European court rules Turkey violated ex-police officer’s rights over ByLock use

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The European Court of Human Rights (ECtHR) has faulted Turkey over the pre-trial detention of a former police officer due to his alleged use of the ByLock mobile phone application, seen by Turkish authorities as a sign of terrorist organization membership.

In its decision made public on Tuesday, the Strasbourg court ruled that Turkey violated Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights as well as Article 5 § 3 (entitlement to trial within a reasonable time or to release pending trial) and Article 5 § 4 (right to a speedy decision on the lawfulness of detention) in the pre-trial detention of Tekin Akgün.

Akgün was put in pre-trial detention in October 2016 as part of a massive crackdown launched by Turkey’s Justice and Development Party (AKP) government on alleged and real followers of the Gülen movement, a faith-based group inspired by the views of Islamic cleric Fethullah Gülen.

The Gülen movement is accused by the Turkish government and President Recep Tayyip Erdoğan of masterminding a failed coup on July 15, 2016 and is labeled a “terrorist organization,” although the movement denies involvement in the coup attempt or any terrorist activity.

The rights court considered that when ordering the applicant’s pre-trial detention in October 2016, the Ankara court did not possess sufficient information on the nature of ByLock to conclude that the messaging application was used exclusively by members of the Gülen movement for the purposes of internal communication.

“In the absence of other evidence or information, the document in question, stating merely that the applicant was a user of ByLock, could not, in itself, indicate that there were reasonable suspicions that could satisfy an objective observer that he indeed used ByLock in a manner that could amount to the alleged offences,” said the court.

Between December 2016 and May 2017 Akgün’s detention was reviewed by various Ankara courts, which held that his incarceration was to be maintained.

In December 2016 Akgün lodged an application with Turkey’s Constitutional Court, too, but the court found his application inadmissible.

Akgün was charged with membership in a terrorist organization in June 2017.

He took his case to the ECtHR in April 2018.

ByLock, once widely available online, has been considered a secret tool of communication among supporters of the movement since the coup attempt despite the lack of any evidence that ByLock messages were related to the abortive coup.

The European court ordered Turkey to pay Akgün 12,000 euros in non-pecuniary damages and an additional 1,000 euros due to costs and expenses.

The court’s decision on Akgün was made by a group of seven judges, and only judge Saadet Yüksel, who represents Turkey on the court, expressed a dissenting opinion.

The UN Human Rights Council’s Working Group on Arbitrary Detention stated in October 2018 that detention, arrest and conviction based on ByLock use in Turkey violated of Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights.

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