European rights court poses questions to Turkish gov’t on ByLock messaging app

European Court of Human Rights

The European Court of Human Rights (ECtHR) posed a series of questions to the Turkish government about the ByLock messaging app in the case of former teacher Yüksel Yalçınkaya, who was first dismissed from his job and later arrested in 2016 over alleged links to the Gülen movement.

The ECtHR’s communication, which will be published on March 8, 2021, was shared by Yalçınkaya’s lawyer, Özcan Akıncı, on Twitter. The questions included why domestic judicial authorities concluded that ByLock was exclusively used by members of the Gülen movement; whether the evidence was obtained lawfully; the evidentiary basis of the courts finding that the applicant had used the app; and if the applicant’s right to have confidential communication with his lawyer was restricted due to emergency decree measures that required surveillance of such meetings.

The court also questioned whether the conviction for membership in a terrorist organization hinged upon the existence of a prior judicial decision declaring the Gülen movement a terrorist organization. In that regard the ECtHR asked the Turkish government to submit a copy of Turkey’s Supreme Court of Appeals’ 2008 judgement acquitting Fethullah Gülen, a US-based Muslim cleric who inspired the movement, of the charges of founding or leading a terrorist organization.

President Recep Tayyip Erdoğan has been targeting followers of the Gülen movement since the corruption investigations of December 17-25, 2013, which implicated then-Prime Minister Erdoğan, his family members and his inner circle.

Dismissing the investigations as a Gülenist coup and conspiracy against his government, Erdoğan designated the movement as a terrorist organization and began to target its members. He intensified the crackdown on the movement following a coup attempt on July 15, 2016 that he accused Gülen of masterminding. Gülen and the movement strongly deny involvement in the abortive putsch or any terrorist activity.

The court’s questions were part of their deliberations on whether Article 6 of the European Convention on Human Rights, the right to a fair trial, and Article 7, no punishment without law, were violated.

The former teacher, Yalçınkaya, was convicted of membership in a terrorist organization and sentenced to six years, three months’ imprisonment in 2017 by the Kayseri 2nd High Criminal Court. The court based its ruling on his alleged use of the ByLock app, membership in a trade union and an association affiliated with the Gülen movement and having an account at Bank Asya.

Following the coup attempt the Turkish government accepted such activities as having an account at now-closed Bank Asya, one of Turkey’s largest commercial banks at the time, and using the encrypted messaging application ByLock, which was available on Apple’s App Store and Google Play, subscribing to the Zaman daily or other publications affiliated with members of the movement, as benchmarks for identifying and arresting alleged followers of the Gülen movement on charges of membership in a terrorist organization.

In different opinions, the UN Human Rights Council’s Working Group of Arbitrary Detention (WGAD) said even if one’s use of ByLock app was documented, it would have been mere exercise of freedom of expression, a right protected under Article 19 of the International Covenant on Civil and Political Rights.

After the abortive putsch, the Turkish government declared a state of emergency and carried out a massive purge of state institutions under the pretext of an anti-coup fight. More than 130,000 public servants, including 4,156 judges and prosecutors, as well as 20,610 members of the armed forces were summarily removed from their jobs for alleged membership in or relationships with “terrorist organizations” by emergency decree-laws subject to neither judicial nor parliamentary scrutiny.

According to a statement from Interior Minister Süleyman Soylu on February 20, a total of 622,646 people have been the subject of investigation and 301,932 have been detained, while 96,000 others have been jailed due to alleged links to the Gülen movement since the failed coup. The minister said there are currently 25,467 people in Turkey’s prisons who were jailed on alleged links to the movement.

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