REQUEST FOR ANONYMITY IS ACCEPTED

I. SUBJECT-MATTER OF THE APPLICATION

1. The application concerns the alleged violation of the right to personal liberty and security on the grounds that the custody and detention measures had been unlawful and that the detention on remand had exceeded a reasonable time.

II. APPLICATION PROCESS

2. The application was lodged on 5 April 2018.

3. The application was submitted to the Commission after the preliminary examination of the application form and annexes thereto under administrative procedure.

4. The Commission held that the examination as to the admissibility of the application be carried out by the Section.

5. The First Section, decided to relinquish jurisdiction in favour of the Plenary, pursuant to Article 28 § 3 of the Internal Regulations of the Court (“Internal Regulations”).

III. THE FACTS

6. As stated in the application form and annexes thereto and in accordance with the information and documents available on the National Judiciary Informatics System (“the UYAP”), the facts of the case may be summarized as follows:

A. Overview

1. Activities and Characteristics of the Fetullahist Terrorist Organisation/Parallel State Structure

7. In Turkey, there is a structure established by Fetullah Gülen, which has been operating since 1960s. It has been defined as a religious group until recent years and called by the names such as “the Community”, “the Gülen’s Community”, “the Fetullah Gülen’s Community”, “the Hizmet Movement”, “the Volunteers’ Movement” and “the Fellowship” (see Aydın Yavuz and Others [Plenary], no. 2016/22169, 20 June 2017, § 22).

8. The impugned structure was organised especially in public institutions and organisations. In addition, it carried out legitimate activities in different social, cultural and economic fields, especially in terms of education and religion. As part of these activities, it operated private teaching institutions, schools, universities, associations, foundations, trade unions, professional chambers, economic foundations, financial institutions, newspapers, journals, TV channels, radio channels, web-sites and hospitals, thereby became considerably effective in the civilian sphere. Besides, this is an illegal structure either hidden behind these legal institutions or organised and operated separately and independently from the legal structure, especially carrying out activities in public sphere (see Aydın Yavuz and Others, § 26; and Mustafa Baldır, no. 2016/29354, 4 April 2018, § 75).

9. On the other hand, many investigations and prosecutions have been carried out especially after 2013 regarding the organisation and activities of this structure, since its actions and activities have been, for a long time, a matter of debate in society. In this scope, it has been found that the members of this structure, in accordance with the purpose of the structure, committed acts such as destroying evidence, wiretapping the phones of public institutions and high-level State officials, disclosing the State’s intelligence activities, obtaining questions –in advance– of the exams held for employment or promotion in public institutions and distributing these questions to its members. In the relevant investigation and prosecution documents, this structure has been referred to as “the Fetullahist Terrorist Organisation” (“the FETÖ”) and/or “the Parallel State Structure” (“the PDY”) (see Aydın Yavuz and Others, §§ 22, 27).

10. In the investigations and prosecutions within the scope of which hundreds of persons were detained on remand, it has been indicated that the FETÖ/PDY is a terrorist organisation, and it has been claimed that the persons against whom legal action has been taken would be sentenced for the offences of, inter alia, “establishing, managing or being a member of an armed terrorist organisation” and “attempting to overthrow the Government of the Republic of Turkey or to prevent it from performing its duties”, as well as some other offences (see Aydın Yavuz and Others, § 28).

11. In this context, it has been asserted that many cases leading to intense public debates such as “Şemdinli”, “Ergenekon”, “Balyoz (Sledgehammer)”, “Askeri Casusluk (Military Spying)”, “Devrimci Karargah (Revolutionist Military Headquarters)”, “Oda TV” and “Şike (Match-fixing)” cases were directed at discharging certain public officers who were taking office in several public institutions and organisations, notably the TAF. They also aimed at officers who were not members of this structure and at repressing persons considered to act against the interests of the organisation in different civil platforms (see Aydın Yavuz and Others, § 29). Alleged improper actions in these cases have also been dealt with in the Constitutional Court’s judgments finding a violation (see, among others, Sencer Başat and Others [Plenary], no. 2013/7800, 18 June 2014; Yavuz Pehlivan and Others [Plenary], no. 2013/2312, 4 June 2015; and Yankı Bağcıoğlu and Others [Plenary], no. 2014/253, 9 January 2015).

12. In the same vein, an investigation was launched by the public prosecutors, judges and law enforcement officers stated to have relations with the FETÖ/PDY against certain politicians, their relatives and certain businessmen known to the public, on the ground that they had allegedly been involved in corruption, and during the operations carried out at the end of 2013, certain protective measures were taken with regard to these persons. These operations that are known to the public as the 17-25 December investigations were considered by the public authorities as well as investigation authorities and judicial authorities as an organisational activity of the FETÖ/PDY to overthrow the Government. Afterwards, administrative/judicial measures and sanctions were imposed on the members of the judiciary and law enforcement officers involved in these operations (see Aydın Yavuz and Others, § 30; and Hüseyin Korkmaz, no. 2014/16835, 18 July 2018, § 76). The Constitutional Court has also rendered many decisions confirming the lawfulness of the detention of certain law enforcement officials involved in these investigation processes as well as members of the judiciary ordering their release (see, among others, Hikmet Kopar and Others [Plenary], no. 2014/14061, 8 April 2015, §§ 74-87; Mehmet Fatih Yiğit and Others, no. 2014/16838, 9 September 2015, §§ 62-75; Abdulkerim Anaçoğlu and Others, no. 2014/15469, 17 July 2018, 46-66; and Mustafa Başer and Metin Özçelik, no. 2015/7908, 20 January 2016, §§ 134-161).

13. In addition, the trucks loaded with the supplies belonging to the National Intelligence Organisation (“the MİT”) were stopped and searched by the law enforcement officers, who were stated to be member of the FETÖ/PDY, in accordance with the instructions given by the public prosecutors, who were stated to have relations with this structure, respectively in Kırıkhan District of Hatay Province on 1 January 2014 and at the Sirkeli Tool Booths Ceyhan District of Adana Province on 19 January 2014 (for further information on the relevant events, see Süleyman Bağrıyanık and Others, no. 2015/9756, 16 November 2016, §§ 12-50). The public authorities as well as investigation and judicial authorities considered the events pertaining to stopping and searching the MİT trucks as an organisational activity intended to create a public opinion to the effect that the State of the Republic of Turkey aided terrorist organisations, thereby leading to the trial of the Government members. Subsequently, the members of the judiciary and law enforcement officers involved in these operations were subject to judicial/administrative measures and sanctions. The Constitutional Court also ruled that the detention of certain members of the judiciary and law enforcement officials involved in these investigation processes had been lawful (see, among others, Süleyman Bağrıyanık and Others, §§ 198-244; and Gökhan Bakışkan and Others, no. 2015/7782, 9 January 2019, §§ 43-60).

14. With the indictment of the Ankara Chief Public Prosecutor’s Office of 6 June 2016 concerning the senior executives of the organisation, a criminal action was filed against 73 executives of the organisation including Fetullah Gülen, on the ground that they had established an armed organisation and attempted to overthrow the Government of the Republic of Turkey and to prevent it from performing its duties. In this indictment, comprehensive determinations and assessments were made regarding the threat posed by the organisation on the national security, and in this context, it was specified that the fight against the FETÖ/PDY had been a matter of existence and non-existence for the State (see Aydın Yavuz and Others, § 31).

15. In addition, the threat posed by the FETÖ/PDY at national level was also discussed in the decisions, statements and practices of the security units of the State. In this sense, the State officials explained that the structure in question had been posing a threat to the security of the country. Such assessments were also included in the resolutions of the National Security Council (“the MGK”). Since the beginning of 2014, the MGK has been defined this structure as “the structure threatening public peace and national security”, “the illegal structure within the State”, “the parallel structure disturbing public peace and conducting illegal activities at home and abroad through its structure appearing to be legal”, “the parallel state structure”, “the parallel state structure acting in collaboration with terrorist organisations” and as “a terrorist organisation”. The MGK’s resolutions in question were announced to the public through press releases. Besides, in 2014, the FETÖ/PDY was mentioned in the National Security Policy Document as “the Parallel State Structure” under the heading of “Illegal Structures Appearing to Be Legal”. On 8 January 2016, the Gendarmerie General Command included the FETÖ/PDY in the current list of terrorist organisations (see Aydın Yavuz and Others, § 33).

16. Moreover, disciplinary proceedings were conducted against a great number of public officials due to their relations with the FETÖ/PDY, notably the members of the judiciary and police officers, and various disciplinary sanctions including the dismissal from public service or administrative sanctions were imposed in respect of many public officials. Furthermore, certain administrative measures were also applied in respect of certain business organisations, financial institutions and media outlets considered to have connections with the FETÖ/PDY (for further information, see Aydın Yavuz and Others, §§ 34, 35).

17. On 15 July 2016 Turkey faced a military coup attempt, therefore a state of emergency was declared across the country, which ended on 19 July 2018. Relying on the factual grounds, both public authorities and judicial authorities considered that the FETÖ/PDY was behind the coup attempt (for further information on the coup attempt and its plotter, see Aydın Yavuz and Others, §§ 12-25). During and after the coup attempt, investigations were carried out by the chief public prosecutors’ offices into the organisation of the FETÖ/PDY in public institutions, as well as its organisation in different fields such as education, health, trade, civil society and media, even if they were not directly related to the coup attempt, and many people were taken into custody and subsequently detained (see Aydın Yavuz and Others, § 51; and Mehmet Hasan Altan (2) [Plenary], no. 2016/23672, 11 January 2018, § 12).

18. It was accepted in many judicial decisions that the FETÖ/PDY had been organised in parallel to the current administrative system with a view to taking over the constitutional institutions of the State for re-shaping the State, society and citizens in accordance with its ideology and for managing the economy and social and political life through an oligarchic group. The judicial authorities also set forth that the FETÖ/PDY had many characteristics such as confidentiality, cell-type structuring, infiltrating public institutions and organisations, attributing holiness to itself, and acting on the basis of obedience and devotion, and that this organisation was far more difficult and complex structure than the others (for general characteristics of the FETÖ/PDY, see Aydın Yavuz and Others, § 26; for the type of structuring in judicial bodies, see Selçuk Özdemir [Plenary], no. 2016/49158, 26 July 2017, § 22; and Alparslan Altan [Plenary], no. 2016/15586, 11 January 2018, § 11).

19. The methods suggested by the FETÖ/PDY, as an organisation based on confidentiality, to its members were the security measures that may be described as resisting the intelligence. In this regard, Fetullah Gülen, the founder and leader of the FETÖ/PDY delivered instructions to the members of the organisation, which was “If service is a prayer, measure is the ablution for it. Service without measures is like a prayer without ablution”. Among the methods used by the organisation to ensure confidentiality, as in many other terrorist organisations, there was the use of code names. According to the findings of the investigation and prosecution authorities, the main method used by the FETÖ/PDY in terms of communication in order not to be uncovered was the face-to-face communication, and in cases where this was not possible, it was the communication through encrypted programs. According to the instruction of the leader of the organisation, "Those who make phone calls betray the service". Therefore, it was forbidden to make ordinary phone calls for the organisational communication. For this reason, strong encrypted programs were developed in order to be used in the organisational communication (see Ferhat Kara [Plenary], no. 2018/15231, 4 June 2020, § 22).

2. Identification of the ByLock Program, Its Notification to the Judicial Authorities and the Judicial Process

20. Within the scope of the works carried out by the MİT in a period when the FETÖ/PDY posed a threat to the national security and thus the organisation as well as the national and international activities of the said structure were subject to surveillance and investigation by the intelligence authorities, law enforcement officers and judicial authorities, a mobile application called ByLock (ByLock: Chat and Talk) with its main server abroad and the servers with which this application had communicated were subject to detailed technical studies. As a result of these studies, which were carried out by using technical intelligence procedures, tools as well as methods peculiar to the MİT, some data related to this program that was considered to have been used by the FETÖ/PDY was obtained.

21. In this scope, the MİT submitted to the Ankara Chief Public Prosecutor's Office the hard disk containing the obtained digital data about the ByLock program and the flash disk containing the list of the ByLock subscribers who had connected to the application, as well as the ByLock Application Technical Report it had issued. Subsequently, the Chief Public Prosecutor's Office requested the Ankara 4^th Magistrate Judge to order the examination, copying and analysis of the relevant (digital) materials in accordance with Article 134 of the Code of Criminal Procedure no. 5271 dated 4 December 2004. The magistrate judge accepted the aforesaid request and ordered that “a copy of the digital materials be sent to the Ankara Chief Public Prosecutor’s Office in order for them to be analysed, copied, subject to expert examination and transcribed into text”.

