecutor.” Therefore, esteemed Presiding Judge, we think that the said two texts and the document called the decryption clip — produced by natural persons apparently working within the institution we have mentioned, which, clearly, does not have the capacity of an expert — cannot be taken as the basis of the judgment in the reasoned-decision stage. They will mislead us, whether positively or negatively. They will lead to an erroneous judgment. They are not competent. They could not produce competent work. Esteemed Presiding Judge, let me say a few more things about Enes and then wrap up. The bite mark on Enes Güran’s arm, the bruise on his face, and the scratch-like scraping which some evaluated: “He bit with his upper teeth,” said Mr. Savaş. The most absurd evaluation in the broadcasts, by the way, unfortunately fell to the retired homicide detective. The retired homicide detective — the man who should know this work best — said, “I found it.” “The victim bit him in a moving manner, with moving teeth.” The tooth is fixed, the jawbone is fixed, it cannot move. I think he meant the movement of the jaw. He said, “This is a moving bite.” But he said the lower-tooth bite mark — the upper grasp bite mark is not there. He could only capture it from one direction.
The Origin of the Wounds and the Sociological Explanation
Now, esteemed Presiding Judge, if you do not clearly know what a wound is caused by, the Code of Criminal Procedure says something very beautiful. It is both in its wording and in its spirit. It says: the defendant’s statement, if its contrary cannot be proved, must be given credit. Indeed this is, briefly, the reason for many acquittal decisions. The defendant has explained many times how the wounds and bruises came about. If you cannot prove the contrary, you fall into the situation of Savaş Kurtbaba. Does a corn cob, a corn leaf, scratch or not? During searches, while passing through doorways, can one’s back be scratched? If one leans his back against a stone wall, can a mark form? Or are these acne marks? Can a person bite his own arm at this angle from this point? If he bites, is the mark formed of this kind? If a person bites his own arm, can his arm pull itself back and pull his face to the other side? A person can bite his arm; once a person decides, he harms himself. What is not understood here, I think, the factor excluded, was: again we come to sociological fact, again sociological fact. Yes, if you raise the dose of empathy too much, you internalize the person you are explaining. That is, you turn him into a reflection of yourself. You do not bite your own arm. During pain — that is, Enes bites; this is a fact. Does this mean that Enes killed his sister? If you attempt to frame an indictment on this basis, or try to show such results and appearances as indisputable evidence of a person killing his sister, the result, in my view, will not occur as expected, because the defendant has explained it openly — yes, as a sociological phenomenon, in our region especially in rural areas there is a thing called “self-beating” (dövünme). Self-beating — when our people experience pain, yes, they still self-beat. There are people who self-beat. They self-beat, they self-beat as you understand it. This even has a number of ceremonial expressions. For example, the woman takes off the thing she uses to cover her hair, takes off that covering, throws it on the floor. This has a meaning. There are people who beat their upper-leg areas. There are people who pound their chest. They hit their head against the walls; these elements appear in the novels of Fakir Baykurt, they appear in Orhan Kemal. This is a way particular to Anatolia of expressing pain outwardly.
The Value of the Defendant’s Statements and the Request for a Fair Trial
It comes to our mind — of course, when we identify with ourselves, when we internalize — we say, “Why would a person punch his own face and eyes? That would be very absurd. Someone must have hit him, or he struggled with the victim, and at that moment his mother tried to stop him.” The scenarios are endless. The defendant has plainly stated. He has told what happened to him. In fact, the defendant does not say, “A corn cob scratched my face.” He says, “A corn cob may have scratched my face.” Because he is recounting what he lived through — because he is recounting what he lived through, within what he lived through, he says, “Possibility A, possibility B, place C, my act D — this may have led to these outcomes.” It is also medically possible. It is also a form of behavior sociologically still in practice. Anger, sadness, grief — it is a form of outward expression; it is regional. It exists not only in our community, but in other communities with similar ways of life. However, these do not mean that a defendant is a perpetrator; they do not suffice, cannot suffice, to prove that a defendant is the perpetrator of the alleged offense. You must find material evidence. You must find clear material evidence. Since I am the counsel for the defendant Enes, I must speak only within his scope. Regarding Enes, the evidence the esteemed prosecution submitted to the esteemed court — by the way, in the Code of Criminal Procedure, as you know, the principle of ex officio investigation is implicitly absent. Implicitly absent. Ex officio investigation no longer exists. That is, it was abandoned with the old law, but in practice it still exists. Thankfully it does, otherwise we would be confined to the acts and evidence shown in the indictment; you would only have the Amerikan-like role of qualifying and determining the punishment based on what the prosecution submitted and what we submitted. You investigated ex officio; we thank you. At least within this short, relatively short time, you have gone as deep as you could; we respect your efforts and toil. Truly — but if political will, social pressure, psychological factors, pity, prejudices — the kinds of things particular to us humans, our appearances as individuals in society — influence the decision, it will be very dreadful. We are sure of the esteemed panel. Emotionlessly — emotionlessly but fairly — it will give its decision. The defendant Enes is being held in prison unjustly and in violation of the law.
The Conclusion of the Adjudication and the Request for Acquittal for Enes Güran
This truth is not changed by any piece of evidence, or any document of evidentiary appearance, you have submitted to the existing file. Our so-called state-of-the-art capabilities have been seen by the whole world. This is it — these are also our most advanced technological means. Middle Eastern-style technology. Turning back from any point of harm is a gain; wherever a mistake is admitted, the person gains. Error is peculiar to man. Supposition is a human element. We all supposed together; but the final decision will not be given by Turkish society, nor by the press, nor by the mothers and fathers waiting safely — fortunately safely — beside their children at home. It will be given by the esteemed panel. For this reason, with regard to the detained defendant, our client Enes Güran, we request acquittal for the reasons we have listed, and with the decision naturally the termination of the detention measure; if the esteemed court is of another view, if there is going to be a conviction — at least to provide the semblance of justice — that no decision be rendered in the nature of continued detention merely by reference to the enforcement regime or to the lower and upper limits of the prison sentence to be imposed, taking into account that the public, the minds and hearts of people, and the jurists who still succeed in thinking independently, who can still view an incident dispassionately, have been and will continue to be watching this case. At least our client, who could not find law or justice at the investigation stage, in the ordinary judicial remedies — we request that a balancing be made with house arrest under judicial control measures, with house arrest, if you are to render a conviction decision. With our respects.