Communicated on 19 February 2021 Published on 8 March 2021

SECOND SECTION

Application no. 13762/20 Sefer ÇOLAKOĞLU against Turkey lodged on 9 March 2020

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s conviction for membership of a terrorist organisation, namely FETÖ/PDY (Fetullahist Terrorist Organisation / Parallel State Structure).

On 11 November 2016 the applicant, who was a teacher at a private tutoring centre at the material time, was arrested and taken into police custody on suspicion of membership of FETÖ/PDY and on 14 November 2016 he was placed in pre-trial detention by the Kayseri Magistrates ’ Court.

On 27 December 2016 the Kayseri public prosecutor filed a bill of indictment against the applicant with the Kayseri Assize Court, accusing the applicant of membership of the armed terrorist organisation FETÖ/PDY under Article 314 § 2 of the Criminal Code. The accusation was based on the applicant ’ s use of the application ByLock, which had been developed for the exclusive use of the members of FETÖ/PDY for their internal organisational communication, on one mobile phone line and at the “red” (intensive) level.

At the second hearing held on 3 March 2017 the Kayseri Assize Court convicted the applicant as charged and sentenced him to six years and three months ’ imprisonment. The assize court relied on the following evidence against the applicant: (i) information provided by the Kayseri Security Directorate that the applicant had used ByLock on two different mobile phone lines – via two different mobile phones – owned by him from 22 and 26 October 2015 onwards, respectively, and (ii) records obtained from the Social Security Institution showing that the applicant had been employed for many years at a number of private tutoring centres which were considered to be affiliated with FETÖ/PDY, and that he had carried out this work in different provinces on the direct orders of the terrorist organisation.

On 22 November 2017 the Ankara Regional Appeal Court dismissed the applicant ’ s appeal request and on 20 December 2018 his conviction was upheld by the Court of Cassation.

On 26 November 2019 the Constitutional Court summarily dismissed the applicant ’ s individual application as inadmissible.

On 19 February 2020 the applicant petitioned the Constitutional Court, to draw that court ’ s attention to the fact that a number of his complaints had not been subject to an examination and inviting it to examine those complaints. On 20 February 2020 the Constitutional Court rejected the applicant ’ s request, stating that its decisions were final.

The applicant mainly complains under Article 6 §§ 1 and 3 of the Convention (i) that he was convicted on the basis of evidence unlawfully obtained by the National Intelligence Organisation (MİT) without a court order; (ii) that the unlawfully obtained evidence in question was not made available to his examination, nor was it subjected to direct and independent examination by the domestic courts, and the courts had relied exclusively on the unilateral assessment conducted by the agents of the State on that evidence, in violation of the principle of equality of arms and adversarial proceedings; (iii) that the first-instance and the regional appeal court, as well as the Constitutional Court, failed to provide sufficient reasons for their decisions and to respond to his arguments and complaints; and (iv) that he was denied the right to effective legal assistance having regard to the restrictions imposed by Article 6 (d) of Legislative Decree no. 667 on his communication with his lawyer.

The applicant further complains under Article 7 of the Convention that he was convicted on the basis of acts that did not constitute a crime, and under Article 8 that (i) the information concerning his alleged use of ByLock was collected unlawfully in violation of his right to private life, and (ii) the restrictions imposed on his visitation and telephone rights at the prison, as per the requirements of Article 6 (e) of Legislative Decree no. 667, amounted to an interference with his right to private and family life.

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 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 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 particular 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 it 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 the 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 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 ByLock, including that 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 ) Was digital material obtained from the applicant ’ s house, including his mobile phone, subjected to a forensic examination to determine whether the ByLock application had been used on that phone?

( vi ) 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 .

( g ) Did the domestic courts, including the trial court, the appeal courts and the Constitutional Court, 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 a confidential communication with his/her lawyer under Article 6 § 3 (c) of the Convention restricted by virtue of the measures provided for by Article 6 of Legislative Decree no. 667? 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)?

Article 7

1. 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 connection, could the domestic courts ’ interpretation of FETÖ/PDY as 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 (i.e. use of ByLock and employment at a private tutoring centre which was later found to be affiliated with FET Ö /PDY) 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 to 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

( 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, 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?

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 .