In her country report dated 19 February, 2020, Dunja Mijatovic, Commissioner for Human Rights of the COE urged Turkey to implement the UN Human Rights Committee’s decision dated 26 March, 2019 and and comply with the principles established therein.

The decision mentioned by the Commissioner had established that the criteria used by the Turkish Government to prosecute and convict individuals, such as having used the encrypted chat application called Bylock or having a deposit account in Bank Asya, were not enough to justify such conduct. The UN Human Right Committee concluded that a detention based on above-mentioned criteria was unlawful.

Paragraphs 43-44 of the report as follows:

The increase in legal uncertainty is also not limited to the realm of freedom of expression. The state of emergency and the criminal proceedings concerning membership of FETÖ/PDY appear to have had a particularly negative legacy in this respect: in most cases, membership of FETÖ/PDY was primarily determined by such acts as the use of a smartphone application called “Bylock”, deposits in Bank Asya, and links with or using the services of schools or hospitals associated with Fethullah Gülen. This approach overlooks the fact that these institutions were operating under licenses delivered by the relevant state bodies until the coup attempt in July 2016 and is based on the assumption that the persons concerned should have known not to trust these licenses and severed their ties with these institutions. The Commissioner notes in this respect a view adopted on 26 March 2019 on an individual communication under the Optional Protocol to the ICCPR, where the UN Human Rights Committee considered that detention, the evidence for which was solely based on Bylock use and deposits in Bank Asya, amounted to a violation of the International Covenant on Civil and Political Rights.

The Commissioner considers that the implications of this approach are worrying for the principles of legal certainty, foreseeability of criminal offences and the rule of law in general, as anyone can retroactively be considered a member of a criminal organisation long after the events in question. In the opinion of the Commissioner, this is also the core issue in the ongoing case concerning the Gezi events.