ABSTRACT
Article 204 et sec. of the Turkish Criminal Code No. 5237 (“TCC”) defines the offences of document forgery according to the nature of the document that is the subject of the offence and the manner in which the act of forgery is committed, and in this context, the issue of the document forgery in the digital environment is assessed.
I. INTRODUCTION
As a result of the digitalization of our age with each passing day, it is obligatory for the regulations in the law to catch up with these innovations and to be updated. However, since it is not possible for the legislator to catch up with these innovations rapidly, it is a common solution to interpret and apply the existing legal regulations in accordance with the age. In this particular context, when forgery offences are under consideration, there are a multitude of elements that need to be evaluated with great precision.
The provisions in the penal codes are interpreted strictly due to their nature. This is based on the principle of legality, which is also explained as “no punishment without law/ nulla poena sine lege”1. Consequently, it is not possible to criminalize and punish an act that is not clearly defined by law. The principle of legality, derived from Roman Law, has been incorporated into a broader framework encompassing Human Rights Law and constitutional principles2. In this article, we evaluate document forgery in digital environments within the framework of the limits set by the Constitution and criminal laws.
II. FORGERY CRIMES
Offences pertaining to forgery are subject to regulations as outlined in Article 204 and the following articles of the TCC. These offences include forgery of an official document (Article 204 of the TCC), corruption, destruction or concealment of an official document (Article 205 of the TCC), false statement in the issuance of an official document (Article 206 of the TCC), forgery of a private document (Article 207 of the TCC), corruption, destruction or concealment of a private document (Article 208 of the TCC) and misuse of blank signature (Article 209 of the TCC). The distinguishing characteristics that differentiate these offences from each other are the nature of the document that is subject to forgery and the manner in which the act of forgery is committed.
The committability of these offences in the digital environment must be examined separately according to the concept of the document and the act constituting forgery.
A. The Concept of Document
Notwithstanding the fact that the document, which is the subject of the offences under Article 204 et seq. of the TCC, is not defined in the TCC, it is a written instrument used to prove a legal event, fact or a declaration of intent. Consequently, it is imperative to recognize that not all data qualifies as a document, and not all information on paper qualifies that document as a document in the sense of criminal law. A fundamental component of the term “document” is the information contained within it3. In this context, the content of the document must necessarily have the characteristic of evidencing an event or phenomenon in the legal realm. Therefore, the primary function of the document is to serve as a reliable source of evidence. The content of the document may include a declaration of intent, or it may be in the form of writing down the reality regarding the events and facts that are important in the legal plane. In this regard, contracts containing the declarations of intent of the parties, petitions in court files, trial records, and records maintained by state institutions such as health reports, SSI records, and land registry records, are considered as documents as well.
In addition to the content of the document, another element that constitutes its identity as a document is the certainty of its issuer. The rationale behind this assertion is that the value of the content of the document originates from the person of the issuer. The issue is to be understood from the fact that the issuer of the document is certain to whom the declaration of intent contained in the content of the document belongs. The significance of the signature in the document thus arises4. However, it is important to note that the requirement for a document to be signed or physically signed does not apply to the characteristics of the document in the context of criminal law.
In consideration of all these elements, it seems possible to create, modify or falsify the document in the digital environment, due to its nature. The most significant issue to be addressed in this respect is that the relevant document must meet all validity requirements. Indeed, it is not possible to forge a document that is not legally valid. Consequently, the criminal offence of forgery of a document that will not be legally valid if issued in a digital environment will not apply in cases such as forgery, alteration, distortion, destruction, concealment, etc. in a digital environment.
1. Being Written
The fundamental principle to be grasped from the fact that the document is written is that it contains writing in its content5. Documents that comprise solely visual elements or data recorded for storage purposes do not meet the criteria for being designated as documents. While these data possess the quality of evidence, they do not meet the criteria for document status.
The method by which the content of the document is written is inconsequential. In this respect, the quality of the document is unaffected by the method of writing employed, whether by hand or by computer. However, it is imperative to consider any validity conditions pertaining to the document’s composition. To illustrate this point, consider a handwritten will, which is required by law to be written in full by hand from beginning to end. Conversely, if a handwritten will is created using a computer or typewriter, it is not subject to the same legal validity conditions as a traditional document. Consequently, if it lacks any content that would be deemed legally protected in its current state, it would not possess the requisite legal quality. Therefore, if a handwritten will is prepared in a computer environment or on a typewriter, the act of forgery on this document will not constitute an offence. In essence, the document in question lacks legal validity.
