As the team of the ‘Human rights defenders (HRDs)’, we asked for Yasir Gökçe’s opinion on the current developments in judicial arena in regards to Bylock. Mr. Gökçe is a legal expert who has extensive experience and knowledge on IT law, data protection and cyber security. He published several articles and reports in various peer-reviewed journals on the legality of the use of Bylock in a court of law. He conducted research and obtained a master’s degree in Harvard University. Currently, he furthers his legal studies in the Bucerius Law School.
As might be known, the 16th Chamber of the Turkish
Court of Cassation pronounced on 27.03.2018 a significant judgment
on how the use of the Bylock must be established beyond any doubt by the first
instance courts. The Chief Prosecutor of the Court of Cassation lodged a motion
of opposition against the High Court’s decision before the General Criminal
Chamber of the Court of Cassation. It remains to be seen whether the highest
criminal court in Turkey would uphold the decision or not.
As the team of the ‘Human rights defenders (HRDs)’, we asked
for Yasir Gökçe’s opinion on the current developments in judicial arena in
regards to Bylock. Mr. Gökçe is a legal expert who has extensive experience and
knowledge on IT law, data protection and cyber security. He published several articles and reports in various peer-reviewed journals on
the legality of the use of Bylock in a court of law. He conducted research and
obtained a master’s degree in Harvard University. Currently, he furthers his
legal studies in the Bucerius Law School.
Mr. Gökçe, for those
who are not familiar with the Bylock investigations, would you briefly explain
what the Bylock is as well as its significance for the Turkish judiciary?
Sure. Firstly, Bylock is a secure communication app. Turkish authorities believe that it was
exclusively allocated for the members of the Gülen Movement. The current regime
in Turkey declared the said group as a terrorist organization. The assumption
that Bylock was merely used by the followers of the Gülen Movement is a
convenient one for the regime. Thereby, the regime in Turkey can easily link
anyone who allegedly use the Bylock app to the said group and convict him/her
of terrorism charges.
In short, any finding which indicates that the defendant
might have used Bylock is a sufficient evidence for the Turkish regime to
arrest him/her for one or two years and eventually sentence the defendant to
the imprisonment of 6 years and 3 month at the minimum.
In the light of these
bitter facts, what significance does the current decision of the court of
cassation bear?
At the outset, I am of the opinion that the court of
cassation in Turkey did not render the aforementioned decision out of the
concern for the rule of law. Reports produced by the esteemed human
rights organizations indicate the poor level of the independence and
impartiality of the judiciary in Turkey. I would like to elaborate on various
considerations underlying this sort of judicial decisions more later on.
The current decision of the high court is of particular
importance, because the decision seeks a certain quality of the evidence
linking the individual with the Bylock app. According to the decision, in order
to establish that an individual used the Bylock beyond any doubt, (1) there
must be a Bylock report produced by MİT exclusively for the defendant, which
includes information such as User ID, password etc., (2) there must be a table
of log data gathered from the internet service provider of the individual in
question, and lastly (3) these two records (the Bylock report and the log data
table) must fully match.
In its former decision dated 24.04.2017, the 16th
Chamber of the Court of Cassation (the same high court) ruled that the use of
Bylock has to be established beyond any doubt using technical methods. In this
decision which represents the first precedence of the Court of Cassation on
Bylock, the high court has summarily confirmed the evidentiary value of Bylock
in a court of law, refraining from inquiring how the Bylock metadata was
gathered by MİT. The current decision still do not address the fundamental
problematic aspect of the use of Bylock before a court of law: The illegality
of the way the Bylock data was gathered. In an era when the Europe enacted the
General Data Protection Law and bestowed the EU citizens upon very breakthrough
rights related to their personal data, it appears that the Turkish authorities
arbitrarily and illegally retrieved dozens of terabytes of personal metadata
belonging to the Turkish citizens.
To sum up, while the first decision of the Court of Cassation
puts forward the principle that the phenomenon of the use of Bylock must be
proved beyond any doubt, the new decision elaborates how this phenomenon must
be established by the judiciary.
What is the practical
significance of the current decision? How do you think it will impact the first
instance courts?
It generally takes a long time until the first instance
courts internalize and implement the high courts’ decisions. Therefore, the
responsibility to remind them of the new precedence falls on the
lawyers/litigators.
As you know, there are thousands of victims in Turkey who are
being held in jail on the basis of, borrowing the term from my article, “the Bylock fallacy.” They are
either arrested or convicted on the mere ground that they used the Bylock app.
The alleged use of a messaging app is literally sufficient to be convicted as a
“terrorist” in today’s Turkey. Against this backdrop, to be honest, I don’t mind
how or why the detained victims in Turkey are released as long as they are
freed somehow, whether through a repentance law or by way of high court
decisions setting forth stricter conditions. But, under the current
circumstances, I regret to say that they won’t be released under an impartial
and independent judicial atmosphere.
That said, I believe the first instance courts, namely peace
judges and high criminal courts, would release the detainees at the earliest
convenience, giving deference to the current decision.
Why do you think it
takes less time, compared to their previous performance, for the first instance
courts to adopt the new decision?
Here, I would like to highlight the considerations underpinning
the current decision or the likes. As far as I am concerned, the Turkish
judiciary, bureaucracy and significant portion of the public are well-aware
that thousands of detainees are not “terrorists” as the regime and court
rulings suggest and that they are put behind bars for no reason at all. This
fact generates enormous victimization which greatly hurts what is left of
public conscience and translates itself into pressure directed at the Erdogan
regime. As is the case for any authoritarian country, the Erdogan regime feels
compelled to allow the public some breathing space and to let them blow off the
steam, which otherwise would likely cause social implosions.
I believe these concerns might have forced the regime into
releasing a portion of the “captives” while giving the rest the hope to be
“liberated” soon. I believe that the current decisions are rendered under the
instruction and direction of the regime. For instance, the Assembly of the
Criminal Chambers of the Court of Cassation recognized Bylock as a lawful
evidence right after the Turkish Justice Minister’s following announcement; “The Supreme Court of Appeals’
Assembly of Criminal Chambers will now finalize an appellate review [of
ByLock].”
I am putting myself into the shoes of a Turkish judge: As a judge,
I would be terribly intimidated and threatened by the dismissals and subsequent
arrest of 4500 judges and prosecutors. Applying the decades-long
well-established principles of Turkish case-law with related to terrorism
charges, I would believe deep inside that the defendants could never be
arrested or convicted relying on the findings at hand, namely “Bylock, bank
account, high school, newspaper subscription etc.” There is the salient example
of Hakan Atilla who was convicted by a US justice for being accomplice to the
Erdogan regime’s crimes. Moved by all these factors and the court of cassation,
I would have adopted the decision in a prompt manner and release the Bylock
victims.
Thank you for sharing
your valuable comments Mr. Gökçe. Can we have your last remarks?
As a last remark, I want to stress the following fact: MIT have reduced the number of
people who downloaded Bylock from over 1 million, to 215 thousand, then to 102
thousand, and then to 91 thousand. This mere fact indicates how unreliable
Bylock is as an evidence. But, Turkish judiciary insists on ignoring the
aforementioned fact.
Additionally, as we discuss the unreliability of
the method MİT resorted to in detecting the real Bylock users, there is a
danger of justifying the detention of the real users of the messaging app. In
other words, the mere fact that an individual indeed downloaded or used a
messaging app cannot be taken as an evidence sufficient for his/her detention
or conviction of terrorism charges. In that context, the correspondence held in
the Bylock metadata must be given regard. However, the Erdogan regime has so
far failed to made public any
correspondence of criminal nature.
