The ECHR ruling of July 20, 2021 in the case "Akgyun v. Turkey" (complaint N 19699/18).
In 2018, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Turkey.
The case appeals against the insufficiency of allegations about the active use of the encrypted messaging service, which was used not only by a terrorist organization, in order to arouse reasonable suspicion of belonging to this organization. In the case, there was a violation of subparagraph "c" of paragraph 1 of article 5 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The applicant, a former police officer who was suspected of membership in the armed terrorist organization "Fethullahist Terrorist Organization"/"Parallel State Entity" (FET/PDY) (hereinafter referred to as a terrorist organization) only on the grounds that he allegedly used the encrypted messaging service, since his name was included in the "red" list of users of the service, was placed in custody as part of the chosen preventive measure on October 17, 2016, and then convicted on June 6 2017
LEGAL ISSUES
Regarding compliance with subparagraph "c" of paragraph 1 of Article 5 of the Convention.
(a) Evidence that, at the time of the applicant's detention, served as a basis for suspicion that he had committed a crime in the form of participation in an armed terrorist organization. At the time of the applicant's detention as part of the chosen preventive measure, the conclusion that he had used the ByLock encrypted messaging service was the only evidence that, for the purposes of subparagraph "c" of paragraph 1 of article 5 of the Convention, could substantiate the suspicion that he had committed a crime in the form of participation in the activities of a terrorist organization.
(b) Did the Turkish courts, at the time of the applicant's detention under the chosen preventive measure, have sufficient information about the nature of the ByLock encrypted messaging service? The applicant's alleged criminal activities were related to organized crime. With regard to the situation as a whole and without prejudice to further consideration of the present complaint, the European Court considered that the use of electronic evidence indicating that a person had used an encrypted messaging service specially created and used exclusively by a criminal organization for the purpose of carrying out internal negotiations of this organization could be a serious tool in the fight against organized crime. As a result, the suspect could be lawfully placed in custody at the beginning of the proceedings on the basis of this evidence, if it contained significant indications that the person belonged to this organization. However, the use of the mentioned evidence as the only basis for substantiating the suspicion of a person's involvement in criminal activity could raise a number of ambiguous issues, since by their nature the procedures and technologies used in collecting such evidence are complex and may, therefore, reduce the ability of domestic courts to verify the authenticity, accuracy and integrity of evidence. Thus, in cases where such evidence is the only or exceptional grounds for suspicion against a person, the court of a State party to the Convention should have access to sufficient information before proceeding with caution to investigate their evidentiary value in accordance with Turkish law.
In the decisions of the Supreme Council of Judges and Prosecutors of Turkey (HSYK) (hereinafter - the Council) On August 24 and 31, 2016, on the basis of which judges suspected of involvement in a terrorist organization were dismissed, the Council concluded about the nature of the ByLock service - it is a service of encrypted messages used by members of a terrorist organization for internal negotiations. However, in none of its decisions did the Council indicate that the ByLock encrypted messaging service was used exclusively by members of a terrorist organization in order to ensure the secrecy of negotiations within the organization. In principle, the mere fact of downloading a program or using an encrypted method of transmitting messages, or the practical use of another way to preserve the privacy of transmitted messages, could not in itself be evidence capable of convincing an objective observer that it was about participation in illegal or criminal activities. Only in cases where the use of encrypted means of communication is confirmed by other evidence, such as, for example, the content of the transmitted messages or their context, can we talk about evidence that can convince an objective observer that there were reasonable grounds to suspect the person using the method of communication in question of belonging to a criminal organization. In addition, the information provided to the courts on this use of communication tools must be sufficiently accurate to allow the courts to conclude that the relevant messaging service was indeed intended for use only by members of a criminal organization. However, such evidence was missing in the present case.
In the light of the Council's decisions, the Magistrate's Court did not have sufficient information about the nature of the ByLock encrypted messaging service when it ordered the applicant's detention in 2016 to conclude that this service was used exclusively by members of a terrorist organization for internal negotiations. Also, in the decision on the application of a preventive measure in the form of detention or in other similar decisions, there was no other factual evidence or information that could substantiate suspicion against the applicant.
Thus, it followed from the decision on the election of a preventive measure in the form of detention that the magistrate's court simply quoted the provisions of the Turkish Code of Criminal Procedure, without specifying what exactly was "concrete evidence substantiating serious suspicion", within the meaning of the relevant rule of law. Vague and general references to the text of the said code or even to evidence from the case file could not be considered sufficient to justify the "validity" of the suspicion on the basis of which the decision on the applicant's detention was allegedly made, given the lack of a special assessment of individual evidence or information that could substantiate suspicions against the applicant, or other verifiable materials or facts.
