Defense by Enes Güran’s Counsel for the Defendant
Law. Muhammed Fatih DEMİR
Opening Statement and the Ethical Situation
Narin’s elder brother, Enes. It should not be so easy to accuse a person, the elder brother of the murdered little Narin. It should not be this easy. An unjust accusation is as objectionable as an unjust judgment. But accusing is very easy. Defending is more difficult. In my view, the hardest is rendering judgment. The hardest falls upon you here, esteemed judges. Let me state this. When I first entered this file, when we assembled the Narin file both physically and digitally, we wrote the file’s name as “Narin” everywhere. We did not write “Enes Güran.” In all my files the name of my client is written, but we wrote Narin’s name. Why did we write Narin’s name? It is defense counsel work. The worst crime is defended. No one can interfere with this. We have our authority from the Constitution. Because we had a feeling of not giving a defense with willful blindness, the lawyer’s income has been discussed here. Of course we are lawyers, of course we must earn an income. Like everyone who practices a profession here; but I say it openly. I did not want to earn income from Narin’s killer; I do not need this. I also think the colleagues here do not need it. Let us clarify this first. Now, a case with historic responsibility. We are the actors in this case. It will enter into law books. In my view, world law will speak of it, perhaps it will turn into a book, perhaps into a film; this will truly happen. A precious case.
Enes’s Defense and the Principles of Adjudication
Now, since I am the counsel of the defendant Enes Güran, I will make a defense through the defendant Enes. I will already open a special section to the statements of Nevzat Bahtiyar, who is directly in contact with Narin’s body. I consider this important. The person who constantly obstructed us in our pursuit of the material truth is Nevzat Bahtiyar. They are fabricated reports, monstrous reports; therefore we will try to show, through this defense, what is right and what is wrong. Narin’s elder brother Enes — I say this to everyone in the hall here — it should not be this easy, we should not be this merciless. Shame, sin: this person received a blow on August 21, 2024 — I am talking about Enes. The indictment was drafted — the second deadly blow. Now people want to completely kill Enes with a conviction. “Let us kill Enes as well.” What we call the death penalty is not, in effect, merely tying a rope around someone’s neck. You can kill a person’s personality. You can kill a person’s dignity as a human. People are asking for the death penalty. We do not accept this death penalty. We reject this demand for the death penalty. There is no such world. I look at the posts: people are saying “The defendants should receive the heaviest sentence.” One moment — you are saying the defendants should receive the heaviest sentence, but what if one of the defendants is innocent? It is not the defendants, it is the perpetrator or perpetrators who must receive the heaviest sentence. Why do we seek justice from the judicial authorities in court? Fine, let there always be justice, but justice is possible through the information, documents and evidence in the file. It is possible through what can be seen. But what if there are things that cannot be seen? What if there are things that cannot be heard? What if there are things that cannot be felt? That is why I do not walk around without the CMK. I told you at the previous session. I do not walk around. That is why, in Article 223 of the CMK, our legislators, the representatives of the Turkish nation, the members of the Grand National Assembly of Turkey, have said: if a judge or judges cannot establish as certain that the defendant committed the act in the concrete dispute before them, they will render an acquittal. That is all. This is what is wanted. If we use the expression “In the name of the Turkish Nation” at the top of the decision, then we must comply with what the nation says. Esteemed judges, this is what is said. Why is this said? Because our legislator is making a choice. Our legislator says, “My conscience does not allow.” “I will not take the risk of punishing someone who has even the slightest possibility of innocence.” At the previous session I spoke of many principles. There is another principle: the principle of preventing the punishment of the innocent. For this, the legislator has, without dispute, placed articles in criminal procedure. They are closed to interpretation. Yesterday there was talk of a teleological interpretation of the Turkish Penal Code. Wait a moment — there is no teleological interpretation in criminal law. You cannot expand it. There is a prohibition of analogy. Fine. In procedural laws there may be interpretation, but in the Penal Code it is not possible. You must interpret Article 37 of the TCK narrowly. Everyone is afraid. “But if acquittal is given and later one of these persons is found guilty?” Do not be afraid. Do not fear — the CMK has retrial provisions as well. Its conditions are very strict. Article 314 of the CMK — its conditions are strict, but it is there. If a flawed judgment is rendered, the legislator has regulated how this flawed judgment is to be set aside. But the legislator has foreseen these conditions as very strict. Why? Because the legislator trusts its judges. The legislator says, “I can accept that my judges make mistakes up to a point.” “To such an extent that I can disregard the risk of error,” it says; but if the reasons I have laid down in the law appear, then “let us retry,” it says. Now I will level many criticisms at the prosecution and the law enforcement. I have no problem with any individuals. My colleagues mentioned this a moment ago. We think we are acting in good faith, in an effort to find Narin’s killer, but there are prejudices. “One must be without prejudice,” it says. In the ethical document I mentioned last time regarding prosecutors, it says “the prosecutor must be without prejudice.” Why does it say this? I love principles. It says — for example, there is another principle. It says, “We lawyers” — it says — “can