By Dr. iur. Yasir Gökce
The Turkish Government has declared the Gülen Movement a terrorist organization and blamed the Movement for orchestrating the 2016 coup attempt. To identify the members of this organization, the Government has controversially decided that any individual who downloaded and/or used the ‘ByLock’ encrypted messaging application was part of the Gülen Movement and thus can be charged with terrorism membership. Thousands of affected individuals have found the measures to be erroneous and unlawful.
On 26 September 2023, the Grand Chamber of the European Court of Human Rights (Court or ECtHR) in Yalcinkaya v Türkiye examined the human rights implications of the use of the ByLock app. In this landmark judgment, the Court found a violation of Articles 6, 7 and 11 of the Convention. Referring to thousands of applications on its docket involving similar complaints, the ECtHR stressed that the problems which had led to findings of violations were systemic in nature and called on Turkey to take general measures as appropriate to address those systemic problems.
The case was
lodged by the applicant, Mr. Yalcinkaya, who
had been
dismissed from his public service as a teacher with the state of emergency decree no 672
after the botched 2016
coup attempt and convicted of terrorism membership due to his alleged link with
the Gülen Movement, an
organization designated as terrorist by the Turkish Government. Such
link was established in Mr. Yalcinkaya’s domestic penal proceedings from his
alleged use of an electronic communication app, namely ByLock, his membership
of a lawfully established trade union (Aktif Eğitim-Sen) and an association
(Kayseri Voluntary Educators Association) and his use of a bank account.
In this contribution, I examine the analysis carried out by the European Court of Human Rights on the approach of the Turkish judiciary vis-à-vis the digital evidence under Articles 6, 7, 8, and 11 of the Convention, uncovering both what the Court well-appreciated and missed. The concluding paragraph elucidates why this judgment is of utmost importance for the human rights protection mechanism in Turkey.
The Court’s Findings under Article
7 of the Convention
Under Article 7 of the Convention, the ECtHR examines
the ‘exclusive use’ argument of the Turkish government and its practical
implications for the applicant. The government
purports that the Bylock app was
exclusively designed and used by the Gülen Movement for its secret
communication needs, despite the fact that the app had been downloaded approx.
1 million times from open sources. Such narrative of the ‘exclusive use within
a closed domain’ was dictated by the government on judicial authorities in the
form of a technical expert report produced by the Turkish intel agency.
Eventually, this narrative led the judicial authorities to summarily convict
any individuals, including the applicant, whose digital footprints had been
somehow discovered in Bylock servers, of terrorism membership, irrespective of
the content of the messages exchanged or the identity of the persons with whom
the exchanges were made (§ 258).
Against this backdrop, the Court first elucidates
that, under the Turkish law and jurisprudence around terrorism membership, the
elements of the crime are fulfilled “where the accused’s organic link with the
armed organization is established, based on the continuity, diversity, and
intensity of his or her activities, and where it is demonstrated that he or she
acted knowingly and willingly within the organization’s hierarchical structure”
(§ 184). The Court then reveals the automaticity and certainty with which the
domestic courts equate the mere download and/or use of the Bylock app with the
membership of an armed terrorist organization. In other words, an individual
who allegedly used the app has met, as the Court reveals, the continuity, diversity,
and intensity criteria, as well as the criterion of acting knowingly and
willingly, prescribed in Turkish law (§ 264). Eventually, the Court concludes
that the reliance on the mere use of the Bylock app without establishing the
presence of the constituent material and mental elements of the offense in an
individualized manner corresponds to an unforeseeable application of the law
lying outside of what the law proscribes. Therefore, it holds that Turkey has
violated the principles of legality and foreseeability as well as individual
criminal responsibility, which are enshrined in Article 7 of the Convention (§
267).
It is praiseworthy that the ECtHR examined the case
within the ambit of Article 7 and to the extent that it concerns not only the
applicant but all victims prosecuted and arrested owing to the ‘exclusive use’
narrative of the Turkish government. However, I find it unfortunate that the
Court overlooked the fact that the Turkish judiciary had applied the material
and mental elements of the offense retrospectively. In other words, at the time
of the acts attributed to the applicant, namely the Bylock usage, the Gülen
Movement was not proscribed as a terrorist organization and, on the contrary, enjoyed
a wide and respectable presence in all sectors of Turkish society. Furthermore,
it would have been, at the very least, an eye-opener for the Turkish government
if the Court had scrutinized whether this secret communication app was used
during and/or for the purpose of staging the 15 July coup attempt, which the
government alleges, has been orchestrated by the Gülen Movement and due to
which, by and large, the latter was declared as a terrorist organization. Yet
another approach of the Court, which I also find unfortunate, is that it
addressed the issue of using a secret communication app not primarily as a mere
enjoyment of the freedom of expression and right to respect for private life
but as potential conduct that might form the constituent elements of the
offense of terrorism. On the contrary, such a rights-oriented approach was the
one adopted in various Bylock-related
opinions of the United Nations Working
Group on Arbitrary Detention (UNWGAD).
The Court’s Findings under Article
6 of the Convention
The Court’s finding on the
violation of the right to fair trial pertains to the applicant’s assertions
concerning the integrity and reliability of the Bylock raw data as well as the
legality of its collection and analysis by the Turkish intel agency, a.k.a. the
MIT. As also acknowledged by the government, by the time a domestic court
issued a seize order for the Bylock servers, the MIT had long collected the
Bylock raw data and analyzed it not only for intelligence purposes but also to
initiate criminal proceedings (§ 334). It remains unknown on what legal grounds
the MIT collected the data and under compliance with which legal and digital
forensic principles it examined those data and identified the users as
potential terrorism suspects. For instance, a number of independent digital
forensic experts (here, here, and here), which were repeatedly referred
to by the applicant, uncover numerous traces of concrete manipulation of the
data collected by the MIT as well as a biased analysis methodic such as to
vindicate some pre-determined outcomes. The mere fact that the MIT has reduced the
number of people who downloaded ByLock from over 1 million to 215,000, then to
102,000, and then to 91,000 raises serious concerns regarding the accuracy and
reliability of the ByLock data.
