Data acquired from the ByLock smartphone application that Turkish courts accept as evidence of terrorist activity are not legal or admissible pieces of evidence but are used by the judiciary as a tool of “malicious prosecution,” a report by the Arrested Lawyers Initiative said.
Turkey has considered ByLock, once widely available online, a secret tool of communication among supporters of the faith-based Gülen movement since a coup attempt in July 2016 despite the lack of any evidence that ByLock messages were related to the abortive putsch, leading to the arrest of thousands who were using it.
The Gülen movement is accused by the 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.
The report, titled “Legal and Technical Issues Around Turkey’s Malicious Bylock Prosecutions,” concerns the criminalization of the use of the ByLock app that led to terror charges for more than 95,000 people.
“The only possible remedy for tens of thousands malicious prosecutions would be the quashing of all of the convictions which were even partly based on the Bylock App,” the report said.
Drawing from three international expert reports and a recently surfaced US federal court document, the Arrested Lawyers Initiative concluded that the Turkish government’s claim that the app was exclusively used by the Gülen movement members is factually incorrect.
According to the report there is evidence of poor employment of the basic principles of digital forensics as well as traces of inconsistencies and manipulation of data in the official ByLock Technical Report by Turkey’s National Intelligence Organization (MİT).
The digital data related to ByLock have not been obtained under the order or oversight of a judicial authority and were processed before forensic authentication under a judge’s warrant, the report concluded.
The report said the facts make “data about Bylock usage at the least unlawfully obtained evidence, and casts the shades of notable doubts in relation to the evidence’s integrity, authenticity, reliability, and accuracy, thereby depriving it of qualification as legal evidence.”
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.
“The Italian Federation for Human Rights (FIDU) is deeply concerned by the ongoing Turkish judiciary harassment. The criminalization of the use of Bylock is also one of the subjects of the third party intervention that we have submitted to the European Court of Human Rights (case of Saglam v. Turkey ) last October. We continue to call on the Turkish authorities to guarantee to all those who have been convicted a fair trial, which also takes into account the ECtHR and the UN decisions as mentioned in the report,” Eleonora Mongelli, vice president of the FIDU, was quoted by the Arrested Lawyers Initiative website as saying.
This year, The European Court of Human Rights (ECtHR) ruled in the case of a former police officer that use of the ByLock application is not an offense in itself and does not constitute sufficient evidence for arrest. The Strasbourg court’s ruling has come as a source of hope for thousands of people who were arrested or sentenced on terrorism charges based mainly on the MİT report that detailed users of ByLock.