BYLOCK: ENSLAVEMENT OF FREEDOMS IN TURKEY*
Weiser NİCHT (Member of the Supreme Court of the Republic of Turkey, name is fake, but he is real)
Since attempted coup in Turkey dated July 15, 2016, government and judicial institutions continue a relentless witch hunt against opposition. Number of dismissed officials from the public sector exceeded hundreds of thousands long ago. It is doubles or triples when include private sector. Prisons have occupancy well above their capacities. Number of children and babies stay in prison with their mother long pass thousands. At the same time, the government is trying to build new prisons and expand its widespread which hunt. It even develops projects to construct large prisons in open spaces and forests, just like concentration camps. Can you imagine that officials attend to TV programs and talk about gathering the oppositions in those camps and allocate food with ration. People trying to sell all their belongings and escape from the country. Incredible dramas, even catastrophes, taking place in foreign countries, in the seas, in winter conditions, in mountains of other countries or in difficult camp conditions. The number of the lost souls and catastrophes took place the Aegean Sea and Maritsa River have already passed hundreds.
The government tries every possible option to crush the oppositions. For example, it was written in the indictment of Kadri Gürsel, a very famous and doyen columnist of Cumhuriyet, that he is a member of a terrorist organization for being called by someone who has ByLock application on his cellular. Deniz Yucel a Turkish origin German columnist arrested because of a news he published1.
It became enough reason to be a subscriber of Zaman in previous years, which was most selling and reading newspaper up until the government decided to wage a war against it, to have an account in Bank Asya, which was a bank that institutions such as Turkish Airline and Department of Religious Affairs control budgets grater then many Ministries entrusted their money and constantly audited by relevant and authorized institutions of the state, to send their children to schools which organized event such as The International Festival of Language and Culture” with the theme “Colors of the World” to be a “member of a terrorist organization”. A few months before the coup attempt, a small demonstration of 14th Language Olympics were held at the UN General Assembly Hall2. Secretary General Ban Ki-moon and President Obama sent their congratulatory messages. Many states and international originations such as Council of Europe supported and took it under the auspices these Olympics3. For instance, a small demonstration of 2015 Olympics realized under the auspice of the Council of Europe headed by Martin Shchulz4. Many government members and party officials, attorney generals who are leading the investigations and judges who convicted people with above-mentioned “crimes” also committed the same subscription, having account at Bank Asya and enrolling their children to school “crimes”. On the eve of 2016 coup attempt, while the greatest victim of the witch-hunt Hizmet Movement was organizing “Colors of the World- The International Festival of Language and Culture”, one of the hottest topic of Turkey was if President Recep Tayyip Erdogan has a diploma and if he has, was it real or not5.
Open World Internet Application in Virtual Market: ByLock
The ones carry out the witch-hunt in Turkey shows ByLock communication app as most common and widespread reason for their actions. ByLock was an instant chatting program active between 2013-2016 just lie WhatsApp, Telegram, Viber etc, which has many substitutes in virtual market. Open world application can be started by adding one another. It was downloaded from Google Play Store by 500.0006, from Apple Store by 100.0007 people. Application still can be found in many world-known application sharing websites which are commonly used especially by young people8. The app was put into service by a private company whose servers are in Lithuania. But since the beginning of 2016 the servers were out of service for not paying monthly fees9.
Communication is First and Foremost Condition of Democracy
The highest experience points human history reached for the administration of the society without a doubt is the rule of law and democratic social order. And those can be build on and stationed democratic stratum. Communication is free and confidential in every country which has democratic culture and rule of law. But of course, there are essential ground for that.
Firstly, basis of democracy is for every citizen having rights to express themselves about every topic related to them, having a voice if they desire, in short having right to participate to governance. For that, democracy requires that every citizen 1) should be able to reach comprehensive information, 2) should be able reach a conclusion by using the information he/she collected, 3) should be able to convey his/her ideas and convictions about the event takes place in daily life. As is known, these are also form the basis of freedom of speech. For that, freedom of speech, freedom of communication, press and media freedom, internet freedom are civil liberties.
Secondly, fundamental values of democracy necessitate confidentiality of communication. Every person is free as an individual. Of course, he/ she is free to decide with whom to communicate, on which topic to communicate and how to communicate.
