ECtHR poses questions to Turkish gov’t on processing of raw ByLock data

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The European Court of Human Rights (ECtHR) has posed a series of questions to the Turkish government concerning the processing of raw data from a smart phone messaging app in the case of a civil servant who was convicted over links to the Gülen movement, the TR724 news website reported on Thursday.

Civil servant Ömer Güven was removed from public service, subsequently arrested following a failed coup in Turkey on July 15, 2016 and sentenced to seven years, six months’ imprisonment on charges of terrorist organization membership by a high criminal court in Kayseri, which based its ruling on his alleged use of the ByLock app, membership in a trade union and CDs and books seized in his basement.

The Gülen movement is accused by the Turkish government and President Recep Tayyip Erdoğan of masterminding the failed coup and is labeled a “terrorist organization,” although the movement denies involvement in the coup attempt or any terrorist activity.

ByLock, once widely available online, is considered by the Turkish government to be a tool of secret communication among supporters of the Gülen movement since the coup attempt despite the lack of any evidence that ByLock messages were related to the abortive putsch.

Unlike the questions the ECtHR had asked about the ByLock messaging app in previous cases, this was the first time the court sought to find out what the raw ByLock data included and how the National Intelligence Organization (MİT) processed it to identify the users including the applicant before handing it over to prosecutors.

The court also questioned whether the conviction for membership in a terrorist organization hinged on the existence of a prior judicial decision declaring the Gülen movement a terrorist organization. In that regard the ECtHR asked the Turkish government to submit a copy of Turkey’s Supreme Court of Appeals’ 2008 judgement acquitting Fethullah Gülen, a US-based Muslim cleric who inspired the movement, of the charges of founding or leading a terrorist organization.

The ECtHR’s questions regarding the raw ByLock data were part of its deliberations as to  whether MİT had tampered with the data.

The court also questioned whether the seizure of the CDs and books, found in the basement of Güven’s apartment, and basing the conviction on these items constitute a breach of freedom of speech under Article 10 of the European Convention on Human Rights.

President Erdoğan has been targeting followers of the Gülen movement since the corruption investigations of December 17-25, 2013, which implicated then-Prime Minister Erdoğan, his family members and his inner circle.

Dismissing the investigations as a Gülenist coup and conspiracy against his government, Erdoğan designated the movement as a terrorist organization and began to target its members. He intensified the crackdown on the movement following the coup attempt.

The court’s questions were part of their deliberations on whether Article 6 of the European Convention on Human Rights, the right to a fair trial, and Article 7, no punishment without law, were violated.

Following the coup attempt the Turkish government accepted such activities as having an account at the now-closed Bank Asya, one of Turkey’s largest commercial banks at the time, and using ByLock, subscribing to the Zaman daily or other publications affiliated with members of the movement, as benchmarks for identifying and arresting alleged followers of the Gülen movement on charges of membership in a terrorist organization.

In different opinions, the UN Human Rights Council’s Working Group of Arbitrary Detention (WGAD) said even if one’s use of ByLock app was documented, it would have been mere exercise of freedom of expression, a right protected under Article 19 of the International Covenant on Civil and Political Rights.

After the abortive putsch, the Turkish government declared a state of emergency and carried out a massive purge of state institutions under the pretext of an anti-coup fight. More than 130,000 public servants were summarily removed from their jobs for alleged membership in or relationships with “terrorist organizations” by emergency decree-laws subject to neither judicial nor parliamentary scrutiny.

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