CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 26 septembre 2023

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TÜRKİYE (Application no. 15669/20)   JUDGMENT   Art 15 • Derogation in time of public emergency threatening life of nation Art 7 • Nullum crimen sine lege • Nulla poena sine lege • Conviction for being member of armed terrorist organisation based decisively on use of encrypted messaging application ByLock without duly establishing offence’s constituent material and mental elements in individualised manner • Expansive and unforeseeable judicial interpretation inconsistent with essence of offence which required specific intent • Art 7 requiring, for punishment purposes, existence of mental link through which personal criminal liability might be established • Domestic courts’ interpretation attached criminal liability in virtually automatic manner to ByLock users • Art 7 constitutes non-derogable right and its safeguards could not be applied less stringently even in respect of terrorist offences allegedly committed in circumstances threatening life of nation • Convention required observance of Art 7 guarantees, including in most difficult circumstances Art 6 § 1 (criminal) • Fair hearing • Prejudice to defence on account of non-disclosure of raw data obtained from encrypted messaging application server not counterbalanced by adequate procedural safeguards ensuring overall fairness of proceedings • Serious challenges in collection and handling of electronic evidence, increasingly used in criminal trials, did not call for more strict or more lenient application of Art 6 § 1 safeguards • Defence’s inability to have direct access to evidence and test its integrity and reliability first hand placed greater onus on domestic courts to subject those issues to most searching scrutiny • Domestic courts’ failure to provide reasons for non-disclosure of raw data and address core issues relating to integrity and evidential value of ByLock data • Access to decrypted ByLock material important for preserving defence rights • Shortcomings that undermined ability to conduct an effective defence on equal footing with prosecution incompatible with very essence of applicant’s procedural rights • Art 15 • Failure to comply with fair-hearing requirements not strictly required by exigencies of situation Art 11 • Freedom of association • Domestic courts’ unforeseeable extension of scope of offence when relying on applicant’s membership of trade union and association, considered to be affiliated with FETÖ/PDY, to corroborate conviction • Art 15 • Interference not strictly required by exigencies of situation Art 46 • Execution of judgment • Individual measures • Reopening of criminal proceedings, if requested, most appropriate way of putting end to violations found and affording redress • Respondent State required to take general measures as appropriate to address systemic problem regarding domestic courts’ approach to use of ByLock   STRASBOURG 26 September 2023 This judgment is final but it may be subject to editorial revision.     TABLE OF CONTENTS INTRODUCTION PROCEDURE THE FACTS I.   BACKGROUND AND CONTEXT OF THE CASE A.   Coup d’état attempt of 15 July 2016 and the declaration of a state of emergency B.   Measures taken against the FETÖ/PDY prior to the coup attempt II.   CIRCUMSTANCES OF THE CASE A.   The applicant’s arrest and placement in pre-trial detention B.   Other reports included in the investigation file C.   The applicant’s prosecution 1.   First part of the bill of indictment (a)   Founding of the FETÖ/PDY (b)   Terminology, objectives and operation of the FETÖ/PDY (c)   Communication methods used by the FETÖ/PDY and the ByLock application 2.   Second part of the bill of indictment 3.   Third part of the bill of indictment D.   Criminal proceedings against the applicant 1.   Proceedings before the Kayseri Assize Court (a)   Hearing held on 21 March 2017 (b)   Ruling of the Kayseri Assize Court (c)   Applicant’s appeal against his conviction 2.   Proceedings before the Ankara Regional Court of Appeal (a)   Further material obtained at the pre-hearing stage (b)   Hearing held on 9 October 2017 and the ruling of the Ankara Regional Court of Appeal 3.   Applicant’s appeal against the judgment of the Ankara Regional Court of Appeal and the judgment of the Court of Cassation 4.   Proceedings before the Constitutional Court 5.   Subsequent developments III.   OTHER MATERIAL SUBMITTED BY THE PARTIES A.   Press statements issued following National Security Council decisions B.   ByLock expertise reports 1.   Reports submitted by the Government (a)   The MİT technical analysis report (b)   “Analysis Report on Intra-Organisational Communication Application” prepared by the KOM (c)   “Expert Report on the ByLock application” prepared by independent cyber security experts (d)   “The Technical Report” prepared by IntaForensics 2.   