July 18, 2019
A coalition consists of the Arrested Lawyers Initiative, the Open Dialogue Foundation and the Human Rights Defenders e.V. made a joint submission titled ‘ARBITRARY APPLICATION OF ANTI-TERRORISM LAWS AND CRIMINALIZATION OF USING AN I-MESSAGE APPLICATION (BYLOCK)‘ to the United Nations Human Rights Council for Turkey’s UPR session.
The Submission concluded that:
- Criminalization of the use of ByLock constitutes the retroactive punishment because a) it is not foreseeable under Turkish laws, b) it is unprecedented in Turkish case-law, c) at the time of such alleged use it was not the object of sufficiently precise, valid law to which a sufficiently certain sanction was attached,
- The use of ByLock does not prove criminal guilt.23 Using an electronic communication software which was offered to public use via the most visited and famous online platform (i.e Apple and Google Play stores) is legitimate exercise of fundamental rights, namely the freedom of expression and the freedom of [confidential] communication, not a crime. Freedom of expression includes the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, including all forms of electronic and internet-based modes of expression,
- A conviction may be based on correspondence which show a crime has been committed provided that such correspondences have been legally acquired and in any case it is supported with other concrete evidence,
- An arrest or detention that lacks any legal basis—in violation of the principle of legality—is arbitrary. Retroactive criminal punishment by detention amounts to arbitrary detention. Arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the ICCPR, such as freedom of expression, is arbitrary,