22. The Ankara Chief Public Prosecutor’s Office sent a letter to the General Directorate of Security Department of Anti-Smuggling and Organised Crime (“the EGM-KOM”), instructing them to conduct the necessary research and investigation procedures and issue a report including the findings reached, relying on the decision of magistrate judge. The EGM-KOM created a working group consisting of the staff assigned by the EGM-KOM, the Anti-Terrorism Department (“the TEM”), the Intelligence Department and the Anti-Cyber Crimes Department for the analysis of the received data (the hard disk containing the ByLock data and the flash disk containing the subscriber list) and a report to be issued in this regard in order to be used during investigation and prosecution processes. In this scope, an interface program was used to export the ByLock data, and thus, the relevant data was started to be examined by the law enforcement units.

23. In addition, within the scope of a trial conducted by the 16^th Criminal Chamber of the Court of Cassation in its capacity as the first instance court, information on the technical features of the ByLock application was requested from the EGM-KOM. Having issued a report, the EGM-KOM sent the report to the relevant Chamber. The report provided detailed information about the nature and other features of the ByLock communication system as well as some digital data regarding the program (for detailed information, see Aydın Yavuz and Others, § 106; and Ferhat Kara, § 31).

24. Subsequently, the Ankara Chief Public Prosecutor’s Office requested from the Information and Communication Technologies Authority (“the BTK”) the reports pertaining to how many times the subscribers included in the list of those determined to have had connected to the ByLock IP addresses had connected to these addresses (CGNAT data) (for detailed information about the meanings of the concepts such as IMEI number, general and individual IP numbers, user-ID and etc., see Ferhat Kara, § 23).

25. In the meantime, a new version of the subscriber list, which was updated by the MİT through a detailed examination, was sent to the Ankara Chief Public Prosecutor’s Office again. The Ankara 5^th Magistrate Judge ordered that an analysis be made on the relevant digital material, in accordance with Article 134 of Law no. 5271, that the images stored in it would be copied and that they would be transcribed into text.

26. Afterwards, the Ankara Chief Public Prosecutor’s Office, having sent the subscriber list to the BTK, requested information in order to identify the personal information of the subscribers of the updated numbers connecting to the ByLock server. Thereupon, the subscription information related to the connecting GSM numbers and ADSL numbers were sent to the Chief Public Prosecutor's Office.

27. Meanwhile, an investigation was launched by the Ankara Chief Public Prosecutor's Office into the allegations that the users of the address named “Morbeyin” and related applications had directly connected to the ByLock IP through the codes in the background. In this regard, an examination group was created, which consisted of the officials from the Anti-Cyber Crimes Department, the Scientific and Technological Research Council of Turkey (“the TUBITAK”) and the BTK. During the investigation, it was found that the FETÖ/PDY, bearing in mind the possibility that the ByLock application might be used as evidence against it in the future and, in that vein, in order to prevent the disclosure of the real users of the ByLock application, by directing irrelevant persons to this program and thus reducing the authenticity of such evidence, had created a software in 2014 named Morbeyin. According to the further findings of the prosecutor, when a user entered the applications such as qibla compass, prayer time, prayer listening, reading the Quran and various dictionaries, the Morbeyin software enabled the device to connect to ByLock for a few seconds without the knowledge and will of the user. Thus, it was determined that the users of many GSM numbers, who were found to have connected to the said program, had been directed to the ByLock IPs outside their will, and they were ultimately removed from the lists of ByLock users (see Ferhat Kara, § 37).

28. Upon the instruction given by the Ankara Chief Public Prosecutor’s Office to the EGM-KOM, the CGNAT data pertaining to 123,111 GSM numbers sent by the BTK was started to be distributed to the provincial units of the EGM-KOM in order for them to be sent to the provincial chief public prosecutors’ offices.

3. Installment and Use of the ByLock Application

29. Investigation units/authorities issued –addressing to the judicial authorities– technical and chronological reports containing comprehensive information about the technical features of the ByLock application ensuring its confidentiality, the manner it was used, the way it was encoded, the method of its installment on a device, its areas of usage as well as its purpose. In this context, the reports issued by the General Directorate of Security in order to clarify some issues related to the ByLock application was also submitted to the Ankara Chief Public Prosecutor's Office. Besides, the MİT also issued a technical report related to the data obtained. In addition, the decisions of the Court of Cassation contained certain findings and assessments regarding the ByLock communication program on the basis of the facts and evidence reached during the investigation/prosecution processes and especially the reports issued by the investigation unit, also regard being had to the organisational form and other characteristics of the FETÖ/PDY.

30. The findings and assessments regarding the installment and use of the ByLock program, which are specified in the decisions of the Court of Cassation as well as the reports issued by the investigation authorities (for detailed information and the statements of suspects/accused in this regard, see Ferhat Kara, §§ 40, 41) can be summarised as follows:

i. ByLock is an application that allows communication over the internet by mobile phones or certain electronic devices. Internet (online) connection is required to access the application in which offline use is not supported. In other words, users cannot send messages, e-mails or data, if internet connection is not available.

ii. The ByLock application took place in general application stores in early 2014 and was used in various versions until early months of 2016.

iii. It is necessary to install the program in order to sign up for the Bylock application. However, its download on a device is not sufficient for its use, that is, a special installment process is required. When the ByLock application is run for the first time, a screen with the options of sign up or log in appears, and the user is asked to create a user name and password.

iv. It has been established as a result of the source code analyses that the application also has the feature of creating a login password by drawing a random pattern. Therefore, after creating a username and password, the user must also create a cryptographic key by drawing random patterns on the screen with his finger, and this information must be transmitted to the application server in an encyrpted manner. Thus, a user, who signs up the ByLock communication system, is automatically assigned a special registration number (user-ID number) by the system.

v. No personal information (phone number, identity number, e-mail address, etc.) is requested while creating a user account on the ByLock application. Furthermore, as opposed to global and commercial applications of similar nature, there is no process for verification of the user account (SMS password authentication, e-mail authentication, etc.).

vi. The ByLock application also has no password recovery extension which enables the users who have forgotten their password to sign up again and get a new user-ID number. In other words, the user is given a new user-ID each time he signs up. Therefore, an individual may have more than one user-ID, since he is required to sign up again in the event that he forgets his password and is unable to access his account. Besides, it is also possible for an individual to have more than one user-ID for such reasons that he failed to create a user account after downloading the program or that he has been assigned to another position within the organisation.

vii. Registration is not enough to communicate with the other users registered in the system. In other words, it is not possible to add users by searching by phone number or first and last name on the ByLock communication system. The application is not synchronized with the contact list on the phone. Accordingly, the ByLock communication system, unlike common applications, does not have a feature that enables the persons in the contact list of the phone to be automatically added to the application.

viii. In order for the users to communicate with each other, both parties must first learn face-to-face or through a means (such as a courier, another messaging program, a ByLock user, and etc.) each other’s user names/codes and they must add each other as a friend. Therefore, it is a prerequisite for communicating via the ByLock application that users have to know each other's usernames/codes and both parties must add the other as a friend.

ix. It is not enough for both parties to add each other as a friend for communicating/messaging with each other. After the users add another member of the organisation to their contact list –through the method mentioned above– the confirmation of the other party is requested. Upon his confirmation, connection and messaging is enabled. Accordingly, unlike other common commercial applications, it is not possible to add a person, whose username/code is unknown, to another person’s contact list and to contact him without his confirmation.

4. Features of the ByLock Program

a. Messaging

31. One of the main functions of the ByLock application, which was developed to ensure instant communication and transmission of some data between individuals, is that the individuals who add each other can message each other in the same time period. While, in common internet-based communication applications, entering the confirmation code sent via SMS or e-mail is sufficient for using the program and messaging -as explained above-, in the ByLock application, the parties are required to add each other as friends in order for them to message each other through the program. Thus, inclusion of the others in the friend lists created on the ByLock application is absolutely prevented. In addition, while other common messaging applications continue running in the background as long as an internet connection is available and notify the user when a message is received, the ByLock application requires that the program is open (running) on the user’s device in order to receive a message, even if an internet connection is available (for detailed information, see Ferhat Kara, §§ 43-45).

b. Feature of Communication by E-mail

32. It is also possible to communicate by sending e-mails via ByLock. Thus, contrary to instant messaging, it allows for communication without the sender and recipient having to be in conversation at the same time as well as for sharing longer texts compared to instant (short) messaging. This function of the application can be described as closed circuit. This feature allows for sending or forwarding e-mails individually or collectively only among the program users. The investigation bodies could not obtain data indicating that e-mails have been sent from an account with the ByLock extension to the accounts with Yahoo, Hotmail, Gmail, Outlook and etc. extensions or vice versa (for detailed information, see Ferhat Kara, §§ 48 and 49).

c. Feature of Creating Groups

33. The ByLock users may create groups within the program. Names of the groups (such as “Bölge Bayan”, “Etütcüler”, “Ev abileri”, “Imamlarım”, “Okulcular”, “8 abiler”, “8 birimciler”, “8 büyük bölge”, “Bölgeciler”, “II Mezuncular”, “Talebeciler”, “Üniversiteciler”, “Zaman Gönüllüler”, “Mesul”, “Mesuller”, “İzdivaç”) in the application are consistent with the specific literature of the organisation, which is frequently used by itself, and its structuring model. In this context, it has been determined that since the FETÖ/PDY attaches special importance to intra-organisational marriage (izdivaç), many groups named izdivaç or including the words zdv or zdiv were created within the ByLock application and there were many users with such names in the friends lists. In addition, it has been understood that the names of the groups created by members of the organisation in the ByLock application and the classifications in the evidence obtained through other methods were similar. It has also been found that the expressions/coding such as general manager – manager – teacher – guide - zb (group leader) which were determined by the organisation based on the education system were also among the names of the groups created in the ByLock program (see Ferhat Kara, § 50).

d. Features of Voice Call and Sending Images/Documents

34. Among the data obtained regarding the ByLock program, there are records of the logs pertaining to the voice calls, although there is no audio file related to the internet-based voice call feature of the program. Among the source codes of the application, a Turkish expression, namely “sesli arama”, is also available. With reference to these, it has been found that the ByLock application allowed its users to have voice calls with each other and that many users had conversations with each other through this method on the application (see Ferhat Kara, § 51).

35. In addition, the technical units, having examined the data related to the application, have found that the size notification was done automatically by the system, and thus concluded that the program also allowed for sending images and/or documents. It has also been determined that the members of the organisation shared files with .apk extension, which enabled the ByLock application to appear not with its own icon but with the icons of commonly used programs (especially, WhatsApp, Google, etc.) (see Ferhat Kara, §§ 52 and 53).

