ABSTRACT
If there is electronic data gathered legally, there are distinct regulations in criminal and civil jurisdictions that allow this electronic data to be deemed evidence.
I. INTRODUCTION
In today’s world, considering the advancements in information technology and systems, it is undeniable that individuals and societies communicate through electronic platforms and share information and documents almost in every aspect of life. Moreover, not only communication needs are met through these electronic environments, but economic and social relationships are also significantly conducted via electronic media.
Given the integration of software, applications, and similar tools in our lives in the electronic environment, it is evident that the examination and evaluation of data in these electronic environments should be considered from a legal perspective.
In this study, particular emphasis will be placed on evaluating the evidentiary qualities of electronic data, and along with relevant legislation provisions, judicial decisions and doctrinal opinions will also be addressed.
The first section of my study will initially provide definitions for concepts such as electronic environment, electronic data, and evidence. Subsequently, the evidentiary qualities of data in electronic environments will be assessed separately in terms of Criminal Procedure and Civil Procedure.
II. CONCEPTS
Before delving into a detailed examination of the evidentiary qualities of data in electronic environments, it is beneficial to explain what is meant by the concept of an electronic environment and the meaning of electronic data.
First and foremost, the concept of an electronic environment refers to the medium where data is digitized, processed, stored, and transmitted. Each data processed in this electronic environment is referred to as electronic data.
In essence, the term “data” refers to information obtained through statistical, measurement, and similar methods. In doctrine, data is defined as the transformed form of information into a specific format, the information on which the computer operates1. Data should be processable using data processing and storage tools in the electronic environment. Ultimately, what gives data its electronic nature are these characteristics of emergence and storage. The concept of electronic data represents a virtual entity. Therefore, it does not refer to tangible, concrete evidence. It is important to note that electronic data can be materialized through certain tools. For example, printing out an email correspondence, recording a voice message onto a cassette tape, or displaying data on a monitor are examples of materializing electronic data.
The definition of data and electronic data concepts is provided in the Regulation on the Execution of Administrative and Clerical Services of Regional Courts and Courts of First Instance and Public Prosecutors’ Offices. According to the definition given in the regulation, data refers to any kind of value that can be processed by a computer, while electronic data refers to records created, shared (transmitted), or stored through electronic means.
Email communications, WhatsApp discussions, voice recordings, video and photo images, faxes, and a variety of other records can all be considered electronic data. The necessary conditions for considering it electronic data are the generation, transmission, and storage of data in electronic format. Records that do not meet these conditions and are generated outside the electronic environment do not have the nature of electronic data. Ultimately, the definition of electronic evidence can be described as information and data processed and stored on a digital medium or transmitted through these means, which may have legal value in criminal and civil proceedings.
Especially since the early 2000’s when internet usage started to increase, the question of whether data in electronic environments have evidential value from a legal perspective has been a subject of debate. Nowadays, electronic evidence is the most crucial evidence and defense tool in many judicial activities. Consequently, it is clear that traditional methods of gathering evidence fall short, especially in cases involving crimes committed using electronic means.
III. THE EVIDENTIARY VALUE OF ELECTRONIC DATA
Legislators have introduced regulations through relevant laws and regulations to provide access to digital data in terms of both Criminal Procedure and Civil Procedure. Therefore, as technology continues to expand, the widespread use of digital technology, which forms the foundation of computers, becomes certain. Consequently, data found in electronic environments has started to be included as evidence in criminal pro - ceedings and other relevant laws.
A. Regarding Criminal Proceedings
Given the rapid advancement of information technology and its incorporation into nearly every area of our lives, new procedures and regulations in Criminal Procedure Law have become necessary for the effective investigation and prosecution of committed crimes. In response to these requirements, lawmakers have included provisions in Criminal Procedure laws that allow access to data in digital environments.
Given the nature of electronic data, which can be copied, moved, or lost within seconds, it is necessary to introduce regulations that minimize the inability to access such evidence. Otherwise, there could be situations where the required evidence for proving crimes committed in electronic environments, whether by the perpetrators of digital crimes or through digital evidence for other crimes, cannot be obtained. Undoubtedly, this situation would adversely affect the outcome of the judicial process, prompting lawmakers and courts to regulate the evidentiary nature of data in electronic environments.
