Events
The applicant Esra Saraç Arslan was dismissed from public office after the coup attempt on July 15, 2016 while she was working as a research assistant. An investigation was initiated by the Prosecutor General’s Office against the applicant on suspicion of being a member of the Fetullah Terrorist Organization / Parallel State Structure (FETÖ/PDY) and the applicant was taken into custody. As a result of the investigation, a public lawsuit was opened with the indictment of the prosecutor general’s office demanding that the applicant be punished for membership in an armed terrorist organization, and the court decided to convict the applicant with a prison sentence.
An investigation has been initiated against the applicant Özlem Yıldırım, who was a housewife at the time of the events, by the chief public prosecutor’s office against FETÖ / PDY. Based on the ByLock findings, an arrest warrant was issued for the applicant by the criminal magistrate’s office at the request of the prosecutor general’s office, and the applicant was arrested after his interrogation. As a result of the trial, he was sentenced to a prison sentence by the high criminal court. The applicant’s application for appeal against the said provision was rejected on the merits by the regional court of justice, and the decision to reject the appeal on the merits was upheld by the Court of Cassation.
The Allegations
The applicant Esra Saraç Arslan claimed that the principles of equality of arms and contradictory trial were violated due to the rejection of the request to have an expert examination on the data related to the ByLock evidence; the applicant Özlem Yıldırım claimed that the right to a fair trial was violated due to the unlawful acquisition of ByLock data and relying on this data as the only or decisive evidence in the conviction decision.
The Court’s Assessment
A. From the Direction of Esra Saraç Arslan Application
In the concrete case, the only evidence based on the applicant’s conviction for membership of a terrorist organization is that he is a ByLock user. The applicant objected to the claim that he was a ByLock user at all stages of the trial, arguing that the GSM line subject to ByLock detection belonged to him, but he did not use the program in question.
The Court reached the conclusion that the applicant is a ByLock user based on the ByLock Query Result Report and HIS (CGNAT) records belonging to the GSM line prepared by law enforcement units and submitted to the file. In his defense during the investigation and prosecution phases, the applicant objected to the claim that he was a ByLock user; he declared that he downloaded the program but did not use it. The applicant’s request to have an expert examination on the technical data related to ByLock was rejected, and a conviction provision was established based on the ByLock query result report and CGNAT records. In the reasoned decision, there was no explanation that the CGNAT records were examined in the context of the accused and the case subject to the trial. On the other hand, it has been seen that the statement on which the Court of Cassation based the approval decision is related to the acceptance that the program was downloaded from the application store. However, the Supreme Court of Appeals accepted the use of the ByLock program for organizational purposes, not downloading, as evidence of a crime, and the Constitutional Court did not see any problems with this acceptance within the framework of the constitutional review.
As a result, the fact that the court of instance considers only the interrogation result report and CGNAT records submitted to the file by the police department in terms of the existence of the facts that justify the conviction, the refusal of the expert examination requested by the detained applicant to test the accuracy and reliability of these minutes and records without an adequate examination / evaluation has put the applicant at a significant disadvantage in terms of using procedural opportunities in front of the prosecution. It is also not possible for the applicant to prove his claims by his own means. It is clear that the method followed by the court in these circumstances does not comply with the requirements of the principles of equality of arms and contradictory trial and does not contain guarantees protecting the applicant’s interests. This situation has caused the trial to cease to be fair as a whole.
The Constitutional Court has ruled that the principles of equality of arms and contradictory trial have been violated on the grounds described.
B. Özlem Yıldırım In Terms of Application
In the concrete case, it was seen that the court accepted the determination that the applicant had used the ByLock program for the purpose of providing intra-organizational communication – although it was not the only one – as decisive evidence. As a result of the examinations, the court concluded that the applicant used this program to provide internal communication as of the contents of the messages and emails found to have been sent by ByLock users to the applicant or other ByLock users by the applicant. The applicant claimed that he did not know the other people who were found to be communicating via messages and mail via ByLock and that he did not use the ByLock program.
Taking into account the contents of the encrypted communication network used only by FETÖ/ PDY members – for the purpose of ensuring confidentiality in organizational communication – in terms of its structure, mode of use and technical characteristics, the messages and mail detected related to communication established through the ByLock program in the concrete case, the use of the applicant for the purpose of providing organizational communication as a basis for conviction for the crime of membership in a terrorist organization, which completely neutralizes the procedural guarantees within the scope of the right to a fair trial, and clearly cannot be considered an arbitrary practice. Therefore, it has been understood that the allegations regarding the use of ByLock as the only or decisive evidence in the conviction are in the nature of a complaint against the law.
The Constitutional Court has decided that the application is inadmissible on the grounds described above due to the fact that it lacks a clear basis.
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