At the end of September, the European Court of Human Rights (ECtHR) ruled in a case brought by a Turkish teacher, who was given more than six years in prison for participating in a (terrorist) organisation believed to have wanted to stage a coup in Turkey in 2016. The evidence was mainly based on the use of encryption service ''ByLock'.

Principle of legality - art. 7 ECHR

The Grand Chamber of the ECtHR, consisting of no less than 17 judges unanimously found that Turkey had violated several human rights. The first violation concerned violation of the Nulla-poena, or legality principle. A punishment must always be foreseeable and therefore laid down in a penal provision. A conduct may never be made punishable retroactively.

In this case, the mere use of an encryption application ByLock was punished, even though there was no law prohibiting the use of such an application. The Turkish courts also failed to explain how it was established that ByLock was not and could not be used by someone who was not a 'member' of the organisation in question. In this case, the Member State concerned had failed to amend terrorism legislation in a timely manner to effectively combat threats of (organised) terrorism. Failure to amend legislation in a timely manner could not be repaired retroactively.

Fair trial - art. 6 ECHR

Another reason why Turkey (further: the Member State) was found to be in the wrong was that the applicant had not been given access by the Member State to the raw data, in particular the decoded material located on the ByLock server. While it was true that the applicant had access to the ByLock reports on file prepared by the judiciary, that did not mean that he had no interest in accessing the data on the basis of which those reports were generated. As a result, the applicant had not been given sufficient opportunity to test the integrity and reliability of the evidence and question the relevance and significance attributed to it. As a result, the applicant had not been given a real opportunity to challenge the evidence against him and to conduct his defence effectively and on an equal footing with the prosecution. Therefore, there had been a violation of the right to a fair trial.  

A suspect should be 'heard'

The Court also paid attention to the apparent inability of the national courts in question to give reasoned responses to the specific and pertinent requests and objections of the applicant and the defence. This raised legitimate doubts in the European Court that the courts had been insensitive to the defence's arguments and that the applicant had therefore not been truly 'heard'. In doing so, the Court underlined the importance of a reasoned decision by a court in general. Furthermore, the courts in the Member State concerned had not given sufficient consideration to the question of whether the restrictions on fair trial rights were necessary. Nor to the question whether there was a genuine and proportionate response to the emergency situation at the time of the coup.

Crypto evidence in the Netherlands

For Dutch crypto cases, this case highlights that not every user of a crypto application is actually breaking the law. To make sense of a role played by a user of an encrypted messaging application, full insight into at least the decrypted data is necessary. Making only part of it available could deprive the suspect of the opportunity to exonerate himself or question the reliability, completeness or probative value of that material. Access to the raw material can be very important because electronic evidence is inherently more susceptible to destruction, damage, alteration or manipulation than traditional forms of evidence. If the prosecution is unable to produce the raw material from the server, the usability of the evidence should be affected because of this ruling.

Mr. D.M. Penn