5. The Features of the ByLock Application that Distinguish It from the Others

36. The Court of Cassation compared the ByLock program with the other common messaging programs in its decisions where it considered all elements concerning the program together. The judicial authorities, having evaluated the structure and general features of the ByLock application, together with the statements taken as well as the other evidence collected, and also taking into consideration the differences of the program from similar commercial applications and its organisational features, have concluded that this program was made available exclusively for the members of the FETÖ/PDY under the cover of a global application.

a. Institutional and Commercial Character of the Application

i. The ByLock program was not designed for commercial purposes. In this context, it could not be established whether there was an attempt to promote the program, nor is there any data indicating that there were efforts to increase the number of its users. The program has neither an institutional nor a commercial character. While many of the internet-based instant messaging applications aim to increase their brand values and earnings by reaching as many users as possible –especially through ads–, the ByLock application, instead, targeted a certain number of users based on anonymity.

ii. Payments concerning the transactions carried out for the operation of this application by way of renting a server in another country were made anonymously. Moreover, there is no reference about the previous works of the person who has developed and released the ByLock application. Nor is there accessible contact information about him.

b. Protection of User Information and Communication Security

i. ByLock communication system, the installation of which is not enough for ensuring a communication, and which also requires a custom installation within the program by its users, is a program where each message is encrypted with a different crypto key in order to ensure online communication through a strong encryption method. It has been designed that each message is sent being encrypted with a different crypto key. This encryption method aims at preventing third parties from accessing such information without permission (hacking) in case of transfer of information between the users.

ii. ByLock communication system operated through a server with the IP address 46.166.160.137 that is located in another country, namely Lithuania. It has also been determined that eight more IP addresses allocated to a company engaged in renting servers in another country were also used in various versions of the ByLock application. According to the judicial authorities, renting more than one IP address serves the purpose of making it difficult to identify the users.

iii. An individual downloading the program cannot directly communicate with the others. In order to be included in the ByLock friends list, it is required to know the username/code of the other party as well as a password assigned by the system or user. Accordingly, unlike other commercial applications, it is not possible to add to the contact list a user whose username/code is unknown and to contact him without his confirmation.

iv. The ByLock system is designed in a way to ensure that the messages are received after opening the application so that the irrelevant persons will not hear about the application and will not read the received messages accidentally. As also explained above, in the ByLock application, there is a closed circuit system for e-mails as well, which can be used only by ByLock users.

v. Unlike common messaging applications, ByLock does not offer fast communication to its users. In order for communication, it is not enough to install the program. It is also required to complete the installation and confirmation processes carried out in a certain and confidential manner. While registering the application, it is paid attention not to write real names as usernames. Failure to use verification criteria for a new user will make it difficult to identify the user. In other words, the fact that no personal information is requested during registration indicates that anonymity is sought to be ensured, thereby making it difficult to identify the user.

vi. Messages sent/received through the “ByLock” are automatically deleted from the device after a certain period of time without manual intervention. Even if the users forget to delete any data required to be deleted for the security of communication, the ByLock system has been designed to take the necessary precautions. Thus, even in case of seizure of the device within the scope of an investigation, access to the persons in the user list of the application as well as to the previous messages in the application is blocked.

vii. Data related to the server and communication is saved in an encyrpted manner in the application database, which is another measure taken for preventing the identification of users as well as for ensuring the safety of communication.

viii. The users accessing the application from Turkey are forced to access via VPN in order to conceal their identities and communication.

c. Whether ByLock is a Global Application

i. It has been determined that most of the users of the ByLock application were from Turkey.

ii. Source codes of the application include certain Turkish phrases. In this scope, among the source codes of the system, there are Turkish phrases such as “yetkiniz yok (you are not authorized)”, “dosya (file)”, “posta (mail)” and “sesli arama (voice call)”. In addition, a large part of the user names, group names and the passwords broken are in Turkish. Moreover, almost all of the deciphered contents of the communication made via ByLock are in Turkish.

iii. Almost all queries regarding the ByLock program, through search engines, were made by the users in Turkey. There was a substantial increase in the queries made through search engines as from the date when access to the ByLock application through Turkish IP addresses was blocked.

iv. Web-based posts concerning the ByLock application were mainly shared through fake accounts, and these posts were in favour of the FETÖ/PDY. In addition, the application, which was used by a large group of users, had not been known by the Turkish society or abroad before the coup attempt of 15 July.

v. Unlike common commercial messaging applications, sections such as user manual, frequently asked questions and feedback area are not available in the ByLock application.

vi. The program –despite its requiring a custom installation and the non-existence of a user manual in this regard– was also placed in general application markets under the cover of a global application. The FETÖ/PDY, having allowed the ByLock application to be downloaded from general application stores in early 2014, made it obligatory to install this application on phones or electronic/mobile devices through means such as external memory, memory cards or Bluetooth, instead of downloading it from general application stores, fearing that its users might be identified by judicial authorities (for the contents of the messages and e-mails sent via ByLock in this respect, see Ferhat Kara, §§ 54-c-vi, 55-i).

6. Organisational Features of the ByLock Application

37. As a result of the studies carried out regarding the ByLock application, the reports issued by the investigation units and the decisions of the Court of Cassation included some findings as regards its relationship with the FETÖ/PDY as well as its organisational aspects. These can be summarized as follows (for detailed information, see Ferhat Kara, § 55):

i. Some suspects and accused, whose statements were taken after the coup attempt of 15 July, stated that the ByLock application was used exclusively by the members of the FETÖ/PDY as an organisational communication program since the beginning of 2014 (for some of the statements in this regard, see Ferhat Kara, §§ 41, 55-ii, 56).

ii. As understood from the e-mail contents analysed, the feature of communication by e-mail was mostly used to share the instructions, opinions as well as the alleged dreams of the FETÖ/PDY leader Fetullah Gülen and to motivate the members of the organisation (for some of the e-mail contents in this regard, see Ferhat Kara, §§ 49-iii, 55-i).

iii. It has been found that the friends lists created for messaging included the persons having relations with the organisation, and accordingly, the program was generally used for organisational purposes and communication rather than daily activities (for an example in this regard, see Ferhat Kara, § 46).

iv. It has been observed in the contents of the messages as well as the friends lists that the individuals used code names instead of their real names. The relevant judgments of the Constitutional Court also stated that the persons having relations with the said organisation used code names, and in this regard provided examples of the messages exchanged between these persons via ByLock where they used code names instead of their real names (see Alparslan Altan, §§ 11, 25, 134, 137; Erdal Tercan [Plenary], no. 2016/15637, 12 April 2018, §§ 16, 34, 151-153; Recep Uygun, no. 2016/76351, 12 June 2018, § 15; and Mustafa Mendeş, no. 2018/1349, 30 October 2018, § 17).

v. Some groups referring to the hierarchical as well as cell-type structure which is one of the elements of terrorist organisations were created in the program. Names of the groups were consistent with the specific literature of the organisation, which was frequently used by itself, and with its structure (for some examples in this regard, see § 33).

vi. The messages and e-mails, which were obtained from the ByLock, contained certain abbreviations about which the organisation members gave information in their statements and the literature peculiar to the organisation (for some examples in this regard, see Ferhat Kara, § 49).

vii. Seeking mutual consent of two users to enable them to get in contact -adding as a friend- is an indication of the fact that the program was designed in accordance with the cell-type structure of the organisation.

viii. As a result of the analysis of the data especially regarding the first hundred (100) user-ID numbers in the database of ByLock servers, indicating that the application had been created and developed by the members of the organisation at the very beginning and used for organisational purposes, it has been found that a substantial part of them had relations with the FETÖ/PDY (for detailed information, see Ferhat Kara, § 55-iii).

ix. In addition, it has been determined that 175 persons who were found to have been the senior executives of the FETÖ; 23 judges and public prosecutors who had attended a number of investigations and prosecutions that are known to the public as Ergenekon, Balyoz (Sledgehammer) and Askerî Casusluk (Military Spying); and 5,922 out of 8,723 persons, who were subject to investigations and/or prosecutions for the confidential structure of the organisation within the law enforcement agency, were ByLock users.

x. It has been found that almost all of the messages deciphered did not concern the daily issues but the organisational contacts and activities of the FETÖ/PDY. Some of the activities in this regard are as follows (for detailed information, see Ferhat Kara, § 47):

- Planning of how the Government will be overthrown illegally, what the role of the members of the judiciary and security units having connection with the organisation will be, how the senior public officials will be forced to resign and how the media outlets and civil society will be taken under control (in this regard, for the content of the messages exchanged between the senior members of the organisation, see Ferhat Kara, § 47-xi).

- Preparation of legal texts for the members of the FETÖ/PDY in order for them to use in their defences as well as appointment of lawyers for them (for the content of the messages in this regard, see Ferhat Kara, § 47-x).

- Release of the suspects/accused within the scope of the investigations and prosecutions conducted into the FETÖ/PDY by judges and public prosecutors (for the content of the messages sent by a member of the judiciary, who had relations with the FETÖ/PDY, to a civilian, see Ferhat Kara, § 47-v).

- Sharing information about the FETÖ/PDY members against whom operations were carried out and who were uncovered, as well as notifying the operations to be carried out beforehand (for the content of the messages in this regard, see Ferhat Kara, § 47-ii).

- Not being present in places where there was a possibility of operation and prior cleaning of important digital data in these places by the persons responsible for searching and scanning such data (ATM) (for the content of a message in this regard, see Ferhat Kara, § 47-iii).

- Blacklisting of those expressing opinions against the FETÖ/PDY or fighting against the structure (for the content of a message in this regard, see Ferhat Kara, § 47-vi).

B. Process as regards the Applicant

38. In the aftermath of the coup attempt, the İstanbul Anatolian Chief Public Prosecutor's Office (“prosecutor’s office”) launched investigations against the Boğaziçi Atlantik Kültürel Dostluk ve İş Birliği Derneği (“BAKİAD” or “the Association”) that was found to have had links with the FETÖ/PDY, as well as certain persons, including the applicant, within the scope of the investigations initiated across the country into the organisation and activities of the FETÖ/PDY considered to have been the terrorist organisation/structure behind the coup attempt.

39. On 26 May 2017 the investigation authorities took into custody the applicant who was found to have been working as accountant in the administrative board of the BAKİAD.

40. On 29 May 2017 the prosecutor’s office indicted the applicant for the offence of membership of an armed terrorist organisation before the Istanbul Anatolian 4^th Magistrate Judge (“magistrate judge”). In its letter, the prosecutor’s office stated that there were concrete evidence demonstrating the strong suspicion of guilt against the suspects, including the applicant, as well as grounds for their detention.

41. The applicant’s lawyer was also present during the inquiry before the magistrate judge. As regards the charges against him, the applicant gave the following statement:

“... I am one of the founders of the BAKİAD. Since it was a non-governmental organisation and I did not see any inconvenience in its activities, I took part in its foundation and then I was actively involved in its administration until 2012. Afterwards, I was appointed to the administrative board since they wrote my name. But I did not take an active role. I was not involved in any activities. I just signed the decisions made. I am not a Bylock user. I did not install it on my phone. I deny such allegations about my phone line I have been using for a long time. I do not accept the accusations against me.”

42. The applicant was detained on 29 May 2017 for membership of the FETÖ/PDY after he had appeared before the magistrate judge. The relevant part of the decision is as the following:

"Considering as a whole, within the scope of all investigation file, the documents regarding the activities and money transfers of the BAKİAD, the report issued by the Financial Crimes Investigation Board, the suspects’ positions within the administration of the association, the dates and periods when they worked for the association, the records pertaining to the interception of phone calls between the suspects included in the file and other suspected members of the FETÖ, the inquiry results regarding the accounts on ByLock that is the communication network of the FETÖ terrorist organisation, Bank Asya account activities, the amount of deposits in the accounts and the dates and periods when the deposits were put in the bank and all other records and documents in the file;

There is a strong suspicion on the basis of concrete evidence that the suspects …, M.T. and … committed the imputed offence; the imputed offence is among the offences listed in Article 100 § 3 (a) of the Code of Criminal Procedure and thus constitutes a ground for detention; regard being had to the fact that the evidence concerning the imputed offence has not been fully collected yet and that there is a risk of fleeing, since there are other suspects in the case file who have already fled, as well as considering the lower and upper limits of the punishment prescribed for the imputed offence, it is held that the suspects be detained under Articles 100 and 101 of the Code of Criminal Procedure.”

43. The applicant’s lawyer challenged the decision. However, on 9 June 2017 the İstanbul Anatolian 5^th Magistrate Judge dismissed the request with no right of appeal. The relevant part of the reasoning of the decision provides as follows:

“... According to the evidence relied on by the İstanbul Anatolian 4^th Magistrate Judge ordering the suspect’s detention for the imputed offence, considering; that there has not been a considerable change in the proceedings that may require the suspect’s release and the grounds specfied in the arrest warrant no. 2017/356 issued by the magistrate judge are still applicable; that the evidence has not been collected yet; that there has not been any development –which might be in favour of the suspects and require their release– regarding the evidence collected and the investigations conducted since the date when the suspects were detained on remand; that the grounds for detention are still available; that there is a risk of fleeing and tampering with evidence for the suspects, given the gravity of the imputed offence; that therefore, the judicial control set forth in Article 109 of the Code of Criminal Procedure and thus the release of the suspects will be inconvenient and insufficient in terms of illuminating all elements concerning the offence and thereby conclusion of the investigation properly; that none of the measures of judicial control specified in the said article may eliminate such inconvenience or eliminate the probable negative consequences; the upper limit of the punishment prescribed by the law for the imputed offence as well as the principle of proportionality; and that the criteria for restricting freedom as set forth in Article 5 of the Convention, with reference to Article 90 of the Turkish Constitution no. 2709, are satisfied; … the appeal has been dismissed.”

44. The İstanbul Anatolian Chief Public Prosecutor’s Office, having concluded the investigation, sent the file, along with the report dated 6 June 2017, to the İstanbul Chief Public Prosecutor’s Office (“the Chief Public Prosecutor’s Office”). The report stated that the applicant served as accountant in the Board of Directors of the BAKİAD in 2009-2011 and 2015, that according to the report issued by the Financial Crimes Investigation Board (“the MASAK”) there had been money transfers between the applicant and other suspects and that the ByLock program had been installed on the phone line registered in the name of the applicant and actually used by him.

