Turkey’s Constitutional Court in a ruling published June 26 denied a petition in which the applicant had claimed that using the messaging app ByLock as the sole or the decisive evidence for conviction was a violation of the right to a fair trial.
The applicant, Ferhat Kara, was sentenced to seven years, six months’ imprisonment on charges of membership in a terrorist organization. He applied to the Constitutional Court, claiming that his right to a fair trial was violated because ByLock data were illegally obtained; the said data were used by the court as the sole and decisive evidence to convict him; and the digital data were not presented in court.
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.
The government declared the movement a terrorist organization (Fethullahist Terrorist Organization, or FETÖ) back in 2016 and holds the group responsible for a July 15, 2016 coup attempt. Following the failed coup tens of thousands of people, including civil servants, police officers, soldiers, businessmen and even housewives, have either been dismissed from public service or arrested for using ByLock. Fethullah Gülen, who inspired the movement, strongly denies having any role in the abortive putsch and called for an international investigation into it.
In its decision, the Constitutional Court said the ByLock archive was retrieved as a result of intelligence operations against a terrorist organization and that “it was not illegal to share the said data with the chief public prosecutor’s office to help discover the truth in investigations and court cases.” The court also stated that by conducting the above-mentioned operation the National Intelligence Organization (MİT) did not overstep its authority or act as judicial police and that the operation was not considered an evidence search.
Based on the information found in court documents and the rulings of the Supreme Court of Appeals, MİT was able to obtain the ByLock application data and IP addresses of users by buying the app’s servers. The servers are located in Lithuania.
According to former high criminal court judge Ramazan Faruk Güzel, any evidence obtained abroad can only be valid in a court case in Turkey if it is obtained through judicial cooperation with the other country. Güzel says the issue is governed by Council of Europe conventions to which both Turkey and Lithuania are parties. But in the case of ByLock, the evidence was not brought to Turkey through a mechanism of judicial cooperation.
In its decision the Constitutional Court said even if an ordinary citizen downloaded ByLock through application stores, it would be impossible to use it without the support of an organization member, to add friends and to communicate with them. The court also stated that “considering the use of the encrypted communication network, which was only used by members of FETÖ to ensure the privacy of organizational communication, as the basis of conviction of membership in a terrorist organization cannot be considered a violation of the right to a fair trial.”
There has been speculation that MİT altered the application data and shared the data with judicial authorities. In a report on the ByLock data shared by MİT, Dutch IT firm Fox-IT claimed that there were discrepancies between the screenshots of the application and the conclusions of MİT’s ByLock report.
Convictions based on using the ByLock application were also taken to the UN Human Rights Council’s Working Group on Arbitrary Detention (UN/WGAD). UN/WGAD stated in an assessment on October 28, 2018 that detention, arrest and conviction in Turkey based on the alleged use of the ByLock messaging application was a violation of Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR).
The Working Group noted the Turkish government’s failure to show how the mere use of a regular communication application such as ByLock constituted an illegal criminal activity. UN/WGAD also pointed to the fact that the Gülen movement was not designated as a “terrorist organization” at the time the communications in the case under consideration had taken place.