3/7/2020

Press Release No: Individual Application 39/20

Press Release concerning the Judgment Finding no Violation of the Right to a Fair Trial due to the Applicant’s Conviction Based Solely on ByLock Data

On 4 June 2020, the Plenary of the Constitutional Court found no violation of the right to a fair hearing within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution in the individual application lodged by Ferhat Kara (no. 2018/15231).

The Facts

Before dealing with the facts and particular circumstances of the present case, the Court made determinations and assessments concerning the activities performed by, and specific characteristics of, the Fetullahist Terrorist Organisation/Parallel State Structure (“the FETÖ/PDY”). In this sense, the Court provided general explanations as to the technical concepts of the ByLock application, how this application was found out, its notification to the judicial authorities and the judicial process conducted thereafter, as well as general and organisational features of the ByLock application.

The applicant, who was a guardian at the time when the impugned incidents took place, was sentenced to 7 years and 6 months’ imprisonment for his membership of an armed terrorist organisation by the relevant court’s decision issued at the end of the criminal investigation conducted by the incumbent chief public prosecutor’s office in the aftermath of the attempted coup-d’état of 15 July 2016.

The applicant’s conviction was based solely on his use of ByLock communication program which was provided for the use of the FETÖ/PDY members. The applicant’s challenge against his conviction decision before the regional court of appeal was dismissed on the merits. The dismissal decision was also appealed by him; however, the appellate request was also dismissed by the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that the data obtained from the ByLock application had been collected illegally and were relied on as a principal ground in his conviction; that the use of ByLock data as a sole or decisive evidence was unlawful; and that the digital data underlying his conviction were not brought before the court. He accordingly alleged that his right to a fair trial had been violated.

The Court’s Assessment

A. Alleged Violation of the Right to a Fair Hearing

1. As regards the data obtained from the ByLock server

In the course of the period during which the investigation authorities and the State’s security agencies started to perceive the FETÖ/PDY’s staffing within the public institution and organisations along with its activities within the different social, cultural and economic areas, notably education and religion, as a threat to the national security, the National Intelligence Organisation (“the MİT”) also conducted inspections, within the boundaries of its own field of work, into the FETÖ/PDY’s activities.   

During these inspections and inquiries, a foreign-based mobile application, namely ByLock, which was apparently developed to ensure organisational communication among the FETÖ/PDY members was discovered, and it was also found out that there were servers with which this application was in contact.  

It is inevitable, in democratic societies for the protection of fundamental rights and freedoms, to need intelligence agencies and the methods employed by them for the purposes of effectively fighting against very complex structures such as terrorist organisations and tracking such organisations through covered methods. Therefore, to collect and analyse information about terrorist organisations, with an aim of collapsing them through covered intelligence methods, meet a significant need in democratic societies.

The MİT delivered to judicial/investigation authorities the FETÖ/PDY-related information of which it had become aware while performing its duties under Law no. 2937. This act -whereby the MİT merely informed the competent judicial authorities of concrete information which was related to an issue falling into the scope of its own field of work (fight against terrorism) and which was found out on a legal basis- cannot be construed to the effect that the MİT had performed law-enforcement activities. In this sense, it has been observed that the MİT had found out the impugned digital materials not as a result of its inquiries to collect evidence but within the scope of the intelligence activities conducted to reveal the activities of the FETÖ/PDY during a period when the public authorities, notably the National Security Council, started to perceive the FETÖ/PDY as a threat to the national security.

Besides, it must be borne in mind that the incumbent chief public prosecutor’s office was not provided with hearsay intelligence information which was of abstract and general nature, but rather with digital data regarding an application which was considered to be the covered communication means used by the FETÖ/PDY’s members and heads. The MİT’s delivery of the digital materials -found out during an inspection within the scope of its own field of work- to the relevant judicial/investigation authorities in order to have them examined so as to ascertain whether these materials involved any criminal element does not render them unlawful.

Consequently, the delivery of the data concerning the ByLock application, which were found out during the intelligence inquiries conducted into a terrorist organization aiming at overthrowing the constitutional order, to the chief public prosecutor’s office for making contribution to revealing the material truth during the investigation and prosecution against this organisation does not involve any unlawfulness. The submission, to the chief public prosecutor’s office, of the digital materials concerning the ByLock communication system, which were obtained by the MİT within the scope of its legal powers, as well as of the technical report issued in this respect cannot be considered to constitute a manifest error of judgment or manifest arbitrariness. 

