Communicated on 19 February 2021 Published on 8 March 2021

SECOND SECTION

Application no. 15013/20 Ä°brahim ÃœRÃœN against Turkey lodged on 27 February 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).

The applicant, a police superintendent ( komiser ) at the material time, was dismissed from civil service by way of Legislative Decree no. 672 (promulgated on 1 September 2016), on account of his connection with a terrorist organisation (see Zihni v. Turkey (dec.), no. 59061/16, §§ 4-7, 29 November 2016 for further background information and details on Legislative Decree no. 672).

On 20 August 2016 he was arrested and taken into police custody on suspicion of membership of FETÖ/PDY.

On the same date, the Ad ı yaman Magistrates ’ Court issued an order for the search of the applicant ’ s house, and the search was conducted later on the same day.

On 25 August 2016 the applicant was brought before the Adıyaman Magistrates ’ Court, which ordered his release pending trial. On 26 August 2016 the Adıyaman public prosecutor ’ s office objected to the applicant ’ s release and requested his detention on remand. On 1 September 2016 the applicant was placed in pre-trial detention by the Adıyaman Magistrates ’ Court.

On 5 June 2017 the Adıyaman public prosecutor filed a bill of indictment against the applicant with the Adıyaman 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 following evidence: (i) use of the application ByLock, an encrypted messaging application which had been developed for the exclusive use of the members of FETÖ/PDY for their internal organisational communication, on his personal mobile phone as from 15 August 2014; and (ii) witness statement attesting to his participation in “conversation meetings” ( sohbet ) organised by the terrorist organisation for his occupational group.

At the third hearing held on 25 December 2017, the Adıyaman Assize Court convicted the applicant as charged and sentenced him to nine years ’ imprisonment on the basis of the following evidence:

(i) Adıyaman Security Directorate ’ s communication analysis report dated 3 October 2017, which indicated that the applicant had connected to the ByLock server Internet Protocol (“IP”) addresse for a total of 3,331 times between 15 August 2014 and 23 December 2015 from his personal mobile phone;

(ii) Adıyaman Security Directorate ’ s report dated 27 September 2017 on the content of the applicant ’ s ByLock messages, which demonstrated that all of his contacts were police officers, police superintendents or “mahrem imams” (persons responsible for law enforcement officers belonging to the FETÖ/PDY organisation) who were similarly charged with membership of FETÖ/PDY;

(iii) the applicant ’ s HTS ( Historical Traffic Search ) records, which showed that after ByLock, the applicant had used “Eagle” and “Kakaotalk”, both of which were encrypted messaging applications used by the terrorist organisation;

(iv) witness statement indicating the applicant ’ s participation in “sohbet” meetings and financial contribution to the organisation ( himmet );

(v) information obtained – from the separate criminal investigation conducted in relation to the secret organisation of the FETÖ/PDY within the law enforcement agencies – regarding the profiling of the law enforcement officers by the terrorist organisation, according to which the applicant was given the code “B4”, which stood for those “who were members of FETÖ, who had resigned themselves [to it] and were loyal and attached [to it], but who questioned certain issues or who had weaknesses”; and

(vi) analysis conducted on the electronic devices seized from the applicant ’ s house and work place, which showed, inter alia , that he had frequently visited a number of online news portals that had been shut down after the coup attempt, that he had in his possession certain documents containing information on students, their accommodation, and programs to be followed in student houses, and that he had used “Kakaotalk”, a secure messaging application. The assize court also noted that the expert examination conducted on the applicant ’ s mobile phone showed that the phone had been activated on 17 August 2016, which indicated either that the applicant had used that phone for the first time on that date, or that he had reset and restored his phone to factory settings on the said date, which was frequently done by members of FETÖ/PDY in the aftermath of the attempted coup and which the assize court opined that the applicant had also done on the terrorist organisation ’ s instructions.

On 6 April 2018 the Gaziantep Regional Appeal Court dismissed the applicant ’ s appeal request and on 8 October 2018 his conviction was upheld by the Court of Cassation.

On 17 January 2020 the Constitutional Court summarily dismissed the applicant ’ s individual application as inadmissible.

The applicant mainly complains under Article 5 of the Convention that he was not detained on the basis of “a reasonable suspicion” that he had committed an offence, and that his pre-trial detention had been ordered and prolonged on the basis of stereotyped decisions.

He further 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 seizure of the digital evidence found in his home was not carried out in accordance with Article 134 of the Code of Criminal Procedure; (iii) that he was not provided with adequate time and facilities to be able to prepare his defence, as the evidence relied on by the trial court was not made available to him duly and in a timely manner; 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 also complains under Article 7 of the Convention that he was convicted on the basis of acts that did not constitute a crime; under Article 8 that the information concerning his alleged use of ByLock was collected unlawfully in violation of his right to private life; and under Article 13 that the Constitutional Court failed to provide sufficient reasons for its decisions and to respond to his arguments and complaints.

QUESTIONS TO THE PARTIES

Article 5

1. Can the applicant be considered to have been detained on the basis of “a reasonable suspicion” that he had committed an offence (see, in particular, Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A No. 182)?

2. Did the judges who ordered the applicant ’ s pre-trial detention, who examined the objections lodged against that measure and who decided on the prolongation of the detention provide relevant and sufficient grounds in support of the deprivation of liberty in question (see, in particular, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87-123, 5 July 2016)?

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 digital evidence concerning the applicant ’ s use of ByLock obtained lawfully, having regard (i) to the manner in which was procured by the National Intelligence Organisation ( Milli İstihbarat Teşkilatı , “MİT”), and (ii) to the allegation that the seizure of the digital material found in his house had not been carried out in accordance with Article 134 of the Code of Criminal Procedure?

( 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?

( 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?

( iii ) 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?

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 ) Was the applicant provided with adequate time and facilities, as required under Article 6 §§ 1 and 3(b), to be able to prepare his defence? In particular, was he provided with all the material evidence used against him in a timely manner?

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

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 participation in “sohbet” meetings) 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 .

Articles 6 and 13 of the Convention

1. Did the Constitutional Court discharge its duty to 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/her 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?