Admissibility of ByLock-related data as evidence is now under the scrutiny of the European Court

by Yasir Gökce*

Almost every smartphone user would have likely downloaded a sort of messaging app onto their phone and/or corresponded by means of it. Imagine that one day the government asserts that the messaging app you have been enjoying has long been used by a group that the government declares “terrorist” and that on that ground you have become a member of this terrorist organisation. This is what tens of thousands of alleged ByLock app users in Turkey have experienced after the app has been qualified as such and the waves of investigations, prosecutions and detentions that followed it. Ever since, they have desperately been trying to “prove their innocence” by advancing that they have never downloaded the app, or they downloaded it but have never used it for criminal/terrorist purposes.     

Following the assertion of the Erdogan government, almost all first instance courts in Turkey consider the use of ByLock app sufficiently proves the affiliation of the accused with the Gülen Group, which the Erdogan government has branded as ‘Fetullahist Terrorist Organization’ (hereinafter FETÖ). Having endorsed the judgment by the first instance and turned it into its settled jurisprudence, the Turkish Court of Cassation establishes that any involvement in the ByLock network, if substantiated beyond any doubt, suffices to demonstrate terrorist membership and that the content of the messages might be relevant for convicting someone of belonging to the leadership of the group. Here, it is worthy to note the UN Working Group on Arbitrary Detention’s opinion that the actual use of ByLock app would merely constitute an exercise of freedom of expression.

An individual, Mr. Yalcinkaya, who was convicted of “FETÖ” membership for inter alia ByLock use, has exhausted the domestic remedies in Turkey and managed to bring his case before the European Court of Human Rights. Within the framework of communications with the Turkish government, the European Court posed critical questions, which the defendants have been asking since day one of the accusations and to which Turkish courts have so far been oblivious. These questions boil down to the legality, reliability, accuracy and integrity of the evidence which the allegations of the ByLock use are predicated on. This piece aims to address these questions from a legal and technical point of view, in light of the assertions and assumptions of the Erdogan government as well as current developments concerning the ByLock investigations.

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