Published on 26 July 2021

SECOND SECTION

Application no. 14871/20 Sabri PAÇAMAN against Turkey lodged on 5 March 2020 c ommunicated on 5 July 2021

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of the criminal proceedings against the applicant whereby he was convicted , under Article 314 § 2 of the Criminal Code of being a member of an armed terrorist organisation, which the Turkish authorities refer to as FETÖ/PDY (Fetullahist Terrorist Organisation / Parallel State Structure) , an organisation that the Turkish authorities consider as having premediated the failed military coup. In that connection, it concerns the use , by the domestic courts, of alleged unlawful evidence, namely the ByLock encrypted messaging service (hereinafter referred to as “ByLock” or “ByLock application”) as evidence , the purported breaches of the principles of adversarial proceedings and equality of arms, the alleged failure of the Regional Appeal Court and the Court of Cassation to give reasons in respect of the applicant ’ s main arguments and the Constitutional Court ’ s alleged failure to examine his complaints. T he applicant complains of a violation of Article 6 of the Convention.

It further pertains to the alleged violations of the principle of nullum crimen sine lege and the prohibition against retrospective application of criminal laws under Article 7 of the Convention. The application also concerns the alleged breach of the applicant ’ s rights under Article 8 of the Convention, owing to the use , by the trial court , as evidence to convict the applicant, of his use of Bylock and his employment history .

Finally, the application also relates to Articles 9 and 11 of the Convention on account of the applicant ’ s conviction for acts allegedly falling within the scope of those articles, namely his participation in sohbet meetings and his membership of a trade union and an association.

The domestic courts found the applicant guilty of membership of an armed terrorist organisation, namely FETÖ/PDY and sentenced him to seven years and six months ’ imprisonment. In doing so, they relied on the following evidence: (a) the applicant ’ s employment history showing that he had been appointed in accordance with the instructions of FETÖ/PDY to work for certain private institutions, which had all been dissolved pursuant to decree laws on account of their affiliation with FETÖ/PDY; (b) membership of a trade union and an association affiliated with FETÖ/PDY; (c) banking activities in Bank Asya, showing that he had deposited money to his account following the order of the leader of FETÖ/PDY; (d) the evidence of three witnesses to the effect that the applicant had taken part in sohbet meetings and had received funds ( himmet ) on behalf of FETÖ/PDY from the attendees of these meetings; (e) the evidence of witness S.T. to the effect that he had downloaded the ByLock application to the applicant ’ s mobile telephone in accordance with the instructions of the headmaster of the high school where they had worked; (f) the police report dated 25 August 2017 (“ araştırma ve tespit tutanağı ”) indicating the first time the applicant had used ByLock (28 August 2015) together with the IMEI number of the mobile telephone and the GSM phone number he had used for that purpose; (g) the police report dated 17 July 2017 (“ tespit ve değerlendirme tutanağı ”) indicating, inter alia , t he ByLock ID number, username and password used by the applicant, the content and the number of the messages and e-mails he had exchanged, the number of the calls made and received by him, the details of the other ByLock users he had added, the details of the users that had added him as well as the names they had used for that purpose .

On 5 December 2019 the Constitutional Court dismissed, in a summary manner, the applicant ’ s individual application.

QUESTIONS TO THE PARTIES

Article 6

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular;

a. What was ByLock application and what were the reasons which led the domestic judicial authorities to conclude that it was exclusively used by members of FETÖ/PDY ? The parties are invited to explain the evidentiary value of a person ’ s use of this application.

b. What was the evidentiary basis for the domestic courts ’ finding that the applicant had used the ByLock application?

The Government is requested to provide the Court with a copy of all the material in the case file on which the domestic courts relied as evidence of the applicant ’ s use of ByLock, including any digital data and any documents showing the content of the applicant ’ s communication through that application.

c. What are the statutory provisions under Turkish law regulating the collection, examination and use of evidence, including electronic and digital evidence, in criminal proceedings? Did the domestic authorities comply with those provisions in so far as the ByLock evidence is concerned?

d. In light of the applicant ’ s claims, was the evidence concerning the applicant ’ s use of ByLock obtained lawfully, having regard to the manner in which it was procured by the National Intelligence Organisation ( Milli İstihbarat Teşkilatı , “MİT”)?

e. Was the evidence relating to the applicant ’ s use of the ByLock application sufficiently reliable? In particular;

i. To what extent was the digital evidence obtained regarding the applicant a reliable indicator of his use of ByLock, from a technical point of view? Did the domestic courts sufficiently assess the reliability of the digital evidence presented to them by the prosecution and did they respond to the applicant ’ s concerns regarding the reliability of that data?

ii. What safeguards were available in domestic law to protect the integrity and authenticity of the ByLock data obtained by the MÄ°T during the period preceding its submission to the prosecution authorities, given that the relevant procedural safeguards envisaged under the Criminal Code of Procedure were not found by the domestic courts to have any application during that initial period?

