Interview with the legal expert Yasir Gökçe on the current judgment of the court of cassation on ByLock

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.                  

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