How to prove that an on-site inspection is obstructed: Board's Kinik and A101 decisions

Through the administrative fines imposed by the Turkish Competition Board ("Board"), it has again sent a clear signal that it will show zero tolerance regarding any non-compliance in its on-site inspections and particularly the deletion of emails or instant messages. Within the case law of the Board, the Kinik Maden Sulari A.S. (1) ("Kinik") and Yeni Magazacilik A.S. ("A101") decisions(2) are of great importance as they clearly reflect the emphasis of the Board and highlight the importance of timing of data deletion during on-site inspections.

Board's assessment

Log records constitute the most critical evidence for the suspicion of obstruction of an on-site inspection in these decisions spesifically.

During Kinik's inspection, the Turkish Competition Authority's ("Authority") case handlers found that certain email and WhatsApp conversations of the investigated employees were deleted during the inspection, as detected by the log history. They later confirmed this fact with a test in the Authority's IT laboratory. The searched terms in the records of the employees' search histories increased the suspicion regarding the deletion. Indeed, it was found that the terms in the search history were related to rival undertakings. In that regard, all investigated undertakings must ensure that their employees comply with this enforcement trend and show a high sensitivity regarding deletion of emails and instant messages on their mobile phones.

The Board's A101 decision, as adopted in the Kinik decision and other past Board decisions, makes the evaluation based on log records within the scope of the obstruction of on-site inspection, but it also raises some controversies.

Within the A101 decision, during the on-site inspection, certain employees whose phones were to be examined deleted the WhatsApp application from their mobile phones. When the correspondence was restored through backup in the reinstalled applications, there was almost no correspondence. The Board considered that even if there was a suspicion of data deletion, it concluded that the on-site inspection was not hindered as the log records could not determine whether (i) the deletion had occurred on the phones of all three employees and, if so, (ii) when the deletion had occurred.

Dissenting opinion: Should evidence of the deletion, other than log records, be considered?

In a dissenting opinion of A101, two Board members stated that the absence or inability to obtain a log record could not be claimed as evidence that the deletion had not occurred. Accordingly, the following points were discussed as concrete evidence that should be considered as an alternative to the log records:

  • Delaying the examination by 15 minutes (during which time the case handlers were kept in a room by themselves).
  • [...] taking the mobile phone taken into custody for inspection and performing operations on it without the knowledge of the case handlers.
  • Deleting the WhatsApp on the grounds that it contained private/confidential correspondence.
  • The seniority of the employees alleged to have deleted the WhatsApp application, as they were the direct focus of the on-site inspection.
  • The fact that the action in question was carried out separately by three high-level individuals
  • The fact that all three employees had uninstalled the application from their phones and during the on-site inspection, either the application was not installed at all, or it was installed but the login procedure required for use was not performed.
  • After the reinstalment of WhatsApp application, no correspondence was retrieved.

In light of the aforementioned arguments, it was declared in the dissenting opinion that the maxim in dubio pro reo principle - "when in doubt, rule for the accused"- was inapplicable as there had been no question but a substantial amount of concrete evidence regarding the obstruction of the on-site inspection.


Although log records are important evidence in cases of obstruction of the on-site inspection, the diversity of the evidence to be used in these cases will be among the issues of discussion, as set out in the dissenting opinion of the A101 decision. In addition, this decision is an example of the application of the maxim in dubio pro reo principle within the decisions of the Board.

It appears that the Authority will continue to maintain its tough approach in order to ensure that the on-site inspection can be carried out properly. The undertakings should keep their guard up and be prepared for an unexpected visit from the Authority. For further information regarding the guidance during the on-site inspection please see our latest legal alert here.

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