Digital Evidence in Turkish Law
Abstract
The digital evidence has an important role due to recent developments in Turkish Law. Particularly, protection measures in Criminal Procedure Law which are related to digital evidence and the documents that are signed by electronic signature in Civil Procedure law are important issues to be considered. This Article examines various dimensions of the concept of the digital evidence and its place in Turkish law, and then it attempts to determine problematic aspects of the issue and propose solutions in that regard.
1. INTRODUCTION
In parallel with the advancement of technology, the use of computer systems to create and store documents is commonly preferred over traditional methods of hand writing and typing machine. With the development of social media in particular, people increasingly use digital world to share their ideas, private photos and information. Consequently, criminal activities or disputes take place on the digital world rather than physical world, and the concept of digital evidence is becoming more and more important every other day. This article examines the meaning of the digital evidence, pros and cons of the digital evidence, and it addresses the question of what can be regarded as digital evidence. The article then explores the enforcement of digital evidence in Turkish Law.
2. THE MEANING OF THE DIGITAL EVIDENCE
2.1. The Definition of Digital Evidence
Digital (numeric) evidence is a kind of evidence which could be collected in computer systems and data storage in the process of the digital forensic investigation1. Digital evidence is all sorts of data which can be stored, created, and transmitted in digital world. Indeed the critical question whether given data can be regarded as evidence is related to the facts of a case. The stage of collecting and storing data and documents is very important within the concept of the digital data. Digital data listed below can be regarded as evidence only if they are collected and stored in a correct and careful manner.
2.2. The Characteristic of Digital Evidence
In investigation process, findings must have certain qualifications to constitute evidence before the courts. These qualifications include “rationality”, “admissibility”, “relevance”, “completeness” and “integrity”, “reliability”, “believability (trustfulness)”, and “reproducibility”2.
First of all, the digital evidence must be rational and admissible before courts. This very basic rule means that any data to be presented before courts as evidence should reveal the facts of the case and clarify any doubts/ questions at issue in a rational manner.
Second characteristic of admissible evidence is “relevance”. Evidence must be directed to the material facts of a case or there must be a rational relationship between evidence and the matter to be proved in a case. In other words, evidence must be logically relevant to the point it is offered in support of.
Third, evidence that is related to perpetrator or suspect has to be collected and presented in full during the preinvestigation and investigation processes. Moreover, the submitted evidence should not be altered, (preservation of the integrity of evidence). In brief, this characteristic points out the completeness of digital evidence.
Fourth, digital data to be used as evidence must be reliable and believable. The procedure to be followed in collection and examination of digital evidence must comply with the law in order not to impair the “reliability”, and “believability”. The evidence to be collected and submitted to the court should be understandable and believable by an ordinary person. This characteristic of digital evidence carries particular importance to convince the court and to ensure the parties’ and public trust on the verdict.
Finally, digital evidence must be reproducible in order to be scientifically credible. In other words, data to be presented as digital evidence before courts must be verifiable when analyzed by different methods and experts.
2.3. The Advantages and Drawbacks of the Digital Evidence
Digital evidence has advantages and drawbacks compared to physical evidence. First of all, digital evidence involves a piece of information that is certain, precise, total, objective and unbiased. Digital evidence is also valid, useful, reliable, practicable, and it may be necessary to prove crimes that is not provable otherwise. Also, digital evidence is collected, stored, used and preserved easily. Electronic documents and electronic signature facilitate commerce by providing fast and reliable methods for electronic transactions. All these are main advantageous features of digital evidence compared to physical evidence.
In most cases, collecting digital evidence requires expertise and special knowledge. It is difficult to comprehend how to process digital data and its specific operation rules. It should also be taken into consideration that it is difficult to present and explain digital evidence in a clear manner before courts. Consequently, judges may request additional explanatory information or report and the use of digital evidence may be more demanding than physical evidence.
The high cost associated with analyzing and examining digital evidence is another drawback compared to physical evidence. Due to the complexity of understanding and interpreting digital data processing and its specific operation rules, it is difficult to assess legal value of digital evidence in advance. It is also difficult to store and protect digital data properly. Specific certification models are particularly important in this context3.
3. THE APPLICATION OF DIGITAL EVIDENCE IN TURKISH LAW
Considering interdisciplinary nature of cyber law, the topic of digital evidence pertains to a wide range of legal practice areas such as criminal law, criminal procedure law, and civil procedure law. Due to limited time and space, it is beyond the scope of this article to cover all aspects of the topic. Therefore, this article will only examine protection measures regarding digital evidence in Criminal Procedural Law add: (“CMK”) and the use of electronically signed documents as digital evidence.
3.1. Protection Measures Regarding to Digital Evidence in Criminal Procedure Law
In some criminal cases, a search warrant for digital evidence may be necessary in order to conduct a proper investigation and prepare indictment, and digital evidence may help create reasonable doubt (Criminal Procedural Law Art. 170) and convince the judge accordingly (CPL Art. 217). In criminal proceedings, the ultimate purpose of searching, copying, and seizing digital data is to obtain evidence, especially digital evidence. Discovery of evidence is the first step to use digital evidence in criminal proceedings. Particularly in cybercrimes committed with and/or against information systems, the very information system is the only place to obtain the required evidence. CMK article 134 regulated the search and seizure procedure for digital evidence. According to the article, “If reasonable suspect occur and there is no way to gather evidence in other method, Public prosecutor may require a permission from Judge to search and copy digital data in computers, computer programs and computer logs and encrypt the data to written statement.” This procedure is the most frequent method applied to obtain digital evidence. It should be noted, however, some data may be in transmission between suspect’s data system and other data systems. In this case, data in transmit can be collected in accordance with CMK article 135, which regulates the surveillance, monitoring, and recording of f communication4.
