[OPINION] Arbitrary Use of ByLock as an Instrument of False Accusation

By CAFER UMIT

As observed by all international human rights NGOs as well as EU and Venice Commission, Parliamentary Assembly (PACE), Human Rights Commissioner of the Council of Europe with deep concern, there is a shocking setback in Turkey in terms of democracy and human rights in the aftermath of 15 July 2016 failed coup attempt. Having suspended the application of all undertakings stemming from international conventions including the European Convention of Human Rights (ECHR), Turkish government has constantly been eroding the fundamental rights and freedoms in the country.

Taking the advantage of sacking more than 5000 judges/prosecutors and jailing over 3000 of them including 2 members of the Constitutional Court, approximately 200 members of high courts and 5 members of the High Council of Judges and Prosecutors (HSYK), it became much easier to slaughter the justice and the courtrooms. One cannot help thinking that it was the main reason to raid thousands of judges and prosecutors just a few hours after the failed coup attempt bypassing and breaching all national and international legislation in the first place.

Under the terrifying atmosphere created by the State of Emergency which enabled keeping all these judges and prosecutors in custody for 30 days without appearing before a judge and prohibited from seeing a lawyer within the first seven days, there have been countless violations of relevant laws and fundamental rights. The situation is not improving, but getting worse from day to day. Having kept thousands of judges amongst others for almost a year so far behind the bars without a single evidence and indictment, Turkish prosecutors lately started to write groundless indictments about their previous colleagues one after another. What can be seen in these indictments as a common point is that, the usage of an application named ByLock is the main evidence to accuse their colleagues for membership of an armed terror organisation which allegedly masterminded the July 15 failed coup attempt.

Turkish judicial and administrative authorities have been trying to establish a perception through ByLock, which is an encrypted messaging application for smart phone. Ignoring the fact that – as a legal and public application – Bylock could be downloaded via apple store and google play, using or downloading ByLock is considered an evidence of membership to an armed terror organization which was behind the failed coup. Further, since the search and seizure of the electronic devices were not made pursuant to the law (Article 134 of Code on Criminal Procedure inter alia), one cannot be sure if this application really existed in these phones or placed by the police after the seizure. Nevertheless, this is not the only question mark in this tragic process.

This article scrutinizes the nature and value of this application as an evidence in trials. Legally speaking, it is crucial how the information on possession of this application was obtained. One can see no explanation on this vitally important issue in the verdicts and indictments ‘accusing’ tens of thousands of people for being members of the so-called armed terror organisation based on nothing else than the allegation of downloading the ByLock application. Instead, the courts prefer to state that this ‘evidence’ was obtained “through special methods by the MIT (Turkish Intelligence Service)”. When it comes to the legal evaluation – even under Turkey’s current circumstances, law says that such data, technical reports or findings obtained through special intelligence methods rather than judicial means cannot be used as evidence before the courts. Furthermore, even if we imagine that all these people are ByLock users indeed, these findings can only be used to prove that MIT has illegally hacked the database of the application.

Technical Information on ByLock Program

Bylock does not exist anymore in Apple and GooglePlay stores since April 2016. Yet, according to AppAnnie and AppBrain companies that share analyses of applications and digital industries, ByLock existed in the period of;

April 2014 – September 2014 in App Store

April 11, 2014 – April 3, 2016 in GooglePlay

It is also accessible online information provided by the above-mentioned companies that ByLock was downloaded by 500 000 users from GooglePlay and 100 000 users from the App Store. Besides, as stated by the owner of the application (David Keynes) during his interview with a Turkish journalist Ismail Saymaz, and all data shared under the report by Walter McDaniel, ByLock server was removed from use before March 1, 2016. This fact can be verified by making a simple search on ByLock users’ GooglePlay store reviews, shares on internet forum pages, AppBrain and AppAnnie data, etc. Hence, it is not possible for an application that serves from a central server like ByLock to be used in the coup attempt of 15 July 2016 as the application could not be operating without a server.^[1]

