Turkey: Digital Evidence In Turkish Competition Law

Last Updated: 9 May 2016
Article by Şahin Ardiyok and Barış Yüksel

In a recent article we examined the general concerns stemming from the conflict between competition authorities' need to use digital evidence and the protection of private and privileged information. We explained how a legal framework that could best reconcile these interests should be created. In this article, we focus on the situation in Turkey.

Like many competition authorities around the world, digital evidence is very important for the cartel investigations of the Turkish Competition Authority (TCA). Most of the more recent infringement findings were based on digital evidence showing anti-competitive communication between competitors. For now, the rapporteurs of the TCA examine electronic devices only within the premises of the companies being investigated during on-the-spot inspections (or dawn raids).

Unlike the European Commission and the authorities of some other member states, rapporteurs of the TCA do not take the image of the entire server in order to further examine the documents within its own premises. Moreover, the rapporteurs tend to take physical printouts of the digital documents. The images of certain documents are taken only if the size of the documents is too large and it is not feasible to take physical copies. In case of physical print-outs, the rapporteurs require the officials of the company to confirm that they are the same with the original electronic documents. When the images of certain documents are taken, the rapporteurs acquire the hash-values of these documents and require the officials of the company to confirm these hash-values. This way, the authenticity of digital evidence is ensured.

Currently, the rapporteurs of the TCA do not own any external forensic IT software (such as Nuix or Cellebrite mentioned in our previous article) or hardware to help their investigations, and they have relied on the internal search tools within electronic devices such as "Windows Live Forensics." Moreover, the rapporteurs only examine computer and no mobile device (such as mobile phones or tablets) was examined to date.

This being the case, it is known for a while that the collection of digital evidence is becoming more and more difficult as the companies' "competition law awareness" increases. Therefore, it may not be possible to extract digital evidence without the help of more advanced IT forensic tools. Furthermore, it is also a fact that the significance of mobile devices increase rapidly, and most of the communication is made over such devices, including anti-competitive communications. Therefore, TCA desires to be able to use more complicated tools (e.g. using software to take the image of the entire server and examine the documents in its own premises) and to examine electronic devices other than computers (especially mobile phones).

However, it should be noted that the Turkish Competition Law does not contain any express provision allowing the rapporteurs to examine electronic devices and collect digital evidence. Moreover, there are no procedural rules (not even quasi-legal instruments such as guidelines) with respect to chain of evidence and chain of custody. Hence the abovementioned methods developed by the TCA "instinctively" and lack any actual legal basis. Yet, since the Council of State (Appeal Court of last resort for TCA decisions) approved the legality of TCA's investigation methods in many decisions, it might be argued that the case law forms a legal basis of these methods. It should also be kept in mind that the relatively "modest" investigation methods of the TCA ensures that there is not too much tension concerning the restriction of the rights of the companies.

Still, the lack of any legal framework concerning the examination of digital evidence is actually a significant defect since the presence of a clear and transparent legal framework is mandatory to ensure that the rights of the companies would be protected from arbitrary or disproportional intervention of the TCA. Increasing the capacity of the TCA without first preparing a solid legal framework would inevitably lead to undue restriction of the right to privacy, which is a fundamental right protected by the ECHR and the Turkish Constitution. For this reason, the developments concerning the establishment of a legal framework must precede any further increase in terms of the capacity and authority of the TCA with respect to the collection of digital evidence.

The Draft Competition Law addresses some of these problems. Most importantly, the Law creates an express legal basis for TCA's authority to examine electronic devices and collect digital evidence. The Draft Law also allows the TCA rapporteurs to examine personal devices (e.g. mobile phones) of the employees. Yet it is important to remind that the examination of personal devices is a very serious restriction of individuals' right to privacy and even an express legal basis would not be sufficient to allow the rapporteurs to use that authority arbitrarily. Both the Turkish Constitution and the ECHR requires that the restriction should also be proportional. The "bring your own device" policy of the EU Commission (explained in our previous article) might be considered as a sufficient safeguard to ensure proportionality. The Draft Law does not expressly allow the TCA rapporteurs to take the images of servers and examine those in their premises. The most significant defect of the Draft Law is that it does not provide any procedures concerning chain of evidence and chain of custody. However, these may also be regulated via secondary legislation.

We conclude the article with an example showing how the lack of clear rules concerning the use of digital evidence may create significant problems.

In Turkey the companies are allowed to make leniency applications in order to be immune from the fines to be imposed by the TCA or to receive significant reductions in these fines. Most of these leniency applications inevitably include digital evidence, generally in the form of emails. In a recent case in Turkey, a company solely relied on internal email communications in its leniency application and presented this evidence to the TCA in the form of physical print-outs. As explained above, TCA rapporteurs normally ensure that physical print-outs of digital documents are authentic by requiring the written confirmation of the officials of the investigated companies. This is a reasonable application, given that the evidence is collected during a dawn raid and is to be used against a company. However, using the same approach in a leniency application is completely absurd since the party presenting the evidence would greatly benefit from that evidence and would have all the incentives to falsify such evidence. In the presence of clear procedures, TCA would probably conduct a thorough analysis in order to determine whether these documents are authentic or not (e.g. by examining the servers of the company where these documents were acquired). Yet, in the absence of any rules, the authenticity of these physical documents was taken for granted without any further examination, and they formed the basis of an infringement decision. The judicial process is still ongoing and the decision of the administrative court might significantly change the way in which digital evidence is handled in Turkish competition law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Şahin Ardiyok
Barış Yüksel
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions