Trials and the future of Turkey
Background: Sledgehammer and the trial of Mehmet Orgen
On 19 February 2011, the Istanbul Police Directorate received an email. The anonymous message read:
"I want to inform you about a person who plays a role in the Sledgehammer (Balyoz) Coup Plan but was until today not arrested. It is Hakan Buyuk, an air force intelligence colonel who is now retired."
The email explained that Buyuk had worked for military intelligence in Ankara between 1996 and 2003. It noted that he had been behind the dismissal of "large numbers of military personnel from the Armed Forces." From 2003, Hakan Buyuk served at counterintelligence (Istihbarata Karsi Koyma) in Eskisehir, about 200 kilometers south east of Istanbul and home to Turkey's First Air Force Command. The message continued:
"He researched which officers in Eskisehir were supporting a military coup and forwarded this information to his superiors. After these activities the collected information and the notes were also discussed in the Sledgehammer coup plan."
On 21 February 2011, police searched Hakan Buyuk's residence in Eskisehir. They found a memory stick in a drawer. On the memory stick police discovered digital documents allegedly linked to the Sledgehammer plan.
Hakan Buyuk was arrested on 28 April. Prosecutors charged him with hiding evidence in his house. Buyuk was later sentenced to six years in jail. He argued that the evidence had been planted in his house.
On the Eskisehir memory stick, police found five encrypted files. One of these files contained a Microsoft Word document saved under the title "transfer." It was a letter of two sentences:
The necessary inquiry was made on 17 GLOCK pistols, which were requested by commander Ali Turksen for the activities of the operational teams. An agreement has been made for the procurement of the pistols at the desired date. Following your coordination with the Air Force Command the pistols are ready to be delivered to the personnel you may appoint and they will be sent with the first courier airplane. Sincerely,
Navy Lieutenant Commander Mehmet Orgen"
Three months later, on 27 May 2011, Istanbul prosecutor, Huseyin Ayar, interrogated Mehmet Orgen. The interrogation focused on the letter discovered in Eskisehir. "Why did you provide pistols to Ali Turksen," the prosecutor asked. For whom were these Glock pistols? Why was the Navy coordinating its activities with the Air Force in this way in December 2002, when, according to police, the letter had been written?
Ali Turksen, a former member of Navy Underwater Special Forces, was known to prosecutors at the time. He was already in jail, and standing trial in two separate court cases.
In one case, Turksen was indicted for alleged activities in 2009 as part of a terror organisation. On 21 April 2009, police discovered weapons in a village near Istanbul. Turksen was charged with "possessing unlicensed weapons", "attempting to destroy parliament and the government" and "membership in a terrorist organization."
In a second case, Turksen was standing trial for his alleged role in the Sledgehammer plan in 2003. One CD found in a suitcase that was delivered to a journalist in early 2010, with information on this alleged coup plan, contained a "list of personel responsible for operational activities." This document listed 41 senior navy officials, including Ali Turksen. Prosecutors believed that this group was to carry out the Navy's contribution to the Sledgehammer coup. Ali Turksen denied any involvement in either the 2003 or the 2009 plot.
Mehmet Orgen told prosecutor Huseyin Ayar that he had never seen the letter. "I did not write this document," he explained:
"I was abroad when this document was written in 2002… For me this letter constitutes an incredible setup. This document does not prove who wrote it. I think also that there are no links to the Sledgehammer Operation Plan. I am in a phase where I could be promoted. This is a complot against me personally. I am complaining about those who prepared it."
Police argued that the letter, transfer.doc, was created on 11 December 2002, saved by someone with the username "orgen." It was last saved on 30 December 2002 by someone with the username "Cem Gurdeniz," another Navy officer (who was also later indicted). Both times it was saved on a Navy computer in Ankara.
Orgen explained that he could not have written the letter. Orgen showed the prosecutor evidence that he had been in Germany on 11 December 2002, attending a NATO Operational Planning Course in Oberammergau that lasted from 9 to 20 December, and that he had been in the US before and after this trip to Germany.
On 16 June 2011, an 82-page indictment was published, written by prosecutor Huseyin Ayar. It was the second indictment in the Sledgehammer case, charging Orgen and 27 other military officers:
"A coup called 'Sledgehammer Coup Plan' was prepared by high ranking officers, to be carried out… after the model of 12 September [the 1980 military coup]… against the AKP which had just won elections in November 2002."
The second Sledgehammer indictment addresses the charges against Orgen on four pages, adding up to no more than one page of text in total. It is all based on one piece of evidence: the digital letter found on the memory stick in Eskisehir. The indictment does not claim that Orgen had written the letter. It leaves his relationship to the actual drafting of the document unresolved.
The Sledgehammer trial started in December 2010 in Silivri prison, some 80 kilometers west of Istanbul. Silivri Prison, opened in 2008, is among Europe's largest prison complexes. It has a capacity of over 10,000 inmates. For the trial, the prison sport hall was turned into a courtroom with a capacity for 753 people including witnesses, lawyers, visitors and the press. In the middle of the hall, surrounded by a fence, was the place for defendants, surveyed by gendarmerie officers.
Three judges from the Istanbul 10th Heavy Penal Court presided over the Sledgehammer trial. They had to assess the charges against 367 suspects (only 361 actually stood trial).
The first court session Orgen attended took place on 15 August 2011. His lawyer was a classmate and former military judge. The whole trial lasted 108 sessions. The charges against Orgen were discussed only once, during the 62nd court session, on 29 November 2011.
It is worth reading the transcript of this discussion in full. At one point the chief judge, Omer Diken, turned to Orgen:
"Ok, let us try to process one more person. Yes, Mehmet Orgen; if the time fits… how long do you think your defense statement will take?" 
Orgen estimated that it might take 30 minutes. He then started his defense:
"The claims and accusations against me in the indictment are unfounded and are the product of a complot against me… Though I made a very clear statement at the prosecutor's office for the court, which decided on my arrest, I was arrested. I have to defend myself against claims based on digital documents, which are not supported by any concrete evidence."
Orgen repeated that he did not know Hakan Buyuk, in whose residence the police found the letter saved under "transfer.doc." Referring to the letter, Orgen said:
"The document contains no date, no heading, no document number… everybody could have written anything on this note… I did not know the person who requested these weapons [Ali Turksen]."
Orgen brought his passport along to show when he entered and left Turkey during this period. He brought a letter from the NATO school in Oberammergau stating that he attended the school on 11 December 2002. Orgen concluded: "taking into consideration that I was in the US and Germany during the saving of transfer.doc, it is not possible that I have any link to this document.
Then the questioning started. First Ali Turksen's defence lawyer asked Orgen about his relation to Turksen. Orgen replied:
"I had no relations to Ali Turksen. Now I know him because we are in the same place [prison]… I do not know where Ali Turksen was, what he did or which task he had in 2002, when 'transfer' was saved."
Then it was the turn of Judge Ali Efendi Peksak:
Judge: "During your service in the US you were travelling to Germany for work. While you were travelling there, were you provided with a Turkish courier plane, a NATO plane or did you use your own means of transport?"
Orgen: "I took a normal plane."
Judge: "You had a red passport. Did you have diplomatic immunity?"
Orgen: "I had no diplomatic immunity but visa facilitation to some countries."
Judge: "You said that you went abroad as a Turkish officer. You said that you were the only Muslim where you served and that your phone was listened to. Do you know or do you assume this?"
Orgen: "I assumed it. I have no document which shows that I was listened to."
Judge: "Isn't it sad, from the point of view of Turkey, that somebody with a red passport going to America to serve there is listened to for security reasons?"
Judge: "You went to the US ultimately as a representative of the Republic of Turkey."
Orgen: "I think you missed what I wanted to say. I started to serve in the US in August, just before 11 September 2001."