Reports submitted by the applicant (a)   Expert opinion on the digital data concerning the applicant (b)   Expert reports commissioned in the context of other criminal proceedings C.   Arrest of the licence owner of ByLock RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW AND PRACTICE A.   Domestic law 1.   The Constitution 2.   Relevant domestic law relating to the collection of electronic evidence, the interception of communications and the evaluation of evidence (a)   Code of Criminal Procedure (b)   Intelligence Services Act 3.   Relevant domestic law governing organised crime and terrorism (a)   Criminal Code (Law no. 5237 of 26 September 2004) (b)   Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) 4.   Relevant domestic law concerning the judiciary (a)   Law no. 6723 amending the Law establishing the Supreme Administrative Court and certain laws (1   July 2016) (b)   Legislative Decrees nos. 667 and 685 5.   Other relevant domestic law B.   Domestic practice 1.   Case-law of the Court of Cassation (a)   Judgments of 24 April 2017 and 26 September 2017 (i)   Findings regarding the legal basis for the collection of the ByLock data (ii)   Findings regarding the characteristics of the ByLock application and the probative value of its use (iii)   Findings regarding the FETÖ/PDY (b)   Other relevant judgments of the Court of Cassation 2.   Case-law of the Constitutional Court (a)   Judgment of Ferhat Kara dated 4 June 2020 (application no. 2018/15231) (i)   Constitutional’s Court’s findings regarding the facts and the background to the case (ii)   Constitutional Court’s findings regarding Mr Kara’s complaints (b)   Judgment of Adnan Şen dated 15 April 2021 (application no. 2018/8903) 3.   Criminal proceedings brought against F. Gülen in 1999 II.   INTERNATIONAL LAW AND PRACTICE A.   The United Nations B.   The Council of Europe 1.   Council of Europe Commissioner for Human Rights 2.   The European Commission for Democracy through Law (Venice Commission) 3.   Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism 4.   The Reykjavík Summit and Declaration III.   NOTICE OF DEROGATION BY TÜRKİYE THE LAW I.   PRELIMINARY QUESTION CONCERNING THE DEROGATION BY TÜRKİYE A.   The parties’ submissions B.   The Court’s assessment II.     ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION A.   Admissibility B.   Merits 1.   The parties’ submissions (a)   The applicant’s submissions (b)   The Government’s submissions 2.   The Court’s assessment (a)   General principles (b)   Application of general principles to the present case (i)   Whether the FETÖ/PDY was recognised as a terrorist organisation at the time of the acts attributed to the applicant (ii)   Whether the applicant’s membership of an armed terrorist organisation was established, in keeping with the requirements of the domestic law (c)   Conclusion III.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A.   Admissibility 1.   The parties’ submissions 2.   The Court’s assessment B.   Merits 1.   The parties’ submissions (a)   The applicant (b)   The Government’s submissions 2.   The Court’s assessment (a)   Preliminary remarks (b)   General principles (c)   Application of the general principles to the present case (i)   The evidence regarding the applicant’s alleged use of ByLock (α)   Quality of the evidence (β)   The applicant’s ability to challenge the evidence in proceedings that complied with the guarantees of Article 6 § 1 of the Convention (ii)   The remaining evidence (d)   Preliminary conclusion under Article 6 § 1 of the Convention (e)   Considerations under Article 15 of the Convention (f)   Conclusion IV.     OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION A.     Allegations under Article 6 § 1 of the Convention concerning the independence and impartiality of the domestic courts B.     Allegations under Article 6 § 3 (c) of the Convention concerning the right to effective legal assistance V.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION VI.     ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION A.   Admissibility B.   Merits 1.   The parties’ submissions (a)   The applicant’s submissions (b)   The Government’s submissions 2.   The Court’s assessment (a)   Whether there has been an interference (b)   Whether the interference was justified (c)   Considerations under Article 15 of the Convention (d)   Conclusion VII.     APPLICATION OF ARTICLES   41 AND 46 OF THE CONVENTION A.   Article 46 of the Convention 1.   General principles 2.   Application of the general principles to the case (a)   Individual measures to be taken in respect of the present applicant (b)   Measures to be taken in respect of similar cases B.   Article 41 of the Convention 1.   Damage 2.   