Prisoners Defenders Asia obtains favorable ruling on the case of Fatih Alakuş v. Türkiye by the European Court of Human Rights

THE EUROPEAN COURT OF HUMAN RIGHTS HAS RULED THAT THE DETENTION OF FATIH ALAKUŞ WAS ARBITRARY AND OCCURRED WITHOUT ANY REASONABLE PRIMA FACIE EVIDENCE

Executive Summary of Fatih Alakuş v. Türkiye

Following the coup attempt elaborated in Turkey on July 15, 2016, hundreds of thousands of people were arbitrarily persecuted by the authoritarian regime of President Recep Tayyip Erdoğan. The majority causes among those persecuted were a) being, allegedly, users of an app identical to Whatsapp, Signal or Telegram, called “ByLock”, which was very popular in Turkey; b) being a customer of a commercial bank with hundreds of thousands of customers (Bank Asya), but which the state linked, by its mere shareholding, to the coup; and c) having other slight links to the Gulenist movement, or divergent political opinions from the prevailing system. Fatih Alakuş, whose defense we have exercised in Prisoners Defenders Asia through our Director Kurtuluş Baştimar, was arrested, prosecuted and accused on the above grounds, lacking any legal basis, which has corroborated the judgment of the European Court of Human Rights in Mecit dnd Others v. Türkiye, which has grouped more than 200 cases similar to that of Fatih Alakuş, including this one. The European Court has concluded that there has been a violation of Article 5(1) of the European Convention on Human Rights. This decision has been binding on the courts in Turkey, which is why the proceedings suffered by Fatih Alakuş have been dismissed.

Background of Fatih Alakuş v. Türkiye

In September 2021, Turkey’s Interior Minister announced that a total of 622,646 people had been subject to investigations and 301,932 had been detained, while another 96,000 had been imprisoned since the failed coup, all for factors of links, false and fabricated, to the Gülen movement.

One of the links used by the government prosecution was having been a user of a very popular application used by hundreds of thousands of people in Turkey, an application almost identical to the well-known WhatsApp, Signal or Telegram, which is called “ByLock”. The prosecution factor is that it would have allegedly been used by Gulenists to communicate among them as well. In March 2019, 95,310 people had been prosecuted for allegedly using the “ByLock” app, however, even 34,837 of them had not posted a single message using the app. In July 2020, 2 courts upheld in 2 separate dystopian rulings in which judges, close to the government, stated that just downloading the “ByLock” app was by itself taken as a proof of links to the Gulenist movement. In December 2017, it came to light that nearly 11,500 people had the app downloaded on their phones automatically after downloading a different app, leading to the release of nearly 1,000 detainees. On March 1 and September 26, 2023, respectively, the United Nations Human Rights Committee and the European Court of Human Rights ruled that the use of the “ByLock” application is not a crime in itself and does not constitute sufficient evidence for the mass arrests that had taken place: “[the] mere use of the ByLock application and ownership of an account at Bank Asya cannot indicate, in themselves, evidence of membership of an illegal armed organization”. [1] However, the copyright holder of “ByLock” is currently in detention and prosecuted for terrorism-related offenses. ^[2]

Another link used by the government prosecution was being a client of a commercial bank (Bank Asya) which also had hundreds of thousands of residential and family customers in Turkey. ^[3]

According to the minister, there were 25,467 people imprisoned in Turkish jails for alleged links with the movement,^[4] as a product of this unjustified raid against innocent people. By July 2021, the government had dismissed more than 130,000 civil servants for such spurious reasons. Civil servants and their families were thus dismissed from their jobs and evicted from public housing within 15 days and unable to return to work for the government. ^[5]

After the Gulenist coup attempt, almost a third of the judiciary was suspended, detained or dismissed by the government for equally spurious and false links with the Gulenist movement. The reality is that it was just a move to take over the entire judicial system. More than 1,500 lawyers were prosecuted and 441 were condemned to prison on trumped-up charges related to “terrorism.”

For this reason, many lawyers are reluctant to take on the cases of Gulenist defendants for fear of government reprisals, i.e., for fear of their own prosecution. ^[6]

Fatih Alakuş was dismissed by Decree-Law 672 dated September 1, 2016, and was interrogated by police officers and detained on September 2, 2016.

Despite the appeal of the arrest, requests for release and defenses, the prosecution against the applicant occurred 17 months later, and Fatih Alakuş appeared in court 19 months after his arrest.

Mr. Alakuş was made aware of the prosecutions against him at the trial itself, and the grounds for his deprivation of liberty were as follows.

1. Send his children to a private school.
2. Pay the school money from the Asya Bank account.
3. Using the “ByLock” application.