45. The Chief Public Prosecutor’s Office indicted the applicant on 14 June 2017 for membership of the FETÖ/PDY terrorist organisation.

46. The indictment issued in respect of 34 suspects including the applicant first provided general information about the FETÖ/PDY and then stated the particular facts and assessments relied on in terms of the charges against each suspect. In this context, the main evidence and facts relied on with regard to the applicant can be summarised as follows:

i. It was stated that the applicant installed and used the encrypted communication program called ByLock, which was used by the members of the FETÖ/PDY to communicate with each other, on the telephone line registered in his name and actually used by him.

ii. It was stated that the applicant served as accountant in the Board of Directors of the BAKİAD, which was considered to have had links with the FETÖ/PDY, in 2009-2011 and 2015.

iii. It was stated that according to the report of the MASAK, there had been money transfers between the applicant and other suspects included in the investigation file and that it was remarkable that these money transfers had been made for a common goal and purpose.

47. The bill of indictment contained the following details about the ByLock program alleged to have been used by the applicant: “The Bylock program determined to have been the communication network of the organisation had been developed and used by the FETÖ/PDY Armed Terrorist Organisation; it was started to be used upon the instruction of the organisation leader Fetullah GÜLEN; it was not commercially available and could be obtained only through a method where the members of the organisation sent it to each other; it was used for intra-organisational communication as well as conveying the instructions of the leaders and directors of the organisation; it was used through an encryption system and was hidden; the messages exchanged through the program were automatically deleted after a certain period of time; it could not be accessed or used by anyone other than the members of the organisation; and therefore those who have used the said program may be considered to have links with the organisation as well as being its member”.

48. The 30^th Chamber of the İstanbul Assize Court (“the assize court”) approved the indictment on 28 June 2017, and thus the prosecution phase started over the file no. E. 2017/167.

49. The applicant made his defence at the hearing of 29 November 2017. The applicant denied the accusations against him and stated that he was on the Administrative Board of the BAKİAD but he had no information about the financial transactions of the Association or how the receipts were prepared under the name of donation or dues. He also claimed that he had never downloaded or used the program called ByLock.

50. On 8 February 2018 the assize court ordered the continuation of the applicant’s detention on remand. The applicant’s subsequent appeal was dismissed by the 31^st Chamber of the İstanbul Assize Court on 15 March 2018, with no right of appeal.

51. The court decision was served on the applicant on 28 March 2018.

52. On 5 April 2018 the applicant filed an individual application with the Constitutional Court.

53. At the end of the proceedings carried out while the applicant was detained on remand, on 15 August 2018 the assize court sentenced him to 6 years and 3 months’ imprisonment for membership of an armed terrorist organisation. Along with the said judgment, “considering the punishment conforming to the gravity of the offence as well as the period spent in detention” the assize court released the applicant and held that the judicial control measures such as international travel ban and signing a document before the law enforcement units on certain days be applied. The applicant was released on the same day.

54. The conviction judgment, after providing some general information about the FETÖ/PDY, stated some findings and assessments regarding the ByLock program. In this respect, it has been concluded that the impugned program “had been made available exclusively for the members of the FETÖ/PDY under the cover of a global application”. Having mentioned the evidential nature as well as lawfulness of the ByLock program, the Court also specified that “As the ByLock communication system is a network which is designed for the members of the FETÖ/PDY armed terrorist organisation and which is used exclusively by certain members of this terrorist organisation, the determination, on the basis of technical data which would lead to a definite conclusion without any suspicion, that the relevant person has become a part of this network in line with the organisational instruction and used it for ensuring confidential communication will constitute an evidence demonstrating the person’s relation with the organisation.”

55. As regards the applicant, the Court stated that “There is a ByLock identification report regarding the phone number … and IMEI number …”. According to the reports issued by the BTK, the applicant connected to the ByLock program (to the servers determined to have been rented from the company named … for this program) 714 times in total from 1 September 2014 until 30 December 2014. The Court also underlined that according to the information received from the BTK, the IMEI number of the phone on which the said ByLock servers had been connected to was consistent with the IMEI information of the phone where the phone lines referred to in the letter of the BTK had been used –known to have been used by some accused, including the applicant, respectively– and that the base station information regarding the connection to the ByLock servers was also consistent with the residence addresses as well as the trunk lines of the accused at the material time.

56. In the assessment of other evidence concerning the applicant in the conviction judgment, it was stated that it was not possible to associate the applicant's appointment to the Administrative Board of the BAKİAD with the FETÖ/PDY membership, but this issue would be evaluated together with the other evidence. The court stated that in the case file there was no evidence indicating that the money transfers in question had been made in the interest of the FETÖ/PDY and for this purpose and will.

57. Consequently, it appears that while concluding that the applicant was a member of the FETÖ/PDY, the court mainly relied on his use of the program named ByLock and considered that his having been on the Administrative Board of the BAKİAD supported the relevant finding.

58. The applicant appealed against the conviction judgment, and the case has still been pending before the appeal court by the date when the individual application has been reviewed.

IV. RELEVANT LAW

A. Domestic Law

1. Legal Provisions

59. Article 100 of the Turkish Criminal Procedure Code no. 5271, titled “Grounds for arrest”, insofar as relevant, reads as follows:

(1) If there are facts that tend to show the existence of a strong suspicion of a crime and an existing ground for arrest, then an arrest warrant may be issued against the suspect or accused. No arrest warrant can be issued, if it is not proportionate to the importance of the case, expected punishment or security measure.

(2) A ground for arrest may be deemed as existing in cases mentioned below:

a) If the suspect or accused have fled or hidden or there are concrete facts indicating that he is going to flee;

b) If the conduct of the suspect or the accused tend to show the existence of a strong suspicion that he is going to attempt;

1. To destroy, hide or tamper with the evidence, or

2. To put an unlawful pressure on the witnesses, victims or other individuals.

(3) If there is a strong suspicion that the below mentioned crimes have been committed, then the ground for arrest may be deemed as existing:

a) Following crimes as defined in the Turkish Criminal Code dated 26 September 2004 and numbered 5237:

…

11. Crimes against the Constitutional order and crimes against the functioning of this system (Articles 309, 310, 311, 312, 313, 314 and 315);

…”

60. Article 101 §§ 1 and 2 of Code no. 5271, titled “Arrest warrant”, reads as follows:

(1) During the investigation phase, upon the motion of the public prosecutor, the magistrate judge shall issue an arrest warrant against the suspect, and during the prosecution phase the trial court shall issue an arrest warrant against the accused upon the motion of the public prosecutor, or by its own motion. The aforementioned motions must contain reasons and explanations as to why judicial control would not be sufficient in a given case, based on legal and factual grounds.

( 2 ) Decisions on detention, continuation of detention or dismissal of a request for release must clearly indicate, along with concrete evidence and facts, that there have been;

a) A strong suspicion of guilt;

b) Grounds for detention; and

c) Detention is a proportionate measure.

The content of the decision shall be notified to the suspect or accused orally, and a written copy of the decision shall also be served on them, and this issue shall be mentioned in the decision.”

61. The then Article 134 of Code no. 5271, titled “Search of computers, computer programs and transcripts, back-up and provisional seizure”, reads as follows:

"(1) Upon the motion of the public prosecutor during an investigation with respect to a crime, the judge shall issue a decision ordering the search of computers and computer programs and records used by the suspect, as well as back-up and transcription of these records, if there is strong indication of guilt based on concrete evidence and it is not possible to obtain the evidence by other means.

(2) If computers, computer programs and computer files/records are inaccessible, as the passwords are not known, or if the hidden information is unreachable, then the computer and equipment that are deemed necessary may be provisionally seized in order to retrieve and to make a back-up of the necessary files. Seized devices shall be returned without delay in cases where the password has been decrypted and the necessary copies are produced.

(3) During the seizure of computers or computer files/records, a back-up of all data included in the system shall be made.

(4) In cases where the suspect or his representative makes a request, a copy of this copied data shall be produced and given to him or to his representative, and such an exchange shall be recorded and signed.

(5) It is also permissible to make a back-up of the entire data or some of the data included in the system, without seizing the computer or the computer files/records. The backed-up data shall be printed on paper and this situation shall be recorded and signed by the related persons.”

62. Article 314 §§ 1 and 2, titled “Armed organisation”, of the Turkish Criminal Code no. 5237, dated 26 September 2004, reads as follows:

"(1) Any person who establishes or commands an armed organisation with the purpose of committing the offences listed in parts four and five of this chapter, shall be sentenced to a penalty of imprisonment for a term of ten to fifteen years.”

(2) Any person who becomes a member of the organisation defined in paragraph one shall be sentenced to a penalty of imprisonment for a term of five to ten years.”

63. The then Article 4 of Law no. 2937 on State Intelligence Services and the National Intelligence Organisation, dated 1 January 1983, insofar as relevant, reads as follows:

“Duties of the National Intelligence Organisation are as follows:

a) To create state-wide national security intelligence in respect of the existing and probable activities, performed at home and abroad, against the country, nation and territorial integrity of the Republic of Turkey, its independence, safety, constitutional order and national power; and to report such intelligence to the President, the Prime Minister, the Chief of General Staff, the Secretary General of the National Security Council as well as to the relevant institutions.

…

i) To gather, record and analyse information, document, news and data concerning foreign intelligence, national defence, counter-terrorism, international offences and cyber security by use of any kind of procedure, means and systems of technical and human intelligence, and to report the intelligence created to the relevant institutions.”

64. Article 6 of Law no. 2937, insofar as relevant, reads as follows:

"In performing its duties hereunder, the National Intelligence Organisation shall be empowered:

a) To establish direct relations with all domestic and foreign institutions and agencies, all organisations and formations as well as persons; to apply appropriate coordination methods.

b) To receive information, documents, data and records from public institutions and organisation, public professional organisations, the institutions and organisations under the Banking Law no. 5411 and dated 19 October 2005, as well as from the other legal persons and institutions with no legal entity. To avail from, and to get in contact with, archives, electronic data processing centres and communication infrastructure of these institutions and organisations. The institutions and organisations, which receive such requests, cannot abstain from fulfilling the request by relying on its own legislation.

...

d) In performing its duties, to adopt clandestine working procedures, principles and methods of covertly working;

...

g) To collect relevant data on foreign intelligence, national defence, terrorism, international offences and cyber safety, which are available on telecommunication channels.”

2. Judgments rendered by the Court of Cassation and the Regional Court of Appeal

65. For the judgments of the General Assembly of the Criminal Chambers of the Court of Cassation, the 16^th Criminal Chamber of the Court of Cassation that is the appeal authority dealing with terror crimes and the Criminal Chambers of the Regional Court of Appeal, which contain their detailed findings and assessments regarding the ByLock application, see Ferhat Kara, §§ 91-104.

B. International Law

1. Relevant Provisions of the Convention

66. Article 5 § 1 of the European Convention on Human Rights (“the Convention”), titled “Right to liberty and security”, insofar as relevant, reads as follows:

“1. Everyone has the right to liberty and security. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

…”

2. Established Case-law of the European Court of Human Rights

67. The European Court of Human Rights (“the ECHR”) reiterated in its recent judgment of Buzadji v. Moldova ([GC], no. 23755/07, 5 July 2016, §§ 92-102) its established case-law that a person may be detained within the meaning of Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him before the competent judicial authority on suspicion of his having committed an offence (see Jecius v. Lithuania, no. 34578/97, 31 July 2000, § 50; and Wloch v. Poland, no. 27785/95,19 October 2000, § 108). Accordingly, it should be demonstrated with relevant and sufficient justifications that since the initial detention order, there has been a reasonable suspicion that the crime was committed, as well as that there have been grounds for the detention.

68. The ECHR considers that the existence of reasonable suspicion deemed sufficient for initial arrest must be capable of convincing an objective observer in the particular circumstances of the case and on the basis of the evidence collected. If the evidence collected is sufficient for convincing an objective observer that the suspect or accused may have committed the imputed offence, then there is a reasonable suspicion in the case. In other words, convincing ground or reasonable suspicion requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, nos. 12244/86-12245/86-12383/86, 30 August 1990, § 32; and O'Hara v. the United Kingdom, no. 37555/97, 16 October 2001, § 34).

