Individual Application

The Facts

In accordance with the investigations conducted across Türkiye against the Fetullahist Terrorist Organisation/Parallel State Structure (“FETÖ/PDY”) and the statements taken by the judicial authorities, it was found out that those who were hierarchically superior in the organisation had called those who were inferior and positioned in the clandestine military structure thereof -using payphones- with a view to ensuring the intra-organisational communication in accordance with the predetermined precautionary rules that were intended to impede any interception process. Thereupon, the chief public prosecutor’s office launched an investigation to identify the members of the said military structure, at the end of which it concluded that the applicant had committed the imputed offence, as he had been positioned within the clandestine military structure of the organisation, in consideration of the findings that he had been called 24 times consecutively and 46 times individually, the assessments that these calls had been made by the superior in charge of the said structure of the organisation, and the statements of H.S.

At the end of the subsequent criminal proceedings, the trial court convicted the applicant of membership of an armed terrorist organisation. The applicant’s appeal on points of facts and law against the decision of the trial court was dismissed on the merits by the regional court of appeal. Ultimately, the Court of Cassation upheld the decision of the regional court of appeal.

The Applicant’s Allegations

The applicant claimed that his right to a fair trial had been violated by the procedure by which the records relating to the interception of telecommunications had been unlawfully obtained.

The Court’s Assessment

A. As regards the Data Obtained through the Interception of Communications via Payphones

In the present case, the conclusion reached by the judicial authorities that the applicant had been positioned in the clandestine military structure of the FETÖ/PDY was based primarily on the HTS (Historical Traffic Search) records relating to payphones, as well as on the analyses and evaluations carried out by the law enforcement authorities.

The judicial proceedings against the clandestine military structure of the FETÖ/PDY, which is similar to those subject to the present case, and the legal characteristics of the HTS records obtained during this process in accordance with the decision on the interception of telecommunications regarding payphones, have been discussed in numerous judgments of the Court of Cassation. In the aforementioned judgments, after it was established, at the end of the investigations conducted by the investigating authorities in on the basis of the authority granted by Article 160 of Law no. 5721, that FETÖ/PDY members had used, for a fee, payphones located in places such as public markets and kiosks with special methods to enable the continuation of organisational meetings, it was acknowledged that pursuant to Article 135 of the same Law, the HTS records could be analysed following a decision to intercept telecommunications. In addition, following the examination of the HTS records, it was concluded that it was also lawful to contact persons who appeared in all the records and likely to be criminal suspects according to the analyses carried out after the elimination of those determined not to have been involved in the imputed offence. As a result, the Court of Cassation has concluded in numerous judgments that the method by which the HTS records relating to payphones were obtained -and used as evidence- complied with the law. Accordingly, in the present case, it has been evaluated that the obtaining of the HTS records relating to the communications via payphones from the Information Technologies and Communication Authority (“ITCA”), in accordance with the judge’s decision, and the technical analysis of these records by the law enforcement authorities so as to identify persons likely to be suspects, did not constitute a practice involving a manifest error of judgment or manifest arbitrariness.

Consequently, the Court has found no violation of the right to a fair hearing within the scope of the right to a fair trial.

B. As regards the Data Obtained through the Interception of Communications via the GSM Line Used by the Applicant

After the judge had obtained the HTS records of the GSM line used by the applicant upon the request of the chief public prosecutor’s office, the law enforcement officers examined all the records and issued a report entitled HTS Data Analysis and Evaluation Report. In consideration of the findings in the aforementioned report, as well as the statements of other persons under investigation for alleged membership of the same organisation, the fact that the applicant had been called consecutively and individually via payphones by the person identified as the imam in charge of the organisation’s clandestine military structure -an encryption method had been used in two of the calls- was relied on as decisive evidence for the applicant’s conviction. The applicant stated that at the time when the investigation into the clandestine military structure of the organisation was launched, the HTS records relating to the GSM line used by him were also accessed from the HTS records relating to payphones, although he was not considered a suspect in the said investigation, and no decision had been taken against him. Given that the HTS data relating to the GSM line used by the applicant were also accessed as a result of the law enforcement authorities’ analysis of the data relating to the payphones, it is also necessary at this point to assess the procedure by which the HTS records relating to the GSM line used by the applicant were obtained, in accordance with the decision of the incumbent judge issued upon the request of the chief public prosecutor’s office.

The Court of Cassation emphasised that the law enforcement authorities should prepare individual and detailed reports on HTS records so as to reveal the nature of the calls made and the material truth. In this regard, it has been observed that, at the stage when the applicant was included in the investigation as a suspect, the HTS records concerning the applicant were obtained in accordance with the judge’s decision in order to issue the said reports. This measure fell within the duties of the chief public prosecutor’s office as laid down in Article 160 of Law no. 5271 and that, in the present case, the said process was carried out in accordance with Article 135 of the same Law. It has therefore been established that the findings reached/evaluations and assessments made by the Court of Cassation and the inferior courts regarding the use as evidence of the data obtained in accordance with the relevant protection measure were not the result of a manifest error of judgment or manifest arbitrariness. Moreover, the judicial authorities have carried out the necessary investigations, analyses and assessments regarding the authenticity or reliability of the HTS data obtained. This data was analysed and interpreted by technical units. The defence was also provided with the opportunity to challenge the authenticity, in accordance with the principles of equality of arms and adversarial proceedings, of the evidence suggesting that the applicant had been positioned within the clandestine military structure of the FETÖ/PDY since he had also been called by payphones.

In the light of the foregoing, it has been concluded that there was no violation with regard to the allegedly unlawful method by which the HTS data relating to the GSM line used by the applicant, which had been accessed in accordance with the decisions on the interception of telecommunications, was obtained.

Consequently, the Court has found no violation of the right to a fair hearing within the scope of the right to a fair trial.