By EMRAH AKSU
During the last four years, the erosion in the law system of Turkey has increasingly become much more apparent and catastrophic. Every occasion of arbitrary practice of law enforcement in Turkey has led to another breach of national or international law as well as grave victimisations. Among victims of the arbitrariness, pro-Kurdish HDP leader Selahattin Demirtas, well-known philantropist Osman Kavala, Amnesty International’s Turkey Chair Taner Kilic, American Pastor Andrew Brunson and a NASA scientist Serkan Golge. One of the most worrisome and symbolic examples of these dramatic situations is the case of Aydın Sefa Akay, who is a judge of the UN Mechanisms for International Criminal Tribunals (MICT) and a retired Turkish ambassador.
As is known, on 21 September 2016 Judge Akay was detained and then arrested on the suspicion of being a member of the Gulen Movement solely based on the data of being a user of a mobile phone application, ByLock, that could be freely downloaded from Apple Store or Google Play in certain past periods. In the judicial proceedings, Turkish authorities didn’t recognise Akay’s diplomatic immunity arising from his engagement with the business of MICT and cooperation calls of MICT were left unanswered by agents of Turkish government. In the meantime, Turkish judiciary didn’t comply with the order of MICT to release Akay and to cease all the relevant criminal proceedings. Finally, on 14 June 2017 a Turkish criminal court of first instance sentenced Judge Akay to a seven years and six months of imprisonment on charge of ‘membership to a terrorist organisation’ and released him with a travel ban.
Considering the course of Akay case, the following international legal problems should be underlined:
– In the context of immunities, art. 29/2 of Statute of MICT stipulates that the judges of MICT are subjects to the Convention on the Privileges and Immunities of the United Nation (Convention). On 25 July 2016, Judge Akay was appointed by MICT’s President Theodor Meron as a member of the bench of the Appeals Chamber of MICT to consider the request of review for Ngirabatware case. This assignment connotes that Judge Akay has an engagement with the business of MICT as of July 2016. With regard to art. 29/2 of Statute of MICT, Judge Akay enjoys the immunities and privileges accorded to diplomatic envoys in pursuance of international law. According to an advisory opinion of the International Court of Justice, which has a duty of settling disputes arising out of the interpretation of the Convention, this full diplomatic immunity is valid even in relation with the states of which the MICT judges are nationals. Therefore, Turkish judicial authorities had no options other than to comply with the assertion of Akay’s diplomatic immunity.
– In case a MICT judge is to be investigated or tried by the judiciary of a UN member state, a waiver of immunity has to be issued by the Secretary General of the UN, in accordance with the section 20 of the Convention. In this regard, to fulfill the requirement of having waiver of Secretary General, the relevant state party to UN should submit a request to the Registrar of MICT. However such an application for waiver has never been brought before the MICT by Turkey. Due to this failure of Turkey, another rule of international law was violated.
– According to the information recently announced at the website of MICT, the review hearing of Ngirabatware case has been scheduled for 8-16 February 2018 to be held in MICT’s branch in Arusha/Tanzania. However Judge Akay is still subject to a travel ban from leaving Turkey due to the conviction against him. According to ‘the Rules of Procedures and Evidence’ of MICT, a Chamber cannot order that the hearing of a case may continue, if the absence of a judge of the chamber will last more than five working days. Hence, in the near future, the case of Ngirabatware will most probably encounter with another obstruction as a result of the absence of Judge Akay that arbitrary functioning of Turkish judiciary caused.
– The fact that Turkey has not recognised the full diplomatic immunity of Akay constitutes a threat towards diplomatic corps serving in Turkey and causes a disturbance for them from the aspect of having an unguaranteed immunity before unfree judiciary of Turkey. This concern was also voiced with a written question in the EU Parliament by MP Brando Benifei. Considering this situation together with other international violations of Turkey such as forced disappearance instances in foreign countries by Turkish intelligence, illegal closure and seizure requests from foreign countries by some Turkish public institutions and unlawful circumvention of the embargo imposed on Iran, it would be reasonable to take into account the inclination of Turkish public institutions to ignore their international obligations especially in the recent corrupt state of the country.