meet clients only at their office or in the courthouse.” It seems very absurd, does it not? But hundreds of years of defense practice have shown that it is healthier for a lawyer to conduct interviews in appropriate venues. I can list a thousand examples. The principles for prosecutors exist for this purpose, and so do those for judges. All of them are products of some mistake, of some experience, and they are valuable. Let me say it once more here. I have no problem with individuals; but since those who occupy these positions are human and may err, I must also state these errors here. I say it once more: one of my aims is to prevent such glaring errors from being made in the next case of a murdered little girl. You are the state. Could such a thing happen? You cannot find the lifeless body of a little girl in an area of one and a half kilometers; “This one said that, that one said this, this was said there, this happened here, they misdirected us.” You shall not trust. Look, as a lawyer I never trust my clients. My professional experience shows me this. The experience of my profession, the defense position — the moment I trust my client, I will make a mistake. I will not trust him; I will question him. That is how I will share his statement in the courtroom or elsewhere. Therefore, we do not accept these excuses. We do not accept directing at third parties — at non-state persons — the claim that the investigation was misdirected, as set out in the indictment and in the opinion on the merits. No. Responsibility lies with the law-enforcement officers who could not eliminate the risk of misdirection from the investigation. Now, esteemed judges, you know, between sessions I have fixated on this file numbered 46201. I keep asking for it from you, constantly. I say, let it come. I went to the Public Prosecutor there and submitted a request to examine the file. It is very absurd — why would a lawyer submit a file-examination request for a file with a confidentiality order? I asked, and I wrote on it: “This is my annotation.” I wanted to note it, because it is a blatant legal error. Just at the previous session our esteemed prosecutor, in file 46201, formulated a definition of offense. Offenses of destroying, concealing, altering evidence of a crime, or harboring a criminal — is it necessary to read the CMK now? In such an accusation, in such an imputation, can the confidentiality order continue? What mind can accept this? None. Then I shall say this to you: you cannot use the data, evidence and information in a file subject to a confidentiality order here. We must be equal. All the evidence you see, I too must see. I say it at the outset. If in the reasoned decision there is anything along these lines, I say with sincere apology — “It will not happen”? Fine, then.
Criticism of the Confidentiality Order and the Concept of “the Güran Family”
In this direction, since there is a confidentiality order, since a judgment will be given, “get well soon,” so to speak, even if there is something in that file at the prosecutor’s office, we cannot use it anymore. Evidence is openly put forward and openly discussed. This is what the CMK tells us. They did not do so; the responsibility for this is now on them. They have historical responsibilities. They chose this. Fine. Now, esteemed judges, at the previous session my colleague also mentioned this. Mr. Mahir’s “Güran family” concept is an important point. Why is it an important point? In my written defense petition on the merits I spoke of enemy criminal law. It is a very risky thing. It is generally used in political cases. Why did I mention it? If you do not use the qualifications that directly denote the human person — that is, qualifications and concepts such as mother, father, elder brother — you can attack the person. There is no longer Narin’s elder brother before you. There is no longer Narin’s father, Narin’s mother, Narin’s uncle. Before you there are only members of the Güran family. “Attack! Attack freely.” You have the public opinion behind you. You have shared it with the news. You write and write. We reject this description. There is no such description. There is no such logic of attack. There are 4 defendants being tried here. The qualifications of these defendants are also evident and clear. It is unacceptable for the prosecution to use expressions such as “the Güran family” or “family members” in the indictment and in the opinion on the merits to support statements that we would describe as darkening the evidence. One reason why this is unacceptable is that this is only an allegation, because the judgment will not be built on it. The judgment will be built on whether or not these 4 people are the perpetrators of the murder. That is all. Therefore the long statements set out there are unfounded for this reason. It is not possible to agree with them. Esteemed judges, may I, with your permission, do a flash… I cannot see.
The Insult Allegation and the Principle of Equality of Arms
If arms are to be equal, then I too will show this statement. What jurist would say this expression is not an insult? Let me read the expression aloud for a moment. No, let me explain this way — those who need to see it already see. Very briefly — a user, referring to Arif Güran, writes “everyone in this village is a potential perpetrator, including this scoundrel.” I said this from memory; I hope I have not erred. Let me give the investigation number: 2024/56920. I have infinite respect for every prosecutor’s and judge’s decision, but since he is using 46201, let me mention this to you. Here our Public Prosecutor uses standard boilerplate, copy-paste. With regard to all our insult complaints he said: “No specific attribution has been made. I am deciding not to prosecute.” Are these people not people? Is Arif Güran not a human being? Is Arif Güran not a citizen? Is Arif Güran not a member of society? Why can Arif Güran not enjoy the status of victim provided to him by the Penal Code? I showed this insult to show the attitude here, the approach here. No — if there is still anyone who says this is not an insult, that there is no specific attribution, we can debate until morning.
Presentation of Evidence and the Concept of “Political Killing”
Again, esteemed judges, our Code of Criminal Procedure foresees rules for the citation and presentation of evidence in their original form. That is, if a testimonial evidence is submitted by the investigative authority in the form of a record, this testimonial evidence must be presented by being made to speak in the courtroom in its present state, in its original. Here, in the gendarmerie records, a ton of testimonial evidence has been reduced to records. These persons have not been heard here. I do not know in what frame of mind they were written. I did not question it. Therefore, these adverse records of the gendarmerie — and there is not one record in favor — I do not understand: do these people have no single favorable matter? Is there not one piece of evidence in their favor? Also, esteemed judges, there is a concept in the past of our geography. While discussing another matter with Av. Mahir, this case came to my mind as well. It says: “political killing,” that is, if the state’s supreme interests require it, you may politically kill a person. For example, the Sultan may kill his brother in the cradle — it is a political killing, it is deemed legitimate and moral. We, the citizens of the Republic of Turkey — our Republic rejects this. Political killing is forbidden. It is a very great offense. Therefore, I also mentioned this as a defense in relation to certain opposing views expressed in this file to the effect that the supreme interests of the state lie in punishing these persons. I do not think your panel will give credit to these, but I still wanted to note it. The legislator truly did not take the risk of punishing an innocent person; besides this, there is also a much-loved judge of mine, Sami Selçuk, “Error in Legal Diagnosis.” A book. There, on what a judge should pay attention to while applying the rule of law — I apologize greatly, it is not my place, but since I consider it important, I want to explain.
The Duties of the Judge and the Conviction of Innocence
He says — Professor Sami, I know he also served as the head of the Court of Cassation. And he was a Court of Cassation prosecutor of every kind at the same time. He speaks of written law. For example, a law may not correspond to the judge’s conception of law. We may not like Article 223/2 of the CMK, but the judge must apply it. A judge, as a jurist, as a citizen, can of course take up written law — i.e., positive law — from the standpoint of what the law ought to be, by doing a scientific study, and criticize it. He must criticize it too. It is an ordinary duty he must perform toward law and toward society. Because, like every jurist, a judge does not adjudicate 24 hours a day; he is an individual responsible to himself and to everyone. For this reason he is also a producer of thought — a mujtahid; a leader and guide of society — a murshid; and also a warrior of law — a mujahid. The natural consequence of this is: fulfilling the duty of such criticism is neither heroism nor courage — one cannot avoid performing this duty. Let this be a matter of heroism, of courage; but while adjudicating, one cannot criticize written law — say a statute — as good or bad in a judicial decision. One cannot avoid applying it either, because adjudication is carried out according to the laws in force, to apply the laws in force. Not to apply the law as it ought to be. What does Socrates say? It is not to grant justice, but to give each his due; to decide not according to one’s own desire but in accordance with the laws. Montaigne again says: the laws are respected and obeyed because they are laws, not because they are right. Why did I mention these? Article 223/2 of the CMK is also a law. In respect of this file, the aim expected of adjudication in the form of establishing or not establishing the offense does not seem possible. That is, personally, as a jurist, I cannot somehow clarify my own conviction. My conviction about my own client is clear. I compare him to Joseph. I compare him to the Prophet Yusuf. I say to him — and I said so the last time — the power that threw him into the well is equally capable of making him the ruler of Egypt. I demand that he be calm and at ease. We will give his struggle. Whenever I see him, he comes to my mind. Now I ask you to open one more document there.
Nevzat Bahtiyar’s Contradictory and Fabricated Statements
Let me not prolong this part too much. Now, the defendant Nevzat Bahtiyar had a total of 7 statements. As of yesterday it has become 8, including the site-showing. I have separated them by topic. “Where were you that day? Why did Salim call you? — I say this from memory — How did he hand the body over to you? What did you do after you received it?” There it was actually going to be a much longer study, but time permitted only this much. Why is this important? I will convert this to PDF, God willing, and hand it over before the judgment. If there is time, you will examine it. Why did I do this? I also wrote it in my written petition. A defendant’s making contradictory statements is against him. What is the judge to do? The judge is right. The person before him lies. It is established that he is lying; why should he trust him? Therefore the matter of contradictory statements is important, but alongside contradictory statements there is another concept: fabricating a scenario. Fabricating a scenario is worse. The defendant does not only make contradictory statements; he also creates another story, tells it. Now you will see. Esteemed judges — a topical rather than page-by-page breakdown serves us better. Now we will look, we will see: Nevzat Bahtiyar is incredibly smart. Truly smart. I think he is very smart. So smart that in that minute he is asked, “Did you call Salim at all that day?” “I did not,” he says. Some time passes, “I have the phone, I now remember, I called for such-and-such reason,” he says. In the statements, likewise, these sorts of wrong questioning tactics of the law enforcement. It is not said for nothing: law enforcement should only ask a few leading questions, not add comments, not direct. Ask only what it is, how it is, that is all. Later, the prosecutors and judges will find his contradictions and bring him down — do not worry. But no, they did not do this. It becomes apparent from some of these question styles that data has been shared. He creates a scenario. I had fixated on the horn and the high beams, for example. When we first took this case I said: for example, this is a very refined detail. Providing this is not easy. The horn and the high beams. Then I looked — in the subsequent process it came home. This is also very refined. Such rapid changes are very interesting. My conscience does not accept it. I cannot say “Nevzat is the killer.” You will decide on that. I do not have the right to do so; but should