Published on 21 June 2021

SECOND SECTION

Application no. 16022/20 Ömer GÜVEN against Turkey lodged on 18 March 2020 communicated on 2 June 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. It also 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 lack of independence and impartiality of the domestic courts, the restrictions placed upon the applicant ’ s right to have a confidential communication with his lawyer and the failure of the Regional Appeal Court and the Court of Cassation to give reasons in respect of the applicant ’ s main arguments. The applicant complains of a violation of his rights under Article 6 of the Convention.

The application 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 relates to 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 to the alleged breach of Article 10 of the Convention in so far as his conviction was based on CDs and books found and seized in the basement of his apartment building.

The Kayseri Assize Court 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, the trial court relied on the following evidence: (a) Kayseri Security Directorate ’ s report dated 19 January 2017 indicating that the applicant had started using ByLock on 23 January 2015 together with the IMEI numbers of the mobile telephone used for that purpose; (b) membership of a trade union dissolved by Decree Law no. 667 owing to its affiliation with FETÖ/PDY; (c) the CD and 105 books concerning FETÖ/PDY that had been found and seized in the basement of the applicant ’ s apartment building, and (d) evidence of witness G.R. to the effect that it was the applicant who had left the CD and the books in the basement.

The Ankara Regional Appeal Court re-examined the trial court ’ s judgment pursuant to Article 280 § 1 (e) of the Code of Criminal Procedure and held three hearings in the case. On 22 November 2017 the Regional Appeal Court dismissed the applicant ’ s appeal pursuant to Article 280 § 2 of the Code of Criminal Procedure. During the appeal examination, the Regional Appeal Court collected information regarding the applicant ’ s use of ByLock application from the General Security Directorate and the Information and Communication Technologies Authority ( Bilgi Teknolojileri ve İletişim Kurumu ) and obtained an expert report, prepared by a computer forensics expert. Accordingly, it concluded that the applicant had connected to the ByLock servers 971 times and had had a ByLock ID number, username and password.

On 10 July 2018 the Court of Cassation upheld the applicant ’ s conviction.

On 10 December 2019 the Constitutional Court dismissed, in a summary manner, the applicant ’ s individual application .

QUESTIONS TO THE PARTIES

I. 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 were the features of the 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 on 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 (i) the manner in which it was procured by the National Intelligence Organisation ( Milli İstihbarat Teşkilatı , “MİT”), and (ii) the allegation that the internet traffic information provided by the Information and Communication Technologies Authority ( Bilgi Teknolojileri ve İletişim Kurumu , “BTK”) was neither retained nor disclosed lawfully, as it included information that predated the maximum time-limit set out in the law for the retention of such data?

( 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 ) W hat 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? Was that information available prior to his conviction by the first-instance court, or was some of the material evidence corroborating his use of ByLock added to the file at the appeal stage?

( 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 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; Sigur ð ur 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 ) Was the data regarding the applicant ’ s use of the ByLock application, including the data provided by the MİT and the BTK, submitted to an independent expert examination as requested by the applicant, in order to determine the integrity, the accuracy and the consistency of the data obtained?

( v ) 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 Ankara 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 .

2. Was the applicant ’ s right to have confidential communication with his lawyer under Article 6 § 3 (c) of the Convention restricted by virtue of the measures provided for by Article 6 of Legislative Decree no. 677? If so, what were the compelling reasons for such limitation? Did this restriction deprive the applicant of a fair hearing (see, for instance, S. v. Switzerland , 28 November 1991, § 48, Series A no. 220; Brennan v. the United Kingdom , no. 39846/98, § 58, ECHR 2001 ‑ X, Rybacki v. Poland , no. 52479/99, § 61, 13 January 2009, Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 97 and 102, 2 November 2010; Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, §§ 627-629 and 632 ‑ 641, 25 July 2013)?

3. Having regard to the applicant ’ s submissions regarding certain factual developments that took place since 2014, were the courts which dealt with the applicant ’ s case “independent and impartial”, within the meaning of Article 6 § 1 of the Convention? What safeguards were available in Turkish law against outside pressures on the domestic courts that heard the applicant ’ s case? In particular;

( a ) Did certain legislative developments pertaining to the judiciary, that took place in the aftermath of the attempted coup – such as the changes in the structure and composition of the Court of Cassation, the structural changes made in the composition of the High Council of Judges, or the possibility of removing judges from duty by decision of the High Council of Judges - as per Article 3 of Legislative Decree no. 667 – undermine the principle of removability of judges as alleged by the applicant in a manner that amounted to an infringement of the applicant ’ s right to an independent and impartial tribunal ?

( b ) Were the domestic courts which dealt with the applicant ’ s case independent, having regard to the applicant ’ s allegations concerning the measures taken against a number of judges who were considered to have rendered judgments or decisions perceived to be in favour of alleged members of FETÖ/PDY ?

II. 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)? In this respect, what, if any, is the relevance of the Court of Cassation ’ s judgment of 24 June 2008, whereby it acquitted Fetullah Gülen of the charges of founding or leading a terrorist organisation, from the perspective of the applicant ’ s complaints under Article 7?

The Government is requested to provide a copy of the Court of Cassation ’ s judgment of 24 June 2008 concerning Fetullah Gülen.

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 by 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 (i.e. use of ByLock, membership of a legally recognised trade union and association, and possession of a CD and certain books found in the basement of his apartment building) 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.

III. Article 8

1. ( a ) Did the information used to prove the applicant ’ s use of ByLock fall within the scope of his right to respect for his “private life” or “correspondence” as guaranteed under Article 8 § 1 of the Convention? If so, did the compiling of that information by various national authorities amount to an interference with that right within the meaning of the first paragraph of that provision?

( b ) In the affirmative, was the interference justified under Article 8 § 2? In particular;

( i ) Having regard to the applicant ’ s allegation that the relevant data was collected in breach of Articles 134 and 135 of the Code of Criminal Procedure and/or the relevant provisions of the Law on Intelligence Services of the State and the National Intelligence Agency, on what legal basis did the MİT obtain and process the relevant data? Did the law in question satisfy the requirements of “lawfulness” within the meaning of Article 8 § 2 of the Convention, including in terms of its accessibility, foreseeability and compliance with the rule of law (see, for instance, Benedik v. Slovenia , no. 62357/14, §§ 124-134, 24 April 2018)? What safeguards were available under the relevant law and practice against arbitrary interference and abuse?

( ii ) Was the data provided by the BTK regarding the applicant ’ s phone and internet traffic records retained and disclosed in accordance with the relevant domestic law, having particular regard to the applicant ’ s allegation that the data in question included information that predated the maximum time-limit set out in the law for its retention? What safeguards were available under the relevant law and practice against arbitrary interference and abuse?

The Government is requested to submit all relevant information regarding the manner in which the applicant ’ s phone and internet traffic records were obtained, including any court orders issued for the obtaining of such information from the service providers .

IV. Article 10

Has there been an interference with the applicant ’ s freedom of expression under Article 10 of the Convention on account of the admission to the case file as evidence of the CDs and books found and seized in the basement of his apartment building (see, mutatis mutandis, Müdür Duman v. Turkey , no. 15450/03, 6 October 2015)? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 ?