Ignoring this fact as well as the publicity and wide-range of usage throughout the world, Turkish courts have been imprisoning all the Turkish citizens who downloaded this app regardless of the fact that these people are not even remotely involved in the coup attempt. The list includes journalists, members of the judiciary, academics, teachers, the police, doctors and even soccer referees. They are all accused of downloading the ByLock app, hence being members of a terrorist organization that allegedly masterminded the mid-July failed coup attempt.^[2]

At this point, it is worth noting that even if the app was used as a communication means among the so-called criminals, it does not make the app itself a tool of crime for others who have no relation with the criminals. Another aspect of this arbitrariness is explicitly exposed about the number of ByLock users. Although it is out of question that the app was used by as many as 600.000 people, the number of ByLock suspects is 150.000 according to pro-government Sabah whereas the Minister for Science and Technology says it is 215.000. So, it still remains as a question mark how the current 115.000 ByLock suspects or ‘terrorists’ were chosen.

Legal Analysis of the ‘Accusation’

The Constitutional Court had ruled (in its decision No. 2013/7800) that “digital data cannot be claimed to show the absolute reality”. From this point of view, ByLock data is not supposed to be considered as evidence of any crime as well. Notwithstanding this decision, the vice president of the Council for Judges and Prosecutors as well as the Justice Minister voiced that the existence of ByLock application in one’s phone is regarded as the strongest evidence to prove membership of the so-called armed terror organisation. Taking into account the track-record and inconsistent approach of the Constitutional Court in recent years, the above-mentioned ruling of the Court cannot of course be regarded to be the sole criterion vis a vis the explicit provisions of the relevant law. Thus, it is necessary to scrutinize the relevant legislation directly in order to provide more conclusive and comprehensive legal analysis.

1- Under Article 8 of the European Convention on Human Rights, everyone has the right to respect for his private and family life, his home and his correspondence. Accordingly, Article 22 of the Turkish Constitution guarantees the right to freedom of communication and confidentiality of communication. Everybody has the right to enjoy this freedom in whatever means of communication available including ByLock application which was public and accessible on AppStore and GooglePlay.

2- Under Article 38/6 of the Turkish Constitution, “Findings obtained through illegal methods shall not be considered evidence”. Pursuant to this provision, Article 206/2(a) of the Turkish Criminal Procedure Code (CPD) reads that “(2) The request of presentation of any evidence shall be denied …: a) if the evidence is unlawfully obtained”. Article 217/2 of the Code explicitly enhances the same principle as follows: “the charged crime may be proven by using all kinds of legally obtained evidence”.

As a natural and legal result of the afore-mentioned provisions, Article 289(i) thereof strictly prohibits basing the judgments on the evidence obtained with illegal methods by classifying such situations as “absolute violation of the law”. According to this Article, this issue shall be considered automatically by the higher courts without any possibility to legalise these findings as evidence even if it is not mentioned in the written application or declaration of appeal.

3- Based on the above-mentioned principle set forth by the Criminal Procedure Code (CPD), Articles 134 and 135 thereof regulate that only Aggravated Criminal Courts as a panel of three judges can decide through unanimous vote to intercept and wiretap communication of suspects, who are already under investigation and when there is a “strong suspicion based on tangible evidence.” Only after this relevant court decision could the communications intercepted be legally used as evidence in courts.

As foreseen under Article 134 of the CPD, the following conditions must be met to be able to use the existence of ByLock programme from a criminal procedural aspect:

■ there must be a proper investigation launched upon a suspicion of a crime,

■ there must be strong grounds of suspicion indicating that the crime has been committed,

■ there must be no other possibility to obtain evidence.

Lack of even one of these conditions make the findings explicitly illegal. Any findings gathered through bypassing this proceeding cannot be regarded as evidence before a court. Thus, basing the verdicts on these findings constitute “absolute violation of the law” in light of Article 289 of the CPD.

The words of Walter McDaniel who prepared a comprehensive report on ByLock programme explains why it is crucial to strictly follow the procedure envisaged by the law in order to consider a digital finding as a legal evidence:

“Once the government has the phones this program becomes the perfect “evidence-factory”. Skilled technical teams can do anything. They can create all the evidence they want. I know how to alter SMS data, dates, and much more. With ten phones in my possession it would be easy to put anyone into the middle of a conspiracy. The evidence gathered there is worse than useless.”

