Abdullah Bozkurt/Stockholm
The Turkish government expanded its hunt for critics and opponents whose names were mentioned in the intercepted content of encrypted messaging application ByLock, which was available for download at the Android and iOS platform app stores and had been installed on hundreds of thousands of mobile devices around the world.
According to Turkish government documents obtained by Nordic Monitor, the Justice Ministry instructed the provincial chief public prosecutor’s office to review the contents of the messages from ByLock and launch investigations into people who had never downloaded the app or used it but whose names were simply mentioned in the messages.
The move represented a new phase in the expanded crackdown by the government of President Recep Tayyip Erdoğan that effectively criminalized the use of most encrypted messaging apps in Turkey as part of a campaign to suppress dissent and suffocate opposition groups. Turkey has already investigated, prosecuted, indicted and convicted more than 100,000 people for their alleged use or download of the app.
The escalated crackdown that this time targeted non-users and people who had not downloaded the app was exposed in a series of communiqués circulated among the police, the governor’s office and the prosecutor’s office in the central province of Kayseri, where the authorities discussed ways to take legal action against people.
Documents dated October 4, 2021 and signed by the provincial counterterrorism department’s acting police chief Hatip Ateş made reference to Justice Ministry instructions in 2019 and suggested that other provinces were also ordered to conduct similar reviews. Acting on government orders, Ahmet Yılmaz, deputy chief public prosecutor in Kayseri, asked the police on June 26, 2019 to review the content of ByLock messages, identify people whose names were mentioned and initiate criminal procedures.
Police communiqué on expanding the investigation into ByLock:
Kayseri_police_expanded_byLock_Hatip_Ates
Police came up with seven names that were cited in the batch of data sent by Turkish intelligence agency MIT, which had unlawfully obtained ByLock users’ data and some of the content. One of the people police went after was Mehmet Faruk Mercan, a journalist who was the Ankara bureau chief for national TV channel Kanaltürk, seized by the Erdoğan government in 2015. Mercan currently lives in exile in the United States.
According to the documents, a special team from both the counterterrorism and organized crime units was assigned the task of reviewing the ByLock content. They reviewed the data to identify more people who could be subject to prosecution on terror allegations, a charge the Erdoğan government often abuses to oppress opponents, critics and dissidents.
Nordic Monitor previously reported how the Turkish authorities effectively criminalized the use of other encrypted messaging applications such as Signal, Tango and WhatsApp as well as popular apps such as Facebook and TikTok. Although there is no law prohibiting the use of encrypted apps in Turkey, Turkish authorities often treat the download and/or use of such apps as evidence in criminal investigations.
Turkey’s notoriously broad and ambiguous anti-terror legislation, which has been turned into a scourge on dissidents in the hands of the country’s overzealous police and prosecutors, is, to all appearances, susceptible to such interpretation and misuse.
The rationale behind criminalizing secure messaging apps can be explained by the conviction on the part of the police that such apps were often used by members of the Gülen movement. The government singled out use of the ByLock application as evidence warranting the imprisonment of tens of thousands of critics in Turkey. ByLock was a mobile messaging app that was downloaded more than 600,000 times from the Google Play Store and the Apple App Store worldwide.
Turkish intelligence claimed to have obtained the ByLock user database, although it was not revealed how the spy agency came into possession of such data. No mandate was provided for the agency to collect data to be used in criminal procedures.
The Gülen group is led by Fethullah Gülen, who has been critical of President Erdoğan on a range of issues including his increasing authoritarianism, his aiding and abetting of jihadists in the Syrian civil war and his corrupt politics. Erdoğan’s government branded Gülen as a terrorist in 2014, immediately after major corruption investigations that were made public in December 2013 and that incriminated Erdoğan, his family members and political and business associates. He accused Gülen of instigating the corruption probes, a claim that was denied by Gülen.
ByLock was used by many who have nothing to do with the Gülen movement and became a target of criminal prosecution in Turkey. The most prominent example was the prosecution and conviction of Aydın Sefa Akay, a judge with the Mechanism for International Criminal Tribunals (MICT). He was arrested in Turkey on fabricated charges of terrorism. Akay was a member of the panel of judges that was reviewing the case of a former Rwandan government minister who was convicted of involvement in his country’s 1994 genocide.
He was one of some 4,000 judges and prosecutors who were purged and/or jailed over alleged coup involvement or terrorist links that independent observers describe as fabricated charges to subordinate the judiciary in Turkey.
Kayseri public prosecutor’s order to expand the ByLock probe:
Kayseri_prosecutor_expanded_byLock_Ahmet_Yilmaz
Judge Akay was accused of having ByLock on his phone. He was alleged to have links to the Gülen movement when he described himself as a Freemason and testified that he downloaded the app from the Google Play Store to communicate with colleagues. In June 2017 a Turkish court convicted Akay on terrorism charges and sentenced him to seven years, six months in prison.
Criminalizing communication and social networking tools and citing their use as terrorist activity, Turkey’s public prosecutors have investigated more than 500,000 dissidents and put more than 90,000 of them behind bars without taking pains to show how they could be equated with criminal acts and without further substantiating their claims. Although participating in press meetings to protest a controversial government practice and communicating over online platforms are legitimate exercises of freedom of assembly and speech, the Erdoğan government differs on such rights and freedoms.
In July 2021 the European Court of Human Rights (ECtHR) ruled in the case of a former police officer that use of the ByLock application is not an offense in itself and does not constitute sufficient evidence for arrest. The Strasbourg court’s ruling has come as a source of hope for thousands of people who were arrested or sentenced on terrorism charges based mainly on the intelligence agency’s report that detailed users of ByLock.
According to a statement from the interior ministry in March 2019, 95,310 people were charged over alleged use of the ByLock application. In its technical report, which courts use as a basis for their decision, MİT stated that 60,473 defendants had at least one message posted using ByLock, while 34,837 defendants had not posted any message using the application.
Turkey’s bizarre policy of treating ByLock as criminal evidence has also been highlighted by the UN Working Group on Arbitrary Detention, which ruled on September 18, 2019, in a complaint lodged by two judges arrested on terrorism-related charges solely due to their use of ByLock, that their deprivation of liberty was arbitrary. According to the working group “use [of] the ByLock application … would have been merely an exercise of their freedom of expression.”
Turkey has refused to give effect to this decision.
A US State Department report said, “The government monitored private online communications using nontransparent legal authority.”
According to statistics issued by the Council of Europe (CoE), as of January 2020 out of 30,524 prisoners convicted on terrorism charges in the 47 CoE member states, 29,827 were in Turkey. In other words, 98 percent of all inmates convicted of terrorism in all of Europe are resident in Turkey. It shows how the government abuses its counterterrorism laws to punish critics, opponents and dissidents in this country of 84 million that is suffering under the iron grip of President Erdoğan.
