Legal opinion published in UK argues that the arrest of 75,000 suspects, primarily for downloading ByLock app, is illegal

This article is more than 3 years old

This article is more than 3 years old

Tens of thousands of Turkish citizens detained or dismissed from their jobs on the basis of downloading an encrypted messaging app have had their human rights breached, a legal opinion published in London has found.

The study, commissioned by opponents of the Turkish president, Recep Tayyip Erdoğan, argues that the arrest of 75,000 suspects primarily because they downloaded the ByLock app is arbitrary and illegal.

It reflects growing concern about the legality of the Turkish government’s crackdown in the aftermath of last year’s failed coup.

The government says those detained or dismissed have links to a movement led by the preacher Fethullah Gülen, who lives in the US and has been accused of orchestrating the attempted uprising. Gülen has denied any involvement.

The legal opinion was commissioned by a pro-Gülen organisation based in Europe. The two British lawyers involved, William Clegg QC and Simon Baker, are experienced barristers.

The report examines transcripts of recent trials of alleged Gülenists in Turkey as well as Turkish intelligence reports on ByLock. It concludes that the cases presented so far breach the European convention on human rights, which Turkey is signed up to.

“The evidence that the [ByLock] app was used exclusively by those who were members or supporters of the Gülen movement [is] utterly unconvincing and unsupported by any evidence,” the two barristers say. “There is a great deal of evidence ... which demonstrates that the app was widely available and used in many different countries, some of which had no links to Turkey.”

The detention of people on this basis is “arbitrary and in breach of article 5” of the European convention on human rights, which guarantees the right to liberty, the report says.

The opinion says ByLock was available to everyone, it had been downloaded around the world and was in the top 500 apps in 41 separate countries. Other “compelling evidence” is required to justify the mass arrests, it said.

In a separate commissioned report, Thomas Moore, a British computer forensics expert, says ByLock was available to download free of charge on Apple’s App Store and Google Play.

“It was downloaded over 600,000 times between April 2014 and April 2016 by users all over the world,” Moore says. “It is, in my opinion, therefore nonsensical to suggest that its availability was restricted to a particular group of people.”

Moore draws attention to a report by MIT, the Turkish intelligence service that had gained access to ByLock communications. “There is no suggestion in the MIT report that downloads were restricted to a territory or jurisdiction.”

Other secure communication services, such as Telegram, have been exploited because of their secure encryptions. “There is compelling evidence to show that Telegram has been used by Isis as a secure communication tool and yet there is no move by law enforcement authorities to detain every user of the service,” Moore says.

None of the cases tried in Turkey have yet been appealed to the European court of human rights, but some are expected to reach Strasbourg eventually.

Those detained have included lawyers, civil servants, judges, army officers, journalists and authors.

Taner Kiliç, the head of Amnesty International in Turkey, was charged in June with membership of a terrorist organisation and remanded in custody.

Amnesty said of his detention: “The only claim presented by the authorities purportedly linking Taner Kiliç to the Gülen movement is that Bylock, a secure mobile messaging application that the authorities say was used by members of the ‘Fethullahist terrorist organisation’, was discovered to have been on his phone in August 2014.

“No evidence has been presented to substantiate this claim, and Taner Kiliç denies ever having downloaded or used Bylock, or even having heard of it, until its alleged use was widely publicised in connection with recent detentions and prosecutions.”

The Turkish embassy in London did not give a response to requests for comment on the legal opinion.