Having been cautious in refraining from acting as an
appellate court by analyzing the admissibility of the Bylock findings, the
ECtHR scrutinizes the applicant's concerns summarized above under the
principles of equality of arms and adversarial proceedings. In this vein, the
Court examines whether the applicant was granted procedural safeguards that
would enable him to raise those concerns in the criminal proceedings (§ 316,
§317). The Court first determines whether the applicant’s concerns on the
integrity, reliability, and legality of the Bylock findings lay at the core of
the case and were essential for concluding it (§ 332, § 345). After
establishing the essentiality and vitality of those concerns, the Court examines
how the domestic courts reacted to them. The Court notes that the applicant’s
persistent requests that the Bylock raw data be made available and accessible
to him or be sent for an independent examination simply went unanswered. Nor
the aforementioned inconsistencies and irregularities raised by the applicant
were addressed by the domestic courts, as noted by the ECtHR. The Court
concludes eventually that the applicant was deprived of sufficient safeguards
to equip him with a genuine opportunity to challenge the evidence against him
and conduct his defense in an effective manner and on an equal footing with the
prosecution (§ 341). This conclusion led the Court to find the violation of the
right to a fair trial enshrined in Article 6 of the Convention.
Having observed that the individual internet traffic
information and telecommunication records (a.k.a. CGNAT and HTS data) are in
line with the data obtained by the MIT from the Bylock servers, the ECtHR
indicated that it does not have sufficient elements to impugn the integrity and
accuracy of the Bylock data (§ 323). It is unfortunate that, in this
observation, the Court overlooked numerous traces of manipulation of the Bylock
raw data documented in technical reports of independent digital forensic experts
(here, here,
and here),
which the applicant relied upon throughout this case. These reports cast
serious doubts on the integrity and accuracy of the Bylock data. Furthermore,
the Court failed to appreciate the seriousness of the fact that the individual
internet traffic information and telecommunication records had been obtained
outside the statutory time limit. After the expiration of the retention period,
those records were
kept under the custody of the
information and communication technologies authority and the MIT with no legal
basis at all, as had been the case for the initial period of the Bylock raw
data. In other words, those records are also fraught with illegality and lack
of chain of custody and highly prone to manipulation. And yet the Court
observed that the accuracy of the Bylock raw data could be substantiated with
some records whose accuracy is itself under suspicion. Last but not least, the
Court refrained from pronouncing a violation from the standpoint of the right
to privacy enshrined in Article 8 of the Convention. Although a great volume of
private communication data of the applicant was seized and processed
unlawfully, unforeseeably, and irresponsibly, the Court considered his
arguments to this effect peripheral and not having situated at the heart of his
complaints, a reasoning which seems unsatisfactory (§ 371, §372).
Conclusion
Immediately after the publication of the judgment, the
Turkish minister of justice
displayed his resentment with the finding
of violations, criticizing the Court for analyzing the evidentiary value of the
Bylock findings and thereby acting as a “court of appeal” in contrary to its
well-established precedence. This
concern was also conveyed by the government in its submission in the form of a
warning for the Court to refrain from acting “as a court of ‘fourth instance’
by questioning the conclusions reached by domestic courts or to substitute its
own views for their findings” (§ 289). In the face of this remark, the Court
adopts throughout the decision a cautious approach, whereby it keeps reminding
that it is not competent to review the weight attached to evidence or to
ascertain how digital evidence is to be collected or admitted in criminal
proceedings (e.g., §243, §255, §302, §316, §412). On the other hand, the Court also
reminds that it would remove such restrain when the domestic authorities reach
conclusions or pronounce judgments in an arbitrary or manifestly unreasonable
manner and to the extent that those conclusions and judgments infringe rights
and freedoms protected by the Convention (§ 302, §304).
Overall, this landmark judgment of the Grand Chamber
stands out, by and large, with its well-examination, meticulous scrutiny, and
spot-on conclusions, and sets a powerful precedent for pending and prospective
cases of similar nature. The judgment delivered a resounding message regarding
the protection of fundamental human rights, as it uncovered severe violations
of key provisions of the Convention. In parallel with the
finding of the UNWGAD that the
deprivation of liberty in Turkey is systematic, the Court
describes the problems that had led to
findings of violations as being systemic in nature. It takes attention to
approximately 8,500 applications on the Court’s docket involving similar
complaints under Articles 7 and/or 6 of the Convention and to tens of thousands
of potential applications to come, as hinted at by around 100,000 ByLock users
according to official figures from Turkey. Eventually, referring to Article 46
of the Convention, the Court calls on Turkey to take general measures as
appropriate to address the systemic problems that led up to the violations
stemming from the Turkish judiciary’s approach to Bylock evidence (for
a deeper analysis on how the
judgment should be adopted by the Turkish judiciary,
see here). It remains to be seen
whether Turkey will abide by the judgment, although President Erdogan's
remarks on the judgment at the opening
ceremony of the new legislative appears not reassuring. Against this backdrop,
it is up to the victims to be proactive and vigilant and have the judgment
included in their respective case dossiers or lodge applications for retrial on
the basis of severe violations found in the judgment.