Thirdly, democracy absolutely requires opposition. Because criticism of power, exhibiting the mistakes, demonstration of better alternatives only possible if there is an opposition. Moreover, improvement in notion, art, culture, in short in every aspects of life is possible by contradiction and clash of ideas. Ziya Pasha, one of the famous statesmen and poets of the last period of Ottoman Empire, has a famous idiom: “The truth sparks out of the collision of ideas”.
Communication is Confidential
Individuals ability to communicate freely, oppositions and individuals with different notions ability to produce different ideas only possible with confidentiality of the communication. Thus, competent international organizations such as UN Human Rights Council and Council of Europe remark the confidentiality of communication, in this context confidential communication via social media and applications such as WhatsApp and ByLock is a basic human right, and these cannot be classified as crimes.
In the report prepared by UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression David Kaye in 2015, it was stressed that encoded and anonymized social media or internet applications cannot be criminalized10.
Moreover, UN Human Rights Council Special Rapporteur on the right to privacy Prof. Joseph Cannataci mentioned on his report dated March 8, 2016 that states required to ensure the security of encrypted and anonymized communications11.
In the report submitted by The Association for Progressive Communications (APC) to the UN Human Rights Council’s 36. Session12;
“As previous HRC resolutions have emphasized, the use of secure digital communications should be
available to all people, including civil society in Turkey. Instead, the Turkish government is
criminalizing these tools, and intentionally conflating what are standard good security practices with
terrorist activity.
Ultimately, this is a failing strategy. It fails to comply with Turkey’s human rights obligations by
criminalizing tools that are necessary for the exercise of human rights in the digital age; and it fails
from a security perspective, because in the contemporary technological environment, intentionally
compromising encryption, even for arguably legitimate purposes, weakens everyone’s security
online.”
Therewithal, Turkish government was advised not to charge its citizens for using secure digital communication options13.
It was known fact that competent judicial institutions such as ECHR, EU Court of Justice’s consistent jurisprudences are at the same direction.
Likewise, experts, columnists, academists and scientists make statements and comments at parallel directions.
- Frank Uberall “The fact that using an application is the reason for the arrest is nothing but nonsense”
- Since using ByLock application cannot be accepted as a crime, events taken place in Turkey signifies the violation of European Convention on Human Rights clauses 5,6 and 715.
Despite all that, Turkish government and judiciary, as if a magic show, depict using ByLock to communicate confidentially as a criminal act.
Turkey Violated the International Law
Funny businesses about the ByLock is not limited to these. Since the servers are in Lithuania, it is necessary to get in touch with this country to establish names of its users, acquire contents o their messages. Normally this should be done by Turkish judiciary in accordance with international and bilateral agreement by following official procedures. At present the subject is already regulated and in practice for many years. For example, both parties are signatures of The European Convention on Mutual Assistance in Criminal Matters. There are some international agreements more closely related to the topic. Council of Europe (CoE) – Convention on Cybercrime was open to signing on 23 November 2001 and came into force on 1 July 2004. Turkey approved the Convention by Law No. 6533 published in the Official Gazette on 02 May 2014 and was in force since that date. Article 35 of the Convention requires parties to establish contact points to act quickly for an investigation or prosecution. Turkey for this purpose has established “Cyber Crime Combating Department” and the department continues to function since then. Lithuania is a member of EU an CoE. Accordingly, while the fastest and most reliable method to reach the ByLock evidences was to request from the Lithuanian point of contact, Turkey didn’t do it. In addition, there are also bilateral agreements on legal assistance between Lithuania and Turkey.
Erdogan set up a “pool system” to accumulate fund to capture media outlets for many years ago. This “pool media” which is close to government published articles about infiltration of Turkish spies to ByLock’s server in Lithuania to bring it to Turkey. In the articles, it was mentioned that Turkish spies flew to Lithuania with a private jet, infiltrated to building after a week of work where the server is located, in the middle of the night, broke the password to seize the data base and got back to Turkey16. There is even a book publish about operation17. Pool media mention these as a reason to be proud.
Actually what happened was scandalous and shameful. International law was violated, information about private lives, personal data and content of communications of hundreds of thousands of people was stolen. In addition, there is a possibility that espionage and violation of terms of Convention on Cybercrime or actions that fall within the scope of the International Criminal Court was committed. Moreover, this situation being sold as reason to be proud of by government and sources close to the intelligence services.
The issue was discussed in a closed session at the Lithuanian Parliamentary Law and Legal Order Committee. Chief of Committee expressed there are information that the data acquired without following proper procedures18. The issue was discussed in a secret session by the Specialization Commission in the Lithuanian Parliament. Some human rights organizations addressed the issue, appealed to the parliament.
