A decision by Turkey’s Supreme Court of Appeals (Yargıtay) has revealed that the judges of one of the court’s chambers met with their counterparts at the European Court of Human Rights (ECtHR) to discuss cases involving alleged supporters of the Gülen movement, the TR724 news web site reported.
In his dissenting opinion about whether downloading the ByLock messaging application by itself would constitute evidence of membership in a terrorist organization, Judge Yusuf Hakkı Doğan mentions a meeting they had with the ECtHR about the issue.
“During a meeting that the chief justice and associate judges of our court had with the ECtHR, officials from the Council of Europe (CoE) cybercrime division searched for “ByLock download” and showed the results to all of us,” Doğan said. “[They said] ‘Look, the screen is full of ByLock download sites. You can even download it today. How can you consider this a crime?’ ”
ByLock is an encrypted messaging app used in smartphones and was available on Apple’s App Store and Google Play. Turkish authorities claim that ByLock is a communication tool exclusively used by members of the Gülen movement to ensure the privacy of their conversations. The app was permanently shut down in March 2016, before the movement was declared a terrorist organization by the Turkish government.
According to Doğan, the Turkish delegation responded by saying they didn’t consider downloading the app itself a crime and that the finding of residue of the software in a device was merely a sign that the program had been installed. “In order to tell that someone used ByLock, installation and use are necessary and, to use the app, one needs an ID and password,” they said.
After giving this account, Doğan said if the court considers downloading ByLock a crime, then they wouldn’t have any response to the criticism of various international institutions that say ByLock is a communication application and can be used by everyone.
Yet, Turkish courts have been considering downloading the app sufficient evidence to convict people of membership in a terrorist organization due to their alleged ties to the Gülen movement.
Turkish President Recep Tayyip Erdoğan has been targeting followers of the Gülen movement, a faith-based group inspired by Turkish cleric Fethullah Gülen, 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. Erdoğan intensified the crackdown on the movement following a coup attempt on July 15, 2016 that he accused Gülen of masterminding. Gülen denies involvement in the coup attempt or any terrorist activity.
As part of the massive crackdown, more than 130,000 public servants, including 4,145 judges and prosecutors, 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.
The court’s decision was first revealed by former judge Kemal Karanfil. According to the ECtHR’s own decisions, if a judge meets with a defendant or a plaintiff without the presence of the other party, that is a violation of the right to a free trial, Karanfil says. Yet in this case, it seems like ECtHR judges didn’t think it would be problematic to meet with Turkish judges who can be considered defendants when the people they convict take the rulings to the ECtHR.
Former prosecutor Dr. Hasan Dursun says it is a huge scandal for Turkish judges to try to convince the ECtHR about their decision. “If they trusted their decisions and explained why they decided in such a way in their reasoned decisions, they wouldn’t feel the need to be involved in such an effort,” Dursun says.
Dr. Dursun also predicts this case will further deteriorate the Turkish people’s trust in the ECtHR.
Following the coup attempt the Turkish government accepted such daily activities as having an account at the now-closed Bank Asya, one of Turkey’s largest commercial banks at the time, using the encrypted messaging application ByLock and subscribing to certain newspapers and magazines 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 on Arbitrary Detention (WGAD) stated that arrest and conviction based on ByLock use in Turkey violated Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights.
In an opinion WGAD noted that “no explanation has been provided [by the Turkish government] as to how the alleged use of this application … could be equated with a criminal act.”
According to a statement from Turkish Interior Minister Süleyman Soylu on November 26, a total of 292,000 people 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 25,655 people in Turkey’s prisons who were jailed due to links to the Gülen movement.