Particularly in cases involving the use of computer technologies to commit crimes, it has been observed that traditional methods of evidence collection do not adequately meet the needs for effective investigation and prosecution. Since electronic data in computer-based crimes does not exist as tangible or physically accessible entities, these data are stored using ever - evolving and renewing technologies and can easily be transferred from one place to another. It is important to emphasize that in criminal proceedings, the data itself, which holds evidentiary value, rather than the hardware device in which the electronic data resides, is crucial.
In Criminal Procedure Law, evidence collection can only commence once the conditions prescribed by the law are met. In other words, evidence can only be collected when the conditions stipulated by the law are fulfilled. The necessary condition for the collection of evidence is commonly referred to as “reasonable suspicion” in legislation and doctrine.
The concept referred to as “reasonable suspicion,” needs to be evaluated separately for each specific incident. Therefore, from the investigation stage to every phase of the trial, when collecting evidence, the presence of this reasonable suspicion should be questioned. Otherwise, the evidence obtained could become unlawfully obtained. Ultimately, if reasonable suspicion is established as a legal requirement, according to the provisions of the Criminal Procedure Code, a search warrant can be issued, and other protective measures can be taken.
When it comes to the collection of digital evidence, just like in traditional evidence, the crime scene holds significant importance and prominence. This is because the correct collection and examination of evidence depend on the initial intervention at the crime scene. At this point, it is crucial to emphasize that tampering with traditional evidence can easily be detected, while any alteration made to digital evidence can be identified by specialized experts that may not be apparent to an external observer. Therefore, the extraction, preservation, and examination of electronic evidence hold great importance for the integrity of the trial.
In addition to these unique features of these electronic evidence, first of all, in order for these electronic data to be qualified as evidence, they must have been obtained in accordance with the provisions of Article 134 and the relevant articles of the Code of Criminal Procedure2. In other words, the protection measures regarding electronic data must be strictly complied with.
The regulations on electronic evidence in the Turkish Criminal Law system are set forth in Article 134 et seq. of the Code of Criminal Procedure. In particular, the “search, copying and seizure of computers, computer programs and logs” procedures regulated under Article 134 are deemed possible with a judge’s decision in cases where there is a strong suspicion of a crime and there is no other means of obtaining evidence, as explained above. However, it is also stipulated that in cases of delay, this decision may be made by the public prosecutor, provided that it is subsequently submitted to the approval of the judge. Search, copy and seizure of computers, computer programs and logs are of great importance, especially in obtaining electronic evidence related to cybercrimes3.
As explained in detail above; in the process after the evidence in electronic media is obtained, the necessary examinations and procedures such as preparing reports and expressing opinions should be carried out by IT experts.
Within the framework of all these explanations; we would like to emphasize that the data in the electronic environment, if obtained in accordance with the law, are of great importance in terms of criminal proceedings both at the investigation and prosecution stages, and that in today’s digital age, it is an inevitable end that the data in the electronic environment is qualified as evidence.
Finally, the decisions of the Court of Cassation regarding the evidentiary quality of electronic data also state that “digital data obtained in accordance with the procedure have the quality of evidence4".
B. In Terms of Civil Proceedings
Just as in criminal proceedings, the use of electronic evidence in civil proceedings has become inevitable. In order for the trial to be conducted in a healthy manner and for the judgment to be established as a result of the trial to satisfy the need for justice to the highest degree, the trial activity must be able to keep pace with today’s technological developments.
In the Code of Civil Procedure5, which determines the procedures and principles in civil proceedings, unlike criminal proceedings, there are no regulations directly referring to forensic informatics, but there are regulations that allow forensic informatics examinations.
Considering the rapid pace of developments in the field of technology, many disputes may arise in civil proceedings in which information systems are used as a purpose or tool. Therefore, it is quite normal that the procedures and principles of civil proceedings need to be revised in line with these technological developments. As such, the need for electronic evidence and therefore the need for forensic informatics specialists in civil proceedings is increasing.
According to the Code of Civil Procedure, written or printed texts, deeds, drawings, plans, sketches, photographs, films, video or sound recordings, electronic media data and similar information carriers that are suitable to prove the facts in dispute are documents in civil proceedings6.