Orgen: "Already being a Muslim, and a Turk – the only Muslim at the headquarters – had created a certain sensitivity during this period. It created some unease. In these situations, the embassies as well as the attachés take their own measures. All those who are on similar missions abroad are open to this kind of eavesdropping."
Judge: "As a military officer, did you have any privileges compared to civilians, when entering and leaving the US? Were there any different procedures, for instance relating to body searches, when you enter or leave?"
Orgen: "No, no. On the contrary, because my name is Mehmet."
Orgen: "As my documents show Muhammed or Mehmet, I was the first to be searched. My luggage was searched, every bag was opened."
Then Judge Murat Urundu took over. Orgen was getting anxious that the evidence against him was not being discussed.
Judge: "While you were in the US, did you sometimes in the context of your official work travel with the courier planes?"
Orgen: ¨The Air Force courier plane has nothing to do with my duty."
Judge: "But you were an officer at NATO?"
Orgen: "This has nothing to do with my duty there."
Judge: "Concerning your military duty was there any..."
Orgen interrupts: "This has nothing to do with my duty."
Judge: "…was there anything you sent by the courier plane?
Judge: "So during your mission you did not send anything with a courier plane or a similar transport?"
Orgen: "I did not send anything concerning my duty with a courier plane or a similar transport. This is the answer to your question."
Judge: "Do you have the possibility to send anything which has nothing to do with your duty? Perhaps some personal things?"
Orgen: "Yes, if you have a few bags more to transport on your way to the US or while returning, it is under the control of the Embassy in Washington or the attaché of the Turkish Armed Forces. Everything is sent via the attaché. It is sent to the attaché who then sends it further. I cannot send it directly."
Judge: "Did you send any personal things from America with the courier plane?"
Orgen: "Yes, I sent personal things with the courier plane."
Judge: "In which year did you send it?"
Orgen: "I cannot remember the date, probably in 2005."
Judge: "Can you remember whether you sent anything between 2002 and 2003?"
Orgen: "Not anything personal. I cannot remember."
Judge: "I am done, Mr President." (To presiding judge.)
Orgen: "…if you want to know about arms, there cannot be any arms shipment without authorization of the Air Force Command or the General Staff."
Judge: "But would it be possible, if somebody wants to send arms with the courier service?"
Orgen: "No, No."
Judge: "Are there any records at the attaché's office of the things you have sent?"
Orgen: "Of course, not only the attaché but also US customs have records."
Mehmet Orgen tried to focus attention back on the absence of any link between him and the alleged plot against the government:
"Can we turn on the slides? Let us focus on the saving of the digital document, transfer.doc. As I made already clear in my earlier statements I was physically in the US between 2001 and 2005 while transfer.doc was created… but although, without stating it openly, the prosecutor pointed to the fact that the saving had been done inside the country, he did not ask me any question about this. Only my lawyer asked me to explain how I could have saved the document while being in the US."
"All the claims and accusations against me are unfounded and are the product of a conspiracy. I strongly condemn and reject them. I prepared my answers to these allegations because I was expecting you to question me about them. But since there was no mention of such allegations in the indictment nor anywhere during my previous questioning, I did not get into this in my main defence statement."
The judges responded with "Thank you." This was the end of Orgen's interrogation.
The whole questioning lasted less than one hour. It was the only time during a trial that lasted 21 months that Orgen's specific case and the evidence against him was discussed.
Upon request by defense lawyers, the Middle East Technical University (Orta Dogu Teknik Universitesi, ODTU) based in Ankara, issued a report on 24 March 2012 concerning the documents saved on the CDs central to the Sledgehammer accusations. The ODTU report noted:
"Unlike handwritten documents or documents bearing a material signature, it is possible to modify electronic documents easily and without leaving any trace. For this reason, the personal information contained in the time and metadata information of electronic documents is not reliable.
In the event a document is discovered in an environment that cannot be associated with a person (flash memory, CD, DVD, anonymous mail, etc.), the ownership information is totally unreliable. Just any person may have produced the document."
The mere fact that a document was saved under the username "orgen" meant nothing.