we not say anything about this statement? This is a very problematic thing. This is not a contradiction. This is fabricating a scenario. Something I could call a contradiction: Narin’s body is in his own custody. Look, I do not say “delivered” — there can be no such determination — in his own custody. Let me put it this way: from the period after he left the village until the time he arrived at the stream bank, the statements roughly match. There are small differences. There is no difficulty there. Likewise, aside from the sweeping lie in the information-taking record, “I was in Çarıklı that day,” there are small contradictions while describing his activities up to 15:08. There is no difficulty there either, but when it comes to 15:08, Nevzat goes wild. There we see something entirely different. There is no contradiction there; there is fabrication. I still say, I do not believe anything of his. After the 15:08 phone call — yesterday I asked him: both you are drawing water from your mother’s house with a hose, a hose in one hand, going to the hose, and you say you called him for water. This is a very contradictory statement. You have water in your hand. Either you are reaching water — why on that day? Why at that hour? We also see from his wife’s statements that he is not supposed to be in the village on that day. He is supposed to be elsewhere. On that day she says “he went to Çarıklı and came back.” The content of water at that hour — I do not know — if the reason for his call was that, it does not sound sincere to me. “I called for water.” Why are you calling about water? May I ask you — there should be a slide titled “Mosque–Nevzat–Path–Hill.” There is a PDF. Now, esteemed — esteemed judges — it would be good to turn off the lights now. Those on my right will also see.
Nevzat Bahtiyar’s Proximity to the Crime Scene and Inconsistencies in His Statements
Now yesterday I asked Mr. Nevzat. I said: “You were pulling the hose from your mother’s; how were you turning the water on?” I really asked him a question whose answer I did not know. Usually I know the answers to my questions. I asked, and he gave me such an answer that I could say “that is exactly it.” He told me, “From the courtyard of my mother’s house,” an expression something like this, “I draw the water.” Now, at 15:08 you spoke with Salim; after that you went to water the eggplants. On that day, at that hour, you are watering eggplants. That is also interesting. Fine, let me believe you here. Here let me say “he may be telling the truth” and take it into account. You are already 52 years old, and I say that you are an intelligent man. Look what trouble your statements get you into. If what I have said is not true, at 15:08 you left the house — where did you go, where did you come from? Esteemed colleagues, look — let me gesture toward the hall. This is his house. When you leave in front of the house, you come here. At his mother’s house, we are talking about after 15:08. The mosque is here. When he comes out, the probability that he sees Narin is very high. She is visible from over here. Let us go and do a site inspection. Let us not make it visible; let us also look at it on Google. Visible. Here the water — in his own words, I am saying — when he goes to his mother’s house and turns the water tap on, here he sees Narin, comes back, and says he was carrying out watering on this side, right? Look again: Narin will come out from here, going up the hill. Again, there is virtually no possibility that in that time slot, in those minutes, he would not see her while she is on her way up. I am talking about the location. This region is very precious, very important. A moment ago we tried to show it in the video. The place we call “axis shift,” what we call “angle shift,” is actually here. Now, between the minute Narin is coming from the mosque and the minute she turns toward her home, Nevzat Bahtiyar is — by his own statements, and this never wavers — hanging about here. He says, “I did not see Narin.” I do not, cannot believe this. You saw Narin. That is, the incident happened here. They say, is this an interesting coincidence? On one side the incident is taking place, on the other Nevzat is hanging about here. This is a very strange thing. This is a very strange coincidence. I say this to you: in those minutes, in those minutes in which Narin is walking, the person closest to Narin is Nevzat Bahtiyar.
Nevzat’s Motivation and the Vehicle Matter
The evidence in this file says this clearly. The one closest to her. These are his own statements. The other unwavering objective data in the file reveal this; therefore it is natural, normal for us to form a negative conviction about him. At yesterday’s hearing he tried to pull this together a bit, but at the previous session he sank himself. He said a sentence. He said: “Actually I was going to take the body from there.” He said: “I was going to take it elsewhere.” “Then I was going to leave it, etc.” — I do not remember exactly; I did not read it — you will look; I do not want to mislead. You are not the principal perpetrator of the murder, nor the direct perpetrator, nor a joint perpetrator, and yet you are going to change the place where you put the body. Why do you want to change it? What is your motivation? No one has found it here, no one has seen it — what is the source of this energy to change? “So the family sees, so they find Narin’s body.” I do not believe you. Why should I believe you? Until the gendarmerie came to your door you did not say a word. Until the gendarmerie came to your door you did nothing. “I was thinking.” No. I do not accept such a thought. Your statement does not match the data in the file. Therefore, on that point, this car matter has a low probability of being the motive for a murder — truly low — but while it is not a motive for the murder, it can change his approach toward Narin. It can change it like this: you go and sell a man a car for 64,000 TL. I asked him the price; he knew it correctly. He did not forget. He cannot forget. The money is a thousand lira, two thousand lira. The man who says he has no money reported 60,000 TL of income. A plasterer’s daily wages are 2,000 lira, 3,000 lira. That is not little. He himself declared so. He is obligated to give correct answers to identity-related questions. A car at 64,000 TL; this car — Arif, as a sort of broker — by brokering here, sells it to someone else. From this deal he also makes 2,000 TL profit. It was before COVID. Money was a little more valuable. Today it is probably around 10,000 TL. He is giving the car cheaply. Something like 74,000 TL on an installment plan. Alright — taken in advance, he is giving it for good money. He is doing a friendly turn; he is selling it cheaply to him. Why? Again we are going to use another piece of legal information. Excuse me — yes, defective goods are always cheap.
