Council of EuropeSubmissions

Submission from ASSEDEL to the Committee of Ministers of the CoE in the frame of the implementation of the ECtHR decision

ASSEDEL submitted its observations to the Committee of Ministers of the CoE in the frame of the implementation of the Akgün Judgment regarding the use of the Bylock messaging application as a ground for detention.

ASSEDEL is of the opinion that the Turkish Government should provide the Committee of Ministers with concrete data, in accordance with the findings and requests presented above, with the aim of supervising the execution of the Akgün judgment by the domestic judicial authorities.

The Akgün judgment is a significant decision by the European Court of Human Rights (ECtHR) as it examines whether the use of the Bylock messaging application can constitute reasonable suspicion for detention.

Bylock evidence, a form of digital evidence, requires complex procedures to establish its authenticity and accuracy. However, it has been used in Gülen movement trials, allegedly in violation of fundamental criminal law principles. The Turkish Government argues that Bylock evidence constitutes strong suspicion and ground for detention.

Through a three-step examination, the ECtHR assessed whether the use of Bylock as the sole evidence for detention on terrorist organization membership charges would convince an objective observer that the crime was committed. The Court found violations of Article 5(1) of the Convention and Article 5, paragraphs 3 and 4, due to insufficient grounds for detention and lack of information provided to the applicant and his lawyer regarding the evidence.

The Court emphasized that merely using encrypted communication or protective measures to safeguard message privacy does not alone indicate illegal or criminal activity.

However, the Government’s action reports did not present concrete developments and failed to consider the violation findings in the Akgün judgment.

The Committee of Ministers should be informed with concrete data on how domestic courts and members of the judiciary have been informed about these findings on technical electronic evidence, how judges have been trained on the technical aspects to be taken into account when issuing detention orders when Bylock is involved, and what steps have been taken to ensure that detention measures are in line with the findings in the Akgün judgment and rights of persons have not been infringed.

ASSEDEL recommends continuous monitoring of the judgment’s execution and other related cases involving subsidiary pieces of evidence.

To read the full submission please click here.

To read the full letter of 11 August from Permanent Representation of Türkiye to the Council of Europe in response to ASSEDEL’s submission, please click here.

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