(Reuters) -- The actions of the Turkish state have "without doubt" breached the Convention rights of those arrested and detained since the failed coup of 2016 found a report containing a legal opinion and a digital forensic analysis published today. The report demonstrates how the alleged use of Bylock - a publicly available encrypted smartphone messaging application that allowed users to communicate between each other privately like the popular WhatsApp application - cannot be used as evidence of any criminal activity, far less as evidence of membership of a terrorist organization. This is particularly significant since the Turkish authorities have dismissed and imprisoned thousands of people on the basis of their alleged use of this messaging application which was free to download on Google Play and the Apple iTunes stores. The author of the opinion also notes that "torture is an international criminal offence and those responsible can be prosecuted in the United Kingdom and in many other countries irrespective of where the torture occurred."
The opinion was authored by William Clegg QC, Queen´s Counsel since 1991, judge at the Central Criminal Court in London for some 23 years and an expert on English Criminal law, European Human Rights Law and International Criminal Law. Mr Clegg QC was assisted in this opinion by Simon Baker, an experienced barrister with particular expertise in IT issues. Mr Clegg QC and Mr Baker had the benefit of the digital forensic analysis produced by Thomas K. Moore, an experienced forensic IT specialist and an expert witness under instruction from law firms in the United Kingdom and Europe, when preparing their legal opinion.
Upon an examination of a number of documents, including a technical report produced by Turkey´s intelligence agency on the Bylock messaging application relied upon by Turkish courts, William Clegg QC and Simon Baker found the evidence cited by Turkish courts to detain and convict people for being members of the Gulen movement, which the Turkish government has added to a list of terrorist organisations, to be "utterly unconvincing and unsupported by any evidence", "nonsensical" and "ridiculous". Since the Turkish state has relied on the alleged use of the Bylock messaging application to detain and convict thousands of people in Turkey, Mr Clegg QC and Simon Baker paid particular attention to this application and whether its alleged use could provide a safe basis for conviction.
On this, Mr Clegg QC´s legal opinion is unequivocal and damning. He states,
o I find the evidence that the Bylock App was used exclusively by those who were members or supporters of the Gulen movement utterly unconvincing and unsupported by any evidence. Indeed, in my opinion, there is no evidence at all from which any reasonable person could conclude that the Bylock messaging application was exclusively used by members of the Gulen movement.
o In reaching this decision I rely upon the following facts, the App was available to everyone, it had features that could be attractive to many and was used in many countries. The App had been downloaded throughout the world and was in the top 500 Apps in 41 separate countries. It is ridiculous to suggest that all those users were members of the Gulen movement. It follows that if the Bylock App cannot sensibly be claimed to be the exclusive province of those members and supporters of the Gulen movement then there can be no justification for the arrest and/or detention in Turkey of those who had used the App without other compelling evidence.
o What is so worrying is that, on the basis of what has been reported in the media, contained in numerous international NGO´s, reported on by human rights organisations, by the Foreign and Commonwealth Office and by the US State Department, evidence of this type has been used not just in this case but in many similar cases. This raises fundamental questions about the legality of the detention and imprisonment of many thousands of people following the failed coup.
Having examined the trial transcript and court judgement where the accused was found guilty of being a member of a terrorist organisation on the basis of his alleged use of the Bylock application, William Clegg QC found that "there is no doubt that the detention of people on this basis is arbitrary and in breach of Article 5" and that "however the courts approach the issue of fair trial in this case", there are "clear breaches of Article 6". Mr Clegg QC added that "to convict people of membership of a terrorist organisation on the basis of alleged actions which was not unlawful at the time of commission, such as the use of the Bylock application, is clearly retrospective criminality and a clear breach of Article 7."
Furthermore, William Clegg QC, who is also a recorder at the Central Criminal Court in London for some 23 years said that: "on the material before me there is strong evidence that some of those detained following the failed coup have been tortured. If the identity of those responsible for this torture can be established, then that would be an international criminal offence over which the courts of this country would have jurisdiction pursuant to Sections 135 & 136 of the Criminal Justice Act 1988. Those individuals could be placed on trial in this country subject to the Attorney General´s consent."
William Clegg QC and Simon Baker had the benefit of a digital forensic analysis prepared by Thomas K. Moore, an experienced forensic IT specialist. His analysis is published in full as an appendix to the opinion. Mr Moore´s analysis addresses a series of questions such as what is Bylock? How does it work? Is it possible to identify how widely it was used? Is it possible to establish through any technical means whether use of Bylock is limited to supporters of any particular political or social movement?
In particular, on the alleged exclusive use of this messaging application by one group or another, Mr Moore notes:
o The Bylock application was available for download from the Google Play store and the Apple iTunes Store. Since both application marketplaces are managed by their respective corporations, the developer of Bylock, having made the application available for download, would have no direct control over who could obtain it. Historical ranking data available from iTunes Store shows that the Bylock messaging application achieved a ranking in the top one thousand such applications in 60 of these countries. It was downloaded over 600,000 times between April 2014 and April 2016 by users all over the world. It is, in my opinion, therefore nonsensical to suggest that it´s availability was restricted to a particular group of people.
Mr Moore´s forensic report also provides a detailed analysis of the Bylock Application Technical Report produced by representatives of Turkey´s national intelligence agency or MIT (hereafter referred to as the 'MIT report´). On this, Mr Moore concludes:
o The MIT report contains glaring inconsistencies, speculation masquerading as technical evidence, and assertions that are either factually unsustainable or put forward without any evidential source or justification. Some of the observations in the report reflect either a lack of understanding on the part of the author or an intention to mislead a non-technical reader. Furthermore, the report draws a number of conclusions without eliminating more plausible and straightforward explanations. As such it is impossible to say whether the assertions are correct or not. In consequence of this, no Court receiving the MIT report would be in a position properly to assess the credibility or accuracy of the assertions, and so it would be quite unfair and improper for any Court to rely upon those assertions to found a conviction.