69. Besides, the ECHR reiterates that Article 5 § 1 (c) of the Constitution does not require the investigation authorities to have collected the sufficient evidence to accuse the person concerned at the time of his arrest. In this scope, according to Article 5 § 1 (c) of the Constitution, the purpose of the investigation is to complete the investigation by proving the suspicions that form the basis for the arrest or eliminating such suspicions. Accordingly, the facts that form the basis for the suspicions and the facts that will be discussed in the later stages of the criminal proceedings and will justify the conviction or constitute the basis for the criminal charge should not be considered at the same level (see Murray v. the United Kingdom [GC], no. 14310/88, 28 October 1994, § 55; and Metin v. Turkey (dec.), no. 77479/11, 3 March 2015, § 57).

70. The ECHR has identified four reasonable grounds justifying the detention. These are the risk of the accused’s not being present at the hearing (risk of fleeing) (see Stögmüller v. Austria, no. 1602/62, 10 November 1969, under the Law section § 15), the risk that the accused may take measures that would harm the proper administration of justice after his release (tampering with the evidence) (see Wemhoff v. Germany, no. 2122/64, 27 June 1968, under the Law section § 14), the risk of committing crime again (see Matznetter v. Austria, no. 2178/64, 10 November 1969, under the Law section § 7) and the risk of disturbing public order (see Letellier v. France, no. 12369/86, 26 June 1991, § 51).

V. EXAMINATION AND GROUNDS

71. The Constitutional Court, at its session of 4 June 2020, examined the application and decided as follows.

A. Alleged Unlawfulness of Custody

1. The Applicant’s Allegations

72. The applicant maintained that his right to personal liberty and security, safeguarded by Article 19 of the Constitution, had been violated, stating that he had been taken into custody although the conditions had not been satisfied.

2. The Court’s Assessment

73. Ordinary legal remedies must be exhausted in order to lodge an individual application with the Constitutional Court. Individual application to the Constitutional Court is a secondary legal remedy in cases where the alleged violations of rights have not been redressed by inferior courts (see Ayşe Zıraman and Cennet Yeşilyurt, no. 2012/403, 26 March 2013, §§ 16, 17).

74. The Constitutional Court –referring to the relevant case-law of the Court of Cassation– has concluded that although the original case has not been concluded on the date of examination of the individual application concerning the allegations that the custody period prescribed by the law was exceeded, the custody period was not reasonable and the apprehension was unlawful, the action for compensation stipulated in Article 141 of Code no. 5271 was an effective legal remedy that needed to have been exhausted (see Hikmet Kopar and Others, §§ 64-72; Günay Dağ and Others [Plenary], no. 2013/1631, 17 December 2015, §§ 141-150; and Mehmet Hasan Altan (2), §§ 81-91).

75. Accordingly, it has been concluded that the remedy set forth in Article 141 of Code no. 5271 was an effective legal remedy available to the applicant and that therefore, the individual application lodged without exhausting this ordinary legal remedy was incompatible with the secondary nature of the individual application mechanism.

76. For the reasons explained above, this part of the application must be declared inadmissible for non-exhaustion of legal remedies.

B. Alleged Unlawfulness of the Applicant’s Detention

1. The Applicant’s Allegations

77. The applicant maintained that his right to personal liberty and security was violated as his detention was ordered in the absence of a criminal suspicion against him as well as of any concrete substantiating facts or evidence; that nor was there any risk of his tampering with evidence or absconding; and that his detention order and the subsequent decisions issued on his appeal against his detention were unreasoned for containing no examination as to his complaints.

2. The Court’s Assessment

78. Article 13 of the Constitution, titled “Restriction of Fundamental Rights and Freedoms”, reads as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

79. The first paragraph, and the first sentence of the third paragraph, of Article 19 titled “Personal liberty and security” read as follows:

“Everyone has the right to personal liberty and security.

…

Individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention.”

80. The applicant’s allegations under this heading must be examined from the standpoint of the right to personal liberty and security in the context of Article 19 § 3 of the Constitution.

a. Applicability

81. Article 15 of the Constitution, titled “Suspension of the exercise of fundamental rights and freedoms”, reads as follows:

“In times of war, mobilization, a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated.

Even under the circumstances indicated in the first paragraph, the individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable except where death occurs through acts in conformity with law of war; no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court ruling.”

82. In examining the individual applications against measures taken during the extraordinary administration procedures, the Constitutional Court is to take into account the protection regime set out in Article 15 of the Constitution with respect to fundamental rights and freedoms (see Aydın Yavuz and Others, §§ 187-191). The criminal act imputed to the applicant by the investigation authorities and underlying his detention is his alleged membership of the FETÖ/PDY, stated to be the perpetrator of the coup attempt. According to the Court, the said criminal act is related to the incidents requiring the declaration of state of emergency (see Selçuk Özdemir, § 57).

83. In the course of this examination, it would be primarily ascertained whether the applicant’s detention was in breach of the safeguards enshrined in the Constitution, notably Articles 13 and 19 thereof. In case of any breach, it would be then assessed whether the criteria laid down in Article 15 of the Constitution justified it (see Aydın Yavuz and Others, §§ 193-195 and 242).

b. General Principles

84. It is set forth in Article 19 § 1 of the Constitution that everyone has the right to personal liberty and security. In addition to this, the circumstances in which individuals may be deprived of liberty in accordance with due process of law are laid down in Article 19 §§ 2 and 3 of the Constitution. Accordingly, the right to personal liberty and security may be restricted only in cases where one of the situations laid down in this provision exists (see Murat Narman, no. 2012/1137, 2 July 2013, § 42).

85. It must be determined whether the detention, as an interference with the right to personal liberty and security, complies with the relevant conditions set out in Article 13 of the Constitution, i.e., being prescribed by law, relying on one or several justified reasons provided in the relevant provision of the Constitution, and not being in breach of the principle of proportionality (see Halas Aslan, no. 2014/4994, 16 February 2017, §§ 53-54).

86. As set forth in Article 19 § 3 of the Constitution, only those against whom there is a strong indication of guilt may be detained on remand. In other words, pre-condition of detention is the presence of a strong indication that the person charged with a criminal offence has committed it. To that end, it is necessary to support an allegation with plausible evidence which can be considered as strong. The nature of the facts which can be considered as plausible evidence is, to a large extent, based on the particular circumstances of the given case (see Mustafa Ali Balbay, no. 2012/1272, 4 December 2013, § 72). Besides, one of the aims underlying detention is to proceed with the criminal investigation and/or prosecution by way of confirming or dispelling the suspicions regarding the suspect (see Dursun Çiçek, no. 2012/1108, 16 July 2014, § 87; and Halas Aslan, § 76). Therefore, it is not absolutely necessary that all evidence has been collected at a sufficient level at the time of arrest or detention. In this sense, the facts underlying the criminal charge and thus the detention could not be of the same level with those which would be discussed at the subsequent stages of the criminal proceedings and serve as a basis for conviction (see Mustafa Ali Balbay, § 73).

87. On the other hand, all concrete evidence indicating the existence of strong criminal suspicion could not be sufficiently demonstrated in the detention order issued in respect of a suspect or an accused person considered to have involved in the coup attempt or to be in relation with the structure, the perpetrator of the coup attempt, notably under the circumstances prevailing immediately after the coup attempt. In this sense, in handling the individual applications before it, the Constitutional Court may have access to the relevant investigation files or case-files via the National Judiciary Informatics System (“the UYAP”). Accordingly, in the examination of the individual applications involving detention-related complaints, the information and documents available in the files, access to which is ensured via the UYAP, -notably, the indictments where the contents of such evidence as well as the evidence-related assessments of the investigation authorities are explained thoroughly- are also taken into consideration so as to have a sound and better grasp of the contents of the evidence relied on, cited, or referred to in a detention order. In this regard, the facts which are not indicated in the detention order but included in the investigation file and relied on -in the indictment- as a ground for the charges are taken into account, to the extent available through the UYAP, by the Court in dealing with the individual applications involving the alleged unlawfulness of the detention (see Zafer Özer, no. 2016/65239, 9 January 2020, § 41).

88. It is evident that this assessment method is a state of necessity for the detention measures applied in the aftermath the coup attempt. Notably, it is undoubtedly difficult to demonstrate in detail all concrete evidence indicating the existence of criminal suspicion in the detention orders issued in respect of those detained immediately after the coup attempt. It should be accordingly considered reasonable that under these circumstances, the strong indications of criminal guilt, which have not been specified in the time of detention, be comprehensively explained and assessed by the investigation authorities at the subsequent stage. In this respect, in the examination of the alleged unlawfulness of the detention measure applied immediately after the coup attempt, not only the facts referred to in the detention order but also those included in the file and generally specified in the indictment as the basis of the criminal charge, access to which are ensured through the UYAP, would be taken into consideration (see Zafer Özer, § 42).

89. Besides, it is also provided for in Article 19 § 3 of the Constitution that an individual may be placed under pre-trail detention for the purpose of preventing the risks of absconding or removing or tampering with evidence. As also set out in Article 100 of Code no. 5271, detention may be ordered in cases where the suspect or accused person absconds or hides, or where there are concrete facts which raise the suspicion of absconding, or where the behaviours of the suspect or accused person indicate the existence of a strong suspicion of tampering with evidence or attempting to put an unlawful pressure on witnesses, victims or other individuals. In the relevant Article, the offences regarding which the ground for arrest may be deemed to exist ipso facto are enlisted, provided that there exists a strong suspicion of having committed those offenses (see Halas Aslan, §§ 58 and 59).

90. It is also set out in Article 13 of the Constitution that the restrictions as to fundamental rights and freedoms cannot be contrary to the “principle of proportionality”. In this context, one of the issues to be considered is the fact that the detention must be proportionate to the significance of the imputed offence as well as to the severity of the sanction to be imposed (see Halas Aslan, § 72).

91. In each concrete case, it primarily falls to the judicial authorities ordering detention to assess whether there exists a strong indication of criminal guilt, the pre-condition for detention, whether the grounds justifying detention exist, and whether the detention was proportionate. As a matter of fact, the judicial authorities which have direct access to all parties of the case and the evidence are in a better position than the Constitutional Court in this respect. However, the exercise of this discretionary power by the judicial authorities is subject to the Court’s review which must be conducted especially on the basis of the detention process and the grounds of the detention order, as well as in consideration of the particular circumstances of the given case (see Gülser Yıldırım (2) [Plenary], no. 2016/40170, 16 November 2017, §§ 123 and 124).

c. Application of the Principles to the Present Case

92. The applicant was detained on remand in the aftermath of the coup attempt, pursuant to Article 100 of Code no. 5271, for his alleged membership of a terrorist organisation, namely the FETÖ/PDY, considered to be the perpetrator of the attempt, within the scope of the investigation conducted into the BAKİAD, the association considered to have a link with this organisation. It thus appears that the applicant’s detention had a legal basis.

93. It must be then assessed whether there existed a strong indication of criminal guilt, the pre-condition of detention, before proceeding with the examination as to the questions whether the applicant’s detention, revealed to have a legal basis, pursued a legitimate aim and was proportionate.

94. During the police interrogation, the applicant denied the accusations against him related to the FETÖ/PDY and also maintained that he was not a user of the ByLock (see § 41 above). In the detention order issued in respect of the suspects including the applicant, it is stated that the concrete evidence demonstrating the existence of strong criminal suspicion of membership of the said terrorist organisation is available in the case-file, and in this sense, a general reference is made to some pieces of evidence included therein without making any distinction based on each individual. The magistrate judge ordering their detention relied on, inter alia, the documents on the activities and money transfers performed by the BAKİAD, the report issued by the MASAK, the communication records indicating phone conversations, the account activities before the Bank Asya, as well as the ByLock inquiry results. The ByLock program was qualified by the magistrate judge as the communication network of the FETÖ/PDY (see § 42 above). Also in the decision on the dismissal of the challenge to the detention order, it is generally indicated with a reference to the detention order that there exists concrete evidence demonstrating the existence of the strong criminal suspicion against the suspects including the applicant (see § 43 above).

95. In the police report and indictment issued with respect to the applicant, the authorities relied as the evidence indicating that the applicant committed the imputed offence (membership of a terrorist organisation) on the applicant’s use of the ByLock stated to be used for ensuring communication among the FETÖ/PDY members, his serving as an accountant in the Board of Directors of the BAKİAD -the association considered to have a link with the FETÖ/PDY- in 2009-2011 and 2015, as well as on the MASAK report concerning the money transfers between him and the other suspects of the same investigation (see §§ 44 and 46). It is stated, with respect to the ByLock program revealed to be used by the applicant, in the indictment that it is the communication network of the FETÖ/PDY and was developed by this organisation upon the instruction of its leader, Fetullah GÜLEN; and that given the features of the ByLock program, those using it are considered to be in relation with this organisation (see § 47 above).

