In today’s world, technology has permeated every aspect of our lives. This has fundamentally changed crime and its combating methods. In addition to traditional crimes, a new type of crime, known as “cybercrime,” has emerged, committed via the internet and information systems. One of the most critical elements in combating these crimes is “electronic evidence,” which provides concrete evidence of a crime. However, the collection, preservation, and admissibility of electronic evidence in court pose unique legal and technical challenges. This article will examine in detail the legal nature of electronic evidence in cybercrimes, its collection methods, and, in particular, the current practices of the Court of Cassation and Regional Courts of Justice on this matter.
The Concept and Legal Nature of Electronic Evidence
Electronic evidence, the primary basis for proving cybercrimes, has distinct characteristics from traditional evidence. These differences necessitate special considerations regarding its admissibility.
What is Electronic Evidence?
Electronic evidence can be defined as any data, record, or system that electronically stores, produces, processes, or transmits information related to the commission of a crime. This definition is quite broad and encompasses many different elements, including IP addresses, log records, email correspondence, social media posts, messaging app conversations, digital photos, videos, and data on computers and mobile devices. The crucial point is that this data be sufficient to prove a crime and be available in digital format.
The Place of Electronic Evidence in Criminal Procedure
The principle of freedom of evidence is fundamental in Turkish Criminal Procedure Law. This means that, unless otherwise stipulated in the law, anything can be used as evidence. Electronic evidence is also considered within the scope of this principle. The Code of Criminal Procedure (CMK) provides special safeguards for the collection of electronic evidence. In particular, articles such as CMK Article 134 (search, copying, and seizure of computers, computer programs, and files), CMK Article 135 (interception of communications), and CMK Article 138 (violation of the prohibition on obtaining evidence) directly impact the collection processes of electronic evidence. Obtaining this evidence through lawful means is a prerequisite for its admissibility in court.
Obtaining Electronic Evidence and the Principle of Legality
Obtaining electronic evidence is a complex process that requires technological know-how and the meticulous application of legal procedures. The most important principle in this process is that evidence be collected using lawful methods.
Evidence Obtaining Methods and Legal Limits
Two basic methods are generally used to obtain electronic evidence: consent-based acquisition and acquisition through protective measures. Consensual acquisition involves the evidence owner voluntarily providing evidence or granting access. However, coercive measures are often necessary to solve a crime. At this point, protective measures stipulated in the Criminal Procedure Code (CMK), such as search and seizure, interception of communications, and the appointment of undercover investigators, come into play. For these measures to be implemented, certain legal conditions (such as suspicion of a crime, proportionality, the principle of last resort, etc.) and procedural requirements, such as a court order, must be met. The protection of personal data and the right to privacy are constitutional rights that must be meticulously protected during electronic evidence acquisition processes.
The Fate of Unlawful Electronic Evidence
One of the fundamental principles of Turkish Criminal Procedure Law, the principle of “non-use of unlawful evidence” (TCCP Articles 206/2-a, 217/2), also applies to electronic evidence. Electronic evidence obtained through unlawful means cannot be used as the basis for a judgment in a trial. This principle aligns with the principle that “the fruit of a poisonous tree is also poisonous.” For example, digital data obtained as a result of a search conducted without a court order or voice recordings obtained in violation of the prohibition on wiretapping cannot be used in a trial. The Court of Cassation has taken a very strict stance on this matter, emphasizing that unlawful evidence cannot absolutely be used as the basis for a judgment.
The Supreme Court’s Practices Regarding the Admission of Electronic Evidence
The Court of Cassation develops significant precedents on cybercrimes and electronic evidence, guiding practice. These precedents focus on fundamental issues such as the reliability of evidence, privacy, and probative value.
Integrity and Reliability of Evidence
One of the most important characteristics of electronic evidence is that it can be easily altered, deleted, or manipulated. Therefore, the Court of Cassation requires that its “integrity and reliability” be preserved for electronic evidence to be admissible in court. It is crucial that the evidence’s integrity be recorded by digital forensic experts by obtaining a hash value from the moment it is obtained, that the chain of evidence is not broken, that copying is carried out properly, and that the original is not damaged. The Court of Cassation is particularly cautious about electronic evidence that is not supported by expert reports, has not undergone technical examination, or whose integrity is deemed questionable.
