The legal opinion submitted by By William Clegg QC & Simon Baker on 25th July 2017 coupled with a Technical Report on the use of Bylock App prepared by Thomas K. Moore sheds new light into the catastrophic scale of crackdown and arbitrary detentions in Turkey in the aftermath of the attempted coup in July 2016. The opinion clearly scraps the use of Bylock App as evidence of membership of a terrorist organisation and underlines some of the most flagrant human rights violations such as right to freedom and security, right to a fair trial and prohibition of retrospective criminality. The following is a summary of the most salient aspects of the 54-page long opinion consisting of a section on legal opinion and a technical analysis on the reliance on use of Bylock App as evidence.
The opinion in its para 22 provides responses to and highlights some of the concerns identified in relation to the MIT (National Intelligence Agency) Report on Bylock App which is used as evidence in criminal court proceedings in Turkey:
1. The MIT Report makes a number of assertions of fact without providing any evidential source or justification for the assertion. As such, it is impossible to say whether the assertions are correct or not. In consequence of this, no Court receiving the report would be in a position properly to assess the credibility or accuracy of the assertions, and so it would be quite unfair and improper for any Court to rely upon those assertions to found a conviction.
2. There are a number of assertions contained in the MIT Report which are fundamentally contradictory.
- The MIT Report asserts at paragraphs 3.5.1 to 3.5.5 that IP blocking was used to force users to use a VPN (virtual proxy network) to access the ByLock App. At 3.6 however, it is suggested that IP addresses were used to identify ByLock users. These two assertions are mutually incompatible, since the IP addresses would not have been able to be used to identify users if VPNs were being used;
- There is an assertion at paragraph 2.4 of the MIT Report that access to ByLock was being limited and tightly controlled to ensure that access was limited to members of the Gulen movement, yet the report acknowledges at paragraph 2.3 that the ByLock App was available for download from the Google Play Store and the Apple Store. Not only did this mean that there was no means of controlling access to the App, but it was downloaded over 600,000 times between April 2014 and April 2016 by users all over the world. The fact that the App was openly available to anyone in the world to download is simply incompatible with the assertion that access to the App was limited, tightly controlled and available only to a limited group of users;
3. A number of the assertions made in the MIT report are simply factually unsustainable. For example:
- The assertion at paragraph 2.4 of the MIT Report that “people generally [use messenger apps to] engage with their social environment about daily issues” simply does not reflect the reality of the use of many similar Apps on the market (such as WhatsApp, Telegram etc);
- The assertion at paragraph 3.3 of the MIT Report that the worldwide searches related to the ByLock App are either “members in foreign countries or Turkish users utilizing VPN services” could not be established without access to protected Google information or to IP records showing the use of VPNs. The assertion is no more than speculation masquerading as technical evidence; and
- The observations in relation to SSI- certification at paragraph 4 of section 4 of the MIT Report are factually unsustainable and reflect either a lack of understanding on the part ofthe author ofthe MIT report as to the purpose of a SSL certificate or an intention to mislead a non-technical reader. A SSL certificate is simply a cryptographic key to enable a browser to confirm that they have connected to the correct site. Server data is of the sort contemplated by the MIT report would never be transferred through a certificate authority. As such, a self signed SSL certificate authority is far more likely to be a cost-saving measure rather than being, as claimed in the MIT report, and attempt to ensure secrecy;
4. The assertion at paragraph 3.5.5 of the MIT Report that the blocking of IP addresses was intended to force users to use VPNs is both speculative (no explanation is given in the report why the more plausible inference that the blocking was to prevent DDOS attacks on the server is not drawn instead) and implausible (as it assumes a degree of technical proficiency in the use of VPNs which is unrealistic); and
5. The MIT report draws inferences from the setting up of the ByLock App (for example the use of the Paysera platform and yandex.com e-mail account and the locating of the servers in Lithuania) which are highly speculative, and which exclude alternative explanations with no reasons or evidence given. For example, the report assumes that the use of servers in Lithuania was in the interests of secrecy rather than for the more obvious innocent reason that such servers would almost certainly have been cheaper and more cost effective at the time and so the use of Lithuania as a server base is more likely to have been a function of commercial reality.”
Based on the technical criticisms of the use of Bylock App as evidence of membership of a terrorist organisation, the legal part of the opinion further dismisses the evidential value of Bylock App with very strong and convincing legal arguments. The following extracts provides the most important and convincing parts of the opinion.