96. Accordingly, the most significant basis of the criminal charge against the applicant and thus his detention is the determination that he was using the ByLock program. In this sense, an assessment as to the ByLock program must be primarily made during the examination as to the alleged unlawfulness of detention, with a view to ascertaining whether there was a strong indication of criminal guilt in respect of the applicant.

97. In its judgment in the case of Aydın Yavuz and Others, the Constitutional Court in examining the alleged unlawfulness of the applicants’ detention made certain findings and assessments concerning the ByLock program, as two applicants were revealed to be its users, mainly based on the judgment rendered by the 16^th Criminal Chamber of the Court of Cassation in its capacity as a first instance court (see Aydın Yavuz and Others, § 106). In the light of these findings and assessments on the features of the ByLock program, the Court noted that the individuals’ use, and download on their electronic/mobile devices, of this program might be considered by the investigation authorities as a strong indication of their connection with the FETÖ/PDY. In this judgment, taking into consideration the features of the ByLock program, the Court found neither unfounded nor arbitrary the acceptance -by the investigation authorities and the courts ordering detention- of the use of this program by the persons accused of being a member of the FETÖ/PDY as a strong indication of criminal guilt, in consideration of the particular circumstances of the given case (see Aydın Yavuz and Others, § 267).

98. Besides, following the judgment in the case of Aydın Yavuz and Others, the public authorities notably the judicial bodies continued to make determinations and assessments as to the features and the use of ByLock. In this sense, the Constitutional Court has found it necessary to re-evaluate its relevant case-law by taking into consideration such determinations and assessments.

99. In this sense, the nature of the ByLock application, as well as the way how it became known to investigation authorities must be taken into consideration. In the course of the period during which the investigation authorities and the public authorities started to perceive the FETÖ/PDY’s staffing within the public institutions and organisations along with its activities within the different social, cultural and economic areas, notably education and religion, as a threat to the national security, the MİT also conducted inquiries and inspections, within the boundaries of its own field of work, into the FETÖ/PDY’s activities. As a matter of fact, it is laid down in Article 4 § 1 (a) of Law no. 2937 that the MİT is liable to create state-wide national security intelligence in respect of the existing and probable activities, performed at home and abroad, against the territorial integrity, existence, independence, safety, constitutional order and national power of the Republic of Turkey, as well as to report this intelligence to the relevant institutions (see § 63 above).

100. During these inspections and inquiries conducted by the MİT, a foreign-based mobile application, namely ByLock, which was apparently developed to ensure organisational communication among the FETÖ/PDY members was discovered, and it was also found out that there were servers with which the ByLock application was in contact. These findings were subject to detailed technical examinations. The inquiries and inspections conducted into this application by the MİT within its own field of work are not in the form of a judicial investigation. In Article 4 § 1 (i) of Law no. 2937, it is set forth that the MİT is empowered to gather, record and analyse information, documents, news and data on counter-terrorism issues by use of any kind of procedures, means and systems of technical and human intelligence and to report the intelligence created to the relevant institutions (see § 63 above).

101. It is set forth in Article 6 of the same Law that in performing its duties, the MİT may apply clandestine working procedures, principles and methods as well as collect data on foreign intelligence, national defence, terrorism, international offences and cyber security which are conveyed through telecommunication channels (see § 64 above). It thus appears that the MİT is empowered through this Law to collect information and data on relevant persons and groups by technical means as well as to analyse these information and data, with a view to revealing the terrorist activities in advance, without being performed, for the purposes of maintaining the constitutional order and national safety of the country.

102. As a matter of fact, it is inevitable, in democratic societies for the protection of fundamental rights and freedoms, to need intelligence agencies for effectively fighting against very complex structures such as terrorist organisations and tracking such organisations through covered methods. Therefore, to collect and analyse information about terrorist organisations, with an aim of collapsing them through covered intelligence methods, meet a significant need in democratic societies. Threats against democratic constitutional order may be identified, and precautions may be taken against these threats through information and data obtained by intelligence agencies. In this regard, the MİT is vested, by Articles 4 and 6 of Law no. 2937, with the powers to obtain and analyse information, documents and all other data concerning terrorist offences, which are transmitted through telecommunication channels, by using any kind of intelligence methods, to acquire any computer data available abroad, as well as to report them to the relevant institutions.

103. The organisation of, and activities performed by, the FETÖ/PDY have been a subject of social debate for a long time, and notably in the aftermath of 2013, the investigation authorities and the public authorities started to consider this structure as a threat to national safety (see §§ 9 and 10 above). In this regard, notably the 17-25 December investigations and the stopping of MİT trucks are, inter alia, the basic grounds of the conclusion reached by the investigation authorities and the judicial bodies to the effect that the activities of this structure have been intended for overthrowing the Government (see §§ 12 and 13 above). It is further indicated in several investigation/prosecution files that many cases filed/conducted by judicial members, who were considered to have a link with this structure, have been also intended for ensuring or increasing its efficiency within public institutions, notably at the TAF, as well as within different field of the civil society (see § 11 above). During such a period, the public authorities have, on one hand, issued decisions and carried out practices revealing the illegal aspect of the FETÖ/PDY and taken certain measures against the organisation on the other (see §§ 15 and 16 above). The coup attempt of 15 July demonstrated how great the threat posed by the FETÖ/PDY to national security was and how it turned into a severe risk against the existence and integrity of the nation, despite the certain measures taken prior thereto (see, for detailed explanations and assessments, Aydın Yavuz and Others, §§ 12-25; and 212-221).

104. It is not for the Constitutional Court to review or decide on the lawfulness or expediency of the activities performed by the MİT within its own field of work. In this sense, the subject-matter of the present application is not the performance of intelligence activities by the State’s intelligence agencies considering that the threat posed by FETÖ/PDY to national security turned into an imminent threat.

105. The MİT delivered to judicial/investigation authorities (the Ankara Chief Public Prosecutor’s Office) the information on the FETÖ/PDY terrorist organisation of which it had become aware (the ByLock program) while performing its duties under Articles 4 and 6 of Law no. 2937. This act -whereby the MİT merely informed the competent judicial authorities of the concrete information which was related to an issue falling into the scope of its own field of work (counter-terrorism) and which was found out on a legal basis- cannot be construed to the effect that the MİT, an intelligence agency, had engaged in law-enforcement activities. In this sense, it has been observed that the MİT had found out the impugned digital materials not as a result of an inquiry conducted for the purpose of collecting evidence, but within the scope of the intelligence activities conducted to reveal the activities of the FETÖ/PDY during a period when the public authorities, notably the National Security Council, started to perceive the FETÖ/PDY as a threat to the national security.

106. Besides, it must be borne in mind that the Ankara Chief Public Prosecutor’s Office was not provided with hearsay intelligence information which was of abstract and general nature, but rather with digital data regarding a program which was considered to be the covered communication means used by the members and heads of the FETÖ/PDY terrorist organisation. The MİT’s notification of the digital materials -found out during an inspection within the scope of its own field of work- to the relevant judicial/investigation authorities in order to have them examined so as to ascertain whether these materials involved any criminal element -thereby revealing the material truth- does not render them unlawful merely on account of the nature of the notifying authority, namely the MİT.

107. It is undoubtedly for the judicial authorities to conduct necessary inquiries, examinations and assessments with respect to the authenticity or reliability of digital materials submitted by the MİT. As a matter of fact, the inspection and examination on the digital data concerning the ByLock program submitted to the investigation authorities by the MİT were conducted by the investigation authorities pursuant to the decisions issued by the competent/incumbent magistrate judges in accordance with Article 134 of Code no. 5271. At the end of these inspections and examinations carried out by the persons assigned by the judicial authorities notably the relevant law-enforcement units, these data were accepted as evidence during the investigation/prosecution stages.

108. It has been observed that the challenges and complaints raised by those who were under investigation and/or prosecution due to the FETÖ/PDY-related offences against their alleged use of the ByLock program were also taken into consideration by the investigation authorities and judicial bodies; and to that end, certain technical inquiries and inspections were performed with a view to revealing whether these persons had indeed used this program. In the judgments of the Court of Cassation and the regional courts of appeal, the principles as to the way in which these inquiries and inspections would be conducted and on the basis of which findings, the relevant persons would be considered to have used the ByLock program (for a reference to some of these judgments, see Ferhat Kara, §§ 91-104). Therefore, it cannot be said that the facts revealed regarding the ByLock program, as in the form relied on by the investigation authorities or judicial bodies for the criminal charge in question, were merely intelligence findings which were devoid of evidential value (for comprehensive explanations on the nature, interpretation and matching of the ByLock data, see Ferhat Kara, §§ 58-67).

109. According to the judicial and technical reports as well as the Court of Cassation’s judgments, an organisation member is to be informed, by another member of the organisation, of the existence of ByLock application, its organisational significance and confidentiality, how it is downloaded and used, and how a friend is added to get in contact. As also indicated in the inquiries conducted by the judicial units, the ByLock program does not include any sections such as user manual, frequently asked questions and feedbacks. Therefore, any person -who has no relation with the organisation but has downloaded the application, designed to be used for organisational purposes, by change through general application stores and certain websites- cannot use it and get in contact with organisation members by adding them as a friend without the assistance of any other member of the organisation. In the judicial processes, not download of the impugned application, but signing up to it and its use for organisational purposes were relied on. As a matter of fact, according to the findings of the judicial authorities, no investigation was conducted against individuals for merely having downloaded the ByLock application on their devices. Nevertheless, in case of any allegation to the contrary, the judicial authorities conducted inquiries in this respect (see Ferhat Kara, § 160).

110. On the other hand, in assessing whether the use of ByLock program constitute a strong indication for the offences related to the FETÖ/PDY organisation, the nature and features of the application as well as the way in which the FETÖ/PDY has organised must be considered as a whole. Besides, the transcriptions, by the investigation authorities or judicial bodies, of the contents of communication through this program and the facts indicated in the statements of the certain persons (suspect/accused person) revealed to use the said program must also be borne in mind. In this scope, the following conclusions may be reached:

i. It is indicated in several court decisions that the FETÖ/PDY, an organisation based on confidentiality, has developed strong cryptographic programs to use for organisational communication so as not to be disclosed; and that among these program, the ByLock is the main one used by the organisation for the prevention of the identification of its users and ensuring confidential communication.

ii. The fact that ByLock, a program designed to ensure communication via internet, is generally downloaded manually (through external hard drive, memory cards and Bluetooth) by the FETÖ/PDY members on the electronic/mobile devices of the other persons having a relation with the organisation, which is quite different from the other programs of similar nature in terms of installation process, demonstrates that the program was developed so as to prevent the transcription of the confidential communication concerning the organisational activities. This was also specified in the messages sent through the ByLock, as well as in the suspects’ statements.

iii. The absence of any initiative to promote the ByLock program as well as of any effort to increase the number of its users, and the fact that the program was known by the Turkish people or the foreigners before the coup attempt of 15 July indicate that it was not designated in the pursuance of a commercial purpose. These facts are consistent with the assessments to the effect that the ByLock was developed to be used by a certain -clandestine- group of users. In this sense, it is also noted that its use has become widespread within the organisation in progress of time.

iv. The extraordinary security measures taken to ensure confidentiality of the ByLock program points to the fact that the program was not developed for the purpose of providing an ordinary communication service. In this sense, it is remarkable that the ByLock operates through a server with an IP address abroad, and the server manager also leased 8 different IP addresses abroad in order to hamper the identification of its users; and that these IP addresses are used with the various versions of the ByLock application. The payments of these leasing processes are paid through methods based on anonymity, and the contact information or any reference information on the previous works of the person who has developed and put into service the application is not available, both of which may be regarded as the measures intended for hampering the identification of the server manager. Accordingly, these findings on the installation of the ByLock may be said to comply with the working procedures and methods of the FETÖ/PDY, a structure organised in several countries along with Turkey and based on confidentiality.