2. The Presence of Legally Significant Content
In order to discuss the existence of a document within the context of criminal law, it is necessary for the document to contain content that is capable of producing results within the legal realm. Consequently, if a document lacks legally significant content, it cannot be considered a subject relevant to the forgery offence6.
It is imperative that the content of the document is comprehensible to all relevant parties, or the intended recipient. The main reason for this is that the document is a means of proof. Indeed, if the content of a text is incomprehensible, the text’s legally enforceable content cannot be mentioned7.
3. The Significance of the Issuer
Given that the document in question is reflective of a declaration of intent due to its nature, the person whose declaration it reflects must be certain8. Despite the fact that it contains a legally binding will, an anonymous document does not qualify as a document within the meaning of the TCC. Consequently, the identity of the document’s issuer must be discerned during the examination process. As a matter of fact, Ahmet Gökçen explains; “The issuer of the document can be understood from its content as well as from the signature on the document”9. However, in cases where the document must be signed according to the conditions of validity, it will not be sufficient to even initialize the document. However, in the absence of any such validity requirement, the existence of the document should be accepted if the issuer of the document is understood from its content.
B. The Acts Which State Forgery (Material Element)
The following acts constitute the material elements of the offence: forging a document, altering an original document in a way to deceive others, using a forged document, corrupting, destroying, concealing the document, making a false statement in the issuance of an official document, filling in a signed and partially or completely blank paper, which is filled in a certain way and delivered to him for use, in a way different from the reason for which it was given. In this regard, it is imperative to consider the committability of these actions within the context of the digital environment, as they bear distinct characteristics that must be duly assessed.
1. Issuing the Document as Forged
The forgery of a document is classified as an offence under Article 204 of the TCC or Article 207 of the TCC, depending on whether the document is of an official or private nature. While forgery alone is sufficient for the commission of the offence in official documents, forgery alone is not sufficient in private documents, and the forged document must also be used for the commission of the offence. The crux of the matter pertains to the conceptualization of forgery, which is understood to be contrary to the declaration of intent of the document’s issuer or contrary to the events or facts reflected in reality. An alternative opinion posits that forgery entails the imitation of documentissuing10.
In order for this particular offence to be committed in the digital environment, it is necessary for the issuing activity to take place in said environment. Given that the drafting of documents in a computer environment is not subject to any restrictions, provided that it does not contradict the validity conditions, it can be concluded that this offence can be committed in the digital environment if the document issued in the computer environment is issued in a false manner.
2. The Alteration of an Original Document
The alteration of an original document with the intent to deceive others is considered an offence11. It is important to note that, in contrast to the act of modifying an official document, the use of a private document, in addition to the modification itself, must also take place for the offence to occur, as in the act of editing. In the digital environment, the commission of this offence varies according to the form in which the document is issued.
In the event of the physical issuance of the original document, any subsequent digital alterations to that document would require the transfer of the document to the digital environment, followed by a deliberate alteration of the document in a manner that is contrary to the truth. Conversely, if an original document is produced in a digital environment since this document is usually stored in the database where it was produced, document verification systems can easily reveal whether the document has been forged.
3. The Use of a Forged Document
The use of a forged document constitutes another act that forms the crime of document forgery12. There is a distinction between whether the document subject to the crime is an official document, i.e. a document issued by a public official in accordance with certain regulations as part of their duty, or a private document in terms of this act that gives rise to crime. In case the document in question is an official document, the legislator considers the acts of forging, altering in a way to deceive others, using, and issuing contrary to the truth by a public official as separate crimes. In other words, the mere occurrence of either forging or using an official document alone is sufficient for the crime to be committed. However, if the document subject to the crime is a private document, both the acts of forging and using must occur together for the crime to be committed. Furthermore, the legislator has also criminalized the act of knowingly using a forged private document. Moreover, the environment in which the document is used is important in terms of this crime being committed in the digital realm. Therefore, in case a forged document is used in digital environments, it may be possible for document forgery crimes to be committed in the digital realm as well.
4. Corrupting, Destroying or Concealing the Document
The act of destroying, corrupting, or concealing a document constitutes a crime as it aims to prevent the document from fulfilling its primary purpose of providing evidence, effectively amounting to tampering with evidence13. The subject of this crime can only be official documents. With regard to documents created in physical form, it is not possible to commit this act in the digital environment. Indeed, it is contrary to the ordinary course of life to digitally alter a document that has a physical existence.