As it is clearly understood from the relevant legal regulation; in addition to digital data such as photographs, sound recordings, images, “data in digital media and similar information carriers” have also gained the quality of evidence.
According to the Code of Civil Procedure, unless a specific burden of proof is stipulated in the law, other evidence that is not regulated in the law in any way may be used7. As a result of this regulation, electronic data may also be submitted to the file as evidence. However, at this point, we would like to emphasize that the cases where the obligation of proof by hard documentary evidence is regulated are exceptions to the regulation on the use of electronic data as evidence.
If it’s required to consider data from electronic media while examining the rule of proof by hard documented evidence in civil proceedings; in order for a document to be accepted as a “hard documentary evidence” in terms of the law of proof, the authenticity of the document in question must be determined without any doubt. This determination is made through trustworthy systems such as secure electronic signature regulated in the Electronic Signature Law8 or registered electronic mail, which is defined as the qualified form of electronic mail and regulated in the Regulation on the Procedures and Principles Regarding the Registered Electronic Mail System.
The fact that the document refers to the medium suitable for carrying information is especially important for the evidential value of the data in electronic media created with a secure electronic signature9. This is because, according to the Code of Civil Procedure, documents signed with a secure electronic signature is like a hard documentary evidence. Likewise, according to the Regulation on the Procedures and Principles Regarding the Registered Electronic Mail System, it is explicitly regulated that these electronic mails have the effect of a hard documentary evidence. At the same time, Article 15 of the Turkish Code of Obligations clearly states that the provisions and consequences of secure electronic signature and wet signature are the same.
Ultimately, the fact that an electronic data is signed with a secure electronic signature in accordance with the legal legislation or created through the Registered Electronic Mail system implies that this electronic document can be used as evidence within the scope of the hard documentary proof regulation.
IV. CONCLUSION
In conclusion, just as our digitalization journey and its consequences have become inevitable with the technology that has become an integral part of our lives in today’s world, it has also become inevitable that judicial activities must adapt to the digital age. As such, what is expected from judicial organizations is to closely follow today’s digital developments and to carry out judicial activities in the light of developments in the digital world. In this respect, we can easily state that electronic data, if it is obtained in accordance with the law, are evidence that will shed light on the judicial activities.
However, we would like to specify that it is of great importance for the judicial process to comply with the basic principles to be followed during the collection phase and to show the necessary sensitivity in the processes of protecting the integrity and validity of the electronic data in order for the electronic data to have the quality of evidence.
BIBLIOGRAPHY
ELİF FUTTU, Beginning of Evidence and the Qualification of Electronic Documents as Beginning of Evidence, 1st Edition, Ankara 2021.
YILMAZ YAZICIOĞLU, Computer Crimes, 1st Edition, Istanbul, Alfa Publications, 1997.
YUSUF BAŞLAR, “Electronic Evil in Criminal Trial”, Journal of the Court of Dispute, Issue 13, 2013.
FOOTNOTE
1 Yılmaz Yazıcıoğlu, Computer Crimes, 1st Edition, Istanbul, Alfa Publications, 1997, p. 29.
2 Art. 134 et seq. of the Code of Criminal Procedure No. 5271, Official Gazette (RG) dated 17.12.2004 and numbered 25673.
3 Yusuf Başlar, “Electronic Evil in Criminal Trial”, Journal of Uyuşmazlık Mahkemesi, Issue 13, 2013, p. 85.
4 Supreme Court CGK, T. 20.12.2018, E. 2018/16-419, K. 2018/661.
5 Code of Civil Procedure No. 6100 Official Gazette (RG) dated 04.02.2011 and numbered 27836.
6 Article 199 of the Code of Civil Procedure No. 6100.
7 Article 192 of the Code of Civil Procedure No. 6100
8 Law No. 5070 on Electronic Signature Official Gazette (RG) dated 23.01.2004 and numbered 25355.
9 Elif Futtu, Beginning of Evidence and the Nature of Beginning of Evidence of Electronic Documents, 1st Edition, Ankara, Seçkin Publishing, 2021, p. 97.
