INTRODUCTION
Digital evidence is information obtained by recording written, visual or audio data on digital media and plays a critical role in legal disputes, especially in electronic media. Unlike physical evidence, digital data requires more careful evaluation because it can be tampered with and altered from the outside. The rapid development of technology has led to significant changes in the law, and the place of digital evidence has become increasingly important.
The validity of digital evidence depends on conditions such as that it was obtained in accordance with the law, that it is logical and rational, that it illuminates the event, that it is unalterable and complete. In addition, ensuring the reliability of this evidence is critical, especially for the operation of a fair trial process.
In our study, we will examine the process of collecting and presenting digital evidence, as well as its validity and applicability under Turkish law.
A. COLLECTING AND PRESENTING DIGITAL EVIDENCE
Digital evidence includes various types of data, such as internet transactions, email correspondence, social media posts, audio and video recordings. The stages of determining and documenting the accuracy of the evidence are as follows:
- Live analysis: The evidence collection team with technical expertise is responsible for properly powering down electronic devices and using live analysis software to collect volatile data to ensure authenticity.
- Imaging: Imaging is the process of obtaining an exact copy of the evidence. Obtaining a copy instead of the original evidence is not accepted as evidence.
- Hash value (data integrity): To ensure the integrity of the evidence, the value of the imaged data must be determined.
- Timestamp: A timestamp provides information about when the evidence was modified, created, received or recorded.
- Chain of Custody: The physical or electronic collection, storage and transfer of evidence is chronologically documented in the chain of custody.
In order to prevent the loss or alteration of digital evidence, each transaction in the digital environment should be carefully documented by digital evidence experts and the necessary security measures should be taken.
The legal validity of digital evidence is being discussed more and more every day, and standards are being set for this evidence. In Turkey, the use of digital evidence is evaluated within the framework of the Code of Civil Procedure No. 6100 ("CCP"), the Turkish Penal Code No. 5237 ("TPC") and the Code of Criminal Procedure No. 5271 ("CPC"), and these issues will be examined under separate headings below.
B. THE PLACE OF DIGITAL EVIDENCE IN TURKISH CRIMINAL LAW
As data has become an important source in the digital world, the legislature has introduced new regulations regarding access to this data. According to the CCP, the procedure for obtaining evidence depends primarily on the legal situation established by law. Article 116 of the CCP stipulates that a search may be carried out if there is a suspicion that the suspect or accused person may be arrested or that evidence of a crime may be obtained, thus drawing attention to the existence of the legal situation in the concrete case. In fact, in the decision of the Criminal General Assembly of the Court of Cassation dated 26.09.2017 and numbered 2017/16-956 Esas 2017/370 Decision:
"Since the finding that the defendants used the ByLock system is evidence of the offence of membership of an armed terrorist organisation, the elements of which are set out in the indictment, there is no contradiction in taking it as the basis for the sentence. In other words, there is no question of passing judgement on a case that has not been brought".
As we can see, the assessment of digital evidence as a means of proof is based on the fulfilment of the requirements set out in the CCP in a particular case.
At the same time, in the decision of the Criminal General Assembly of the Court of Cassation, dated 27.10.2010 and numbered 2011/231 Esas 2011/262, it is stated:
"According to the Family Population Register, downloaded from UYAP, approved by the Chief Public Prosecutor's Office of the Court of Cassation and included in the file, the victim was born on 11.10.1994 and was 15 years old at the time of the crime. This population record, downloaded and approved from the UYAP environment, has the quality of an official document and is binding".
the court accepted that the data stored in the UYAP system, which is a digital medium, has the quality of "evidence".
Within the framework of Article 217 of the CPC and in accordance with the principle of freedom of evidence, digital evidence can also be used as a means of proof. In this direction, investigations should be carried out within the framework of the CPC in order to obtain digital evidence in accordance with the law. When examining the CPC, Article 116 stipulates that a search may be conducted if there is a suspicion that the suspect or defendant may be arrested or that criminal evidence may be obtained. At the same time, Article 134 of the CCP and its continuation introduced special provisions on search and seizure measures, stating that computers may be searched, records copied and passwords decrypted. Article 135 of the CCP regulates the detection, interception and recording of telecommunications.
The collection of digital evidence is of great importance, particularly with regard to the confidentiality of personal data and the protection of privacy. Article 20 of the Constitution, Article 8 of the European Convention on Human Rights and Law 6698 on the Protection of Personal Data ("LPPD") guarantee the right to privacy, and this right must be taken into account when collecting digital evidence. Therefore, digital evidence is accepted as a means of proof when the appropriate conditions are met within the framework of the CCP.
C. EVALUATION OF DIGITAL EVIDENCE UNDER THE CODE OF CIVIL PROCEDURE
The CCP expands the concept of a document and recognises data in electronic media as digital evidence. In this context, Article 199 of the CCP defines photographs, sound recordings and other digital data as documents that can be used in court. The evidentiary power of electronic data is also strengthened by reliable systems such as secure electronic signature and registered electronic mail. Article 192 of the CCP states that "unless a specific burden of proof is prescribed by law, other evidence not regulated by law may be used".
The collection and examination of digital evidence in civil proceedings is possible with the assistance of forensic computer experts. Articles 195 and 197 of the CCP stipulate that a request for examination of digital evidence must be submitted to the competent authorities. In addition, if it is necessary to examine the digital evidence on the spot, the documents and data may be examined in the environment in which they are located in accordance with Article 218 of the CCP. These provisions constitute the legal infrastructure for the effective use of digital evidence. In fact, the decision of the 13th Civil Chamber of the Court of Cassation, dated 10 June 2020 and numbered 2017/1014 Esas 2020/4488, states:
"According to Article 199 of the CCP, "written or printed texts, documents, drawings, plans, sketches, photographs, films, video or audio recordings, electronic media data and similar information carriers that are suitable for proving the facts in dispute are documents under this law". This provision includes e-mail correspondence as a document. In this case, although the court should decide whether the plaintiff is indebted or not by evaluating the e-mail correspondence and the payments made by the plaintiff, it is contrary to the procedure and the law to decide to dismiss the case in writing with incomplete examination, and it is a reason for annulment."
As it can be seen, it is clearly stated that the records obtained in electronic media have the quality of documents within the scope of the CCP and, therefore, are accepted as legal evidence. According to Article 266 of the CCP, the expert examination is a procedure that may be applied at the request of the parties or ex officio by the judge in cases requiring technical knowledge. Expert opinions play an important role in the more effective use of electronic evidence in proceedings. In addition, discoveries made pursuant to Article 288 of the CCP enable evidence to be gathered in a healthier way through discoveries that can be made electronically. In line with these provisions, digital evidence is made more reliable and effective in the legal framework, paving the way for its use as a means of proof.
D. CONCLUSION
As a result, the role of digital evidence in legal proceedings is gradually increasing and occupying an important place in the legal system in parallel with technological developments. Within the framework of Turkish law, certain legal regulations and security measures are provided for the collection, protection and presentation of digital evidence. Moreover, given the sensitivity of digital data and the possibility of alteration, great care must be taken to ensure the validity and reliability of such evidence. Both the Code of Criminal Procedure and the CCP contain provisions to ensure the effective use of digital evidence. In this context, the contributions of forensic computer experts and scientific research play a crucial role in the accurate and reliable introduction of digital evidence into proceedings. At a time when the legal value of digital evidence has increased with the rapidly evolving structure of technology, the continuous updating of legal norms and practices is an important step in ensuring justice.
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.
