The European Court of Human Rights (ECtHR) has posed a series of questions to the Turkish government concerning the processing of raw data from a smart phone messaging app in the case of a civil servant who was convicted over links to the Gülen movement, Turkish Minute reported on Thursday.
Civil servant Ömer Güven was removed from public service, subsequently arrested following a failed coup in Turkey on July 15, 2016 and sentenced to seven years, six months’ imprisonment on charges of terrorist organization membership by a high criminal court in Kayseri, which based its ruling on his alleged use of the ByLock app, membership in a trade union and CDs and books seized in his basement.
Turkish government claims that supporters of the Gülen movement used ByLock, an encrypted messaging application that was available on Apple’s App Store and Google Play, to ensure the privacy of their communication.
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. He intensified the crackdown on the movement following a coup attempt on July 15, 2016 that he accused Gülen of masterminding. Gülen and the movement strongly deny involvement in the abortive putsch or any terrorist activity.
Unlike the questions the ECtHR had asked about the ByLock messaging app in previous cases, this was the first time the court sought to find out what the raw ByLock data included and how the National Intelligence Organization (MİT) processed it to identify the users including the applicant before handing it over to prosecutors.
The court also questioned whether the conviction for membership in a terrorist organization hinged on the existence of a prior judicial decision declaring the Gülen movement a terrorist organization. In that regard the ECtHR asked the Turkish government to submit a copy of Turkey’s Supreme Court of Appeals’ 2008 judgement acquitting Fethullah Gülen of the charges of founding or leading a terrorist organization.
The ECtHR’s questions regarding the raw ByLock data were part of its deliberations as to whether MİT had tampered with the data.
The court also questioned whether the seizure of the CDs and books, found in the basement of Güven’s apartment, and basing the conviction on these items constitute a breach of freedom of speech under Article 10 of the European Convention on Human Rights.
The court’s questions were part of their deliberations on whether Article 6 of the European Convention on Human Rights, the right to a fair trial, and Article 7, no punishment without law, were violated.
Following the coup attempt the Turkish government accepted such activities as having an account at the now-closed Bank Asya, one of Turkey’s largest commercial banks at the time, and using ByLock, subscribing to the 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.
In different opinions, the UN Human Rights Council’s Working Group of Arbitrary Detention (WGAD) said even if one’s use of ByLock app was documented, it would have been mere exercise of freedom of expression, a right protected under Article 19 of the International Covenant on Civil and Political Rights.
Following the abortive putsch, the Turkish government declared a state of emergency and carried out a massive purge of state institutions under the pretext of an anti-coup fight. Over 130,000 public servants, including 4,156 judges and prosecutors, as well as 29,444 members of the armed forces, 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.