“Unless there is further independent evidence capable of proving membership of the Gulen Movement then the fact that an individual used and/or downloaded the Bylock App before mid-March 2016 cannot prove membership of the movement post May 2016.” (para 34)
“In any event many people who had Gulenist sympathies may not have been members of the Gulen Movement and may have not have supported the movement after it had been registered as a terrorist organisation. It must be remembered that only ongoing membership or support, after May 2016, was capable of being support for a movement that had been registered as a terrorist organisation.” (para 35)
“However, I find the evidence that the App was used exclusively by those who were members or supporters of the Gulen movement utterly unconvincing and unsupported by any evidence. Indeed, in my opinion, there is no evidence at all from which any reasonable person could conclude that the App was exclusively used by members of FETO/PDY and a great deal of evidence, much unchallenged, which demonstrates that the App was widely available and used in many different countries, some of which had no links to Turkey.” (para 40)
“It follows that if the Bylock App cannot sensibly be claimed to be the exclusive province of those members and supporters of the Gulen movement then there can be no justification for the arrest and/or detention in Turkey of those who had used the use of the App without other compelling evidence.” (para 42)
“It seems clear that the bank had links with Fethullah Gulen but it cannot be said that every customer of the bank was necessarily a member of the Gulen Movement. The bank was a major bank in Turkey, it had deposits in 2013 of $28,4 billion and in 2015 of $13.2 billion. Clearly many substantial companies, historically some of them state owned, had used the banks services. To suggest that having an account at the bank was evidence of membership of a terrorist organisation is nonsensical.” (para 51)
“Likewise, to rely upon the fact that the defendant stayed in student accommodation as proof that he shared the same beliefs as those who operated the accommodation is frankly ridiculous. The current president of the United States of America, President Donald Trump, owns through his family a number of hotels, to suggest that anyone staying in them shared his political beliefs would be equally as absurd.” (para 52).
“There is no doubt in my view that the detention of persons on the basis that they had downloaded the Bylock App is arbitrary and in breach of Article 5 of the convention.” (para 67)
“A more fundamental question arises in relation to whether the trial process as a whole is fair. The ECtHR will not normally consider the admissibility of evidence or the weight given to the evidence by the domestic courts. However, in this case the Court is faced with a unique situation where there has been arbitrary detention in breach of Article 5 and a trial where there is no evidence capable of proving the accused’s guilt. In these circumstances, it cannot be said that any trial held in these circumstances is “fair” and the court may be persuaded to take a broader look at these trials and form a view as to overall fairness, although the easier route may be to focus on the clear breach of the right to examine witnesses and the lack of judicial independence.” (para 73)
“So the position is that the conviction of X is based entirely on conduct that pre-dated the addition of the Gulen movement to the list of registered terrorist organisations in Turkey. This is clearly a breach of Article 7. Taken at its highest, all that the evidence cited in the judgement could have proved was that, before the movement was added to the list of terrorist organisations, X had downloaded and used the Bylock App, banked at BankAsya and stayed in certain student accommodation. All activities perfectly lawful at the time he engaged in them and at a time when membership and support of the Gulen movement was also legal.” (para 78)
“In these circumstances to convict of membership of a terrorist organisation on the basis of this evidence is clearly retrospective criminality and a clear breach of Article 7.” (para 79)
The opinion ends with a number of concluding determinations:
“In addition, the detention of huge numbers of citizens following the failed coup was arbitrary and based on a deeply flawed belief that the use of the Bylock App proved membership of the prescribed group. The individuals so detained had their convention rights under Article 5 breached and if their trials were conducted in the same way as the trial of X then there would also be a breach of Articles 6 and 7.” (para 82)
“On the material before me there is strong evidence that some of those detained following the failed coup have been tortured. That is the view of Amnesty International and numerous other human rights organisations. Unfortunately, the evidence does not disclose who was responsible for the torture, who authorised it and who approved it. Without such evidence, it is not possible to bring any individual to justice. However, if the identity of those could be established, then that would be an international criminal offence over which the courts of this country would have jurisdiction pursuant to Sections 135 & 136 of the Criminal Justice Act 1988. The consent of the Attorney General would be needed before proceedings could be instituted.” (para 85)
“It follows that were evidence to be forthcoming of torture then those who the evidence identified as responsible could be placed on trial in this country subject to the Attorney General giving consent.” (para 86)