95,000 people await acquittal based on ECtHR’s ByLock ruling

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Thousands of people arrested or convicted on terrorism charges due to their alleged use of the ByLock mobile phone application expect to be acquitted based on a recent ruling of the European Court of Human Rights (ECtHR), the Bold Medya news website reported on Monday.

The ECtHR ruled last week in the case of a former police officer that use of the ByLock application is not an offense in itself and does not constitute sufficient evidence for arrest. The Strasbourg court’s ruling has come as a source of hope for thousands of people who were arrested or sentenced on terrorism charges based mainly on a National Intelligence Organization (MİT) report that detailed users of ByLock.

ByLock, once widely available online, has been considered a secret tool of communication among supporters of the faith-based Gülen movement since a coup attempt on July 15, 2016 despite the lack of any evidence that ByLock messages were related to the abortive putsch.

The Gülen movement is accused by the Turkish government and President Recep Tayyip Erdoğan of masterminding the failed coup and is labeled a “terrorist organization,” although the movement denies involvement in the coup attempt or any terrorist activity.

The ECtHR ruling on the pre-trial detention of former police officer Tekin Akgün is expected to set a precedent for other applicants who filed similar cases with the court. Under Article 90 of the Turkish Constitution local courts and top appeals courts must comply with ECtHR decisions, releasing people under arrest pending trial and acquitting others convicted based on ByLock use.

In Akgün’s case, the ECtHR ruled that Turkey violated Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights as well as Article 5 § 3 (entitlement to trial within a reasonable time or to release pending trial) and Article 5 § 4 (right to a speedy decision on the lawfulness of detention) in the pre-trial detention of Akgün, who was put in pre-trial detention in October 2016 as part of a massive crackdown launched by Turkey’s Justice and Development Party (AKP) government on alleged and real followers of the Gülen movement.

“In the absence of other evidence or information, the document in question, stating merely that the applicant was a user of ByLock, could not, in itself, indicate that there were reasonable suspicions that could satisfy an objective observer that he indeed used ByLock in a manner that could amount to the alleged offences,” said the court.

The European court also ordered Turkey to pay Akgün 12,000 euros in non-pecuniary damages and an additional 1,000 euros for costs and expenses.

According to a statement from the interior ministry in March 2019, 95,310 people were charged over alleged use of the ByLock application. In its technical report, which courts use as basis for their decision, MİT stated that 60,473 defendants had at least one message posted using ByLock while 34,837 defendants had not posted any message using the application.

In 2017 Turkey’s Supreme Court of Appeals found the use of ByLock to be sufficient evidence for terrorist organization membership. Since then, the appeals court has upheld hundreds of sentences passed by local courts based mainly on ByLock use without checking to see if the user had any message content or if the messages had any criminal content.

The Constitutional Court, too, found no violation of rights of the applicants who were sentenced merely based on ByLock use, which it had considered a strong indication for arrest.

The ECtHR’s judgment invalidates the Supreme Court of Appeals and Constitutional Court’s decisions. The two top courts are supposed to change their rulings to comply with the ECtHR’s decision.

The UN Human Rights Council’s Working Group on Arbitrary Detention stated in October 2018 that detention, arrest and conviction based on ByLock use in Turkey violated of Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights.

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