In addition, the consideration by the Magistrate's court of the applicant's detention order did not correct the above-mentioned violation, since it rejected the applicant's complaint against the decision on the grounds that no inaccuracies had been identified. The same can be said about the examination of the applicant's individual complaint by the Constitutional Court of Turkey, which rejected it with a simple reference to the indictment issued on June 6, 2017, that is, to an action taken long after the applicant's initial detention, as a basis for suspicion against the applicant justifying his detention.
(c) Was there sufficient evidence to justify a reasonable suspicion that the applicant was using the ByLock service? Taking into account the conclusions reached above by the European Court, in principle there was no need to consider this issue. However, given the importance of the present case, the European Court decided to present its arguments.
It followed from the case file that the only evidence that served as a basis for the applicant's suspicion of belonging to a terrorist organization was information received by the prosecutor's office that his name was on the "red" list of users of the ByLock service, and this presumably meant that he was an active user of this method of communication. However, this was an unsubstantiated conclusion, which did not contain any explanation as to why it was made by the Turkish authorities, especially about the information substantiating it. The relevant document did not contain any indication of the source data on which it was based, or information regarding the method of their collection. Thus, the Turkish courts based their decisions on a single one-page document that did not have a date and signatures.
The document claiming that the applicant used the ByLock service did not specify or indicate any illegal activity on the part of the applicant, as it did not contain information about the dates of this alleged activity, nor about its frequency, as well as additional related details. Moreover, neither this document nor the decision on the applicant's detention contained an explanation of how the applicant's alleged activities indicated that he belonged to a terrorist organization.
The European Court decided that in the absence of other factors or information, the document in question, which reported only that the applicant was a user of the ByLock service, could not in itself prove that there was a reasonable suspicion capable of convincing an objective observer that the applicant had indeed used the ByLock service in a way that could be part of the imputed to him the guilt of criminal acts.
(d) Conclusion. In view of the above, the Turkish authorities were unable to demonstrate that, at the date of the applicant's detention under the chosen preventive measure, the evidence available to the magistrate's court met the standard of "reasonable suspicion" required by article 5 of the Convention in order to convince an objective observer that the applicant could have committed crimes in connection with which his They were taken into custody.
With regard to the concept of the "validity" of the suspicions on which the detention of a person was based during the state of emergency in Turkey, the present complaint did not directly relate to the measure taken as part of the derogation from the provisions of the Convention during this period. The Magistrate's Court ordered the applicant's detention due to his membership in a terrorist organization on the basis of article 1000 of the Turkish Code of Criminal Procedure, a provision that could not be changed in the event of a state of emergency. Consequently, the applicant's detention was based on legislation that was in force before the declaration of a state of emergency in Turkey and which, moreover, continued to be applied.
The difficulties faced by the Turkish authorities after the coup attempt were undoubtedly a contextual factor that the European Court took fully into account when interpreting and applying Article 5 of the Convention. However, this factor did not mean that the Turkish authorities had full discretion in ordering the detention of a person during a state of emergency, in the absence of verifiable evidence, or information, or sufficient factual justifications meeting the minimum requirements of subparagraph "c" of paragraph 1 of article 5 of the Convention regarding the validity of suspicion. The "validity" of the suspicion justifying the restriction of freedom is an essential part of the guarantee enshrined in subparagraph "c" of paragraph 1 of article 5 of the Convention. In such circumstances, it cannot be recognized that the application of the contested measure was strictly necessary due to the emergency situation. A different conclusion would be a denial of the minimum requirements provided for in subparagraph "c" of paragraph 1 of article 5 of the Convention regarding the validity of the suspicion justifying the deprivation of liberty of a person and would contradict the purpose of article 5 of the Convention.
Consequently, at the time of the applicant's detention within the framework of the chosen preventive measure, there was no reasonable suspicion that he had committed a crime.
RESOLUTION
In the case, there was a violation of subparagraph "c" of paragraph 1 of article 5 of the Convention (adopted by six votes in favor with one against).
The European Court also ruled by six votes in favor with one - "against" that there had been a violation of article 5, paragraph 3, of the Convention due to the fact that there were no relevant grounds to justify the applicant's detention in the absence of reasonable suspicion, and also that there had been a violation of article 5, paragraph 4, of the Convention, since neither the applicant nor his lawyer had sufficient data on the content of the "red" list of users of the ByLock service, accessible exclusively to the staff of the prosecutor's office, which was of key importance for appealing the applicant's detention.
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 12,000 euros in compensation for non-pecuniary damage.