BYLOCK
Akgun v. Turkey
(Application no. 19699/18
'…The Court has an element here to persuade an objective observer that, in principle, only the downloading or use of an encrypted means of communication or the use of a different form of protection to protect the private nature of the transmitted messages is in itself an illegal or criminal activity. He wants to emphasize that he cannot. In fact, the use of an encrypted communication tool may lead an objective observer to the admission of its user to a criminal organization only when supported by other factors relevant to its use, such as the content of messages transmitted or the context in which they are exchanged, which may convince the user that there is a reasonable reason to suspect membership of a criminal organization. It is possible to talk about evidence that could convince that there is a reasonable reason to suspect membership (§173).'
For precedent decision here click here.
HARUN UNIVERSE APPLICATION
(Application Number: 2020/17037§37)
In the face of the fact that being a ByLock user is decisive in terms of the proof of the crime, no investigation was conducted on the issues that the applicant put forward to the contrary with this evidence, and the requests for the collection of evidence were rejected. However, the evidence requested by the applicant to be confiscated can only be obtained with the help of the court. Therefore, the applicant was not provided with reasonable opportunities to contradict the evidence that he was unable to obtain. As a result, the applicant was placed at a disadvantage compared to the prosecution in terms of procedural possibilities; The principles of equality of arms and adversarial proceedings have been violated in the trial.
For precedent decision click here.
Taner Kılıç (no. 2) v. Turkey
(Application no. 208/18)
As regards the alleged use of the ByLock messaging application, the Court, in its conclusion in the Akgün case (cited above, §§ 167-181), has in principle that only downloading or using an encrypted communication tool or resorting to a form of preserving the private nature of any message exchange, alone, It refers to the conclusion that it cannot constitute an element that could convince an objective observer that illegal or criminal activity has been involved. It essentially follows from this decision that we can only speak of evidence that would convince an objective observer of the existence of reasonable grounds to suspect that its user is a member of a criminal organization only if the use of an encrypted communication medium is supported by the content of the messages exchanged or other relevant factors, such as the context in which they were received and sent. (Akgün, cited above, § 173) (106)
For precedent decision here click here.