Evaluations in the Context of Privacy and Freedom of Communication
One of the most common problems encountered in obtaining electronic evidence is the violation of privacy and freedom of communication. The Supreme Court of Appeals maintains a meticulous balance in this regard. For example, whether an audio or video recording made without permission by a person can be used as evidence is a frequently debated issue. According to established jurisprudence of the 12th Criminal Chamber of the Supreme Court of Appeals, “recording a person’s actions in order to obtain evidence that is impossible to obtain again, in relation to a crime committed against them” can be considered lawful. However, this cannot be interpreted as a general freedom to obtain evidence, and each specific case must be evaluated on its own merits. Evidence obtained by third parties without consent or through illegal means, such as text message content or emails, is generally considered unlawful and is not used as the basis for a judgment.
Evidence from Social Media and the Internet
Today, a significant portion of cybercrimes are committed through social media platforms or other internet sources. The Supreme Court of Appeals, when admitting evidence such as social media posts, screenshots, and profile information, places the burden of proof on the authenticity and connection to the criminal act. Because a screenshot is vulnerable to manipulation, for it to be legally valid evidence, it must be supported by log records, IP address identification, or computer forensic reports obtained from official institutions (e.g., the internet service provider or the relevant platform). Otherwise, a screenshot alone may not be sufficient evidence.
Electronic Evidence Applications of Regional Courts of Justice
Regional Courts of Justice (CAC) are responsible for reviewing local court decisions through appeals. Regarding the admission of electronic evidence, CACs largely adhere to established precedents of the Court of Cassation.
Compliance with Supreme Court Precedents and Differing Approaches
BAMs are based on the principles established by the Court of Cassation regarding the legality, integrity, and probative power of electronic evidence. A parallel practice is observed with the Court of Cassation, particularly regarding the rejection of unlawful evidence and the requirement that evidence be supported by technical expert examination. However, given the unique circumstances of each case, some BAM decisions may also exhibit approaches that give greater weight to the discretion of the local court or soften some of the Court of Cassation’s strict interpretations, particularly in assessing the strength of evidence or interpreting evidence collection methods. These differences generally arise in the context of the nature of the evidence, the complexity of the case, and its relationship to other available evidence.
The Role of BAM in Evaluating Evidence
The BAM re-evaluates all electronic evidence in the case file during the appeals review. It examines whether the local court’s assessment of the evidence was flawed, whether the evidence was obtained lawfully, and whether it is sufficient to form the basis for a verdict. If deemed necessary, it may decide to submit new evidence to the case or conduct additional examination of existing evidence. In cases requiring technical examination, in particular, BAMs request additional reports from computer forensic experts to further assess the reliability and probative power of the evidence.
Difficulties of Proving with Electronic Evidence and Legal Support
Proving cybercrimes with electronic evidence presents significant challenges, both technically and legally. The rapid loss and alteration of evidence, complex investigations requiring technical expertise, and delicate balancing acts such as the protection of personal data make this field quite complex. Therefore, in any cybercrime investigation or prosecution, it is crucial to obtain support from an expert legal professional at every stage, from the collection of electronic evidence to its presentation at trial. A qualified attorney plays a crucial role, including ensuring the lawful collection of evidence, managing coordination with digital forensics experts, defending the integrity and reliability of evidence, and challenging unlawful evidence. This contributes significantly to preventing loss of rights and ensuring justice.
Electronic evidence has become an indispensable part of modern legal proceedings in cybercrime cases. The practices of the Supreme Court of Appeals and Regional Courts of Justice clearly demonstrate the importance of this evidence in terms of its legality, reliability, and probative power. Obtaining evidence using the correct methods, preserving its integrity, and evaluating it in accordance with legal norms constitute the foundation of a fair trial. In an era of constantly evolving technology, keeping pace with these changes and ensuring uniformity of practice regarding electronic evidence will increase the effectiveness of the fight against cybercrime. In this complex area, expert legal advice is essential for protecting rights and interests.