Later, on 1 May 2012, another expert report by Arsenal, an American-based computer forensicsconsulting firm, raised more doubts. Upon the request of the accused, Arsenal investigated different electronic documents used as evidence in court. It also looked at the memory stick (thumbdrive) on which the letter was saved under "transfer.doc."
The Arsenal report pointed to two image files on the memory stick. According to the police and the indictment, these were "last saved on April 2007 at 05:49:14 PM." However, Arsenal noted, "The footer of the document apparently refers to 11 February 2008. Three handwritten references in the body of the document apparently refer to 11 February." Arsenal concluded:
"…At least four files on the Eskisehir Thumb Drive [memory stick] have date and time values which do not appear to be possible based on their content. More specifically, two scanned images and two documents appear to contain references to things that did not exist at the time they were last saved. Arsenal has serious concerns about the integrity of all the files on the Eskisehir Thumb Drive due to the existence of this suspicious date and time values."
It was not only easy to manipulate electronic documents – in this case, Arsenal showed evidence suggesting that at least some of the evidence on this particular memory stick had been manipulated.
On 21 September 2012, the Istanbul 10th Heavy Penal Court announced its verdict. It found Mehmet Orgen guilty. It sentenced him to 16 years imprisonment. 
The verdict added little to what was already stated in the indictment. On one page the verdict summarized the charges:
"In the frame of the Operation plan, the document transfer.doc on the supply of arms, was opened for the defendant's signature. His name is also on the "Annex-M list of officers and non-commissioned officers on assignment abroad." Therefore it is demanded to punish him for attempting to forcefully overthrow the government." 
The document – "List of Officers and Non-commissioned Officers on Assignments Abroad" – is a simple list of 35 naval officers, including Orgen. It was found on a CD in the suitcase that started the Sledgehammer case in 2010. The fact that Orgen's name was on this list was not considered sufficient for an indictment at the time, and the list was not discussed further during the trial.
Then, on two pages (pp. 559-560), the verdict sums up Orgen's statements: first to the prosecutor in May 2011, and then in court in November 2011. On half a page (p. 1,314) the judges explain the guilty verdict as follows:
"…During the time of the crime the defendant served at the NATO headquarters.
The document transfer.doc was open for the signature of Mehmet Orgen. It was addressed to an esteemed commander and explains that 17 pistols of the brand GLOCK, which Commander Ali Turksen had requested for the activities of the operational teams, were now ready for delivery after coordination with the Air Force. According to digital analysis of the document, it was written on 11.12.2002 and last saved on 30.12.2002. The name of the author is "orgen"; the username of the person who last saved the document is "Cem Gurdeniz."
The names shown on the user path of the document are Mehmet Orgen, Feyyaz Ogutcu and Cem Gurdeniz. The name of the defendant is also listed as number 9 on the document Annex-M, "List of Officers and Non-Commissioned Officers on Assignment Abroad." Because the defendant's activities are shown to be within the Suga Operation Plan, it has been concluded that he participated in the crime." (Emphasis added.)
The court also stated, regarding personnel on duty abroad or at sea at the time of the crime:
"At the time of the crime, the technology had reached such a level that […] it was very easy fort the defendants to exchange documents. It is also clear that a defendant's name may figure on a certain meeting's minutes without that person physically being present in that meeting. The subjects discussed in there can be communicated to that person by different communication means. In a coup plan, the name of someone who is not part of the crime cannot figure on a document relating to the execution of the crime. The participation of the defendants in the crime is also supported by other evidence."
The entire verdict has less than four pages concerning Orgen's case. There is no additional evidence.
Orgen appealed the verdict. The case then moved to the 9th Criminal Chamber of the Supreme Court of Appeal (Yargitay) in Ankara. Another ten months passed. On 15 July 2013 appeal hearings began. On 12 August 2013 Orgen's lawyer started the defence. He talked for three hours in total. During this time he defended 22 accused. The presentation before the Supreme Court of Appeal concerning Mehmet Orgen's case took 15 minutes. It made no difference. On 9 October 2013 the court confirmed Orgen's sentence of 16 years imprisonment.
