The Supreme Court of Turkey (TSC) had made many decisions that the use of ByLock- a smartphone application that allowed users to communicate via a private, encrypted connection- could be considered a “strong indication” for arrest, upon objections to the arrest warrants made on the grounds of using ByLock. With the Application Ferhat Kara (2018/15231, 4.6.2020) published on June 26, 2020, he made his first decision about accepting the Bylock application as evidence and conviction for membership of a terrorist organization.
As a result of the lawsuit filed on the grounds of “FETÖ / PDY” membership only on the grounds of “using ByLock”, the appeal objections of the applicant, who was sentenced to 7 years and 6 months in prison by the Izmir 15th High Criminal Court, were also rejected and the decision was finalized on 28.2.2019. After the applicant’s rejection of the appeal, Turkish Supreme Court decided on 4.6.2020 about the individual application he made to TSC, and with this decision, it was found that the use of ByLock would be the evidence of membership of terrorist organization alone and therefore did not see any violation of the applicant’s punishment.
In the TSC decision on which the decisions of the High Court of Appeal are based; it is stated that Turkish Intelligence Service (MIT) came across ByLock data (!) while conducting the task and forwarded it to the judicial authorities adding that MIT used its own methods to capture the data, and the data were not illegal (§§ 25, 133-136).
In fact, TSC does not say anything new. The TSC decision does not meet the criticism towards the similar content of the High Appeal Court decisions and objections towards ByLock application being illegal evidence . By saying “MIT’s specific methods”, we come across an untouchable and unquestionable structure and methods. How MIT obtains this data is hidden like a big secret. Whether these “specific methods” are lawful or not is not important for them and neglected to destroy the Gülen community. The possibility that ByLock was designed by MIT and trapped inside the Movement is not investigated. Is it just a coincidence that the data was captured precisely in January 2016, when ByLock was shut down?
In the decision; it is not mentioned the fact that the MİT brought this data to the prosecutor’s office about a year after obtaining this data, whether the data integrity had deteriorated during this period or not. On the other hand, it is not questioned how MIT made the investigation without the approval of the court when it had data before July 15 coup attempt. It is not even known how MIT updated data while Police and Prosecutor’s office already had data. Simply, the questions about the nature of these updates are ignored.
In other words, the High Court of Appeal and Supreme Court wants us to believe that a stolen car which many of its parts were changed and used for 11 months is actually a brand-new car.
Although individual application reviews are limited to alleged violations in the application, it is clearly understood TSC is trying to make a general case, a precedent decision on ByLock by keeping the review quite extensive. TSC had applied the same procedure in Aydın Yavuz and others (2016/22169) and this decision has been used as a precedent in all subsequent “coup attempt” and “FETÖ / PDY” applications. That is why the ‘Ferhat Kara application’, which is the subject of the ByLock decision, examines the application extensively beyond its boundaries. Indeed, the same day M.T. (2018/10424) decision shows that this decision has been taken as a precedent.
As a result of the effort to create jurisprudence, irrelevant decisions and police reports are also examined and after all; TSC decides supporting the decisions of High Court of Appeal and local courts saying “It is not possible to say that the determinations and evaluations made by the courts regarding ByLock are lacking in factual basis.”
In addition, it is noteworthy that there are numerous dismissal decisions made by the High Court of Appeals and Courts of Appeal regarding ByLock, although it is not related to the application and there is no similar situation in the file.
(§§ 97-104). It can be understood from the following sentence in the decision why these decisions, which are not related to their application, were included: “It is understood that the approach of the High Court of Appeals and local courts to ByLock is not categorical.” (§ 159).
As can be seen, TSC’s sole purpose is not solving the subject of the application. The main aim of TSC is; to create the perception that the High Court of Appeal and the local courts do not make monotonous, categorical decisions about ByLock and make fair trials.
TSC, which has given plenty of denial decisions even though it has nothing to do with the application, finds that the applicant’s claim that the digital data was not brought before the court on the grounds that it was “not grounded” with an insufficient reason. The applicant’s allegation on this matter has been summarized and the petition he referred has not been included. It is seen that the principle of equality of arms has been violated against the applicant, who has no access to the documents held by the state, and doubts about this issue cannot be eliminated.
In the face of all this, it is not possible to say that TSC is neutral against the alleged “FETÖ / PDY” applications. As seen in many such applications, TSC has carried out the task of patching the shortcomings of the local courts and justifying the unlawfulness.