Costs and expenses 3.   Default interest OPERATIVE PROVISIONS PARTLY DISSENTING OPINION OF JUDGE SCHEMBRI ORLAND, JOINED BY JUDGES PASTOR VILANOVA AND ŠIMÁČKOVÁ JOINT STATEMENT OF PARTIAL DISSENT OF JUDGES KRENC AND SÂRCU PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE SERGHIDES JOINT PARTLY DISSENTING OPINION OF JUDGES RAVARANI, BÅRDSEN, CHANTURIA, JELIĆ, FELICI AND   YÜKSEL PARTLY DISSENTING OPINION OF JUDGE FELICI PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGE YÜKSEL   In the case of Yüksel Yalçınkaya v. Türkiye, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Síofra O’Leary,   Georges Ravarani,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Arnfinn Bårdsen,   Carlo Ranzoni,   Georgios A. Serghides,   Lado Chanturia,   Ivana Jelić,   Gilberto Felici,   Saadet Yüksel,   Lorraine Schembri Orland,   Mattias Guyomar,   Frédéric Krenc,   Diana Sârcu,   Kateřina Šimáčková,   Davor Derenčinović, judges , and Abel Campos, Deputy Registrar , Having deliberated in private on 18 January and 28 June 2023, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The case concerns the applicant’s conviction for being a member of an armed terrorist organisation described by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure” ( Fetullahçı Terör Örgütü/Paralel Devlet Yapılanması – hereinafter “the FETÖ/PDY”), considered by the authorities to be behind the coup attempt that took place in Türkiye on 15 July 2016. The conviction was based decisively on the applicant’s use of an encrypted messaging application called ByLock, which the domestic courts held was designed for the exclusive use of the members of the FETÖ/PDY. Other evidence used against the applicant included his use of an account at Bank Asya, and his membership of a trade union and an association that were considered to be affiliated with the FETÖ/PDY. The applicant complained that his trial and conviction entailed a violation of Articles 6, 7, 8 and 11 of the Convention. PROCEDURE 2.     The case originated in an application (no. 15669/20) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Yüksel Yalçınkaya (“the applicant”), on 17 March 2020. 3.     The applicant was represented by Mr J. Vande Lanotte and Mr   J.   Heymans, lawyers practising in Mariakerke, Belgium, Mr Ö. Akıncı, a   lawyer practising in Kayseri, Türkiye, and Mr M. Öncü, who was given leave by the President of the Grand Chamber to represent the applicant in the proceedings before the Court (Rule 36 § 4 (a) in fine of the Rules of Court). The Turkish Government (“the Government”) were represented by their Co ‑ Agent, Mr H. A. Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye. 4.     The application was allocated to the Second Section of the Court (Rule   52 § 1 of the Rules of Court). On 19 February 2021 the Government were given notice of the applicant’s complaints under Article 6 §§ 1 and   3 (concerning the collection, admission and assessment of the evidence against him, the independence and impartiality of the tribunals that tried him, and the right to effective legal assistance) and Articles 7, 8 (concerning the collection and use of the ByLock and internet traffic data in his regard) and 11 of the Convention. The remainder of the application was declared inadmissible pursuant to Rule   54 §   3 of the Rules of Court. 5.     The President of the Section granted leave to intervene in the proceedings to the International Commission of Jurists, which submitted written comments (Article 36 § 2 of the Convention and Rule 44 §   3). 6.     On 3 May 2022 a Chamber of the Second Section decided to relinquish jurisdiction in favour of the Grand Chamber (Article 30 of the Convention and Rule   72). 7.     The composition of the Grand Chamber was decided in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule   24. 8.     The applicant and the Government each filed further written observations on the admissibility and merits of the application (Rule   71 and   Rule 59 § 1). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 18 January 2023. There appeared before the Court:   (a)     for the Government Mr   H.A. Açikgül ,   Co-Agent , Mr   S. Talmon ,   Mr   C. Staker ,   Counsel , Ms   B. Bayrak Şenocak ,   Mr   İ. Yusufoğlu ,   Mr   K. Ers İ ntanik ,   Mr   F. Yilmaz ,   Advisers ; (b)     for the applicant Mr   J. Heymans ,   Mr   J. Vande Lanotte ,   Counsel , Mr   M. Öncü ,   Adviser .   The Court heard addresses by Mr Açıkgül, Mr Talmon and Mr Staker for the Government, and Mr Heymans and Mr Vande Lanotte for the applicant, as well as their replies to questions put by the judges. THE FACTS I.          BACKGROUND AND CONTEXT OF THE CASE A.    Coup d’état attempt of 15 July 2016 and the declaration of a state of emergency 10.     During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected Parliament, government and President of Türkiye. 