However, it is possible to commit this crime with respect to documents prepared in the digital environment. For documents digitally created and stored in databases, the crime of document forgery can be committed through hacking activities carried out on the sources of these databases. However, this also constitutes the crime of obstructing, disrupting, destroying or altering data in a system as regulated in Article 244 of the TCC14. According to Article 244(2) of the TCC, this crime is defined as: “A person who corrupts, destroys, alters or renders inaccessible the data in an information system, inserts data into the system, or sends existing data to another place shall be sentenced to imprisonment from six months to three years”. Therefore, such activities directed at the information system where a digitally created document is stored may constitute both the crime specified in Article 205 or 208 of the TCC and the crime in Article 244 of the TCC, depending on whether the document is official or private. However, real concurrence as per Article 212 of the TCC cannot be applied here. Indeed, Article 212 of the TCC states: “In case of using a forged official or private document during the commission of another crime, separate penalties shall be imposed for both forgery and the related crime.” The application of real concurrence provisions requires that the act of forgery be in the form of using a forged document15. Consequently, in the case of Article 244 of the TCC as explained above, real concurrence provisions cannot be applied since there is no new crime committed using a forged document. Nevertheless, as multiple different crimes under Article 244 of the TCC and Article 204 et seq. of the TCC are committed simultaneously through the same act, the provisions of ideal concurrence will be applied, and the penalty w ill be imposed based on the crime type that requires a more severe punishment between these two crime types.
5. The False Declaration in the Issuance of an Official Document
False declaration in the issuance of an official document constitutes another type of document forgery crime. In this regard, it is necessary to address the differences between official documents and private documents. An official document refers to a document issued by a public official in the course of their duty16. In this context, identity documents, driver’s licenses, passports, graduation certificates and diplomas, documents issued by courts, land registry records, and all similar documents are considered official documents. All documents that do not possess the characteristics of an official document fall under the definition of private documents. In this context, documents prepared by public officials independently of their duties are also considered private documents17. Furthermore, Article 210 of the TCC enumerates documents that are considered equivalent to official documents. This provision states: “(1) If the subject of private document forgery is a negotiable instrument payable to order or bearer, a document representing goods, a share certificate, a bond, or a will, the provisions relating to forgery of official documents shall apply. (2) A physician, dentist, pharmacist, midwife, nurse, or other healthcare professional who issues a false document shall be sentenced to imprisonment from three months to one year. If the issued document provides an unjust benefit to a person or has the nature of causing harm to the public or individuals, the penalty shall be determined according to the provisions of forgery of official documents.” This article stipulates documents that, although private in nature, are considered official documents. Moreover, it would be beneficial to add a note regarding the crime of forgery in official documents in the form of certification, separate from the act of false declaration. Specifically, when a private document acquires the status of an official document through notarization, the nature of the forgery will vary depending on which part of the document the forgery occurs. If the forgery activity is carried out in the content section of a document prepared in this manner, the resulting crime will be forgery of a private document. However, if the forgery activity relates to the notarization process (date, journal number, seal, signature, etc.) performed by the notary, the resulting crime will be the forgery of an official document.
The act of making a false declaration will only constitute a crime if the document being issued is an official document. Consequently, the person to whom the false declaration is made must be a public official. In this context, it is evident that this crime will materialize if the false declaration is transmitted digitally to a public official. In other words, if a false declaration is submitted while creating a document request in a digital environment, for example through the E-Devlet Portal, and this document is generated as a result of a public official’s evaluation, this crime will have been committed. However, if the document request is created automatically by the digital system without being evaluated by a public official when it is submitted, or if the person to whom it is submitted for evaluation is not a public official, then this crime will not occur.
6. Misuse of Blank Signature
The act of misusing a blank signature occurs when a signed paper, either partially or completely blank, which has been entrusted to someone to be filled out in a specific manner, is instead completed in a way that differs from its intended purpose. A document can be signed physically, electronically, or digitally. This matter is stipulated in Article 15 of the Turkish Code of Obligations (“TCO”) No. 6098, which states: “The signature must be handwritten by the person undertaking the obligation. A secure electronic signature also produces all the legal consequences of a handwritten signature.” Consequently, for an electronically signed document to produce all the legal effects of a handwritten signature, the signature must be a secure electronic signature. The primary reason for this requirement is to prevent the forgery, copying, or alteration of electronic signatures.