Nevzat’s Suspicious Actions and the Possibility of a Judicial Error
Once it is understood that the goods are defective, the buyer always asks for a reduction in the price for the defect, but the reduction is made on the stated price. Here, in fact, Bahtiyar, knowing the car was defective, made the reduction in advance and gave it away cheaply. He truly gives it cheaply. Later, a bill is presented to him: 80,000 TL. If it were me, I would get angry. I would be furious. You give the car cheaply, and then they come and want money from you. They ask for 50,000 TL. As far as I know, he gave 40,000 TL. If it were me, I would hold a grudge. “If only he had come to me; I would have helped him with his case.” I would have helped. He did not ask, he did not — because, since they live in the same village, the treatment given to him here — in my view, this is my opinion, there is no evidence reflected in the file — he held a grudge against Arif. When we look at the HTS traffic, there is no frequent communication with Arif. One of the reasons, again — I am not saying this to belittle — in a village, small sins are in fact very great sins. Small mistakes are greatly magnified. Therefore, “We were on good terms over there, etc.” — if he had truly accepted, no table would have been set, no meeting held. It means he did not accept; that is why for Mr. Nevzat a table was set. He shows a will not to accept. He can say “I am not giving that money,” but for some reason when it comes to taking a body, he immediately says yes. That is, “I will not pay 50,000 TL,” but when it comes to Narin’s body he takes delivery without asking anything, without thinking, in a matter of minutes and delivers it, as he says, in a matter of minutes. Absurd. Interesting. A very large fabrication. He cannot explain what he did for 30 minutes at the stream bank. The acts he describes — by his own statement, in the form of placing her at the stream bank — could take place in less than 30 minutes. Let it be 3 minutes, 5 minutes, 10 minutes. What did he do there? That will remain dark, dark. No one sees, no camera sees. Until he tells us, no one will know. What did he do for 30 minutes? If only he had done nothing, we would know. He would tell us; I would not have this statement about him. But he is a 52-year-old intelligent man. He did not say it then. I will say it now too. A judicial error is truly an important thing. A judicial error is always possible. Wherever there are people, it is possible. Wherever there are judges, error is possible — that is already why there are legal remedies.
The Causes of Judicial Error and the Complexity of the Case
That is why there is a retrial. I saw a scientific article saying, “What are the processes that lead a fact to judicial error?” There are many things — you also see them in cases. First, the mistaken identifications of eyewitnesses; mistakes and errors made in the police investigation. What leads us to error? Mistakes and errors made at the prosecutor’s office, mistakes made by forensic medicine, false confessions, fabricated and unreliable evidence presented by persons with prior convictions, inadequate legal aid. There are many similar things in this file. There are many things that can lead us, that can incline us to error. There are other things in this file that can give rise to the risk of judicial error. It is written here: media, and especially social-media trial, influencing the courtroom. That is why I said at the first session “I trust you; I know you will not be influenced” but I still made a request. For that reason I requested that press and broadcast outlets not be watched. Again, another one of the causes that leads to judicial error: mistakes and errors made at the investigation stage. Failure of the investigation and the real culprit remaining hidden; again, faulty, wrong call of evidence. For example, the narrowed base-station. The nature of difficult cases. In parentheses: absence of evidence, inadequacy of resources, and the non-cooperation of victim-witnesses. This murder must have a very simple reason. It is not I who say this — it is the FBI agents. I sat and read their articles too. The more simple a murder, the harder it is to get out of the matter, they say. The fewer the perpetrators and witnesses of a murder, they say, the harder it is to get out of the matter. They do not say this: “Who is the real culprit?” That is very easy to say. Could such a thing be? Does it conform to reason and logic? With all due respect, it does not wash. When there is so much armed gendarmerie across from you, it does not wash. Excuse me — the gendarmerie already knew this, and so they roughed them up quite a bit. Despite that, nothing came out. This is something we need to think about. Could they not be talking because they really do not know? Why does this occur to no one?