11.     During the attempted coup, more than 8,000 military personnel under the instigators’ control bombarded several strategic State buildings, including the Parliament building and the presidential compound, attacked the hotel where the President was staying and the convoy in which the Prime Minister was travelling, held the Chief of General Staff hostage, attacked and occupied a number of public institutions, occupied television studios, blocked the bridges over the Bosphorus and the airports in Istanbul with tanks and armoured vehicles, and fired on demonstrators who had taken to the streets to oppose the coup attempt. According to the figures provided by the Government, more than 250 people, including civilians, were killed on the night in question and more than 2,000 people were injured. The Government also indicated that in the course of the coup attempt, some 70 military aircraft, including F-16 fighter jets and helicopters, 3 ships, 246 armoured vehicles and approximately 4,000 light arms were used. 12.     The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen (hereinafter “F.   Gülen”), a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of the FETÖ/PDY. The authorities attributed responsibility for the coup attempt to members of the FETÖ/PDY who had infiltrated the Turkish armed forces. 13.     On 16 July 2016 the Bureau for Crimes against the Constitutional Order at the Ankara Chief Public Prosecutor’s Office initiated a criminal investigation into the attempted coup. Acting within the framework of that investigation, the regional prosecutors’ offices launched criminal investigations against those suspected of being involved in the coup attempt, as well as against others suspected of having links to the FETÖ/PDY. 14.     On 20 July 2016 the Government declared a state of emergency for a period of ninety days as from 21 July 2016, which was subsequently prolonged on seven occasions, each time for further ninety-day periods. 15.     On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article   15 (for the contents of the notice, see paragraph 205 below). 16 .     During the state of emergency, the Council of Ministers passed several legislative decrees. On the basis of one of these decrees, namely Legislative Decree no. 672, promulgated on 1 September 2016, some 50,875   civil servants were dismissed from their duties, as they were considered to belong to, be affiliated with or linked to terrorist organisations or other organisations, structures, or groups which had been deemed by the National Security Council to be engaging in activities detrimental to national security. Among those dismissed were 28,163   civil servants, mostly teachers, from the Ministry of National Education (for further information on the relevant legislative decree, see Köksal v.   Turkey (dec.), no. 70478/16, § 7, 6   June 2017). Similarly, on the basis of Legislative Decree no. 667, which came into force on 23 July 2016, 104 foundations, 1,125   associations and 19   trade unions were shut down as they were considered as belonging, affiliated, or otherwise linked to the FETÖ/PDY. 17.     On 18 July 2018 the state of emergency was lifted. B.    Measures taken against the FETÖ/PDY prior to the coup attempt 18 .     It appears from the domestic court judgments submitted by the parties that although the FETÖ/PDY, which was formerly known as the “Gülen movement” or the “Gülen community” ( cemaat ) internationally, was largely perceived as a religious group since its inception in the 1960s, its motivations and modus operandi had nevertheless been the subject of suspicion and public debate for many years (see the findings of the Turkish Constitutional Court in the case of Ferhat Kara , no. 2018/15231, noted in paragraph   172 below; see also paragraph 20 of the Memorandum by the Council of Europe Commissioner for Human Rights, set out at paragraph 198 below). In this connection, the leader of the movement, F.   Gülen, was charged in 1999 with forming and leading a terrorist organisation on account of the activities of the Gülen movement. Those proceedings ended in his acquittal by a final judgment, dated 24 June 2008, of the plenary criminal divisions of the Court of Cassation (see paragraphs 189-93 below for further details about those proceedings; see also Akgün v. Turkey , no. 19699/18, § 124, 20   July 2021). 19 .     As can be seen from the relevant domestic court judgments, the debate and controversy surrounding the FETÖ/PDY intensified after 2013, particularly following what are known as the “17-25 December investigations” and the “MİT trucks” incident, which reinforced misgivings about the motivations of the FETÖ/PDY and triggered numerous investigations of the suspected members of that movement on terrorism-related charges (for further details on these incidents, see paragraphs 15 and   16 of the Constitutional Court’s Ferhat Kara judgment, set out at paragraph 172 below; see also Sabuncu and Others v. Turkey , no. 23199/17, § 23, 10 November 2020; Murat Aksoy v.   