Contradictory Against Turkish Law
The process of obtaining ByLock data by the Turkish authorities is also contradictory to the legislation of the Republic of Turkey, too. For example, Turkish law legislates basic penalties and jurisprudence such as how and by whom forensic evidence can be handled, judge order is necessary before acquiring digital data, necessity of informing accused or his/her proxy during the confiscation, if the accused or proxy desire they can get a copy of confiscated evidence, intelligence agents and agencies has no authorities in legal investigations.
Almost all of them overlap and coincide countries with the advanced democracy. Firstly, during the foundation of the Republic of Turkey in 1920’s latest and up to date legislations of the Wester countries was taken into consideration, many laws translated and put into force. For instance, Turkish Criminal Procedure Code was prepared by translating German Law, 2015 renovation was also based on German Law on Criminal Procedure. Secondly, since the 8. President Turgut Ozal, until December 2013 when the government decided to shunt, Turkey has taken great steps through integration with Western democracies and building democratic social order with great acceleration. In this framework, substantial distances have been taken to align and adapt Turkish legislation with the EU’s. As a matter of fact, until the last years, full membership negotiations with the EU were being held regularly. The jurisprudence of the Turkish judiciary in this process became largely parallel to the jurisprudence of the European Court of Human Rights. Unfortunately, since the beginning of the corruption operations on December 17/25, 2013, all these gains have gone down to the drain in a very short time. Just like a prodigal son losing lifetime accumulation of his prudent and accountable tradesmen father in a night of gamble.
Like a Trill-Comedy Movie
In fact, logic defying events did not just consist procedural mistakes. The information generated from the obtained data or the content that is claimed as outputs are full of nonsense. E.g:
- After July 2016 tens of thousands of people were arrested because of ByLock, but judge order to investigate the ByLock database was obtained months later, in December 2016.
- Authorized institution sends two different reports on existence of ByLock, one is positive, another is negative, to two different court about same person19.
- Expert witness report claims that defendant was online for “10 hours and 30” and “63 hours” at the same time20.
- Even though thousands of people can get online by using same internet IP and this is a scientific fact, there is no reasonable explanation as how to identify person of interest as defendant based on the National Intelligence Agency (MIT) report21.
- An elderly person who uses Beloc hearth medicine was questioned in the court room for ByLock
- And many more examples…
MIT Report Confirms that Data were Altered
Every investigations related to ByLock done in accordance with a report “ByLock Application Technical Report” prepared by same center. It is known as “MIT Report” by public. A watchful eye can realize just by looking at the annexes or correspondences that evaluations in the report are untrustworthy, beside there are suspicion that some information is altered. All these were established and reported by many reputable institutions. For instance, Netherland based FOT IT firm inspected the case at a technical level, and reported the discrepancies, contradictions and unsubstantial data in details23.
Moreover, Fake Evidences were Produced
At first media outlets which has close ties with government claimed that coup attempt was organized by using ByLock. They event published photos of cellular phones with visible ByLock logos on the screen in the hands of attempters24.
But when the news stating that ByLock was out of service since 2016 was revealed, it was understood that the photos in the news were produced by photomontage method. On top of that, while these media groups claimed that “ByLock was used during the coup attempt” just a short while ago, they begun making the exact opposite news when the truth was out25. Imaginary and produced evidences are not limited to these.
Even in This Case There is no Equal Treatment, There is Discrimination and Favoritism
The tragicomedy is not limited to these. According to the sources which has close ties with government claimed that 2 minister and 8 ex-minister, 33 MPs and 47 ex-MPs all from ruling Justice and Development Party (AKP) were using ByLock26. Some sources even claimed 60 MPS were using it27. But there no investigation or prosecution made about them.
All of These were Reported by Many Reputable and Independent International Institutions
Many investigations very made about ByLock application, many inspections and analysis were made related to illogical and unlawful prosecutions in Turkey, they were made public all around the world28.
The Higher Judicial Bodies Became Partners of Lawlessness
Despite all that, The Supreme Court’s, which is the final authority in solving penal dispute in Turkey, relevant department and even the Constitutional Court agreed that “MIT can collect intelligence, and ByLock can be included to coincidental evidence category” and accepted ByLock as a sufficient evidence to be “a member of terrorist organization”. Attitudes and preferences of high courts, despite the non-compliance with the procedural provisions such as lack of judge order and authority, alongside the inconsistencies and issue of trust at the texts submitted as evidence, are legally unacceptable.
