A coalition consists of the Arrested Lawyers Initiative, the Open Dialogue Foundation and the Human Rights Defenders e.V. made a joint submission titled ‘ARBITRARY APPLICATION OF ANTI-TERRORISM LAWS AND CRIMINALIZATION OF USING AN I-MESSAGE APPLICATION (BYLOCK)‘ to the United Nations Human Rights Council for Turkey’s UPR session.
The Submission concluded that:
- Criminalization of the use of ByLock constitutes the retroactive punishment because a) it is not foreseeable under Turkish laws, b) it is unprecedented in Turkish case-law, c) at the time of such alleged use it was not the object of sufficiently precise, valid law to which a sufficiently certain sanction was attached,
- The use of ByLock does not prove criminal guilt.23 Using an electronic communication software which was offered to public use via the most visited and famous online platform (i.e Apple and Google Play stores) is legitimate exercise of fundamental rights, namely the freedom of expression and the freedom of [confidential] communication, not a crime. Freedom of expression includes the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, including all forms of electronic and internet-based modes of expression,
- A conviction may be based on correspondence which show a crime has been committed provided that such correspondences have been legally acquired and in any case it is supported with other concrete evidence,
- An arrest or detention that lacks any legal basis—in violation of the principle of legality—is arbitrary. Retroactive criminal punishment by detention amounts to arbitrary detention. Arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the ICCPR, such as freedom of expression, is arbitrary,
- By retroactively criminalizing a legal means of expression and communication, Turkey has violated the principle of legality, as well as its national and international obligations a) to protect and respect, b) the freedom of expression, c) the freedom of confidential communication, d) the principle of no punishment without law, e) the prohibition of retroactive punishment, the right to privacy of private life, and to abstain from arbitrary detention. UN Human Right Committee opted that detention on grounds of using or downloading Bylock cannot justify a deprivation of liberty,
- UN Working Group on Arbitrary Detention, has constantly opted for the response that Turkey, detaining an individual on grounds of using Bylock constitutes violation of freedom of expression30and the right to liberty (Article 9 ICCPR). Furthermore, the WGAD concluded that the TurkishGovernment’s detention praxis against the members of the Gulen Movement forms the Category-V violation (in other words, the WGAD opted for the decision that Turkey has committed a violation of the right to liberty on the grounds of discrimination that is based on nationality, religion, ethnic or social origin, political or other opinions, or any other status),
- Concerns over the accuracy of the MİT report, the legality of the data collection upon which it is founded, and the legality of its use as evidence in court amplify and multiply the grounds on which Turkey has violated its international human rights commitments.