Preventing Judicial Error and Criticism of the Expert Reports
Therefore, esteemed judges, there are many reasons that can lead us to judicial error, but we must not allow this risk of judicial error, the turning of this case into a judicial error, to occur. We have instruments in hand. There is CMK 223/2, there is the principle that the defendant benefits from doubt. If only for Enes a judgment based on not being established that the defendant committed the offense had come, but it does not seem possible, because the data and statements in the file are in such confusion, so distorted, that in the coming stage my wish, my desire, is — a jurist’s desire is — I will not make a defense in that direction. What will happen? Look — now, because the investigative authority did not do its job well, what will happen? This person will, by the time he dies, tomorrow or the day after grow up, have a family, have children, mingle among people. Until he dies he will be someone who received an acquittal due to doubt, right? True. There is also a right to be cleared arising from the acquittal decision, but he will also not be able to say “the culprit is definitely this person; therefore I was acquitted.” Now, regarding the narrowed base-station study, my esteemed colleagues have made considerable explanations. Here is what I explain. Those who drafted this report are not experts. At least they are not experts for prosecution purposes. I already mentioned at the previous session that at the investigation stage none of the rules regarding the appointment of an expert were followed. Somehow this report got into the file. Esteemed judges, when an indictment is drafted, there can be everything in the annex of the indictment. Everything can be there. Is it possible for us to accept the qualification of everything there? If the adjudicating authority accepts that, saying “everything is true, real,” then the defense must also be mentioned in the heading over all the reports, all the expert opinions. The principle of equality of arms tells me this. The prosecution, by using public power, is more powerful. That is at the investigation stage; but once we pass to the prosecution phase, I consider the evidence to be equivalent. Therefore the prosecution may consider this an expert report, but on our side I argue that it will not be expert evidence. Because under the CMK you have not made any order of appointment. You requested a supplementary report, but you did not request the supplementary report directly from those persons. You requested it through the prosecutor’s office as an intermediary.
The Erroneous Reports and the Discussion of Expertise
In effect, the datum that this document was again a document of the prosecutor’s office was preserved. Why are these not experts? They are not registered in the expert list. Yes, an appointment can be made from those not registered in the list. Yes, I accept that, but how should it be done? He says, look at the expert list, look at Van, look at Ankara, I do not know. There are also a ton in Istanbul. I spoke with several people doing expert work on the subject; they all say this report is rubbish. I wanted an expert opinion: “Please prepare one” — I even take fee offers — the figures are out of this world, but nonetheless most of them say “we are not preparing.” How are we to prepare a report in this file? “Oh, who takes it upon himself to prepare a report in this file?” They would be finished. We as defense counsel took this risk. Therefore, the main reason we could not make effective work on the narrowed base-station study is this. But even without doing so, we have seen that the narrowed base-station study has been refuted many times, refuted by my colleagues. It is being refuted, being refuted without stop. I will not repeat the statement from the previous session. I explained the elements regarding how a new method can be used in a trial. I also submitted a translation. That translation — yes, on the last page of my defense petition I wrote something titled “Note on the Translation.” Why did I write this? I said: there may be a ton of errors in this translation. I made this translation with this program. I do not claim 100% accuracy. I am not an expert. That is, I did everything I could so as not to mislead you. If only those who prepared this report had done so too, but they did not. I do not want to go into why they did not. If we went into it, we could not get out. But I am sure of this: deliberately drafting a report contrary to the truth is an offense. We will wage this struggle. We will do everything we can so that they are tried for this offense, so that in another trial an innocent person is not subjected to such things.
The Role of the Diyarbakır Bar Association and the Status of Complainant
Now again, esteemed judges, let me come to the Diyarbakır Bar Association. The complainant party is not here now. Their representatives are not here. There were many colleagues of the Diyarbakır Bar. I am sure it is a valuable bar that has done valuable work in the hall, but in this file it positioned itself very wrongly. Very wrongly! Esteemed panel. Your panel rendered a decision not previously seen: as follows — in social events, in cases that have become public, bar associations and the union of bars used to come and request standing as complainant. Because they are not directly harmed by the offense, they would receive a decision of rejection and leave. As a lawyer I have always been saddened about this, inwardly: “I wish our bar were here; I wish they too were struggling.” Now in this case I understood that this is actually a correct rule. There is nothing absurd in narrowly interpreting the concept of “directly harmed,” because it does not work. When a bar takes the position of complainant, it becomes a party, and becoming a party is now dangerous. We think that disclosing one’s opinion beforehand (ihsas-ı rey) applies only to judges. No — disclosure of opinion applies to everyone. If a word comes out of your mouth, that word binds you. At the beginning of the investigation, the then-administrators of the Diyarbakır Bar expressed an opinion about this file in some fashion. The indictment had not yet been drafted. They are now bound by that opinion. Yes, accepting that one has erred is a virtue. I have erred much. For example, yesterday Mr. Nahit pointed out one of my errors; I thank him. In my written defense petition I had noted the “3–6 day” determination in Enes’s ATK report, and stated days in that vein, but in fact in the ATK report, the days do not match. He corrected me by one day; he is right. I did not see it. He may criticize. I will also criticize him. There was no need for so many of my colleagues to become angry or tense. “The Diyarbakır Bar is bad, the Diyarbakır Bar is very precious.” [Clarifying the contrast].