At this point, it’s worth noting that the verdict on Ergenekon case was quashed by the Court of Cassation due to absence of a minute indicating that there was no other possibility to obtain evidence.

4- Article 4/i of the Law No. 2937 (Law on National Intelligence Agency (MIT)) regulates that MIT gathers all types of data, document or information and hand them over to the relevant institutions. Article 7/1 of the Law on Tasks and Competences of the Police says the police will cooperate with other institutions. Further, the police must submit any findings (which indicates a suspicion of a crime) to the prosecutor pursuant to Article 160 of the Criminal Procedure Code. Only after then it would be possible to launch a legal criminal process pursuant to Article 134 and 135 thereof. However, in none of these prosecutions was this process followed.

When asked by the courts, police officially say that these lists are provided by MIT (National Intelligence Agency). Legally speaking, this makes the issue more problematic since Article 6 of the Law 2937 on MIT prohibits these types of findings from being used for other purposes than intelligence.^[3] For this reason, the warning formula “These findings cannot be legally used as evidence before a court since they were obtained with special methods within the framework of intelligence work” appears on many communications sent to the courts by the police. To name but a few, below are the documents with the same warning/confession:

■communication (dated 18 October 2016 with document number 46063102–11289. (63044)/1719) sent by the acting chief (Selcuk Gedik) of Anti-Terror Department of Police in Canakkale to the Chief Prosecutor of Canakkale),

■ communication (dated 21 October 2016) of Anti-Terror Department of Police in Istanbul to the Chief Prosecutor of Istanbul.

The lists are submitted to the courts by the police. On the very bottom of these lists of suspects who allegedly downloaded the ByLock application, there is always the same note by the police warning that “These findings cannot be legally used as evidence before a court”. The police report says “The data about suspect’s phone records was retrieved through the intelligence work and as part of the law No. 2559 on police duty and authority (PVSK)”, which prohibits the findings to be used as part of a judicial investigation as explained above. However, Turkish courts seem to ignore not only what Turkish laws require but also the explicit warnings of the police forces. Although the police submit the report they have been given by MIT with its warning, courts continue to arrest tens of thousands of suspects on charges of downloading and using ByLock.

In addition to the assessment from the criminal procedural aspect, it should also be noted that the allegation of being a ByLock user has no meaning in terms of criminality as well. “Nullum Crimen Nulla Poena Sine Praevia Lege”, meaning there can be no crime without being priorly defined as such by law, is among the basic principles of criminal law. This principle is one of the first things taught at law faculties. It seems that this principle has also been suspended in Turkey after declaring derogation from all international undertakings including ECHR in the post-coup era, even though Article 7 of the Convention expressly prohibits any limitation on the principle of no punishment without law even during the emergency under Article 15. Article 7 provides that “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”

It is important to underline that there is not even a single message content associated with a single suspect which shows any attachment to a terrorist organisation or involvement in any crime. When it comes to the technical aspect of the content of the messages which are supposed to be exchanged among the members of the so-called terror organisation, MIT and police reports say nothing. It would be impossible to extract any messages out of an encrypted programme after removing the server from use five months before the failed coup attempt (by February 2016) as explained under the heading ‘Technical information` above. But once the government has the phones, this program becomes the perfect “evidence-factory” thanks to skilled technical teams which can create all the evidence they want.^[4]

Indeed, MIT’s Cemalettin Celik who was recently recruited as deputy undersecretary of MIT started to provide the courts with such contents in cooperation with a team of TIB (Telecommunication Authority) officials. Despite the fact that MIT and police had expressed that they could not have these contents, there exists now a fresh attempt of evidence fabrication being reported inside the intelligence agency.^[5] At this point, it should be noted that this manoeuvre came right after two relatively-bold and controversial decisions by Appeal Courts in Antalya and Gaziantep discredited the ByLock evidence without having any contents.^[6]

One should ask how come the Turkish prosecutors accuse tens of thousands of judges, prosecutors, teachers, housewives, businessmen for being involved in a failed coup attempt. The answer lies in the technical report of Walter McDaniel quoted above. But it seems the current prosecutors and judges in today’s Turkey do not even need such fabricated evidence since claiming the existence of this application in one’s phone merely constitutes an evidence to membership of an armed terror organisation. So, people find themselves in the middle of a conspiracy theory as a coup perpetrator and a member of an armed terror organisation. This situation is exactly the same as being charged with a membership of ISIS or Al Kaida just because of downloading an application similar to WhatsApp. When you ask the court about the content of the messages you are blamed with, the court says there is no content at their hand, but it is adequate that you have this application which has been downloaded to 600.000 devices all over the world.