The Government is requested to explain what the raw data obtained by the MÄ°T involved and how the MÄ°T processed that data to identify the individual users of ByLock, including the applicant, before handing the relevant data over to the prosecution authorities.

f. In view of the applicant ’ s allegation that he could not obtain a copy of the ByLock data, was the applicant provided with a real and effective opportunity (i) to have knowledge of and comment on all digital evidence adduced or observations filed by the prosecution in that respect with the domestic courts; (ii) to review all the material evidence in the prosecution ’ s possession for or against him; and (iii) to challenge the authenticity and reliability of the digital evidence used against him and to oppose its use as required by the principles of equality of arms and adversarial proceedings (see, for instance, Rook v. Germany , no. 1586/15, §§ 56 ‑ 59, 25 July 2019)? Notably ;

i. What information and documents did the applicant have available to him in the case file as proof of his use of ByLock?

ii. Did the domestic legal framework and case-law provide for a right to obtain a copy of the digital data in the possession of the prosecution? If so, was it complied with in the present case? Moreover, is there a right under Turkish law to examine and take a copy of the relevant digital evidence when such evidence forms part of the criminal proceedings other than those against the applicant?

iii. In this context, did the applicant ’ s alleged inability to review the evidence handed over by the MÄ°T to the prosecution authorities put the defence at a disadvantage vis-à-vis the prosecution? If so, were the alleged difficulties caused to the defence sufficiently counterbalanced by the procedures followed by the judicial authorities (see, mutatis mutandis , Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 61, ECHR 2000 ‑ II; Sigurður Einarsson and Others v. Iceland , no. 39757/15, §§ 90 and 91, 4 June 2019; Rook , cited above, §§ 67 and 72)?

The Government is requested to submit copies of any domestic court decisions whereby the defence was, upon their request, given a copy of the relevant ByLock data, including, where the originals of such data formed part of other criminal proceedings to which the applicant was not a party, and copies of decisions where such request was denied.

iv. From a technical perspective, would it have been possible for the applicant to exonerate himself of the allegations against him or to have his sentence reduced on the sole basis of the information and documents made available to him?

The Government is requested to provide examples of cases, besides the “Mor Beyin” incident, where the technical data indicating the use of ByLock was successfully rebutted by a defendant on the basis of the information available in the case file.

g. Did the Regional Appeal Court and the Court of Cassation provide sufficient reasoning for their judgments and respond to the main arguments raised by the applicant?

The parties are requested to provide all the petitions submitted by the applicant to the domestic courts during the criminal proceedings and all interim decisions taken by the domestic courts.

h. Did the Constitutional Court conduct a proper examination of the applicant ’ s complaints, having regard to his allegation that it had failed to reply to some of his Convention complaints? (see, mutatis mutandis , Dulaurans v. France , no. 34553/97, §§ 33-38, 21 March 2000)?

Article 7

1. In light of the relevant domestic provisions and their interpretation by the domestic courts at the material time, did the conviction for membership of a terrorist organisation hinge upon the existence of a prior judicial decision declaring FETÖ/PDY a terrorist organisation (see Parmak and Bakır v. Turkey , nos. 22429/07 and 25195/07, § 71, 3 December 2019; and compare and contrast Kasymakhunov and Saybatalov v. Russia , nos. 26261/05 and 26377/06, §§ 84 and 90, 14 March 2013)?

2. Was the applicant ’ s conviction for membership of a terrorist organisation compatible with the requirements of Article 7 of the Convention? In particular;

a. Were the domestic legal provisions, on the basis of which the applicant had been convicted, foreseeable in their application? In that respect , could the domestic courts ’ decision to declare the “ FETÖ/PDY ” as being a terrorist organisation be reasonably foreseen by the applicant at the time of the acts on which his conviction rested?

b. What are the elements of the offence of membership of a terrorist organisation set out under Article 314 § 2 of the Criminal Code and were those elements present in the applicant ’ s case? In particular, did the domestic courts duly establish whether the mental element of the relevant offence, as laid down in the case-law of the Court of Cassation, had materialised in the applicant ’ s case, as required under Article 7 of the Convention (see, for instance, G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 242 and 246, 28 June 2018)?

The parties are requested to submit the relevant case-law of the Court of Cassation setting out the material elements of the crime of “ membership of a terrorist organisation ” under Article 314 § 2 of the Criminal Code .

c. Was the conviction in question imposed in the absence of any criminally reprehensible conduct on the part of the applicant, as argued by him?

d. Could the applicant have reasonably foreseen , at the material time , that the acts attributed to him (as indicated in the domestic courts ’ judgments) would be construed as evidence of the offence of “membership of an armed terrorist organisation” under Article 314 § 2 of the Criminal Code? Did the application of that provision in the circumstances of the applicant ’ s case extend the scope of criminal liability for the offence in question in breach of the principle of legality? In any event, was the national courts ’ interpretation of Article 314 § 2 of the Criminal Code to the facts of the applicant ’ s case consistent with the essence of that offence and could it be reasonably foreseen (see, S.W. v. the United Kingdom , 22 November 1995, § 36, Series A no. 335 ‑ B; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, § 50, ECHR 2001 ‑ II; Jorgic v. Germany , no. 74613/01, § 109, ECHR 2007 ‑ III and Vasiliauskas v. Lithuania [GC], no. 35343/05, § 155, ECHR 2015)?

The Government is requested to provide the Court of Cassation ’ s case-law where the material elements of the offence of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code comprised of lawful acts, as alleged by the applicant in the present case.

Article 8

Has there been an interference with the applicant ’ s right to respect for his private life and/or correspondence, within the meaning of Article 8 § 1 of the Convention owing to his conviction on the basis of his employment history, his alleged use of ByLock and the messages exchanged via that application, which had reportedly not contained any indication capable of showing that he had committed an offence? If so, was that interference prescribed by law and necessary in terms of Article 8 § 2?

Article 9

Has there been an interference with the applicant ’ s freedom of conscience and religion, within the meaning of Article 9 § 1 of the Convention? In particular, was the applicant ’ s participation to “conversations” ( sohbet meetings) a manifestation of his freedom of religion within the meaning of this provision? If so, was that interference prescribed by law and necessary in terms of the second paragraph of that provision?

Article 11

Did the applicant ’ s conviction for membership of a terrorist organisation on the basis of, inter alia , his membership of an association and a trade union constitute an interference with his right to freedom of association within the meaning of Article 11 of the Convention? If so, was that interference justified under the second paragraph of that provision?