Turkey , no. 80/17, § 12, 13 April 2021; and Yasin Özdemir v.   Turkey , no.   14606/18, §§ 14 and 29, 7   December 2021). 20.     At the same time, the State security services also considered that the FETÖ/PDY represented a threat to national security. The press statements issued following the regular bi-monthly meetings of the National Security Council, which is a consultative coordination body that provides policy advice on national security matters, reveal that as from early 2014, that body had raised the alarm about the FETÖ/PDY, with increasing intensity, as evidenced by the gradual change in the description of the organisation in the statements, from a “structure threatening public peace and security” in February 2014 to a “terrorist organisation” in May 2016 (see paragraphs   108 ‑ 13 below for further details about the relevant statements; see also Akgün , cited above, §§ 39 and 40). 21 .     The information available in the case file further indicates that in parallel to these developments, the National Intelligence Agency of Türkiye ( Milli İstihbarat Teşkilatı – hereinafter “the MİT”) also engaged in intelligence-gathering activities in relation to the FETÖ/PDY prior to the coup attempt. In this respect, in early 2016 the MİT accessed the main server of the encrypted messaging application ByLock, located in Lithuania, to gather information on the illegal activities of the FETÖ/PDY, apparently based on intelligence that this application was being used exclusively by the members of that organisation for internal communication. According to the information provided by the Government, as of May 2016 the data obtained by the MİT from the ByLock server, including the Internet Protocol (IP) addresses of the persons who had connected to that server, were shared with the “relevant institutions”, including the General Directorate of Security. On 24   October 2016 the MİT further shared with these “relevant institutions” an analytical report on the technical and organisational features of the ByLock application (hereinafter “the MİT technical analysis report” – see paragraphs   114-16 below). 22.     Subsequently, in December 2016, the MİT delivered the raw ByLock data in its possession to the Ankara Chief Public Prosecutor’s Office. Upon the request of the latter, on 9 December 2016 the Ankara Fourth Magistrate’s Court ordered the examination of that raw data under Article 134 of the Code of Criminal Procedure (Law no. 5271 of 4 December 2004 – “the CCP”) (see paragraph 142 below). In particular, it ordered the making of copies of the material handed over by the MİT and the transcription of its contents. In the meantime, thousands of investigations were commenced on the basis of the data disclosed by the MİT, with suspected users of the ByLock application being charged with the offence of membership of the FETÖ/PDY (for further information regarding the timeline of these developments, the technical reports prepared on ByLock by the national authorities and experts, as well as the ensuing investigative measures, see paragraphs 114-30 below, and the Constitutional Court’s Ferhat Kara judgment noted at paragraphs 174 and   175 below). II.       CIRCUMSTANCES OF THE CASE 23.     The applicant was born in 1966. On the date of lodging his application, he was serving a prison sentence in Kayseri. A.    The applicant’s arrest and placement in pre-trial detention 24 .     On 22 July 2016 the applicant, who was a teacher at a State school in Kayseri, was suspended from the civil service. On 27 July 2016 he was dismissed from service pursuant to Legislative Decree no. 672 on account of his suspected affiliation with the FETÖ/PDY (see paragraph   16 above). 25.     On 29 July 2016 the Kayseri public prosecutor’s office requested the Kayseri Security Directorate to inquire into whether the teachers dismissed from service in Kayseri, including the applicant, were among the members or executives of the FETÖ/PDY or whether they had links to that organisation; to investigate their social media accounts for any criminal content; to take any witness statements regarding these individuals; and to identify their address and contact details. 26.     According to a record drawn up by the Kayseri Security Directorate on 18 August 2016, an anonymous call was placed to the police emergency line earlier on that same date, which reported the applicant, along with another person residing in Kayseri, as being members of the FETÖ/PDY. 27 .     