Events
The applicant Esra Saraç Arslan was working as a research assistant and was dismissed from public service following the coup attempt on 15 July 2016. The Chief Public Prosecutor’s Office initiated an investigation against the applicant on suspicion of being a member of the Fetullah Terrorist Organisation/Parallel State Structure (FETÖ/PDY) and the applicant was detained. As a result of the investigation, a public case was opened with the indictment of the Chief Public Prosecutor’s Office demanding the applicant to be sentenced for being a member of an armed terrorist organisation and the court sentenced the applicant to imprisonment.
The Chief Public Prosecutor’s Office initiated an investigation against the applicant Özlem Yıldırım, who was a housewife at the time of the events, in relation to FETÖ/PDY. Upon the request of the public prosecutor’s office based on ByLock detections, an arrest warrant was issued for the applicant by the criminal judgeship of peace and the applicant was arrested after her interrogation. As a result of the trial, he was sentenced to imprisonment by the heavy criminal court. The applicant’s appeal against the aforementioned judgement was rejected on the merits by the regional court of appeal, and the decision to reject the appeal was upheld by the Court of Cassation.
Allegations
The applicant Esra Saraç Arslan claimed that the principles of equality of arms and contradictory trial were violated due to the rejection of her request for an expert examination on the data related to 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 the reliance on this data as the sole or decisive evidence in the conviction decision.
The Court’s Assessment
A. Regarding the Application of Esra Saraç Arslan
In the concrete case, the only evidence relied upon in the conviction of the applicant for membership of a terrorist organisation was that he was a ByLock user. The applicant objected to the allegation that he was a ByLock user at all stages of the trial and argued that the GSM line subject to ByLock detection belonged to him but that he did not use the programme in question.
The Court reached the conclusion that the applicant was a ByLock user based on the ByLock Interrogation Result Report issued by the law enforcement units and the HIS (CGNAT) records of the GSM line. In his defences at the investigation and prosecution phases, the applicant objected to the allegation that he was a ByLock user and stated that he had downloaded the programme but did not use it. The applicant’s request for an expert examination on the technical data related to ByLock was rejected and the conviction was based on the ByLock interrogation result report and CGNAT records. The reasoned decision did not include any explanation regarding the examination of the CGNAT records in relation to the defendant and the case subject to the trial. On the other hand, it has been observed that the statement on which the Court of Cassation based its confirmation decision was related to the acceptance that the programme was downloaded from the application store. However, the Court of Cassation accepted using the ByLock programme for organisational purposes, not downloading it, as evidence of a crime, and the Constitutional Court did not see any problem with this acceptance within the framework of the constitutional review.
As a result, the fact that the trial court only took into account the interrogation report and CGNAT records submitted to the file by the police directorate in terms of the existence of the facts justifying the conviction, and that the expert examination requested by the applicant, who was tried in pre-trial detention, to test the accuracy and reliability of these minutes and records was rejected without a sufficient examination/evaluation, put the applicant at a significant disadvantage in terms of benefiting from procedural opportunities against the prosecution. It is also not possible for the applicant to prove his allegations with his own means. Under these circumstances, it is clear that the method followed by the court does not comply with the requirements of the principles of equality of arms and adversarial proceedings and does not include guarantees protecting the applicant’s interests. This situation caused the trial as a whole to cease to be fair.
For the reasons explained above, the Constitutional Court held that the principles of equality of arms and adversarial proceedings were violated.
B. Regarding Özlem Yıldırım’s Application
In the concrete case, the court accepted the determination that the applicant used the ByLock programme for intra-organisational communication as decisive evidence, although not the only one. As a result of the examinations made, the court concluded that the applicant used this programme for the purpose of intra-organisational communication based on the content of the messages and e-mails sent by ByLock users to the applicant or by the applicant to other ByLock users. The applicant, on the other hand, argued that he did not know the other persons who were found to have communicated via ByLock messages and e-mails and that he did not use the ByLock programme.
Considering the content of the messages and e-mails detected in the concrete case regarding the communication established through the ByLock programme, the use of the encrypted communication network, which is used only by FETÖ/PDY members -in order to ensure confidentiality in organisational communication- in terms of its structure, usage method and technical features, as a basis for the conviction for the crime of being a member of a terrorist organisation cannot be considered as a clearly arbitrary practice that completely neutralises the procedural guarantees within the scope of the right to a fair trial. Therefore, it is understood that the allegations regarding the use of ByLock as the sole or decisive evidence in the conviction are in the nature of a remedy complaint.
For the reasons explained above, the Constitutional Court ruled that the application was inadmissible due to manifest lack of grounds.
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