Turkey’s Constitutional Court has ruled that a former teacher’s terrorism conviction violated his right to a fair trial because lower courts relied mainly on allegations that he used ByLock, an encrypted messaging app Turkish authorities link to the faith-based Gülen movement, without explaining how that proved membership in an armed terrorist organization.
According to the Bold Medya news website, the court said the lower court did not make a concrete assessment of whether Ramazan Çakır had used the app for communication within the organization, a finding it said could have affected the outcome of his case. The ruling, dated February 24, was published Friday in Turkey’s Official Gazette, the state register where laws and court decisions are formally announced.
Çakır, a teacher in Ergani, a district in southeastern Turkey, was sentenced by a court in Diyarbakır to seven-and-a-half years in prison for membership in an armed terrorist organization. The case included allegations that he used ByLock, had an account at Bank Asya and belonged to Aktif Eğitim-Sen, a teachers union closed by the government.
Turkish President Recep Tayyip Erdoğan has targeted followers of the Gülen movement, inspired by the late Muslim cleric Fethullah Gülen, since corruption investigations in December 2013 implicated him as well as some members of his family and inner circle. He dismissed the probes as a Gülenist conspiracy and later designated the movement a terrorist organization in May 2016, intensifying a sweeping crackdown after a coup attempt in July of the same year that he accused Gülen of orchestrating. The movement denies involvement in the coup attempt or any terrorist activity.
Since the coup attempt in 2016, the Turkish government has accepted such activities as having an account at the now-shuttered Bank Asya, one of Turkey’s largest commercial banks at the time; using the ByLock messaging application, an encrypted messaging app that was available on Apple’s App Store and Google Play; and subscribing to the now-shut-down 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.
The Constitutional Court said the conviction was based mainly on the ByLock allegation, even though the lower court also referred to Çakır’s bank account, union membership and links to other institutions.
The court ruled that Çakır’s right to a reasoned decision, part of the constitutional right to a fair trial, had been violated. It said the trial court failed to provide sufficient reasoning for the conviction and that appeal courts did not remedy the deficiency.
The ruling does not bar courts from using ByLock evidence in criminal cases. It says courts must explain how alleged use of the application proves the legal elements of membership in a terrorist organization, including intent, knowing participation in the group’s hierarchy and a concrete contribution to the organization.
The Constitutional Court drew heavily on a 2023 judgment by the European Court of Human Rights in Yüksel Yalçınkaya v. Turkey. In that case the Grand Chamber of the ECtHR ruled that Turkish courts had violated Yalçınkaya’s rights under Article 7 of the European Convention on Human Rights by convicting him without individualized evidence or proof of intent.
Yalçınkaya was sentenced to more than six years in prison largely for having used ByLock, the encrypted messaging app that Turkish authorities claim was exclusively used by members of the Gülen movement.
The court said that mere use of the app, along with membership in a now-banned teachers union and an educational association, did not meet the threshold for terrorism-related charges and that Turkish courts had relied on broad, retroactive interpretations of the law.
It also found violations of Article 6, the right to a fair trial, due to the lack of transparency and procedural safeguards in handling digital evidence, and Article 11, the right to freedom of association, over the criminalization of lawful union and civil society activity.
The Turkish court cited the European court’s finding that ByLock was not an ordinary commercial messaging application and that its use could raise an initial suspicion of a connection to the Gülen movement. But it also emphasized that such a suspicion could not replace proof of the material and mental elements required for a conviction.
In Çakır’s case the Constitutional Court said the trial court did not sufficiently examine whether he joined the ByLock network on instructions or if he used it for secret communications.
The court said Çakır’s argument that he did not use ByLock for purposes related to the movement was capable of changing the outcome of the case and should have been specifically addressed.
The Constitutional Court said courts cannot move directly from alleged ByLock use to a finding of terrorist organization membership. They must assess how the evidence relates to the defendant’s intent, conduct and alleged role in the organization.