Whereas, it was expected that high judicial bodies to side with rights and freedoms, protect the human honor and dignity against governments and other abusers of rights. This is a clear indicator of dysfunctionality of domestic remedies of Turkey.
UN International Criminal Court is Jammed
Because UN ICC judge Aydın Sefa Akay was arrested in Turkey for the accusation of using ByLock, ICC couldn’t meet for examinations of appeals and crucial international mechanisms for humanity have become inoperable29. Turkey was referred to UN Security Council for not releasing Judge Akay30. David KAYE said justification for ByLock arrests were vague and inadequate31.
Allegations and Claims should be Discussed by Following Proper Procedures
In recent months, newspapers are publishing news which includes ByLock chat’s contents. Media outlets which are under complete control of government releases preposterous texts nearly every day. Such as, correspondences and messages that are implying judges and prosecutors generals trying and taking decisions in accordance with orders from the government.
It is neither conceivable not acceptable that a judge in a position of decision maker use his authority in the direction of another will. Such an activity cannot be described as a trial anyway. In terms of the rule of law, it is even abstinent to debate this principle.
Proving a claim is a job for claimant. A trail is a science such as math. How to make a claim or defense, how to inquire, compare and subject to analyze was long identified and being practiced for centuries in countries where the rule of law is valid. Procedural rules, especially in criminal proceedings, are the result of thousands of years of accumulation and experience of mankind. Unfortunately, in terms of the procedure, since some of the above-mentioned rules are not respected, it is legally impossible to evaluate the content and texts as evidences. Even if we ignore the procedural rules, when we get in to the grounds, aforementioned produced and imaginary contents come to mind.
Essentially fact detection is simple. As mentioned, a trial has a logic and a system just like for operations in math. Claims and defense subjected to analyzes by using methods and tools identified by science and mind, and result would be achieved.
If we apply these to our case, it is easy to decide what to do about the claims “when a judge is handles a trial and reaches a verdict in compliance with instruction”. The mishandled file would be reviewed again. The claims and defenses would be subjected to new analyzes by following proper procedures. New and old verdict would be compared. If it turned out that the judge has reached a different verdict than the correct one deliberately, we can reach to a conclusion that the judge acted with order.
Around 5 thousand judges and prosecutors, around 150 higher court members and two Constitutional Court members are being accused of being member of a terrorist organization and taking orders while handling trails. However, there is not even one concrete evidence proves those claims. Even if one or two of them are guilty of these claims, it is illogical to take legal actions against thousands for the crimes of a few.
A file can be extrajudicial if not proper procedures are followed, more precisely, it may not be possible to reach a final verdict by a judicially. As a matter of fact, the procedural shortcomings in the concrete debate have made it impossible to obtain a definite and clear solution to the subject case due to suspected fraud on the grounds. But juts because a case could be clarified through judicial procedures doesn’t mean couldn’t be discussed from the aspects of freedom of press and speech. Because democracy requires every topic related to society to be discussed. Unfortunately, government, the media it controls and the Turkish judiciary by altering evidences and information at will made it impossible the subject to be discussed by press and public healthily.
Indeed, precisely this point is a matter which must be discussed in absolute terms regarding the future of mankind. Because Fethullah Gulen, his followers and supporters are identified as an “armed terrorist groups” by government and judiciary since 15 July 2016. However, weeks before the coup attempt, as mentioned in the beginning, the Hizmet Movement was making a very important contribution to the democracy’s settlement by blending language and culture with the theme of “The Colors of the World’ in many countries of the world; opening nearly 5,000 water wells in African countries, organizing meat distribution campaigns for the oppressed areas under the pressure of poverty.
Undoubtedly, all of these are activities that should be appreciated and supported for the future of the world which is caught in the spiral of acts of violence. Exactly at this point, the irrational behaviors of some judges and prosecutors, if there is, allegedly belong to the same social class had to be uncovered and removed. The hope and ideal of living together in peace, while preserving different cultural values, should not be undermined. Unfortunately, government, the media and the judiciary that have been guided by the it have destroyed this possibility.
Hope and Expectation
As seen, the problem has long gone beyond the borders of Turkey and become an international one. It even reached to a level that could affect the future of humanity. Now, it is time for international community and everyone and every institution that attach importance to humanity, human rights, human honor and dignity to act find a solution to this problem…
*Turkish original text has been translated into English by a couple of human rights volunteers.
Sources:
