The UN Human Rights Council’s Working Group on Arbitrary Detention (UN/WGAD) has stated in a recently released assessment that detention, arrest and conviction in Turkey based on the alleged use of the ByLock mobile phone messaging application is a violation of Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR).

Turkish authorities believe ByLock is a communication tool among alleged followers of the Gülen movement. Tens of thousands of people, including civil servants, police officers, soldiers, businessmen, and even housewives have either been dismissed or arrested for allegedly using ByLock since a controversial coup attempt on July 15, 2016.

UN/WGAD examined an application submitted by the lawyers for Mestan Yayman (51) and released its opinion on the case. Yayman, who used to be vice governor of Antalya province, was suspended on August 29, 2016, and was subsequently dismissed from his job under Statutory Decree No. 672, issued on September 1, 2016, under which about 50,000 people were dismissed.

Yayman was visiting his family in the city of Muğla on September 1, 2016, when he was taken into custody by officers from the Muğla Police Department. The department had reportedly been requested by its counterpart in Antalya to take Yayman into custody on the basis of a warrant issued by the Antalya District Attorney’s Office. However, the Muğla police did not present a warrant when they took him into custody.

While Yayman was being taken into custody, Statutory Decree No. 672 dismissing him from public service was reportedly issued. From Muğla, he was taken to the Antalya Police Station. During his initial detention he was not aware of his sudden dismissal from his job. He was not provided with a reason for his detention until September 7, 2016, and he was not allowed to see anyone during his detention. When he was first taken into custody, he lost his sense of day and night as the lights were left on constantly for several days.

Yayman was reportedly not allowed to see his lawyer for the first five days of his detention. When he was finally allowed to meet with her, they could speak only in the presence of a police officer and in front of a voice recorder.

On September 7, 2016, Yayman was interrogated by a prosecutor and was informed of the reason for his detention. An individual had complained about him, stating that he was a member of the Gülen movement. Following the interrogation, Yayman was subsequently released on parole, at around 8:30 p.m., as the only “crimes” attributed to him were alleged membership in the movement and the fact that one of his daughters attended a school that was legal, despite being affiliated with the Gülen movement. However, the following day, on September 8, 2016, Yayman was taken into custody again without being given any reason. On September 11, 2016, Yayman was called for interrogation by another prosecutor who did not wait for Yayman’s lawyer to be present. This time, Yayman was accused of attending religious talks given by members of the Gülen movement up until 2013, based on statements from one individual. The prosecutor was reportedly very aggressive in his questioning and forced Yayman to supply names and confess to the crime of attending religious talks. At the request of the prosecutor, Yayman was subsequently arrested by Antalya Second Criminal Court of Peace and sent to the Antalya High-Security Prison, where he is still being detained. In September 2016, Yayman was originally accused of membership in a terrorist organization because of his supposed attendance at religious talks in 2013, at a time when the Gülen movement was popular throughout Turkey and was not recognized as a “terrorist organization,” and that the Turkish Criminal Code does not recognize attending religious talks as a crime. In addition, the “proof” of his affiliation with the Gülen movement was reportedly based on statements from one individual. On June 2, 2017, 10 months after his arrest, Yayman was again called by a prosecutor and interrogated about his supposed use of ByLock. He was accused of using the ByLock application in December 2014, based on an intelligence report. According to his lawyer, such a report does not constitute proof under the Turkish Code of Criminal Procedure. Although Yayman is accused of membership in a terrorist organization under Article 314 of the Turkish Criminal Code, the minutes of the preliminary hearing reportedly do not mention this article but rather cite the general reasons for arrest as stipulated in Article 100 of the Turkish Code of Criminal Procedure.

In this context, the lawyer noted that mass arrests and detentions continue to take place following the attempted coup of July 15, 2016. The source reports that at the time of submission, there were 57,000 people in detention in Turkey who were charged with or were waiting to be charged with terrorism. In September 2017, some 12 months after his arrest, Yayman was presented with the bill of indictment, and his first hearing took place on November 7, 2017. By that time, he had spent 14 months in detention. However, Yayman was not released. He was asked whether he had used the ByLock application. When the judge asked the main witness whether he had seen Yayman at any religious talks organized by the Gülen movement, the witness reportedly replied “No.” Yayman’s second and last hearing took place on January 3, 2018. He was not informed that this hearing would be his last opportunity to plead. He was simply asked whether he used the ByLock application, to which he replied that he did not. However, as Yayman could not provide evidence to disprove the contents of the Excel file sent by the Turkish intelligence service, and given that the mere existence of people’s names in lists of “ByLock users” compiled by the intelligence service is sufficient to find people guilty of the crime of membership of a terrorist organization, he was found guilty and given a five-year prison sentence. Moreover, one year was added to the sentence because Yayman was a “vice-governor who represented the executive branch of the State”, and the total of six years was multiplied by 1,5 pursuant to the Turkish Criminal Code, as the Gülen movement is an “armed terrorist organization.” The final sentence of nine years was then reduced by a sixth pursuant to the Turkish Criminal Code, making his final sentence seven years, six months.

The lawyer also submitted to UN/WGAD that the arrest and subsequent detention of Yayman is arbitrary and falls under category I. The court noted that Yayman was included on the Turkish intelligence service’s list of names, the so-called arrest list, but it failed to show the content of his supposed chats on ByLock. Lawyer submitted that ByLock is reportedly said to have over 100,000 users, and it is thus not sufficient to refer to the use of an application in order to declare a person a terrorist and to keep him or her in detention for a period ranging from seven-and-a-half to 22-and-a-half years.