On 5 September 2016 the Kayseri Security Directorate submitted its inquiry report to the Kayseri public prosecutor’s office concerning 147   teachers who had been dismissed from the civil service in Kayseri. The report stated, in relation to the applicant, that he was identified as a user of ByLock (see paragraph 80 below for further information on the applicant’s connection to ByLock). The report included no further information on the ByLock application, nor on how the applicant’s use of that application had been established. It also indicated that the applicant was a member of the trade union Aktif Eğitimciler Sendikası, also known as Aktif Eğitim-Sen, and the association Kayseri Voluntary Educators Association ( Kayseri Gönüllü Eğitimciler Derneği ), which were deemed to carry out activities “in line with PDY”. In the concluding part of the report, it was considered that the suspects in question were members of the FETÖ/PDY, as they engaged in private encrypted communication with each other via ByLock, were in contact with other members of the organisation, and in some cases had accounts at Bank Asya, which supported the FETÖ/PDY. Accordingly, the Kayseri Security Directorate requested a search and seizure warrant in respect of the persons concerned, as well as warrants for their arrest and investigation. 28.     On the same day, the Kayseri public prosecutor’s office lodged a request with the Kayseri Magistrate’s Court for the search and seizure of digital evidence at the address and on the persons of the 147   individuals concerned, including the applicant, the search of their digital materials, such as computers, mobile phones and memory cards, and the temporary seizure of the digital materials for the purpose of their transcription and analysis. 29.     The Kayseri Magistrate’s Court granted the public prosecutor’s requests on the same day, following which the latter instructed the police to perform the necessary procedures and arrest the suspects. 30.     Accordingly, on 6 September 2016 the police conducted a search at the applicant’s home. During the search the police seized, among other material, one mobile phone (IMEI [1] number: 351912067995747) together with its SIM card (with a specified telephone number). No elements of an offence were found on the applicant’s person or in his car. The applicant was placed under arrest at the end of the search and taken into police custody on suspicion of being a member of the FETÖ/PDY. 31 .     On 8 September 2016 the applicant was questioned by the police in the presence of his lawyer. In his statement, the applicant indicated that he had been using the same phone number for the past ten years. He denied having had any connection to associations, unions or institutions affiliated with the FETÖ/PDY, or having made any donations to such bodies. He stated that while he had joined a trade union named Aktif Eğitim-Sen, he had ended his membership in June 2016. When asked whether he had deposited any money with Bank Asya upon F. Gülen’s call following its takeover by the Savings Deposit Insurance Fund (TMSF) on 4 February 2014, the applicant claimed that he was not aware of any such call and therefore had not deposited any money with that bank in such circumstances. He explained, however, that when assigned to a school project conducted jointly with the Ministry of Education in 2014, he had been asked to open an account at Bank Asya in order to receive his remuneration, which was the extent of his involvement with that bank. Upon being informed by the police that he had been identified as a user of the ByLock application, the applicant stated that he had never heard of that application and had never used it. Lastly, as regards the anonymous call made in his respect, the applicant maintained that the accusations made against him were baseless and that he was not a member of the FETÖ/PDY. 32 .     On 9 September 2016 the Kayseri Security Directorate sent a report to the Kayseri public prosecutor’s office, indicating the name of sixty-seven individuals, including the applicant, who had been identified as using the encrypted communication application ByLock. It was specified in the report that the information regarding the use of ByLock had been obtained “following coordination with other institutions”. 33.     On the same date, the applicant was questioned by the Kayseri Magistrate’s Court in the presence of his lawyer. After reiterating the statements that he had previously made before the security directorate, the applicant asserted that he had not joined any associations or other bodies with knowledge of their link to the FETÖ/PDY. At the close of questioning, the Kayseri Magistrate’s Court ordered the applicant’s pre-trial detention having regard, inter alia , to the concrete evidence prompting a strong suspicion that he had committed the offence of membership of an armed terrorist organisation. B.    