3/7/2020

Press Release No: Individual Application 38/20

Press Release concerning the Judgment Finding Inadmissible the Alleged Violation of the Right to Personal Liberty and Security for Allegedly Unlawful Detention of a ByLock User

On 4 June 2020, the Plenary of the Constitutional Court found inadmissible the alleged violation of the right to personal liberty and security as being manifestly ill-founded in the individual application lodged by M.T. (no. 2018/10424).

The Facts

The applicant was detained on remand for membership of the Fetullahist Terrorist Organization/Parallel State Structure (FETÖ/PDY) within the scope of the investigation launched by the chief public prosecutor’s office after the coup attempt of 15 July, and a criminal case was filed against him. At the end of the proceedings carried out while he was detained on remand, the applicant was convicted of membership of an armed terrorist organization.

The Applicant’s Allegations

The applicant claimed that his right to personal liberty and security had been violated, arguing that he had been unlawfully detained on remand.

The Court’s Assessment

The charges against the applicant were mainly based on the fact that he had been using the application called ByLock, which was accordingly the most important ground for his detention on remand. In this case, in the examination of the lawfulness of the applicant’s detention on remand, first an assessment in terms of the ByLock application should be made.

In the assessment of whether the use of the ByLock application could be taken as a strong indication of guilt, the nature and features of the application as well as the way in which the FETÖ/PDY was organized should be considered together. In addition, the content analysis carried out by the investigation authorities or judicial authorities of the communication made via the application, along with the facts in the statements of certain individuals alleged to have used the same application, should also be considered. In this context, the following assessments can be made:

It is specified in numerous court decisions that ByLock was the most important application used by the organization in order not to be uncovered, by ensuring the communication among its members privately. The ByLock application, which was created in order to provide communication over the internet, was generally installed manually by the persons having links with the FETÖ/PDY on the phones or electronic/mobile devices of the others having relations with the organization. This is an indication of the fact that the impugned application was created with a view to ensuring the non-disclosure of the secret communication about the organizational activities.

The extraordinary security measures taken to ensure the privacy of the ByLock application demonstrate that the application was not developed to provide a normal communication service. Findings regarding the use of the ByLock application have also indicated that this application was developed by a certain group under a strict control and supervision in order to ensure its use in a very confidential manner.

In addition, the measures taken to prevent the interception of the communication made via the application in any case also demonstrate that it was not an ordinary communication programme and aimed to ensure a private and secret communication platform. Such installation and usage features support the FETÖ/PDY’s method of carrying out its activities secretly.

The usage features of the ByLock application were designed in a manner highly compatible with the organizational model of the FETÖ/PDY, without the need for any other communication tools for the organizational communication. One of the main attitudes of the members of the FETÖ/PDY is that they use code names to ensure confidentiality. Findings in the ByLock database regarding some users also point out the application’s relation with the FETÖ/PDY.

A considerable part of the analysed content of the communication which had been made via the ByLock application was related to the organizational contacts and activities of the members of the FETÖ/PDY. A large number of persons investigated/prosecuted for the offences related to the FETÖ/PDY mentioned the ByLock application in their statements.

All in all, it has been understood that the assessments by the judicial authorities to the effect that the ByLock communication system, under the cover of a global application, had in fact been created to ensure the organizational communication among the members of the FETÖ/PDY and that the organizational communication was provided with great confidentiality through the application relied on very strong factual grounds as well as material/technical data. Therefore, the consideration of the use of ByLock application as an organizational activity cannot be regarded as an ill-founded or arbitrary approach.

Hence, considering as a whole (i) the findings of the law enforcement units and public authorities, which were also accepted by the judicial authorities, regarding the issues such as the creation, usage and method of the ByLock application, the encryption techniques in the application, the nature of the user and group names in the program and the content of the communication made via this application; (ii) the fact that the information and documents regarding the ByLock application as well as the features of the application almost completely coincide with the manner in which the FETÖ/PDY was organized; (iii) the statements of certain ByLock users; (iv) the existence of other facts and evidence pointing out the relation with the FETÖ/PDY of a significant part of the persons determined to have used the said application; and (v) the fact that the persons concerned used this application or installed it on their phones or mobile devices to make them ready for use, there is a strong indication of guilt on the part of the applicant in terms of crimes related to the FETÖ/PDY.

Consequently, the Court has found inadmissible the alleged violation of the right to personal liberty and security, as being manifestly ill-founded.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.