3.2. Admissibility of Electronic Evidence and Electronically Signed Documents in Civil Procedure Law
This part of the article first explains the need to use electronic evidence and electronic data storing, it then examines electronic documentation as evidence and whether electronic documents may be considered as legal bonds.
Although principle of circumstantial evidence is widely accepted in the Criminal Procedure Law, the Civil Procedure Law contains special evidence rules and restrictions. According to Civil Procedure Law Article 200, legal transactions that create, alter, extinguish, affect, redeem, transfer or execute rights with a value of higher than two thousand and five hundred Turkish Liras must be proven by written bond. Even though the value of the right diminishes below this amount due to partial payment, it must be proven by written bond.
As it relates to the topic, the meaning of a bond should be explained briefly. Basically, a bond is a written and signed promise. In the Civil Procedure Law, a written promise must carry certain qualifications in order to be considered as a legal bond. The elements of a legal bond include a written document, promise (consideration), and signature. Whether a document is a legal bond or not has important consequences in terms of proof.
Because computers are used in virtually every aspect of most individual’s daily or business life, digital evidence may be useful in any disputes. Digital evidence is most frequently used in disputes such as stealing of trade secrets, discrimination, fraud, stealing of private information (divorcement cases), and deception cases5.
Whether electronic bond is legal bond or not has important legal consequences. Documents missing above mentioned conditions are not considered as legal bonds, therefore, first thing to do is to examine the bond whether it has qualification or not. Furthermore, electronics documents must carry all these conditions together, otherwise they are not considered as legal bonds. For instance, documents stored in USB disks, CDs and similar devices cannot be regarded as legal bonds if they are not printed out and signed. Legal bonds do not have to be in hand writing but they must be signed by hand. In this respect, electronic documents can be verified by secured e-signature to be considered as legal bonds.
At this point, the use of e-mail and e-signature as evidence must be addressed briefly. E-mail cannot be regarded as reliable evidence due to security vulnerability. For example, message sender or someone may change the IP number, hack the computer, manipulate the context of the email or draft the email differently.
Turkish legislator regulate the electronic signature technical and legal issues in Electronic Signature Code (“ESC”), Law no 5070. According to ESC, electronic signature is a signature added to electronic data for the purpose of verification of the content and identity. Turkish Civil Procedure Law numbered 6100 which entered into force in 2012 regulate electronic documents evidence in a similar way to the repealed Law Judgment and Procedure Law numbered 1086 (“HMUK”) According to Turkish Civil Procedure Law article 205/2 the documents which are signed by electronic signature are legal bonds. According to the purpose of the law stated in preamble, the law maker intends to eliminate the hesitation about the power of evidence in secured electronic signed papers. Indeed, the regulation (Article 205/2) repeated the former 1086 numbered Law Judgment and Procedure Law article 295/A c.1, and there is no difference between current civil procedure law and former civil procedure law in this regard6.
Accordingly, electronically signed documents are legal bonds in Turkish Law. If a party objects the authenticity of the electronic document, he or she must raise this issue before courts. If the objecting party fails to do so, the electronic document may be used against him. According to relevant provision in the Civil Procedure Law, if one of the parties objects the authenticity of the electronic signed document context, judge must hear the objecting party. If the judge cannot reach a conclusion after hearing, he may appoint an expert to analyze the content of the document. Thus, if there is hesitation about the document context, judge may appoint the expert to eliminate the hesitation. However, the appointment of an expert is required only if the judge cannot reach an opinion based on the arguments of the objecting party. The expert opinion is not required if the judge reaches a decision based on the arguments7.
In litigation, parties must submit all relevant electronically signed documents. Electronic documents must be properly submitted both in print and digitally. This regulation extends to both securely and insecurely signed documents, as well as electronic documents without signature.
4. Conclusion
In today’s world, the use of internet and computers are increasing in every aspect of live. Similarly, digital documents are increasingly used in litigation processes. For example, in Turkey, the petitions or other documents may be submitted to courts either in paper or digitally through UYAP system. Indeed, after the introduction of UYAP system, it has been increasingly preferred to litigate or submit documents electronically. Undoubtedly, new regulations contribute to this process by facilitating the use of digital systems in litigation. It may be said that submission of documents in litigation process will be made electronically in the future. The new regulations in Turkish Law regarding digital evidence, especially provisions regarding protection measures in Criminal Procedure Law and electronic documents in Civil Procedure Law carry great importance in this regard.
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Footnote
1 Türkan Henkoğlu, Adli Bilişim Dijital Delillerin Elde Edilmesi ve Analizi, (İstanbul: Pusula, 2014), 5.
2 Henkoğlu, Adli Bilişim Dijital Delillerin Elde Edilmesi ve Analizi, 6.
3 Olgun Değirmenci, Ceza Muhakemesinde Sayısal (Dijital) Delil, (Ankara: Seçkin Yayıncılık, 2014), 136.
4 Değirmenci, Ceza Muhakemesinde Sayısal (Dijital) Delil, 309-312.
5 Mustafa Göksu, Hukuk Yargılamasında Elektronik Delil (1086 Sayılı HUMK ve 6100 Sayılı HMK Çerçevesinde), (Ankara: Adalet Yayınevi, 2011), 41-42.
6 Ayşe Ece Akar, Medeni Muhakeme Hukukunda Elektronik İmzalı Belgelerin Delil Niteliği, (İstanbul :XII Levha, 2013), 160-161.
7 Göksu, Hukuk Yargılamasında Elektronik Delil, 152.
