This legal opinion addresses whether the Turkish State breached the rights granted by the European Convention on Human Rights (ECHR) of those arrested since the failed coup of July 2016. Moreover, it focuses on whether Turkey contravened international criminal law, particularly considering the use of the Bylock messenger application as a proof of membership to a terrorist organization (namely, FETÖ - the organization allegedly headed by the US-based imam Fethullah Gülen - which is considered to be the organizer of the 2016 failed coup).

Bylock was a publicly available smartphone application for encrypted communications, downloadable via the Google Play store and the Apple iTunes Store. According to this legal analysis, the use of Bylock until March 2016 has to be considered lawful: the authors refer that such application was taken down in mid-March 2016 while the Turkish government added the Gülen movement to a list of terrorist organisations in May 2016. Therefore, only ongoing membership or support to the movement (for instance, through the use of Bylock) after May 2016 was capable of being construed as a crime.

As to the exclusivity of use of this phone application, by any evidence the authors - Mr Clegg QC and Mr Baker - find the hypothesis that it was used exclusively by those who were members or supporters of the Gülen movement “utterly unconvincing and unsupported by any evidence”. For instance, Bylock was in the top 500 Apps in 41 separate countries.

Among the evidences used against the people detained for allegedly being part or supporting a terrorist organization, we can also find the facts of having a bank account in BankAsya and staying in a student accommodation allegedly linked to the Gülen movement. The authors consider these reasonings nonsensical, since the former is one of the major banks in Turkey and the latter relies “upon the fact that the defendant stayed in student accommodation as proof that he shared the same beliefs as those who operated the accommodation“.

As to the respect for the rights granted by the ECHR, referring to Article No. 5 - on the right to liberty and security - the authors consider that the detention of around 75,000 people based mainly on the above mentioned charges undoubtedly breached Article 5.

As to Article No. 6 ECHR - on the right to a fair trial - the authors state that using Turkey’s national intelligence agency (MIT) reports on Bylock at trial as evidence breaches the Article in question. In fact, the authors of these reports were and can not be identified, and consequently can not be heard in the course of the trials.

Finally, as to Article No. 7 ECHR - providing that no one can be hold guilty for an action/omission which is not considered to be a crime by law at the time it was committed - all the above mentioned evidences of membership to a terrorist organization predated the addition of the FETÖ movement to the list of prohibited organisations in Turkey. Therefore, the use of such evidences breaches Article No. 7 of the Convention.

With regard to possible breaches of international criminal law, the authors sustain that there is strong evidence that those detained following the failed coup have been tortured.

This publication is nourished by a digital forensic analysis of Thomas K. Moore, who examined the “Bylock Application Technical Report” produced by MIT representatives and used as a basis for conviction.

As to Bylock’s exclusivity of the use, the author confirmed its colleagues’ opinions, also tracing a parallel with the Telegram application: even if there is “compelling evidence to show that Telegram has been used by ISIS as a secure communication tool [...] there is no move by law enforcement authorities to detain every user of the service”, adding that there is a clear line between the functionalities provided by these apps and those who seek to use them for different purposes.

With regard to the MIT’s report, the author considers that no court receiving the MIT report would be in a position to properly assess the credibility or accuracy of the assertions: some of them are defined “fundamentally contradictory”, and the author provides a series of examples in this sense.

Tags: Digital safety Encryption Digital rights Human rights Media Law Political pressure Turkey Safety of journalists
Publication Date: 31/08/2017
Research and Editorial Team: William Clegg QC, Simon Baker and Thomas K Moore