The Bar’s Requests and the Definition of Joint Perpetration
Now, for example, when we look at yesterday’s form of allegation, the Diyarbakır Bar, as the complainant, listed — listed — listed a number of contradictions of the defendants. Like the prosecution, it too could not construct a scenario, a coherent seat. In the end it said: “I request that all defendants be punished.” Yes, a person in the position of complainant may demand this. A subject in the position of complainant may demand the punishment of all defendants. It is accusatorial immunity; no problem. But if the one bearing the status is the Diyarbakır Bar, this has weight. The Diyarbakır Bar must demand this knowingly, with this weight. Later, if an erroneous request is at issue for the Diyarbakır Bar, if the punishment of an innocent person is in question, how will you go down in legal history? You have passed through it beautifully as a bar to this day. I am from the Istanbul Bar, but I have always loved you. But because of this case do you want to enter legal history as the bar that caused the punishment of an innocent person? I cannot accept this even for your sake. Teleological interpretation is not possible in the Penal Code. I want to point this out to that colleague. Also, in terms of TCK, the definitions of joint perpetrator. Now, esteemed judges, you know words are precious; we constantly say “important.” An element is one thing, a condition another, a characteristic another. Here, in the definition of joint perpetration, “joint dominion over the act through a joint decision to commit the offense” is an element. If one of the elements is missing, it is not possible to define the expression. We may discuss the absence of a condition, but this is an element. Both elements must exist. In this file — I would like it too — if both elements existed and could be proved for all defendants, but they do not. Now we look at the opinion. The expressions of the Court of Cassation on the definition of joint perpetration in intentional-killing offenses — I think the opinion is a copy-paste; my esteemed prosecutor, if she thinks I am wrong, let her correct me. Perhaps I have erred. I think it is a copy-paste. The expressions look very similar. In the Court of Cassation General Assembly decision I sent to you…
Elements of Joint Perpetration and Examples of Judicial Error
Yes, that went well. Now, a joint decision to commit the offense is what appears in the Criminal General Assembly of the Court of Cassation in joint perpetration. Now, the opinion has interpreted joint perpetration in such a way that I became very afraid. The interpretation of joint perpetration is a very, very forced interpretation. A very anxious interpretation. So to speak, anyone passing by the crime scene will become a joint perpetrator. That is why there is the concept of a joint decision to commit the offense. That is, not actively beforehand as perpetrators jointly in intention, but beforehand, at the moment of the event, it may occur — spoken, open, implicit, various ways. This decision is to be taken jointly; the decision to commit the offense is to be taken. By “the offense” we mean the murder act, the offense of intentional killing. There are tons of debates here. In the General Criminal books they refer to wounding, but the defendant dies. Here, you see, a joint decision to commit the offense is problematic for one of the defendants. How shall we interpret this? It means this is a very important concept. What does joint dominion say? The law is very clear and explicit. Article 37 of the TCK: joint dominion over the act. Not joint dominion over the place. Over the act; in our event, in our case, strangling Narin is the act. That is, it must be shown how these defendants participated in this act of strangling, how they took this joint decision to commit the offense, and how they established this dominion over the act. I think the narrative — the narrative of the opinion — is not capable of making this evaluation. Therefore these are my explanations regarding joint perpetration. Now there is constant talk of these contradictions — yes. I spoke of the importance of contradictions. I also spoke of the institution of contradiction. Again, there is another book: The Book of Judicial Errors. Again by the great master, attorney Vergès. In the late master’s book judicial errors are recounted. There are very many judicial errors. There are judges who noticed that they had given an erroneous decision and wrote petitions to their own state authorities. There are those who made errors based on intent, those who made errors based on direction — a ton of errors. In these examples of judicial errors, in one of his cases there is a character named Rida Dalosh.
The Rida Dalosh Case and the Situation of Enes
Now, there is a character here named Rida Dalosh. If I am not mistaken this was France — yes, France. Pardon — Marseille, Marseille. Now this character called Rida Dalosh — is there not the bad witness of his own case? In life there are some events not even constituting crimes, some events that do not turn into cases, in human relationships, at home with our family and our friends — sometimes we can be the bad witness of our own case. Sometimes we can express ourselves wrongly, sometimes we cannot remember things, sometimes we may be forgetting things. All of us can be the bad witness of our own case, but may God not make anyone be Enes. Enes — this witnessing cost him very dearly. So dearly that he has not yet seen his sister’s grave, and his name is one that will probably be hard to forget; he will probably have to change his name tomorrow or the day after. Now, this Rida Dalosh — it turned out that on the day of the murder he thought he was somewhere else, and this turned out to be wrong — that is, the murder was committed at place A, but Rida said “I was at place B.” Later it was understood that Rida was at place A. The judges naturally concluded that he was guilty because he lied during the investigation and prosecution. No one had the basic sense to ask the question whether Dalosh’s addiction could explain these mental blackouts. Sense is very important in this case. Why do you not give these people the right to be good? Can they not be good? There is a detail. An important detail. What does Enes say for that day? “When I went to the grocer,” he says, “I bought an energy drink for the village idiot.” Enes is a nice boy. In ordinary life you would love him very much. We are talking about a boy who pulls out his own money from his pocket to buy an energy drink for the village idiot. If you look at this child with a little common sense, you will see the good sides in him. By the way — I apologize greatly; I pause this sentence here. One video recording — it is very important. A video taken in front of the school. It shows Enes on the day of the incident. It is a very dark place. Yes, now look. Exhausted from tiredness, from sorrow — depleted, this boy falls to the ground exhausted. How many murder perpetrators like this do you know? Both committing the act of murder, participating in the murder act, and searching everywhere for his sister. Is this boy a schizophrenic? Or a very professional killer? Can one make sense of this? Look, will they call this too theater? Will they say this too is drama training? He did not know me then. I did not give him that training. Look, this much — this video, that is all. Now, therefore, the character called Dalosh had lied about where he was on the day of the murder, due to his addiction. Now, in this book it says: the judges, to excuse themselves, argued that he did not exactly tell them the date on which he was locked up. Whereas they should have investigated, he says. In the book, this possibility — the memory gaps known as blackouts in addicts and the fact that he may not know where and at what time he was — is very heavy. Because what are deemed lies were not lies in his case. There is talk of the ordinary course of life. The complainant colleagues three or four times said “the ordinary course of life.” Yes, we lawyers use the concept of the ordinary course of life a lot. We also see it in court decisions.