Then, on 18 June 2014, the Turkish Constitutional Court found that in the case of Mehmet Orgen, and hundreds of his co-defendants, the "right to a fair trial has been violated." It also ordered a retrial.
The Turkish Constitutional Court in Ankara
 Second Sledgehammer Indictment no. 2011/288, p. 36.
 Second Sledgehammer Indictment, p. 36.
 Second Sledgehammer Indictment, p. 36 and pp. 40-41.
 Istanbul 10th Heavy Penal Court, verdict p. 1,427.
 Second Sledgehammer Indictment, p. 43.
 Second Sledgehammer Indictment, p. 62.
 Transcript of Orgen's testimony.
 "Weapons Found on Educational Foundation Land," Bianet, 22 April 2009, http://bianet.org/english/english/113991-weapons-found-on-educational-foundation-land. http://www.todayszaman.com/news-199869-civilian-court-accepts-indictment-of-military-officers-despite-annulment.html.
 The Poyrazkoy Indictment was accepted by the 12th Istanbul Heavy Penal Court on 27 January 2010.
 First Sledgehammer Indictment, 2010/420, from 6 July 2010.
 The document is named 2002-2003/Dz. KK./BİLGİ NOTU/EK-Ç.doc. First Sledgehammer indictment pp.513-527. It is part of a file called "fact sheet" (bilgi notu) on CD 11, from 21 February 2003. The "fact sheet" includes several annexes. Annex B (Working Groups Task Division) lists ten working groups. The fact sheet is in Annex C (Restructuring Activities). First Sledgehammer Indictment, pp. 196-197.
 Turksen told prosecutors on 25 February 2010 that "between 2002 and 2003 he had been an Aegean Islands Project Officer at the Greece branch of the Greece-Cyprus Department at the General Staff… He was not involved in any way in the Suga Operation Plan, and he did not prepare any document within the framework of this plan." (First Sledgehammer indictment, p. 287)
 Investigation report, 27 May 2011, Investigation Number 2011/332, pp. 1-2.
 Second Sledgehammer Indictment, pp. 62, 78, 79, and 80.
 Murat Urundu, Ali Efendi Peksak and the chief judge, Omer Diken.
 Ihsan Nuri Tezel
 Transcript (durusma tutanagi) number 2010/283 of the court hearing, 29 November 2011, p. 54.
 Transcript, 29 November 2011, p. 54.
 Transcript, 29 November 2011, p. 55.
 Transcript, 29 November 2011, p. 58.
 Transcript, 29 November 2011, p. 61.
 Transcript, 29 November 2011, pp. 61-62.
 Transcript, 29 November 2011, p. 62.
 Transcripts, 29 November 2011, p. 64.
 Transcripts, 29 November 2011, p. 64.
 Expert report issued by ODTUAnkara, 24 March 2012, pp. 1-2; http://cdogangercekler.files.wordpress.com/2012/05/odtu_en.pdf
Arsenal Consulting, "Cetin Dogan, Republic of Turkey, Istanbul 10th Heavy Penal Court 2010/283, Preliminary Golcuk CD 1 and Eskisehir Thumb Drive Report," 1 May 2012.
Arsenal Consulting, "Cetin Dogan, Republic of Turkey, Istanbul 10th Heavy Penal Court 2010/283, Preliminary Golcuk CD 1 and Eskisehir Thumb Drive Report," 1 May 2012, p. 9.
According to Turkish Penal Code, articles 147 and 61; see Istanbul 10th Heavy Penal Court, verdict no. 2012/245, pp. 1425-1426.
 Istanbul 10th Heavy Penal Court, verdict, p. 204.
 Istanbul 10th Heavy Penal Court, verdict 2012/245, p. 1,314.
 Istanbul 10th Heavy Penal Court, verdict, p. 1,040.
 Supreme Court of Appeal, 9th Criminal Chamber, verdict 2013/12351, 9 October 2013.