(2) As regards the process following the submission of ByLock data to the judicial authorities  

Upon the submission of the digital materials obtained from the ByLock server, the investigation process was thereafter conducted in accordance with Law no. 5271. The judicial authorities made the necessary inquiries, examinations and assessments as to the authenticity or reliability of the digital materials. In pursuance of the relevant court decisions, the available materials were subjected to technical examinations. The defence was also provided, as required by the principles of equality of arms and adversarial proceedings, with the opportunity to challenge the authenticity, as well as to object to the use, of the evidence indicating that the applicant was a ByLock user.

Consequently, in the present case, no violation was found in terms of the allegation that the data obtained through ByLock had been obtained without a legal basis or unlawfully. 

Consequently, the Court has found no violation of the right to a fair hearing inherent in the right to a fair trial safeguarded by Article 36 of the Constitution.

B. Allegation that ByLock Data cannot be the sole or decisive evidence for conviction

The investigation authorities issued, addressing to the judicial authorities, technical and chronological reports including comprehensive information about the technical features of the ByLock application which ensure confidentiality, its use, its encryption, the method how it is downloaded to a device as well as for which purposes it is used. In these reports, the differences between the ByLock application and the other most common instant messaging programs as well as organisational features of the impugned application are mentioned.  

The messages and e-mails, which were obtained from the ByLock, contained certain abbreviations about which the organisation members gave information in their statements and the literature peculiar to the organisation. The necessity, for enabling two users to get in contact, to add each other was regarded as an indication that the ByLock application was developed in pursuance of the clandestine cell-type structure of the organisation. It was further indicated in the statements given by the organisation members within the scope of the investigations conducted in the aftermath of the coup attempt that the ByLock application was a communication program designed to ensure organisational communication through the messages and e-mails sent and received by the organisation members and was used to that end.

As noted in the court decisions as well as in the judicial and technical reports, merely the download of the ByLock application to a device is not sufficient for messaging/communication. For sending/receiving messages and ensuring communication, the username/user-code which was created by the users in the course of registration and which is specific to each user is to be known, and mutual consent is sought for adding a friend. It is not possible to get in contact with any person without two persons’ mutual consent to add each other. In the same vein, as also noted in the court decisions, any person -who has no relation with the organisation but has downloaded the impugned application -designed to be used for organisational purposes- by change through general application stores and certain websites- cannot use it and get in contact with organisation members by adding them as a friend without the assistance of any member of the organisation. In the judicial processes, not download of the impugned application but signing up to it and its use for organisational purposes were relied on. Accordingly, the determinations and assessments made by the Court of Cassation and inferior courts as to the ByLock application cannot be said to be devoid of factual basis.

In the present case, the incumbent court relied on the applicant’s signing up and registry to the ByLock server by obtaining a user-ID, through his own devices and his GSM subscription, and his use of the application for ensuring the confidentiality of organisational communication as evidence demonstrating his relation with the organisation. In making this assessment, the court referred to the data obtained from the ByLock server and discovered by the technical units, as well as to Carrier Grade NAT (CGNAT) records. The applicant’s conviction for his membership of a terrorist organisation based solely on the use of an encrypted communication network, which was apparently used -by its structure, way of use and technical features- merely by the FETÖ/PDY members to ensure organisational confidentiality, cannot be considered as a manifestly arbitrary approach which has completely rendered dysfunctional the procedural safeguards inherent in the right to a fair trial.

Consequently, the Court has declared this part of the application inadmissible for being manifestly ill-founded.

C. Alleged failure of the inferior courts to consider the relevant digital data

The applicant did neither provide a sufficient explanation concerning this allegation nor substantiated it in the application form. Besides, there is no information or document to the effect that although he raised, before the inferior courts, the concrete issues as to the use of the relevant data obtained from the ByLock application during his proceedings and requested the courts to make the necessary inquiries and inspections, the inferior courts remained inactive. 

Consequently, the Court has declared this part of the application inadmissible for being manifestly ill-founded.

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