v. The findings on the use of ByLock also reveal that this application was developed for the use of a certain group under strict control and inspection and with a high degree of confidentiality. As a matter of fact, for the use of the ByLock application, its download on the phone or electronic/mobile devices is not sufficient. To that end, a username/code and password are created and a dedicated strong cryptographic key, which is created by random hand movements on the phone, is determined. This information is then conveyed to the application server in an encrypted manner. The requirement that the users from Turkey access to the program via VPN -in order to conceal their identities and communication-, as well as unlike global and commercial applications, seeking no information specific to the user and requiring no verification process while signing up also aim at ensuring confidentiality both for the program itself and its users. These facts are also consistent with, to a significant extent, the FETÖ/PDY’s ideology based on confidentiality in its activities and making the lives of its members subject to a strict control and monitoring in all aspects.

vi. The measures taken, in the designation process of the ByLock application, to prevent, in every case, the disclosure of the communication through it also demonstrate that the application is not intended for meeting an ordinary communication need, but rather for ensuring private and confidential communication. Accordingly, even if the users do not delete or forget to delete any data, the system automatically deletes the relevant data upon a particular time without the need for any manual operation on the device. This function prevents access to communication made through the program even if the device with ByLock application has been seized. These installation and operation features correspond to the FETÖ/PDY’s objective to perform its activities with a high degree of confidentiality under all circumstances.

vii. Although it has organised and engaged in activities in many countries, the FETÖ/PDY is a Turkey-based structure. Its members are mainly the Turkish citizens or the Turks living abroad. In this sense, the ByLock is a program designed for those living in Turkey or the Turks abroad. This fact is also substantiated by the findings that the source codes of the system include Turkish expressions; that the usernames, group names and decrypted passwords within the program are mainly consisted of Turkish expressions; that the contents of transcribed messages sent/received through the ByLock are almost all in Turkish; and that almost all of the searches with respect to the application through search engines have been made from Turkey.

viii. The operation features of the ByLock are designed completely in consistency with the FETÖ/PDY’s structuring model. In this sense, two ByLock users may engage in communication only when both of them add each other’s username and/or user-code. The ByLock program does not allow its users to automatically get in contact through it with those in their phonebooks. Thereby, contact of the users with any other user is even under the control of the system. It therefore appears that the operation of the ByLock application is in accordance with the cell-type structure of the organisation.

ix. ByLock has been designed to ensure communication within the organisation without the need for any other means for communication. In this context, this application enables encrypted instant messaging, e-mail sending, intra-group messaging, voice calls, transmission of videos or documents. As the users involve in communication, notably of organisational nature, only through the ByLock server, the server manager is thereby enabled to check and control the groups and the contents of the communication within the program. Regard being had also to the fact that the server and communication data are stored in the database through encryption, it appears that such a practice complies with the FETÖ/PDY’s method to continuously check and control its members.

x. There are also findings to the effect that the ByLock program is primarily designed by the FETÖ/PDY to ensure organisational communication of its own members. In this sense, it has been observed that the users prefer code names assigned to them within the organisation, instead of their real names, in the list of friends and contents of the messages. One of the basic characteristics of the FETÖ/PDY is the use of code names by its members in order to ensure confidentiality. Besides, names assigned to the groups within the application comply with the FETÖ/PDY’s structuring method, activities and communication jargon.

xi. The findings as to the certain users within the ByLock database also reveal the link between the program and the FETÖ/PDY. In this scope, findings have been obtained to the effect that a significant part of the first 100 users in the database of the ByLock servers have relation with the FETÖ/PDY. It has been established that many persons considered to take part within the organisational structure in the security organisation and judiciary and/or to have involved in organisational activities are the ByLock users.

xii. A significant part of the transcribed contents of the communication ensured through the ByLock is pertaining to the organisational contacts and activities of the FETÖ/PDY members. In this sense, it has been observed that the following organisational messages were sent through the ByLock application: dissemination of instructions and thoughts of Fethullah Gülen; giving notice of the measures to be taken by the FETÖ/PDY members in case of operations to be held by the law-enforcement units against them, as well as of the steps to be subsequently taken; ensuring the release of suspects or accused persons, by certain judges and prosecutors, within the scope of the investigations and prosecutions conducted into the FETÖ/PDY; blacklisting of those who have expressed unfavourable opinions, or who have struggled, against the FETÖ/PDY in the public institutions; informing the members that if it is disclosed, the use of ByLock communication system would be discontinued, and alternative programs would be used instead; and preparation of legal texts or alternative scenarios which would be used in the defence of the organisation members.

xiii. The FETÖ/PDY is a terrorist organisation, which has organised clandestinely within the existing administrative system with a view to taking over the constitutional institutions of the State for re-shaping the State, society and citizens in accordance with its ideology and for managing the economy and social and political life through an oligarchic group. The judicial authorities considered the operations such as the 17-25 December investigations and stopping of the MİT trucks, as well as several other cases known to the public, as the activities performed by the judicial members and law-enforcement officers having a link with the FETÖ/PDY in pursuance of the organisational purposes. As a matter of fact, 15 July, when the coup attempt was staged, is the day when this purpose sought to be achieved by the organisation was put into the action in the most brutal way and with full reality. In this sense, the expressions as to how the Government would be overthrown, how the judicial members and security units having a relation with the organisation would take role in this process, how the high-ranking public officials having no relation/connection with the FETÖ/PDY would be forced to resign, and how the media organs and civil society would be taken under control, which are used in the messages sent/received by the FETÖ/PDY members through ByLock, may be said to reveal the link between the use of this program and the FETÖ/PDY.

xiv. Many persons who were under investigation/prosecution on account of any FETÖ-PDY-related offence provided information about the ByLock program. In their statements, the suspects/accused persons have noted a) one of the measures taken by the FETÖ/PDY for confidentiality is the ByLock application; b) the use of ByLock dates back to the period following 17-25 December investigations, and the FETÖ/PDY members were asked by the organisation heads to use the ByLock program by March 2014; c) the FETÖ/PDY heads told the organisation members that ByLock was a safe application developed by the organisation itself and used only by and among the organisation members; d) the organisation members downloaded the ByLock on the mobile phones, tablets or computers of one another via internet or Bluetooth; e) in downloading ByLock on mobile phones, other programs, such as phone reset and note taking applications, were also downloaded so as to ensure the deletion of the data available in the ByLock database in case of a police operation, and in case of such an operation, the organisation members were informed of how these applications would be used; f) the heads of the organisation advised the ByLock users to use the program with mobile phones with no SIM card, to subscribe for Wi-Fi service in the name of any other person, and to get connect to the program from internet cafes or workplaces ensuring public wi-fi access; g) the program was primarily put at the disposal of military officers, security organisation staff, judges-prosecutors or the courthouse staff and subsequently provided for the use of civilians; h) the aim pursued in using the ByLock program was to avoid disclosure and to ensure confidentiality within the organisation, and accordingly, the organisational issues were discussed and shared through it; i) it was used for ensuring organisational communication, making citation to Fetullah Gülen’s conversation notes and ensuring communication by and among the organisation members; j) at the outset, merely the messages concerning the issues said to be classified were sent/received through ByLock, but subsequently any kind of messages were sent/received through this program; k) the organisation members were instructed to delete ByLock and start to use Eagle application in the event that ByLock appeared in the visual media; and l) ByLock had remained in use until the end of January 2016 (for the relevant statements, see Ferhat Kara, §§ 41, 56).

111. On the other hand, a significant part of the persons detained on account of the FETÖ/PDY-related offences in the aftermath of the coup attempt lodged an individual application with the Constitutional Court. In examining the alleged unlawfulness of the applicants’ detention in thousands of such cases, the Court has, with a reference to its judgment in the case of Aydın Yavuz and Others, concluded that in cases where the applicants have been proven to be a ByLock user, the investigation authorities or the courts ordering detention could consider the use of this program as a strong indication of criminal guilt. Within this framework, it has been observed that persons from almost all professions and all sections of the society were revealed to be a ByLock User (for some of these persons in respect of whom the Plenary or the Section rendered a judgment, see Salih Sönmez, no. 2016/25431, 28 November 2018, § 125 and Ramazan Bayrak, no. 2016/22901, 7 February 2019, § 90 as regards the applicants taking office as a member at the Court of Cassation; see Resul Çomoğlu, no. 2017/8756, 26 September 2019, § 69 as regards the applicant taking office as a member at the Council of State; see Selçuk Özdemir, § 74, Burhan Yaz, no. 2016/67047, 11 September 2019, § 65, Selim Öztürk, no. 2017/4834, 8 May 2019, § 63, Recayi Demir, no. 2016/28560, 26 September 2019, § 76, Tarık Kavak, no. 2016/22177, 26 September 2019, § 42, Selahattin Kayaalp, no. 2016/77848, 26 September 2019, § 50, Osman Berk, no. 2017/12608, 11 December 2019, § 50, A.E.S., no. 2017/13568, 12 February 2020, § 51, Yavuz Güllü, no. 2017/5933, 9 January 2020, § 54; Raşit Hünal, no. 2017/26943, 27 February 2020, § 54, Numan Acar, no. 2016/66486, 26 February 2020, § 43, Şevki Metin Aydın, no. 2017/14372, 26 February 2020, § 56, Şenol Coşkun, no. 2017/10093, 11 March 2020, § 66 as regards the applicants taking office as a judge at the judicial or administrative courts; see Ufuk Yeşil, no. 2016/21926, 17 April 2019, § 53, Şener Gülmedi, no. 2016/48072, 18 April 2019, § 56, Mutlu Bulut, no. 2017/20749, 26 September 2019, § 73 as regards the applicants taking office as a public prosecutor; see Mustafa İnce, no. 2016/50467, 3 April 2019, § 43, Emrullah Tayıpoğlu, no. 2017/21511, 4 April 2018, § 66, and İsmail Şahan, no. 2016/54509, 28 November 2019, §§ 62, 63 as regards the applicants taking office at the security organisation; see Yavuz Korucu, no. 2017/2324, 27 November 2019, § 42 as regards the applicant, a research assistant in a university; see Atıf Duran, no. 2016/6056, 17 April 2019, § 42, Cengiz Türkmen, no. 2016/43843, 3 July 2019, § 53, and Muammer Koçan, no. 2016/56282, 26 September 2019, § 79 as regards the applicants serving as a teacher; see İsmail Solmaz, no. 2017/15251, 12 February 2020, § 58 as regards the applicant taking office as a municipality officer; see Emre Ayhan, no. 2016/80704, 13 February 2020, § 79 as regards the applicant serving as a doctor; see Neslihan Aksakal, no. 2016/42456, 26 December 2017, § 57 as regards the applicant taking office as a banking expert; see Mehmet Bilal Çolak, no. 2017/25971, 30 October 2018,§ 62 as regards the applicant, a producer; see Ahmet Karakaş, no. 2017/6293, 28 November 2018, § 61 as regards the applicant, a speaker; see Ali Ahmet Böken, no. 2017/25973, 12 December 2018, § 51 as regards the applicant holding office as the head of news department; see Vahit Yazgan, no. 2016/65902, 15 November 2018, § 58, Özcan Güney, no. 2017/20709, 15 November 2018, § 66, Ayşenur Parıldak, no. 2017/15375, 28 November 2018, § 58, and Bayram Kaya, no. 2017/26981, 28 November 2018, § 56 as regards the applicants, a journalist).

112. In this sense, it may be said that the use of ByLock program, which was -according to the judicial bodies- designated by the FETÖ/PDY to ensure organisational communication, by persons from various professions in almost all platforms of the public and civil sectors is also consistent with the structuring way of this organisation. As a matter of fact, the FETÖ/PDY is a structure that was organised -prior to the coup attempt- in almost all public institutions notably the judicial bodies, civil administration units, security organisation and the Turkish Armed Forces. Thus, during the state of emergency declared in the aftermath of the coup attempt, tens of thousands of public officers serving at very different units/positions including the legislative organ and judicial bodies as well as thousands of judicial members were suspended or dismissed from public office for having a link with the FETÖ/PDY. Besides, it is known that this structure has organised in almost all sections of the civil society. In this sense, several institutions operating in different sectors were closed down for being in relation or in connection with this organisation (for detailed information see Aydın Yavuz and Others, §§ 56-66).