The Effect of Trauma and the Final Appeal to the Court
Now, esteemed judges, after August 21, 2024, particularly — Narin’s real family consists of her mother, father, and sibling. All of them are family. Family. They all love — but I say it with the definition that we understand legally: the family is the unit consisting of mother and father, and the same is true for the rest of the village. Life no longer flows normally. Even now, nothing flows normally. Therefore, we cannot apply in this case the logical sequences that can occur in ordinary life. Especially not for Enes. Is it ordinary? Enes’s searching until those hours, being exhausted and falling to the ground — is not ordinary. Therefore, the concept of the ordinary course of life cannot be interpreted that way in this case. On that day life does not flow ordinarily. Even now it does not flow, it can no longer flow. Let it not flow then. A little girl died in that village. May life not flow. Because it does not flow ordinarily, this trauma — let us ask any psychologist; he will tell us what a huge trauma this is. It is a massive trauma. After that trauma, it is not possible for that person to be normal, to speak normally, to behave normally. Therefore, my client Enes’s behavior must be evaluated in this way. Again, after that day, members of the press were in the village every day. Turkey took this case to heart, gave it value, followed it. Every day the villagers see cameras everywhere. This is also not ordinary. There are cameras, there are presenters, state officials came, deputies came. There, too, there is an extraordinariness; relative to that extraordinariness, behaviors too may not be ordinary. If you put a camera in front of me, you cannot expect me to behave normally. Therefore, I just wanted to mention, regarding Enes’s behavior, the concept of “blackout” as well. I mentioned joint perpetration; regarding place: “place” in joint perpetration is also in disarray here. What is the place? What do we understand by the place? The place where the offense is committed. The place we call “place” in legal terms — but now this village is so small, we actually saw the photograph. That is, is the place the hill? Is the place in front of the barn? Is the place the slope? Is the place the house? Is the place the path? This is not clear. When we cannot achieve this clarity, making accusations regarding joint perpetration and making definitions becomes very difficult. I am finishing, wrapping up. I have tired everyone very much. As a result — at the previous session I showed the book The Brothers Karamazov. I got a lot of flak for it, but I am glad I did. But it is a very good book. In The Brothers Karamazov, Dostoevsky — it must be around 1,200 pages. In the first 1,020 pages he creates such a killer for the reader that you say, “This is the killer.” You use your mind; everyone considers themselves intelligent. Every person is intelligent, and also worthy of it; but on the last pages of the book — surprise! The author gives a surprise. The killer turns out to be someone completely different. So, when we trust our minds, we must think a thousand times, because these are our minds — we can err, we can be misled. We may have been misdirected. We may have been exposed to manipulation. As law enforcement and the prosecutor’s office manipulated — they did, that is, they will understand this in the coming process. Now, my final words: esteemed judges, in our judicial system these laws, gains of our Republic, have set out in detail, when a fact, an event turns into a trial, how our decision-making behaviors may be, the types of judgment. My request from you is that you comply with these related articles of our laws in this sense. It is truly a great risk. It is heavy, that is. You really do not need to carry the weight of the question “What if he is innocent?” when you put your head on the pillow at night; no one can blame you for that, not a word can be said. Let them come, let them sit. If they trust themselves so much, let them come and sit, let them make the decision. It is not easy, it is difficult. The law has shown how to get out of this difficulty. As I said, again, preventing the commission of offenses by an offender, public interest, general security, general morality — these are not the aims of adjudication. Let the Ministry of Interior deal with them; it does not concern us. It is the problem of the Ministry of Interior. Therefore, in this sense, I request that you set aside those aims and construct a judgment in accordance with the law aimed at reaching the material truth. Finally, as I said, Enes received the first blow when Narin died. The second blow he received with the indictment. With my respects, I request from you: do not strike the killing blow. Thank you.