Since July 2016, when a controversial coup attempt which was called a gift from God by the President Erdogan, the Turkish government has escalated its crackdown on lawyers, leading to a staggering number of arrests and harsh sentences on terrorism-related charges. The Arrested Lawyers Initiative reported that at least 1,600 lawyers have been arrested by police, with a shocking 551 of them sentenced to a total of 3,356 years in prison. These charges primarily revolve around alleged membership in terrorist organizations.
One such lawyer caught in the crosshairs of this crackdown is Erol Altintas, a respected member of the Bolu bar association. Having served as a reputable lawyer for an impressive 27 years, Altintas found himself facing a dubious trial, shedding light on the questionable grounds on which many of these legal professionals are being sentenced to severe punishments on trumped-up terrorism charges.
The turmoil began in the aftermath of the 2016 coup attempt when Altintas, like numerous others, promptly condemned the coup attempt during its early hours. However, his fate took a grim turn when, three days after the declaration of a state of emergency, he was arrested and charged with membership in an armed terrorist organization. Despite repeated decisions from international courts and tribunals such as the European Court of Human Rights (ECHR), the UN Human Rights Committee, the UN Working Group of Arbitrary Detention, and foreign courts that the actions imputed to him were entirely lawful, Altintas was eventually handed an 8-year and 9-month prison sentence by the Bolu Heavy Penal Court.
(I) Allegedly using the Bylock app
Central to his conviction was the allegation that Altintas had used a mobile app called Bylock. During the trial, the lawyer vehemently denied these accusations and sought an expert panel examination to contest the claims against him. However, the Court denied his requests without providing adequate reasoning, effectively violating the principle of equality of arms in the legal process. Furthermore, the ECHR itself has made clear that mere usage of an encrypted mobile app cannot, on its own, serve as reasonable suspicion for arrest, let alone as evidence for a conviction.
ECtHR: Tekin Akgün v Turkey, App no: 19699/18
In a complaint to the ECtHR arising as a result of the applicant being detained on the basis of downloading/using Bylock, ECtHR found that the mere fact of downloading or using, a means of encrypted communication or, indeed, the use of any other method of safeguarding the private nature of exchanged messages, could not in itself amount to evidence capable of satisfying an objective observer that illegal or criminal activity was being engaged in. It was only when the use of an encrypted communication tool was supported by other evidence about its use, such as, for example, the content of the exchanged messages, or the context of such exchanges, that the evidence was capable of satisfying an objective observer of reasonable grounds to suspect the individual using that communication tool of being a member of a criminal organization. (§§177-181)
ECtHR: Taner Kılıç v Turkey, App no: 208/18
With regard to the allegation that he used ByLock, the court refers to its Akgün judgment[2], where it concluded that, in principle, the mere fact of downloading or using an encrypted means of communication or resorting to any other form of protection of the private nature of the messages exchanged cannot in itself constitute an element capable of convincing an objective observer that illegal or criminal activity was involved.
The Court, however, goes further and concludes at §108 that the police report that was used to justify the allegation that the applicant had used the ByLock app cannot be accepted as capable of proving such an allegation as it did not include the underlying data or any information on how those data were established:
Moreover, the Court notes that the file shows that the decisive factor in the suspicion that the applicant had committed the offence of belonging to the FETÖ/PDY organization was a summary document entitled “analysis result” (see paragraph 7 above), drawn up by the Security Directorate and specifying the date of the first connection. However, this is a “raw/rough” report, without any precise indication of the basis on which the authorities came to such a conclusion, and above all on the basis of what data. The document, therefore, does not include the underlying data on which it was based, nor does it provide any information on how those data were established (Akgün, cited above, § 178).
Similarly, the UN Human Rights Committee and WGAD found that “the Government of Turkey fails to show how the mere use of such a regular communication application as ByLock constituted an illegal criminal activity, and use of the ByLock is mere exercise of the freedom of expression.”
The UN Human Rights Committee: İsmet Özçelik et. al., 2980/2017
In an instance where the complainant was accused of membership in an armed terrorist organization on the basis of having a deposit account in Bank Asya and for downloading Bylock, the Human Rights Committee said: “… the only evidence held against İsmet Özçelik is the use of the Bylock application and the deposition of funds in the Bank Asya. In these circumstances, the Committee considers that the State party has not established that the authors were promptly informed of the charges against them and the reason for their arrest, nor was it substantiated that their detention meets the criteria of reasonability and necessity. It recalls that a derogation under Article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary. The Committee therefore finds that the authors’ detention amounted to a violation of their rights under Article 9 (1-2) of the Covenant.”
