Ex-spy chief reveals messaging data that served as grounds for mass arrests was obtained extralegally

ByLock, once widely available online, has been considered a secret tool of communication among supporters of the Gülen movement, a faith-based group outlawed by Ankara, since a coup attempt on July 15, 2016, despite the lack of any evidence that ByLock messages were related to the abortive putsch.

The Gülen movement, inspired by Turkish cleric Fethullah Gülen, is accused by the Turkish government and President Recep Tayyip Erdoğan of masterminding the failed coup and is labeled a “terrorist organization,” although the movement denies involvement in the coup attempt or any terrorist activity.

In a landmark ruling in September, the European Court of Human Rights (ECtHR) concluded that Turkey’s ByLock-related rights violations were systemic in nature.

During a live interview on Turkish broadcaster Habertürk on Monday, Fidan admitted that in early 2016 the National Intelligence Organization (MİT) acquired ByLock data without a court order, employing covert intelligence operations.

“We worked with a special unit we established in the Ankara Police Organized Crime Division to analyze the data,” Fidan said. According to Turkish law, evidence obtained in violation of the Code of Criminal Procedure (CMK) cannot be used in criminal trials. The first court order regarding ByLock data was issued on Dec. 9, 2016.

Fidan revealed that after approximately one year of analysis, the ByLock data was handed over to the Ankara Chief Public Prosecutor’s Office, indicating that the data had been processed and utilized for investigative purposes well before any judicial authorization was obtained. Fidan’s statements also suggest that MİT shared the analyzed data with the Ministry of Interior and the Ministry of Justice.

The former intelligence chief’s admission raises significant legal issues, as evidence obtained without judicial oversight is inadmissible in Turkish courts. The ECtHR has previously criticized Turkey for systemic rights violations in ByLock-related prosecutions. The ECtHR’s September 2023 ruling in the Yalçınkaya case emphasized that using ByLock alone as evidence did not constitute a reliable basis for criminal charges, urging Turkey to take remedial measures.

Fidan’s revelations further fuel the ongoing debate about the integrity of ByLock evidence. Reports have highlighted numerous discrepancies in the ByLock data, including inconsistencies in message logs and unauthorized data recovery methods, casting doubt on the reliability of this evidence in criminal proceedings.

Human rights organizations have called for a thorough review of ByLock-related convictions. They argue that the systemic flaws in how ByLock data was collected and processed undermined the right to a fair trial.

In December Kerem Gülay, an academic at Koç University, warned that judges and prosecutors involved in ByLock prosecutions could face charges of crimes against humanity under universal jurisdiction laws if they travel abroad. “There is no statute of limitations for crimes against humanity,” Gülay said, underscoring the potential international legal ramifications for Turkish officials.

The Turkish government has been notified by the ECtHR of 1,000 applications challenging ByLock-based convictions. These cases, involving multiple plaintiffs, allege violations of ECHR principles, including the right to a fair trial and the prohibition of retroactive criminal laws.

Despite international criticism and legal challenges, Turkish authorities have continued to arrest and prosecute individuals based on ByLock usage.