113. In addition, in the above-mentioned judgments of the Court, there are other facts indicating the organisational relation of a significant part of the applicants in respect of whom there was a strong indication of having committed a FETÖ/PDY-related offence for being a ByLock user, and the Court also took into consideration these facts (see Selçuk Özdemir, § 75; Burhan Yaz, § 63; Selim Öztürk, § 64; Recayi Demir, § 77; Tarık Kavak, § 42; Selahattin Kayaalp, § 51; Osman Berk, § 51; Salih Sönmez, § 126; Ramazan Bayrak, § 91; Ufuk Yeşil, § 54; Şener Gülmedi, § 57; Mutlu Bulut, § 74; Atıf Duran, § 42; Cengiz Türkmen, §§ 54, 55;Ali Ahmet Böken, § 52, Ayşenur Parıldak, § 59; Muammer Koçan, §§ 79, 80; Resul Çomoğlu, §§ 69-71; İsmail Şahan, §§ 62, 63; Yavuz Güllü, §§ 54, 55; Raşit Hünal, § 55; and İsmail Solmaz, § 59). In this regard, it must be borne in mind that there are other facts and available evidence in support of the conclusion reached by the investigation authorities and judicial bodies to the effect that the use of ByLock is an act falling under the scope of the FETÖ/PDY’s organisational activities.

114. Regard being had to the above-mentioned facts and assessments as a whole, it may be said that the judicial bodies’ assessments to the effect that the ByLock communication system is indeed a program -under the guise of a global application- designated exclusively for organisational communication among the FETÖ/PDY members and that the organisational communication has been ensured with great confidentiality through this program are based on a very strong factual basis and material/technical data. Therefore, the qualification of the ByLock use as an organisational activity cannot be considered to be unfounded or arbitrary.

115. Besides, as also noted in the Court of Cassation’s judgments, it is possible to ascertain with legal certainty whether the given persons used the ByLock program. In this sense, it is possible to determine the date of connection to the ByLock communication system, the IP address accessing to the system, the number of contacts between the given dates, the persons who were communicated with, as well as the content thereof (for a judgment of the Court of Cassation in this respect, see Ferhat Kara, § 94). It is stated in several supreme courts’ judgments, which have become an established case-law in the Turkish law, that the ByLock communication system is a network designed for the members of the FETÖ/PDY and used exclusively by certain members of this terrorist organisation; and that therefore, the determination, on the basis of technical data which would lead to a definite conclusion without any suspicion, that the relevant person has become a part of this network in line with the organisational instruction and used it for ensuring confidential communication is accepted as an evidence demonstrating the person’s relation with the organisation (for a citation from these judgments, see Ferhat Kara, §§ 92-103).

116. Consequently, the Court has found no reason to depart from the assessments and the conclusion reached in its Aydın Yavuz and Others judgment, in consideration of several facts such as the findings of the law-enforcement units and public authorities -which are also accepted by the judicial bodies- with respect to the designation of the ByLock application, the way and method of its use, encryption techniques employed, nature of the users and groups names within the application and the content of the communication ensured through it; the complete consistency between the information and documents reached concerning, and the features of, the ByLock and the way in which FETÖ/PDY got organised; the statements of certain ByLock users; the existence of other facts and evidence demonstrating that a significant part of the persons revealed to have used the ByLock program has a relation with the FETÖ/PDY; as well as the fact that the judicial authorities have made examinations and inquiries so as to ascertain with legal certainty whether the given persons used the program.

117. Accordingly, the use of ByLock program or its download on electronic/mobile devices may be considered as an indication of a relation/link with the FETÖ/PDY. The degree of such indication may vary by every concrete case, depending on the factors such as whether this program has been actually used by the individual concerned, the manner and frequency of its use, the position of, and importance attached to, the contacted persons within the FETÖ/PDY, and the content of messages communicated via this program (see Aydın Yavuz and Others, § 267). It may be said that these considerations are important also for the determination of the degree and extent of the relation between the given person and the FETÖ/PDY. This is indeed a requisite of the case-law to the effect that the facts which raise a suspicion need not be of the same level as those to be discussed at the subsequent stages of the criminal proceedings and necessary to justify a conviction, which is cited in many judgments of the Court and is considered as an established examination and assessment criterion also by the ECHR (for the Court’s case-law, see Mustafa Ali Balbay, § 73; and for the ECHR’s approach, see § 69).

118. In this regard, in the present case, the investigation authorities’ and the relevant courts’ assessment that the use of ByLock, a communication network designed by the FETÖ/PDY for ensuring organisational communication, by the applicant charged with being a member of this organisation constitutes a strong indication of criminal guilt cannot be considered as unfounded or arbitrary, given the features of the said program.

119. Finally, the applicant -who was revealed, as noted in the inferior court’s conviction decision, to have connected to the ByLock for 714 times in total between 1 September 2014 and 30 December 2014 via his mobile phone on the basis of the BTK’s data (see § 55 above)- claimed neither before the investigation authorities or judicial bodies nor before the Court in his individual application that he had downloaded the ByLock through open sources and used it for purposes other than an organisational framework. Therefore, the Court has not found it necessary to conduct any further examination or assessment on this matter other than the explanations given above (see § 109 above).

120. Besides, the other facts taken a basis by the investigation authorities for the criminal charge against the applicant have not been subject to any further assessment as the applicant’s use of ByLock is considered as a strong indication of criminal guilt. In this respect, it should be taken into consideration that nor did the inferior court consider these facts as the sole decisive evidence for the existence of an organisational relation between the applicant and the FETÖ/PDY, but considered merely his taking office in the board of directors of the BAKİAD as a supportive fact (see §§ 56 and 57 above).

121. However, it must be assessed whether the applicant’s detention had a legitimate aim. In such an assessment, the general conditions prevailing at the time of detention must be taken into account.

122. Considering the fear atmosphere created by the severe incidents that occurred during the coup attempt, the complexity of the structure of the FETÖ/PDY that is regarded as the perpetrator of the coup attempt and the danger posed by this organisation, orchestrated criminal or violent acts committed by thousands of FETÖ/PDY members in an organised manner, the necessity to immediately launch investigations against thousands of people including public officials for their alleged membership of the FETÖ/PDY although they might not be directly involved in the coup attempt, the preventive measures other than detention may not be sufficient for ensuring the gathering of evidence properly and for conducting the investigations in an effective manner (in the same vein, see Aydın Yavuz and Others, § 271; and Selçuk Özdemir, § 78).

123. The risk of absconding entailed by the persons involved in the coup attempt or having connection with the FETÖ/PDY, the perpetrator of the coup attempt, by taking advantage of the turmoil in its aftermath, and the risk of tampering with evidence are more likely than the risks with respect to the offences committed during the ordinary times. Besides, the fact that the FETÖ/PDY has organized in almost all public institutions and organisations within the country, that it has been carrying out activities in over 150 countries, and that it has many important international alliances will greatly facilitate the opportunity to abscond and reside abroad for the persons who are subject to investigation with respect to this organization (in the same vein, see Aydın Yavuz and Others, § 272; and Selçuk Özdemir, § 79).

124. The membership of an armed terrorist organisation underlying the applicant’s detention is an offence entailing severe criminal sanctions in the Turkish legal system, and the gravity of the sentence prescribed for the said offence is one of the circumstances indicating the risk of absconding (in the same vein, see Hüseyin Burçak, no. 2014/474, 3 February 2016, § 61; and Devran Duran [Plenary], no. 2014/10405, 25 May 2017, § 66). Besides, the imputed offence is among the offences regarding which the ground for detention may be deemed to exist ipso facto under Article 100 § 3 of Code no. 5271 (see Gülser Yıldırım (2), § 148).

125. In the present case, the magistrate judge, ordering the applicant’s detention, relied on the nature of his alleged membership of an armed terrorist organisation, the gravity of the sanction prescribed in the law, the qualification of the imputed act as a catalogue offence under Article 100 § 3 of Code no. 5271, the risk of absconding, as well as the fact that the evidence has not been fully gathered yet (see § 42 above).

126. Accordingly, regard being had to the general conditions prevailing at the time of detention and the above-cited particular circumstances of the present case and the detention order issued by the magistrate judge as a whole, it may be concluded that the risks of the applicant’s absconding and tampering with the evidence -based on the gravity of the imputed offence- necessitating his detention had factual basis.

127. It must be also ascertained whether the applicant’s detention was proportionate. In assessing the proportionality of a given detention under Articles 13 and 19 of the Constitution, all circumstances of the given case must be taken into consideration (see Gülser Yıldırım (2), § 151).

128. Primarily, conducting an investigation into terrorist offences leads public authorities to confront with significant difficulties. Therefore, the right to personal liberty and security must not be constructed in a way that would seriously hamper the judicial authorities’ and security forces’ effective struggle against crimes -particularly organised crimes- and criminality (see, in the same vein, Süleyman Bağrıyanık and Others, § 241; and Devran Duran, § 64). Regard being had to especially the scope and nature of the investigations conducted in relation to the coup attempt or into the FETÖ/PDY as well as to the characteristics of the FETÖ/PDY (confidentiality, cell-type structuring, infiltrating public institutions and organizations, attributing holiness to itself, and acting on the basis of obedience and devotion), it is clear that these investigations are far more difficult and complex than other criminal investigations (see Aydın Yavuz and Others, § 350).

129. Given the above-cited circumstances of the present case, the magistrate judge’s conclusion -in consideration of the gravity of the sanction prescribed for the imputed offence, the nature and significance of the criminal act in question- that the applicant’s detention was proportionate and the measures of conditional bail would remain insufficient cannot be said to be arbitrary and unfounded.

130. For these reasons, as it is clear that there is no violation as to the alleged unlawfulness of the applicant’s detention, this part of the application must be declared inadmissible for being manifestly ill-founded, without any further examination as to the other admissibility criteria.

131. Accordingly, having concluded that the impugned interference with the applicant’s right to personal liberty and security, which was in the form of detention, did not fall foul of the constitutional safeguards with respect to this right (inherent in Articles 13 and 19 of the Constitution), the Court did not find it necessary to make a further examination under the criteria laid down in Article 15 of the Constitution.

C. Alleged Unreasonable Length of the Applicant’s Detention

1. The Applicant’s Allegations

132. The applicant maintained that his right to personal liberty and security was violated, claiming that his detention exceeded reasonable time; that the grounds of his continued detention were not relevant and sufficient; and that his continued detention was ordered on stereotyped grounds.

133. The applicant also alleged that there was a violation of the principle of equality taken in conjunction with the right to personal liberty and security as his continued detention was ordered despite the release of certain persons who had been detained on the basis of the same evidence. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). In this respect, as the alleged violation of the principle of equality was mainly related to the applicant’s continued detention, the Court did not find it necessary to make any separate assessment in this respect.

2. The Court’s Assessment

134. As required by the subsidiary nature of the individual application mechanism, for an individual application to be lodged with the Constitutional Court, the ordinary legal remedies must be primarily exhausted (see Ayşe Zıraman and Cennet Yeşilyurt, §§ 16 and 17).

135. With respect to the individual applications lodged on the allegation that the detention exceeded the maximum period or reasonable time, the Constitutional Court has, with a reference to the relevant case-law of the Court of Cassation, qualified the opportunity to bring a compensation action, which is provided in Article 141 of Code no. 5271, as an effective legal remedy needed to be exhausted in cases where the applicant was released as of the examination date of the individual application, even if the main case has not been adjudicated yet (see Erkam Abdurrahman Ak, no. 2014/8515, 28 September 2016, §§ 48-62; and İrfan Gerçek, no. 2014/6500, 29 September 2016, §§ 33-45).

136. In the present case, the applicant’s release was ordered on 15 August 2018 after having lodged his individual application. Accordingly, the alleged unreasonable length of his detention could be handled through the action to be brought pursuant to Article 141 of Code no. 5271. If the applicant’s detention is found to have exceeded the reasonable time at the end of the action to be brought under this provision, the incumbent court may award compensation to him. In this regard, the legal remedy laid down in Article 141 of Code no. 5271 is an effective remedy which is appropriate in the particular circumstances of the applicant’s case and is capable of providing redress. Therefore, the examination by the Court of individual application lodged without exhaustion of this ordinary remedy does not comply with the “subsidiary nature” of the individual application system.

137. For these reasons, this part of the application must be declared inadmissible for non-exhaustion of legal remedies.

JUDGMENT

For the reasons explained above, the Constitutional Court UNANIMOUSLY held on 4 June 2020 that

A. The applicant’s request for confidentiality as to his identity in the documents accessible to the public be ACCEPTED;

B. 1. The alleged violation of the right to personal liberty and security due to the unlawfulness of his custody be DECLARED INADMISSIBLE for non-exhaustion of legal remedies;

 2. The alleged violation of the right to personal liberty and security due to the unlawfulness of his detention be DECLARED INADMISSIBLE for being manifestly ill-founded;

 3. The alleged violation of the right to personal liberty and security due to the unreasonable length of detention be DECLARED INADMISSBLE for non-exhaustion of legal remedies;

C. The court expenses be COVERED by the applicant.