Swedish Supreme Court
And for instance just recently, Swedish Supreme Court found that downloading and using a mobile app cannot, in itself, be regarded as participation of a terrorist group.
(II) Making press statements criticising the AKP government
Another piece of evidence used against Altintas was his participation in a protest organized by the Freedom and Democracy Platform. During the demonstration, he read a press statement that criticized the government’s actions for undermining the judiciary’s decisions and eroding its independence. Despite the right to peaceful protest and freedom of expression being fundamental tenets of democracy, these actions were presented as evidence of his alleged membership in an armed terrorist organization.
(III) Social Media Posts
Social media posts made by Altintas were also cited as incriminating evidence. His online criticisms of the AKP government’s seizure of private companies and police raids on schools affiliated with the Gulen Movement were deemed to be linked to terrorist activities. Additionally, his reposting of statements made by a law professor, İzzet Özgenç, who criticized the government’s abuse of anti-terror laws, was also used against him in the trial.
ECtHR: Yasin Özdemir v. Turkey dated 7 December 2021, App no: 14606/18
In the case Yasin Özdemir v. Turkey, the ECtHR found that the applicant’s social media posts in favor of the Gülen movement and its leader Fethullah Gülen dated 2015 cannot constitute the offense of praising crime and criminals as at the material time no members of the Gülen movement had been convicted with the final effect of being leaders or members of an illegal or terrorist organization. (§40) By reaching this conclusion, the court implies that conduct prior to the Court of Cassation’s judgment dated 26/09/2017 that designated the Gülen movement a terrorist organization cannot be retrospectively criminalized.
(IV) Being a shareholder of a private education company
Another perplexing aspect of the case was the involvement of a private education company, Polat A.S., with which Altintas was a shareholder. The prosecution argued that the company was affiliated with the alleged terrorist organization and accused it of being a front for carrying out its activities in the Bolu province. However, this was a company lawfully incorporated under Turkish law and working as per a licence given by the Ministry of Education, and no concrete evidence was presented to substantiate this claim, leading critics to question the validity of this ground for conviction. In the decision the following was said: “It has been stated in detail in the general explanations section above that Polat A.Ş. is a company affiliated with the terrorist organisation and that it was established as a shell company for the direct purpose of carrying out the terrorist organisation’s educational activities in the province. … Therefore, since it has been determined that the defendant was a shareholder of the said company in order to support the organisational activities, it has been taken into consideration that this issue is one of the important evidence proving the accusation of membership of the organisation and this issue has been used against the defendant.”
ECtHR: Ilıcak v. Turkey (No.2) dated 14 December 2021, App no: 1210/17
In the case of Nazlı Ilıcak, a journalist who used to work at Gülen-linked media outlets and was jailed after the coup attempt, the ECtHR first notes at §139 that the media outlets which were shut down and dissolved under the 2016-2018 state of emergency were completely legal at the material time and that working in those organizations and concludes at §153 that being paid by them thus cannot itself be a criminal offence.
(V) A photo while eating dish “which symbolises the terrorist organisation”
More cynically, an old photograph of Altintas enjoying a Middle Eastern dish called “Maqlube” became part of the prosecution’s case. Turkish authorities claimed that this dish was often cooked by members of the Gulen Movement and insinuated that the photo’s existence tied Altintas to the organization. Such tenuous connections have sparked accusations of the government grasping at straws to build its case against the lawyer: “… data examination report regarding the digital materials seized from the defendant were submitted to the file. During the examination, it was determined that a photo frame created on 15/11/2012 could be used against the defendant. When the picture frame in question was examined, it was seen that a person, who was understood to be the defendant Erol Altıntaş, posed with 5 people with him with the food named “maqlube”, which symbolises the terrorist organisation. It has been concluded that this photograph is an argument that can be used against the defendant.”
Human rights defenders and legal experts have expressed concern about the erosion of justice and the stifling of the legal profession in Turkey. The case of lawyer Erol Altintas has highlighted the worrying practice of Turkish courts of using perfectly legal activities as grounds for criminal conviction, as well as ignoring relevant rulings by the European Court of Human Rights and the UN Human Rights Committee, raising doubts about the fairness and independence of the country’s legal system.
Categories: Turkey Human Rights Blog, Unjust / Wrongful Convictions