Published on 6 April 2021

SECOND SECTION

Application no. 11110/20 Ahmet TURAN against Turkey lodged on 20 February 2020 communicated on 15 March 2021

SUBJECT MATTER OF THE CASE

The application concerns under Article 6 of the Convention the alleged unfairness of the criminal proceedings against the applicant whereby he was convicted under Article 314 § 2 of the Criminal Code of membership of an armed terrorist organisation, which the Turkish authorities referred to as FETÖ/PDY (Fetullahist Terrorist Organisation / Parallel State Structure) and considered it to have premediated the failed military coup. The application further concerns the Constitutional Court ’ s failure to indicate the reasons on the basis of which it dismissed the applicant ’ s individual application.

Under Article 7 of the Convention, it further pertains to the alleged breach of the principle of nullum crimen sine lege in view of the applicant ’ s allegation that he was convicted on the basis of acts that were lawful at the time of their commission. Lastly, the application also concerns under Article 8 of the Convention the allegedly unlawful collection of electronic evidence, which was used by the domestic courts to convict the applicant.

At the time of the events giving rise to the present application, the applicant was employed as a teacher by the Ministry of Education prior to his dismissal pursuant to Decree Law no. 672 on the basis of his alleged affiliation with the FETÖ/PDY.

On 27 February 2017 the applicant was arrested on suspicion of his having committed the following offences stipulated in the Criminal Code: attempting to overthrow the constitutional order (Article 309) ; attempting to overthrow the Parliament (Article 311), and attempting to overthrow the Government (Article 312).

On 3 March 2017 the Elazığ Magistrate ’ s Court ordered that the applicant be placed in pre-trial detention for membership of an armed terrorist organisation pursuant to Article 314 § 2 of the Criminal Code .

On 10 March 2017 the Elazığ public prosecutor filed a bill of indictment against the applicant with the Elazığ 2nd Assize Court, charging him under Article 314 § 2 of the Criminal Code with membership of an armed terrorist organisation. The public prosecutor adduced the following evidence against the applicant: (i) his dismissal from public service pursuant to Decree Law no. 672 on the basis of his alleged affiliation with the FETÖ/PDY; (ii) his use of the ByLock messaging application (ByLock); (iii) his membership of a trade union, namely Aktif-Sen, which had been liquidated in accordance with Article 2 of Decree law no. 667, and (iv) his deposit into his Bank Asya account in the period subsequent to the calls made by the leader of the FETÖ/PDY to support that bank.

On 3 November 2017 the Elazığ 2nd Assize Court found the applicant guilty of membership of a terrorist organisation and sentenced him to eight years and nine months ’ imprisonment. In convicting the applicant, the trial court relied on (i) his dismissal from public service pursuant to Decree Law no. 672 on the basis of his alleged affiliation with the FETÖ/PDY; (ii) his use of ByLock as well as the contents of some of the messages he had exchanged, (iii) his membership of a trade union and an association affiliated with the FETÖ/PDY and (iv) his deposit of 38.000 Turkish liras into his Bank Asya account following the order of the organisation ’ s leader, which, the applicant argued, corresponded to the amount he had received following the sale of his share in a property project.

On 26 December 2017 the Fourth Criminal Division of the Gaziantep Court of Appeal dismissed the applicant ’ s appeal.

On 8 October 2018 the Court of Cassation (Sixteenth Criminal Division) upheld the applicant ’ s conviction.

On 2 October 2019 the Constitutional Court ’ s Second Commission consisting of two judges declared the applicant ’ s individual application inadmissible in its two-page long decision, where it addressed the applicant ’ s complaints and rejected them in reference to its case-law.

The applicant alleges that he did not have a fair trial in that the electronic evidence regarding ByLock was unreliable and obtained without a court order and in breach of Articles 134 and 135 of the Code of Criminal Procedure, which govern the collection of electronic evidence and the interception of communications, respectively. In the same vein, the applicant further complains of a breach of the principle of adversarial proceedings and equality of arms, arguing that he was not able to obtain a copy of the electronic evidence and was thus deprived of effectively challenging it.

Relying on Article 7 of the Convention, the applicant complains that his conviction of membership of a terrorist organisation on account of activities which were lawful at the time of their commission (such as his membership of a trade union and an association, and his deposit into a bank) was in breach of the principle nullum crimen sine lege .

The applicant further argues under Article 8 of the Convention that the ByLock data was obtained without any judicial warrant in breach of Article 6 § 2 of Law no. 2937 on Intelligence Services of the State and the National Intelligence Agency and Articles 134 and 135 of the Code of Criminal Procedure.

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 of the Convention? In particular;

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

The parties are invited to explain the evidentiary value of a person ’ s use of this application in the context of the proceedings concerning membership of FETÖ/PDY, and to support their response with relevant judgments delivered by the Constitutional Court and the Court of Cassation in this respect .

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

The Government are requested to provide the Court with a copy of all the material in the case file on which the domestic courts have 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 over 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 concerning the applicant ’ s use of ByLock 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 are 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 material evidence in possession of the prosecution for or against him/her; and (iii) to challenge the authenticity and reliability of the digital evidence used against him/her 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) ? In this connection;

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 on the facts of 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 are 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 are 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.

2. Did the Constitutional Court conduct a proper examination of the applicant ’ s complaints, having regard to the applicant ’ s allegation that it 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

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

a. 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.

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

c. Could the applicant have reasonably foreseen at the material time that the acts attributed to him would be construed as evidence of the offence of “membership of an armed 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 are requested to provide the case-law of the Court of Cassation 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

5. a. Did the information used to prove the applicant ’ s use of ByLock fall within the scope of his right to respect for his/her “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, 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?

The Government are 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.