So, legally speaking, in order to charge someone with such an offence, there must be:

■ a message content which was obtained pursuant to the procedure set forth in the Criminal Procedure Code,

■ this message content must be adequate to prove one’s involvement in the alleged crime or terror organization beyond any doubt.

Very recently, David Kaye, the UN Special Rapporteur in his report submitted to the UN’s Human Rights Committee (6-23 June 2017) highlighted this farce as:

“Several examples were brought to the attention of the Special Rapporteur of arrests for the alleged use of an encrypted messaging app, called ByLock. The authorities have linked ByLock to the Gülen movement, claiming that it is a secret communication tool for Gulenists. The arrests take place sometimes merely on the basis of the existence of ByLock on a person’s computer, and the evidence presented is often ambiguous. Reportedly, the MIT obtained a list of global ByLock users that has been used to track and detain persons. Tens of thousands of civil servants reportedly have been dismissed or arrested for using the application” (Para. 54).^[7]

This fact has also been voiced by Prof Ersan Sen, one of the very few law professors remaining out of jail (yet) as“usage of ByLock based on an intelligence agency work cannot constitute an evidence”.^[8]

Practice versus Law in Government Driven Judiciary

Even though there was already almost no justice left after purge of 5200 judges and prosecutors (one-fourth of the country’s total) and jailing 3200 thereof for almost a year now, Turkey’s April 2017 referendum granted Erdogan more presidential powers including greater sway over the judiciary. One such change granted Erdogan more authority in appointments to the Council of Judges and Prosecutors (CJP) which is the sole authority for appointment, promotion, transfer, or dismissal of judges and prosecutors. “Getting control over this body thus means getting control over judges and public prosecutors,” the Council of Europe’s Venice Commission wrote in its report, “especially in a country where the dismissal of judges has become frequent and where transfers of judges are a common practice.”^[9]

As Emma Sinclair-Webb, Turkey director for Human Rights Watch said when commenting on the said constitutional amendment, it was obvious that, “One of the president’s priorities is to ensure greater control of the courts”, “there will be less chance than ever of courts in Turkey being able to take decisions that are independent of the executive and based on the merits of the case.”^[10] Harsh and swift examples of this envisaged destiny came soon. Second Penal Chamber of Antalya Court of Appeal ruled that Bylock cannot be deemed as evidence without the message contents and detailed technical reports required by the Criminal Procedure Code. So, the decision of the first instance court was overturned by the appeal court on merely legal basis. However, just in a few days after this decision, Mr. Senol Demir, who was the Head of Second Penal Chamber of Antalya Appeals Court has been transferred to Konya as a first-instance court judge with a demotion against his will out of usual transfer period.^[11]

Similarly, all the members of the Third Penal Chamber of Gaziantep Court of Appeal who had decided against Bylock having any evidential value have also been transferred to different cities with demotion as first-instance court judges three weeks after their ruling in compliance with the law instead of the government’s divine will (Gaziantep Court of Appeal, the Thrid Penal Chamber Decision dated 20.04.2017 and numbered E: 2017/286, K: 2017/573). The Turkish Judicial Council, without delay, appointed Zafer Yarar, the Head of the 3rd Penal Chamber and member Mustafa Tosun to Kayseri and Istanbul Anadolu courts, against their will out of the usual transfer period again. Furthermore, Mustafa Karadag, President of Syndic for Judges has also been transferred to Sanliurfa (a south-eastern Turkish city) in the same way after criticising the government-affiliated and threatening attitude of the CJP in his article called “His Majesty’s Judiciary”.^[12]

