Communicated on 19 February 2021 Published on 8 March 2021

SECOND SECTION

Application no. 14894/20 Gültekin SAĞLAM against Turkey lodged on 18 February 2020

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. In that connection, it concerns the use of allegedly unlawful evidence and the purported breaches of the principles of adversarial proceedings and equality of arms. 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 of the traffic data that, according to him, was stored beyond the statutory maximum period. Finally, the application also relates to the Constitutional Court ’ s alleged failure to examine the applicant ’ s complaints and to give sufficient reasons for the dismissal of his individual application.

On 22 June 2016 the applicant was taken into police custody on suspicion of having committed the offence of directing an armed terrorist organisation (punishable under Article 314 § 1 of the Criminal Code). On the same day, the applicant made statements to the police, the public prosecutor and the Kocaeli 1st Magistrate ’ s Court in the presence of his lawyer. The Kocaeli 1st Magistrate ’ s Court decided to release the applicant on bail.

According to an arrest report dated 23 July 2016, the applicant was rearrested and taken into police custody on suspicion of having committed the offence of membership of an armed terrorist organisation (punishable under Article 314 § 2 of the Criminal Code), but the offence on the basis of which he was arrested was also indicated as “Article 309 [of the Criminal Code]” (attempting to overthrow the constitutional order).

On 24 July 2016 the applicant was brought before the Kocaeli 1st Magistrate ’ s Court for questioning, which 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. It rejected the request to detain the applicant for attempting to overthrow the constitutional order holding that there was insufficient evidence giving rise to a strong suspicion that the applicant had committed the impugned offence.

On 20 January 2017 the Kocaeli public prosecutor lodged a bill of indictment against the applicant with the Kocaeli 2nd Assize Court, charging him with membership of an armed terrorist organisation (Article 314 § 2 of the Criminal Code) and financing of terrorism (Article 4 § 1 of Law on Prevention of Financing Terrorism). The public prosecutor adduced the following evidence against the applicant: (i) the statements made by two witnesses; (ii) his use of the ByLock messaging application; (iii) his deposit into his Bank Asya account following the calls made by the leader of the FETÖ/PDY to support that bank, and; (iv) the mobile telephone records showing that the applicant had been communicating with twenty-four other individuals who had also been prosecuted in the context of other criminal investigations for membership of FETÖ/PDY.

On 20 February 2018 the Kocaeli 2nd Assize Court found the applicant guilty of membership of an armed terrorist organisation under Article 314 § 2 of the Criminal Code and sentenced him to seven years and six months ’ imprisonment, while, at the same time acquitting him in respect of financing terrorism. In convicting the applicant, the Assize Court held that the applicant had (i) worked in different cities of Turkey for the companies affiliated with FETÖ/PDY ( iltisak ); (ii) used ByLock messaging application; (iii) deposited an amount of money into his bank account in Bank Asya, which was disproportionate to the amounts of his earlier transactions, following the order of the organisation ’ s leader.

As regards the applicant ’ s use of ByLock, the trial court established that the applicant had had an ID number, a user name and a password and the content of the messages he had exchanged via ByLock revealed that other people had called him “Sungur”, the very name witness V.B. had indicated to the authorities as the name of the applicant. The court went on to hold that the cell tower records had also showed that the applicant had connected to ByLock with two of the mobile telephone numbers which were used by him.

On 20 April 2018 the Second Criminal Division of the Istanbul Court of Appeal dismissed the applicant ’ s appeal.

On 25 December 2018 the Court of Cassation (Sixteenth Criminal Division) upheld the applicant ’ s conviction.

On 10 January 2020 a two-judge Commission of the Constitutional Court declared the applicant ’ s individual application inadmissible in its two-page long decision where it addressed the applicant ’ s complaints and found them inadmissible with reference to its case-law.

Relying on Article 6 of the Convention, the applicant complains that he did not have a fair trial, on account of, inter alia , a breach of the principle of adversarial proceedings and equality of arms, arguing that neither the quality of the ByLock evidence nor the reliability of the National Intelligence Agency ’ s technical report of it were subjected to discussion before the trial court. In the same vein, the applicant complains that he was neither given the raw ByLock data that had been obtained by the public prosecutor ’ s office nor the possibility to examine or have it examined by experts. As a result, the applicant avers that he was convicted on the basis of evidence he was not allowed to contest or disprove.

In the same vein, the applicant contends that, even though Article 1 of the Law no. 2937 on Intelligence Services of the State and the National Intelligence Agency limited the use of intelligent information to espionage offences, the use by the trial court of the ByLock evidence, which was, in his view, intelligent information, was arbitrary.

Relying on Articles 6 and 7 of the Convention, the applicant further asserts that the domestic courts failed to explain (i) when FETÖ/PDY had been established; (ii) when it had been accepted as an armed terrorist organisation; (iii) how his acts had constituted the offence of membership of an armed terrorist organisation, including, in particular their violent and coercive aspects.

Relying on Articles 6 and 13 of the Convention, the applicant also argues that individual application to the Constitutional Court should no longer be considered an effective domestic remedy since that court failed to address his complaints and rejected his individual application without giving any reasons.

The applicant alleges that his conviction for membership of an armed terrorist organisation on the basis of acts, such as depositing money into a bank account or use of ByLock that were not defined as crimes by criminal statutes breached his rights under Articles 7, 8, 9 and 10 of the Convention and Article 1 of Protocol No.1 thereto.

Relying on Article 7 of the Convention, the applicant alleges an infringement of the prohibition against retrospective application of criminal laws, arguing that, although FETÖ/PDY was only recognised by the domestic courts as an armed terrorist organisation with the judgment of the plenary criminal divisions of the Court of Cassation dated 26 September 2017, his conviction rested on acts that preceded that date. In his view, the applicant was convicted of an armed terrorist organisation that did not exist at the time of his arrest.

Relying on Article 8 of the Convention, the applicant further complains that the use by the trial court of his traffic data to prove his use of ByLock was arbitrary given that such data was retained in disregard of the statutory storage period laid down in the relevant law and regulations.

QUESTIONS TO THE PARTIES

Article 6

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.

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 (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 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. 586/15, §§ 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?

( 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 ) 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 ) 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.

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 as 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 are 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 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 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

( 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; 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 against arbitrary interference and abuse (see, for instance, Benedik v. Slovenia , no. 62357/14 , §§ 124-134, 24 April 2018)?

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.

Article s 6 and 13

1. 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)?

2. Did the applicant have available to him an effective domestic remedy within the meaning of Article 13 of the Convention having regard to his allegation that the Constitutional Court did not examine a number of his complaints?