According to Article 4 of the Electronic Signature Law No. 5070 (“Law No. 5070”), a secure electronic signature is defined as an electronic signature that: “a) Is exclusively linked to the signatory, b) Is created using a secure electronic signature creation device that is solely under the control of the signatory, c) Enables the identification of the signatory based on a qualified electronic certificate, d) Allows for the detection of any subsequent changes made to the signed electronic data.” Consequently, signatures on documents signed with a secure electronic signature can be examined for any type of forgery activity18. For instance, if any alterations are made to a document signed with a secure electronic signature, the signatures recorded on the document are automatically deleted.
If an unsecured electronic signature is used as required by legislation, it cannot be considered a signature within the meaning of Article 15 of the TCO. Consequently, if the signature is a condition for the validity of the document in question, a valid document cannot be established, and therefore, the crime of document forgery will not occur as a result of the forgery activity. However, it is evident that the crime of forgery will occur in the event that the alteration of data in the document cannot be traced using technological means when a secure electronic signature is used. In this case, the forgery activity will have taken place on the electronic signature itself. In other words, the crime that will materialize in terms of forgery activity here is not the misuse of a blank signature, but forgery of the signature itself.
Article 17 of Law No. 5070 stipulates: “Those who create wholly or partially forged electronic certificates or who counterfeit or alter validly created electronic certificates, as well as those who knowingly use these electronic certificates, shall be punished with imprisonment from two to five years and a judicial fine of not less than one hundred days. If the crimes mentioned in the above paragraph are committed by employees of an electronic certificate service provider, these penalties shall be increased by up to half.” This provision regulates the crime of forgery in electronic signatures. In this context, a forgery activity carried out on a document with an electronic signature will also constitute forgery within the scope of this provision19. The answer to the question of which provisions should be applied - the acts specified in the TCC or the penal provisions in Law No. 5070 - is provided in Article 212 of the TCC. Consequently, to the extent applicable, real concurrence should be applied, and the penalty should be calculated based on both types of crimes.
C. The Ability to Mislead
Undoubtedly, the most crucial aspect to consider regarding document forgery crimes is the deceptive capability of the forged document. The deceptive capability, although not explicitly stated among the elements in the law, is one of the material elements of the crime of document forgery. In this respect, the deceptive capability is an element related to the forged document’s ability to be convincing about its authenticity, and the determination of this aspect is left to the discretion of the judge.
In the commission of document forgery crimes in the digital environment, attention must be paid to whether this element is also present20. Indeed, a forged document that does not convince its recipient of its authenticity does not constitute the subject of this crime.
The examination of whether this element is realized in terms of documents produced in the digital environment can be understood through electronically generated documents with QR codes. Since documents produced with QR codes can be verified in the digital environment, the deceptive capability of these documents will be realized when the document is verified. The QR code verification process is carried out by opening the obtained document with the QR code and matching it through the system. In other words, along with the content being contrary to the truth, the matching of the document displayed on the system with the document in hand through the QR code on the document will ensure the realization of the deceptive capability element. However, it is evident that if the document opened through the system with the QR code does not match, the element of deceptive capability will not be realized. Moreover, if the content is also genuine and the document is verified with the QR code, there is no issue to be discussed in terms of the crime of forgery.
The determination of whether this element is realized in terms of electronic signatures can be made by examining the validity of the certificates in secure electronic signatures. Secure electronic signatures are subject to the supervision of the Information and Communication Technologies Authority as per Law No. 5070. The certification processes of secure electronic signatures are carried out by electronic signature providers. These certificates enable the verification of all data such as the identity of the signatories, whether any changes have been made to the signed document when the document was signed, etc. Document formats capable of being electronically signed also have a certificate viewing feature. Therefore, the characteristics of the electronic signature can be examined using this certificate viewing feature in these documents, and the forgery activity can be investigated accordingly21. In cases where the forgery activity has also been carried out on the certificate itself, it is evident that this would constitute a crime under Article 17 of Law No. 5070, as explained above.
III. CONCLUSION
The rapidly evolving and changing era brings certain challenges to the legal realm, and the resolution of these issues is limited to the interpretation of existing law. While considering this matter in terms of document forgery crimes, the problem of forgery in digitalized documents persists alongside the digitalization of the world. The legislator’s inadequacy in keeping pace with the times in lawmaking leaves no alternative but to produce casuistic solutions to end these problems.