UN Judge Akay as a ByLock Criminal

Aydin Sefa Akay, a judge attached to the UN’s Mechanism for International Criminal Tribunal (MICT) and a retired ambassador, was found guilty of membership of an armed terror organisation due to his usage of the ByLock application in June 2017. Following 10 months of detention, the court sentenced Judge Akay to an imprisonment of seven years and six months and placed an international travel ban on Akay, meaning that he will not be able to travel to resume his work with the UN.^[13]

Background story of this conviction is worth noting since it sets forth the arbitrariness and level of illegalities in Turkey when it comes to ByLock. On 8 December 2016, the President of the Mechanism for International Criminal Tribunals (“MICT” and “Mechanism”), Judge Theodor Meron, had urged the release of Judge Aydin Sefa Akay from detention in Turkey. President Meron recalled that, in accordance with a longstanding and consistent practice, the MICT Statute, adopted by the Council under Chapter VII of the UN Charter, affords international Judges diplomatic immunity whilst engaged on the business of the Mechanism. As a result, Judge Akay has enjoyed diplomatic immunity since his assignment to the MICT. Nevertheless, Judge Akay remained in detention and was unable to carry out his duties as a Judge of the Mechanism. President Meron called upon the Members of the Security Council to assist in finding a resolution to the situation. He further underscored that he was compelled to raise this matter before the Council by virtue of his duties as the President of the Mechanism, and respectfully appealed to the Government of Turkey to release Judge Akay in the spirit of humanitarianism, so as to enable him to perform and complete his judicial duties, and thereby enable the Mechanism to carry out the important mandate entrusted to it.^[14]

In January 2017, the UN Mechanism for the International Criminal Tribunals (MICT) gave Turkey a February 14 deadline to release its judge Aydin Sefa Akay and halt legal proceedings against him based on the above-mentioned arguments. However, Judge Akay was not released and thus, the court (MICT) ruled in March 2017 that “the government of Turkey has failed to comply with its obligations”. Presiding judge Theodor Meron wrote in his ruling that the matter would be reported to the UN Security Council. Eventually, the United Nations referred Turkey to the Security Council on 6 March 2017 for its continued incarceration of UN Judge Akay who was arrested after last year’s failed coup due to the existence of Bylock application in his phone.^[15]

Yet, this is not the most interesting part of this story. Judge Akay underlined that he had downloaded the messaging app (‘ByLock’) out of the blue, from Google Play Store, he said; he had no idea that many Gülenists were accused of being part of the coup plot because of downloading the same application which was public on AppStore and Google Play Store. Furthermore, based on his membership to the ‘Grand Lodge of Free and Accepted Masons of Turkey’, he objected the accusation of being a member of an organization led by Fethullah Gulen. He repeatedly said: ‘Not everyone who uses it can be a FETO member. I am definitely not one. I did not even put a password on it’. In the words of Yavuz Baydar, “A ‘Gülenist’ being at the same time a ‘Mason’ is exactly like a Likud member being part of Hamas”.^[16]

However, the court did not even need to further investigate if the messages could have been found out in order to see if Judge Akay used this application to receive instructions from Gulenists. The legality of obtaining the list of ByLock users on which Judge Akay’s name appeared too was not a matter of fairness as well for the court.

In the aftermath of 15 July 2016, Erdogan’s government hand in hand with its judiciary has been eroding rule of law and democracy with the rhetoric of ‘stability’ and ‘public order’. Abusing the state of emergency which was declared for 3 months at first place and extended for three times up until now, they have been ruling the country with state of emergency decrees (KHK). Having succeeded to pass the amendments on Constitution in April 2017, Erdogan is now enjoying lack of checks and balances system in an atmosphere where two members of the Constitutional Court, 120 members of supreme courts, more than 3000 judges/prosecutors are jailed (more than 5200 judges/prosecutors sacked), 160.000 others persecuted on the basis of groundless allegations like using ByLock inter alia. ByLock tragedy is only a small fraction of the level of the savage arbitrariness in the functioning of Turkey’s current governmental and judicial system, which may provide some rough indication of the real scale of the human persecution and suffering inside and outside of Turkey.