[OPINION] Observations on ByLock App and Arrest of the UN Judge Sefa Akay

By EMRAH AKSU

In Turkey, we encounter many unreasonable, illegal and ambiguous judicial acts in recent years as a part of autocratic drift^[1]. These judicial practices inexplicable within fundamental legal principles have been very often after the 15 July 2016 coup attempt. One of these famous irrational judicial acts is detention of people based on allegedly using the ByLock smartphone application.

Despite the fact that this encrypted messaging application was accessible through Google Play Store and Apple Store for a long time, the application is instrumentalised by the AKP Government as an absolute evidence in Gulenist witch hunt by alleging that this application was exclusively used by Gulenists for secret communication. Users of this application are considered as Gulenist and have promptly been detained in Turkey without seeking any other proof^[2]. The most globally repercussive arrest based on using this application is the one against the UN Judge Aydin Sefa Akay.

Mr Akay represented the Turkish government in Burkina Faso as an ambassador between 2012-2014. He is currently a Judge at the UN Mechanism for International Criminal Tribunals (MICT). In spite of his function owing to diplomatic immunity, his detainment blocked the ongoing appeal trial of Ngirabatware case before the MICT. The presiding judge of the appeals chamber, Theodor Meron, has urged Turkey to free Akay several times. Claiming the immunity of Akay covers only his activities under the MICT work, Turkey rejected to comply with the MICT’s order to release Judge Akay. Without any positive attitude of the Turkish side, Judge Meron referred the matter to the UN Security Council^[3].

Reportedly, Judge Akay indicated in his defence statement before the Ankara Criminal Court that he has downloaded the application upon the advice of Burkinabé Foreign Minister and used it for masonic communication as well^[4]. Hence, in spite of the presumption of Turkish judiciary about the connection between being Gulenist and using ByLock app into account, this application has been used by Turkish masonic communities and high-level foreign personalities according to the top Judge Akay’s statement.

The Turkish judiciary has not duly investigated this statement which refutes the Turkish presumption concerning the ByLock application. Judge Akay has been sentenced to seven years and six-months imprisonment on the grounds of his confession of using the app, on 15 June 2017. In the same day, he has been released with an international travel ban by virtue of his previous detention period.

Following the release of Judge Akay from detention, the Appeals Chamber of the MICT issued a decision on June 19, 2017, marking the resumption of the proceedings in Ngirabatware case by the full bench of the Chamber^[5]. As a travel ban was imposed on Judge Akay, resumption of proceedings has been possible to some extent thanks to technological developments. By releasing Judge Akay from detention, Turkish judiciary managed to cease the crisis, at least to a certain level, between the Turkish government and the MICT which was referred to the UN Security Council. On the other hand, the conviction of Judge Akay for downloading ByLock application to his smartphone serves legitimizing ByLock pretext. It should be noted that according to the Turkish Penal Code, downloading Bylock has no evidential value. At the same time, it is the most frequently used, if not only, evidence to detain and convict people for the membership of a terrorist organization.

The international crisis stemmed from the evaluation of ByLock as evidence seems to be cooled off for the time being. However, it is clear that resumption of proceedings at Appeal Chamber, in absentia of Judge Akay, which is planned to begin after July 31, 2017, will face difficulties. Therefore, re-escalation of the tension between the Turkish government and the MICT is highly possible. In this case, even the UN Security Council may decide to intervene to solve the problem.

The main purpose of criminal proceedings is to find out the material fact and this could only be performed through gathering and evaluating all accessible evidence. However the conviction against Mr. Akay just relies on his confession being a ByLock user. This means that judiciary has ignored the very purpose of criminal law while making Akay judgment. In this regard, considering the former high ranking public office and masonic self-admitted relations of Akay, the court should have heard and taken into account the testimonies of certain witnesses about the alleged typical act of Akay as well as ByLock evidence.

In lack of due investigation, the Appeal Court in Turkey has no other option but to reverse the decision of the first instance court with which Judge Akay was convicted. Furthermore, the Appeal Court will have to decide that ByLock is not a criminal tool in its reasoning.

Moreover, some journalists have admitted that almost all of the correspondents covering judicial developments were communicating with judges, public prosecutors and their colleagues through ByLock app^[6]. Considering this statement with the fact that some high ranking foreign officials and some masons used ByLock app, it can be inferred that using the said app does not constitute an implicit evidence showing relationship with or affiliation to the Gulen movement nor a terrorist organization.

As expressed above, it is a concomitant of a functioning law system to decide that ByLock cannot be seen as a self-enclosed, secret and exclusive communication means of Gülen Movement and is not convenient to solely constitute an evidence of crime. Otherwise, restrictions which judge Akay is facing as a consequence of the verdict on the ground of using ByLock app will require the UNSC and MICT to take action. In this case, insignificance of ByLock will be determined at international level in a manner undermining the already diminished reputation of Turkey.

In short, the lesson to be learnt from arrests and convictions just because of using ByLock app is the fact that Turkish judiciary is uselessly occupied with unlawful activities.

Additionally, although we are not able to thoroughly examine in the present article, following problematic issues on certain practices of Turkish authorities related to ByLock evidence should be mentioned^[7]:

– Telecommunication infrastructure of Turkey is insufficient to accurately identify ByLock users.

– Certain media reports stating that lists of ByLock users were compiled through hacking and cracking the ByLock servers in Lithuania reveal that ByLock evidence cannot be considered legal in criminal procedure due to this illegal obtainment method.

– Since the lists of ByLock users were prepared by Turkish intelligence service (MIT) as the output of intelligence activities, those lists cannot be seen as legal evidence in criminal proceedings.

– Unless contents of messages sent via ByLock app are not examined to determine whether these messaging actions correspond to any definitions of crimes in penal code, the universal principle of “nullum crimen sine lege” is severely violated.

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