New Report: Legal and Technical Issues Around Turkey’s Malicious Bylock Prosecutions

BYLOCK REPORT COVER

 

The Arrested Lawyers Initiative published a new report titled ‘Legal and Technical Issues Around Turkey’s Malicious Bylock Prosecutions‘ on criminalization of the usage of Bylock app that victimized more than 90,000 individuals.

“Bylock data is not lawful and admissible evidence but is a tool of malicious prosecution given to the Turkish Judiciary by the National Intelligence Agency. The only possible remedy for tens of thousands malicious prosecutions would be the quashing of all of the convictions which were even partly based on the Bylock App, and then giving all those who have been so convicted a fair trial where the above-mentioned ECtHR and the UN decisions will be taken into account.” is said in the report.


ÖZET TÜRKÇE TERCÜMESİ DE YAYINDA: BYLOCK YARGILAMALARINDAKI HUKUKI VE TEKNIK SORUNLARA ILISKIN RAPOR


In the light of three international expert reports, and a recently surfaced an US Federal Court document, the report concludes that the Turkish government’s ‘exclusive usage claim’ is factually incorrect.


cremades-1068x499Javier Cremades,  President of World Jurist Association: “Turkey´s Bylock prosecutions that defendants denied examining the evidence against them, and the manipulation of digital data by Turkish authorities is a violation of the rule of law.” (Full quote is below)


The report further presents that:

i. That there are ever-changing figures and criteria on the side of the Turkish authorities around the use of the Bylock App,

ii. The Turkish authorities claim on the exclusive usage is proven to be wrong,

iii. That there is evidence of delayed and disintegrated forensic authentication of the digital data related to Bylock,

iv. That there is poor employment of the basic digital forensic principles, as well as traces of inconsistencies and data manipulation in the official Bylock Technical Report by MİT,

v. That the digital data / evidence related to the Bylock App has been obtained without the order and oversight of a judicial authority,

vi. That the digital data / evidence that is related to the Bylock App was processed before forensic authentication (under a judge’s warrant),

vii. That there was illegal use of Bylock related data obtained through administrative investigations in judicial proceedings,

viii. That the Bylock related internet traffic metadata was retained for longer than the legally prescribed period,

ix. That there is validation and substantiation of many of these findings in the proceedings of supranational mechanisms, such as ECtHR and the UN Human Rights bodies.


The report concludes that the above-mentioned facts make data about Bylock usage at the least unlawfully obtained evidence, and casts the shades of notable doubts in relation to the evidence’s integrity, authenticity, reliability, and accuracy, thereby depriving it of qualification as legal evidence.” Later on, “The unsettled narrative about how Bylock data was acquired, processed and considered, and the shifting claims about the facts relating to the evidence, such as ever-changing criteria and the number of individuals who allegedly used the App; the judicial authorities’ decisions that deny the defense the possibility of obtaining and examining Bylock evidence against the defendant, together with the law enforcement agency’s warning that the data cannot be the basis for judicial procedures, all create doubts in regard to the fabrication, alteration or corruption of the data. Furthermore, also, withholding the copy of the digital data/evidence that is related to the Bylock App from both the defendants and their counsel casts a thick and reasonable shadow over the evidence and constitutes the violation of the right to a fair trial.” is said in the report.


Eleonora Mongelli, Vice President of the Italian Federation for Human Rights (FIDU): “This report shows that Bylock does not represent lawful and admissible evidence but is just a tool of malicious prosecution given to the Turkish Judiciary by the National Intelligence Agency, which is used without observing the defendants’ right to a fair trial. In fact, defendants and their lawyer were given no opportunity to examine the evidence, which may be manipulated by MIT. The Italian Federation for Human Rights (FIDU) is deeply concerned by the ongoing Turkish judiciary harassment. The criminalization of the use of Bylock is also one of the subjects of the third party intervention that we have submitted to the European Court of Human Rights (case of Saglam v. Turkey ) last October. We continue to call on the Turkish authorities to guarantee to all those who have been convicted a fair trial, which also takes into account the ECtHR and the UN decisions as mentioned in the report.” (Full quote is below)


Stuart Russell*: “The right to a full and proper defence is fundamental to the rule of law, democracy and basic human rights.  So, denying a defendant the right to examine digital data used against them in legal proceedings is a flagrant violation of the rule of law.” 

*Co-chair, Monitoring Committee on Attacks on Lawyers International Association of People’s Lawyers, human rights lawyer, law professor & (ret.) administrative judge.