When examined in terms of current law, the feasibility of committing document forgery crimes in the digital environment has been evaluated separately for each type of crime. According to this assessment, the feasibility of committing each act constituting forgeryin the digital environment varies. When considered as a whole, it is clearly understood that the current law is inadequate in solving such problems occurring today. Although a type of crime in the form of forgery in electronic signatures has been enacted with Law No. 5070, this innovation is only regulated in terms of electronic signatures. However, due to the gap in legislation regarding electronic documents, it is evident that the current law is insufficient in this regard. Indeed, considering the judicial processes that occur in the form of, so to speak, fitting the act to the type of crime, the laws have struggled to fully meet the need for punishing such acts. For this reason, integrating technology into legal systems in order to adapt the law to the age and quickly fill the gaps in the laws will eliminate this problem.
BIBLIOGRAPHY
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DEVRİM GÜNGÖR, Crime of Forgery of Official Documents, 1st Edition, Ankara 2010.
DOĞAN SOYASLAN, Special Provisions of Criminal Law, 8th Edition, Ankara 2010.
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MAHMUT KOCA/ İLHAN ÜZÜLMEZ, Turkish Criminal Law Special Provisions, 2nd Edition, Ankara 2015.
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MEHMET EMİN ÖZGÜL, Rights and Obligations of the Secured Electronic Signature Holder, İnÜHFD 12(2): p. 539-556 (2021).
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FOOTNOTE
1 Kemal Gözler, Comment Principles, p. 81, https://www.anayasa.gen. tr/yorum-ilkeleri-kitaptan.pdf. (Last Accessed, 12.01.2025).
2 Ümit Kılınç, The Principle of Narrow Interpretation of Restriction in the European Convention on Human Rights, YÜHFD Cilt: XVII Sayı: 2, İstanbul 2020 p. 601; Marc Touiller, “L’interprétation stricte de la loi pénale et l’article 7 de la Convention européenne des droits de l’Homme”, RDLF, 2014, n°08
3 Ahmet Gökçen, Document Forgery Crimes (m.204-212), 4th Edition, Ankara 2016, p. 76.
4 Gökçen, Document Forgery Crimes, p. 84-101.
5 Mert Asker Yüksektepe, Document Forgery Crimes with Case Law, 2nd Edition, İstanbul 2021, p. 6
6 Yüksektepe, Document Forgery Crimes, 2nd Edition, İstanbul 2021, p. 10.
7 Gökçen, Document Forgery Crimes, p. 91; Doğan Soyaslan, Special Provisions of Criminal Law, 8th Edition, Ankara 2010, p. 488.
8 Mahmut Koca/ İlhan Üzülmez, Turkish Criminal Law Special Provisions, 2nd Edition, Ankara 2015, p. 671.
9 Gökçen, Document Forgery Crimes, p. 95.
10 Gökçen, Document Forgery Crimes, p. 168. “Forgery means that the document is reissued by a person other than the person who appears to be the issuer of the document. In this case, a real document must exist before the forged document and this document must still exist as a result of the forgery.” Also look: Sahir Erman, Commercial Criminal Law, C.: III, Fraud Crimes, İstanbul 1987, p. 442.
11 Koca/ Üzülmez, Special Provisions, p. 685.
12 Gökçen, Document Forgery Crimes, p. 193.
13 Koca/ Üzülmez, Special Provisions, p. 702.
14 Mehmet Can Karagöz, Blocking the Information System with an Introduction to Information Systems Theory, Crime of Corruption, Destruction or Alteration of Data, 1st Edition, İstanbul 2020, p. 151.
15 Gökçen, Document Forgery Crimes, p. 305.
16 Soyaslan, Special Provisions, p. 489.
17 Devrim Güngör, Crime of Forgery of Official Documents, 1st Edition, Ankara 2010, p. 62.
18 Mehmet Emin Özgül, Rights and Obligations of the Secured Electronic Signature Holder, İnÜHFD 12(2): 539556 (2021), p. 547.
19 Özhan Sağlık, Forgery of Electronic Signed Documents: A Review in the Context of Supreme Court Decisions, https://acikerisim.uludag.edu.tr/ server/api/core/bitstreams/499f2a00753d-4764-9f23-c954c9e3dc5a/ content#:~:text=%E2%80%9CBir%20resmi%20belgeyi%20 sahte%20olarak,kadar%20hapis%20 cezas%C4%B1%20ile%20cezaland%C4%B1r%C4%B1lmaktad%C4%B1r., (Last Accessed, 12.01.2025).
20 Soyaslan, Special Provisions, p. 498 et sec.
21 Sağlık, Forgery of Electronic Signed Documents, p. 4.