Other reports included in the investigation file 34 .     On 12 October 2016 the Kayseri Security Directorate submitted a report to the Kayseri public prosecutor’s office concerning the 147   Kayseri-based teachers, including the applicant, who had been arrested on account of their alleged use of ByLock. The report indicated the telephone (or the IP) number on which the application was used and the ByLock user ID, together with a colour code assigned to each user (blue, orange or red). The information regarding the applicant indicated that he had connected to the ByLock application from the specified telephone number, that his ByLock user ID was 408783, and that he was classified as an “orange” user. There was no explanation in the report as to how the data regarding the use of ByLock had been obtained, nor as to what the colour codes signified. 35.     Following the Kayseri public prosecutor’s request on 25   October 2016, on 16 November 2016 Bank Asya provided the prosecutor’s office with the bank account details of a number of suspects, including the applicant. According to the information provided, two accounts were identified at Bank Asya in the applicant’s name. While there had been no activity in relation to one of them, a deposit in the amount of 3,110.16 Turkish liras (TRY) (equivalent at the time to approximately 1,020 euros – EUR) had been made to the other on 28 February 2014 – that is, after the alleged call by F.   Gülen to support that bank (see paragraph 31 above). That money had been subsequently withdrawn, and a new deposit of TRY 1,520.50 (equivalent to approximately EUR 540 at the time) was made on 12 December 2014. It was not indicated by whom the deposits had been made. 36.     On an unspecified date, the Kayseri public prosecutor’s office transmitted a list of suspects, which included the applicant, to the Provincial Directorate of Associations at the Kayseri Governor’s office and requested information as to whether any of those persons had been members of associations or trade unions shut down pursuant to Legislative Decree no. 667 owing to their affiliation with the FETÖ/PDY (see paragraph 16 above). On 1   December 2016 the Provincial Directorate replied that the applicant had been a member of the Kayseri Voluntary Educators Association and the Aktif Eğitim-Sen trade union, both of which had been shut down by Legislative Decree no.   667. C.    The applicant’s prosecution 37.     On 6 January 2017 the Kayseri public prosecutor lodged a bill of indictment against the applicant with the Kayseri Assize Court, along with eight other persons, accusing them of membership of the armed terrorist organisation FETÖ/PDY under Article 314 § 2 of the Criminal Code. The bill of indictment was divided into three parts: the first part provided “general information” on the FETÖ/PDY; the second part examined the acts of the FETÖ/PDY in the terrorism context; and the third part dealt with the specific evidence against the suspects. 1.      First part of the bill of indictment (a)    Founding of the FETÖ/PDY 38.     According to the information provided in the first part of the bill of indictment, the foundations of the organisation had been laid in 1966 by F.   Gülen, who was serving as an imam and preacher ( vaiz ) at the time. At its inception, the organisation concentrated its activities on young students, whom it reached via F. Gülen’s talks recorded on cassettes or through “conversation meetings” ( sohbet ). By adapting himself to the socio-political conditions of the day, exploiting religious sentiments and maintaining his autonomy from political parties, F. Gülen was able to increase his effect in the “triangle of religion, politics and money”, and to thus expand his organisation and his influence in religious circles. During this first phase of its existence preceding the coup d’état of 12 September 1980, the organisation focused on increasing its support base –   particularly through the “houses of light” ( ışık evleri ) allocated to students, which were referred to in the bill of indictment as the “cell houses” of the organisation, and private tutoring centres ( dershane ) that targeted students   – and infiltrating public institutions. 39.     In the next phase, which followed the coup d’état of 1980, the organisation completed its mission of “staffing” public institutions, and prioritised its educational goals, while carrying on with other activities in secret. Targeting bright students and educating them formed a fundamental part of the organisation’s long-term project, as it was these students who were subsequently placed in important public institutions by the organisation. 40.     In this second phase, the organisation replaced its ideology of “national, local Islam” with what the bill of indictment termed an “ étatist discourse