‘... (T)his report convincingly shows why the Bylock investigations/convictions in Turkey are marred by a number of errors, biases and uncertainties both inherent in the evidence and the human factor involved in the production/interpretation of the evidence. As such, the report is not only about Turkey and its (mis)use of digital evidence for vindictive and egregious ends. It is also about any country where such weaponization of digital evidence is taking place. The report is therefore a must read for anyone as it elucidates the potential dangers of digital forensics evidence regularly relied upon in courts…” Dr. Emre Turkut, postdoctoral researcher at Hertie School Berlin. (Full quote is below)


Dr. Emre Turkut, postdoctoral researcher at Hertie School Berlin:

“This report serves as a chilling reminder that one day you wake up and realize that instant messaging you have been using could become the center of a government’s crackdown on a certain group. In a turn of events that would not look altogether unfamiliar on a Black Mirror episode, since the 15 July 2016 attempted coup, thousands of people have been persecuted/convicted based on an unusual piece of digital evidence on their devices; an online encrypted messaging app known as Bylock which Turkish authorities claim was used by members of the network led by US-based Muslim cleric Fethullah Gulen. Since then, these individuals have been asking some very reasonable questions, which the Turkish authorities have failed to answer: Is this evidence reliable? How did it get here? Who download or transferred them? Was it obtained lawfully? By answering each question adequately, this report convincingly shows why the Bylock investigations/convictions in Turkey are marred by a number of errors, biases and uncertainties both inherent in the evidence and the human factor involved in the production/interpretation of the evidence. As such, the report is not only about Turkey and its (mis)use of digital evidence for vindictive and egregious ends. It is also about any country where such weaponization of digital evidence is taking place. The report is therefore a must read for anyone as it elucidates the potential dangers of digital forensics evidence regularly relied upon in courts.”


Javier Cremades,  President of World Jurist Association

“Turkey´s Bylock prosecutions that defendants denied examining the evidence against them, and the manipulation of digital data by Turkish authorities is a violation of the rule of law. 

Rule of law is anthropocentric, it recognizes the human being as the center of law and makes manifest that the ultimate finality of law and in particular of constitutional law, is to protect and promote the individual. The Constitution is therefore necessarily based on the recognition of human dignity as the supreme value and of its twin principle, the principle of freedom. 

Rule of Law is inseparably linked also with democracy as an essential element of freedom of the individuals, the people, to co-determine politics, the decisions about their lives, their destiny, through elections and through the daily participation in political discussion. Rule of law is a general concept but has a great spectrum of aspects, of specifications which are commonly recognized: Law must be clear and determined. Security of law implies stability of law which conveys confidence in law and hinders retroactivity. Security of law also requires, and this is particularly important, an efficient control by an independent and impartial judiciary. The review of legislation by constitutional justice is even the “perfection” of rule of Law. Proportionality of freedom restrictions as well as separation of powers as a freedom securing concept are further rule of law specifications of highest importance. Rule of Law is a basic legal concept inherent in liberal democracy constitutionalism; however, this concept lives from its acceptance in society and from the willingness of the political actors to practice it.” 


Eleonora Mongelli, Vice President of the Italian Federation for Human Rights (FIDU): “Turkish authorities claim that ByLock is a communication tool exclusively used by members of the Gülen movement and that anybody who may have downloaded it is, in fact, a “terrorist.”

However, the messaging app is actually being used as pretexts to arrest political opponents. So far, 92,769 individuals have been prosecuted for its alleged use.

This report shows that Bylock does not represent lawful and admissible evidence but is just a tool of malicious prosecution given to the Turkish Judiciary by the National Intelligence Agency, which is used without observing the defendants’ right to a fair trial. In fact, defendants and their lawyer were given no opportunity to examine the evidence, which may be manipulated by MIT.

The Italian Federation for Human Rights (FIDU) is deeply concerned by the ongoing Turkish judiciary harassment. The criminalization of the use of Bylock is also one of the subjects of the third party intervention that we have submitted to the European Court of Human Rights (case of Saglam v. Turkey ) last October. We continue to call on the Turkish authorities to guarantee to all those who have been convicted a fair trial, which also takes into account the ECtHR and the UN decisions as mentioned in the report.”



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  1. Turkey: New Report: Legal and Technical Issues Around Turkey’s Malicious Bylock Prosecutions | IAPL Monitoring Committee on Attacks on Lawyers
  2. ECHR: Pretrial detention of Amnesty Turkey chair breached the Convention – The Arrested Lawyers Initiative
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