Moreover Akay case consists of the following irregularities and problems from the perspective of domestic law:
– The conviction against Judge Akay relies mainly upon using ByLock application, which he confessed during the judicial proceedings. Bylock is an application that was not prohibited to download or was not secretly spread among the users in its active period. Statistics shows that approximately 600.000 users from more than 40 countries downloaded this app. In other words, it is legally correct that downloading and using ByLock app should be accepted in the context of exercising the freedom of communication as David Kaye, who is the Special Rapporteur of the UN on the Promotion and Protection of the Right to Freedom of Opinion and Expression, rightly argued in his report. Therefore enjoying a freedom like using a mobile app can not be considered as a crime.
– It is possible that most of the things/materials/tools/softwares may be used in committing a crime. However, simply possession or utilisation of these are not necessarily criminal acts. For example, if we realize that most of the robbers wear a mask or certain berets covering all parts of the face, can we accuse all people having or wearing these of robbing or attempting to rob? Or if an extremist group plans a terrorist attack in their exclusive Whatsapp conversation group, can all Whatsapp users be accused and detained with the assumption of terrorist character of Whatsapp? Of course, not. Consequently, a rational and justifiable assessment necessitates that Judge Akay and other ByLock users cannot automatically be seen as a member of terrorist organisation over solely using ByLock.
– In essense, criminal law aims at finding out all evidences, that definitely prove criminal behaviours of suspects. As a universal principle, without indisputably proving the criminality, people are not seen guilty. In this sense, crime instruments are meaningful and available as far as these were used in committing crimes. The same principle applies to ByLock users too. Unless it is proven that an individual used ByLock app in terrorist or criminal acts, this person can not be convicted on the charge of being member of a terrorist organisation. This procedure requires judiciary to document and examine all the contents of ByLock communications. Accordingly, when it is determined that contents of ByLock correspondences of a certain person comprises all elements of a crime, judiciary may convict and sentence the related person. Otherwise convictions and other criminal proceedings like arrest and judicial control practices are totally unlawful, arbitrary and inconsistent with the material fact. Likewise, Proffesor of Turkish Criminal Law İzzet Özgenç has attached importance to this procedure via his social media sharings . Therefore, Akay decision of Turkish judiciary is legally incorrect, since the content of his ByLock communications were not considered in the deliberation of the court.
– In criminal procedure law, principles about digital evidential data are crucial and delicate. In this context, manipulation and falsification possibility of digital data should be eliminated, digital data should be collected upon the issuance of a judicial decision and all evidences should be obtained through legal challenges. However digital data related to ByLock communications have not been protected from manipulation and intervention of Turkish administrative authorities, as emphasized in the report of FOX IT, a Dutch cyber security company. In addition, Turkish intelligence service derived ByLock user and messaging details from the servers in Lithuania without issuance of a proper judicial decision. Moreover, officials from Lithuania Parliament made it clear that Lithuania has never received a request for legal assistance from Turkey in the context of digital data related to ByLock app. Turkish media reports suggest that intelligence service obtained the ByLock details through hacking or buying . Both of the possibilities imply that acquisition channel of ByLock data is not only illegitimate and illegal but also a breach of international law. Therefore digital evidence on ByLock app do not meet legal standarts and cannot be considered authentic.
– Judge Akay testified in the court that he downloaded the ByLock app upon the recommemdation of Burkina Faso Foreign Minister. Besides he stated that he is a member of Free and Accepted Masons Association and many masons were using ByLock app too. Additionally most of the Turkish correspondents covering judicial developments were using ByLock app to be able to contact judges and prosecutors about important cases . The mentioned examples of ByLock users show that presumption of Turkish judiciary on the connection between ByLock app and Gülen Movement obviously contradicts with the reality.
– In the wake of July 15 controversial coup attempt, intelligence service of Turkey shared a ByLock users list consisting of 215.000 people with law enforcement bodies. Later this number was revised two times as 129.000 and as 102.000. Finally the number of ByLock users were reduced to 91.000. These big changes at the number of ByLock users is very suitable to see that ByLock is a fictional and criminalised tool exploited by Turkish government and judiciary.
In the light of the mentioned unjust and arbitrary approach of Turkish judiciary, it seems many serious international and domestic legal problems and victimisations will continue to arise. Akay case is just a symbolic portrait of the worrying state of the country. We hope Turkish judiciary stops failing in its vital role as soon as possible.