Fatih Alakuş had only 10 minutes to defend himself and when his lawyer wanted to express himself to defend his client, the judge terminated the trial. Fatih Alakuş was condemned to 7 years and 6 months imprisonment by the Second Serious Criminal Court of Manisa and after 19 months in prison, right after the trial, Fatih Alakuş was released on February 28, 2018 with a ban to leave the country.

The arbitrary detention of Mr. Fatih Alakuş was brought before the European Court of Human Rights by the Director of Prisoners Defenders Asia, through our office in Ankara. The European Court of Human Rights, whose Convention has been ratified by Turkiye, has ruled that Fatih Alakuş suffered an arbitrary detention as it does not satisfy the minimum prima facie requirements of Article 5.1 of the European Convention on Human Rights.

On the local level, in Turkey, the case of Fatih Alakuş was under appeal in the Court of Cassation. Following the judgment of the European Court of Human Rights, the Court of Cassation has reversed the sentence of the court of first instance and referred the file back to it, in accordance with the judgment of the European Court of Human Rights. the court of cassation.

Mecit and Others v. Türkiye (Fatih Alakuş v. Turkey)

The case of Fatih Alakuş v. Turkey (Mecit  and  Others  v. Türkiye) contains more than 200 applicants with similar complaints in the European Court of Human Rights. The Court decided to join all the cases of many other claimants together with that of Mr. Alakuş, whose profile and justifications for detention were identical, as we have previously explained.

The ECtHR judgment, focusing on the case of Mr. Alakuş, emphasizes the arrest and pre-trial detention of the defendant, following the coup attempt in the country on July 15, 2016, under an alleged suspicion of “membership of a terrorist organization“, being the organization referenced by the Turkish authorities as “Fetullahist Terrorist Organization / Parallel State Structure” (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması, hereinafter “FETÖ/PDY“), which is considered by the authorities as the organization that was behind the coup attempt.

From the initial arrest warrants and the documents available in the files, it appeared to the authorities that the accused was supposedly identified as a mere user of the messaging system “ByLock” (similar to WhatsApp, Signal or Telegram), a use for which the European Court of Human Rights has already ruled that the use of an innocuous communication app cannot be used as a criminal prosecution ground.

In addition, the judgment indicates that, without reasonable probative evidence, the Government inferred that it financed the FETÖ/PDY only by the mere fact of being a client of Bank Asya – a bank allegedly related to the FETÖ/PDY but having hundreds of thousands of clients -, and the alleged use of the “ByLock” application to communicate (an application identical in functionalities to WhatsApp, Signal or Telegram).

In other cases in the collective complaint, other victims were prosecuted for allegedly subscribing to publications that the government has stated were affiliated with FETÖ/PDY and/or their employment and/or membership in FETÖ/PDY-affiliated institutions and organizations.

Challenges brought against the detention of Mr. Alakuş on the absence of prima facie evidence that he had committed the crime with which he was charged were dismissed even by the Constitutional Court in Turkey, something that is in stark contrast to the ECtHR judgment.

The Government has not provided any other evidence, “facts” or “information” capable of convincing the ECtHR that the applicants were “reasonably” suspected of having committed the alleged offence and the ECtHR considers that the requirements of Article 5.1 (c) of the European Convention on Human Rights concerning the reasonableness of the evidence justifying any detention have not been met.

In addition, it considers that, although the applicants were detained shortly after the attempted coup d’état -the event which led to the declaration of the state of emergency and the emergency notification by Turkey- a contextual factor to be taken into account when interpreting and applying Article 5 of the Convention in the present case, according to the ECtHR it cannot be said that the detention was justified by the context of the situation either (see Baş, 115-16 and 196-201). It therefore concludes that there has been a violation of Article 5.1 of the Convention. This decision has been binding on the courts in Turkey, which is why the proceedings suffered by Fatih Alakuş have been dismissed.

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[1] Ruling by the Human Rights Committee at the UN: https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhstmouIju%2F14z6o8I4G3YTJPwfJj9Izgd7q8B%2BXGi437uVGDm4NH%2BhxL11dwgIkcysdT60E1pB1Q5VQP61h2Xm8Oqw4TT%2BOaDcfBGj7Ypb8kFiZa5irlfs8aNnMUi7pwhiA%3D%3D / European Court of Human Rights: https://hudoc.echr.coe.int/tur#{%22itemid%22:[%22001-227636%22]}

[2] DFAT, https://www.dfat.gov.au/sites/default/files/country-information-report-turkey.pdf (Paragraph 3.39)

[3] DFAT, https://www.dfat.gov.au/sites/default/files/country-information-report-turkey.pdf (Paragraph 3.39)

[4] USSD, https://www.state.gov/reports/country-reports-on-terrorism-2019/turkey/

[5] CoE, https://rm.coe.int/report-on-the-visit-to-turkey-by-dunja-mijatovic-council-of-europe-com/168099823e (P.4)

[6] USSD, https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/turkey / (Section 1D),