Avrupa Konseyi Siber Suçlar Sözleşmesinde Yer Alan Koruma Tedbirleri ve Bu Tedbirlerin Türk Hukukundaki Yeri

This study examines the procedural (protective) measures provided for in the Council of Europe Convention on Cybercrime — the fundamental international instrument in the fight against cybercrime — and offers a comparative analysis of their counterparts in Turkish criminal procedure law (CMK). The central thesis is that the use of information technologies as the instrument or target of crime necessitates new and specific procedural measures, and that the Convention is the most important text in this field.

The analysis finds that certain modern measures introduced by the Convention have no direct counterpart in Turkish law: the "expedited preservation of stored computer data" regulated in Article 16 of the Convention, the "expedited preservation of traffic data" in Article 17, and the "production order" in Article 18. The absence of these institutions from the Turkish legal system is assessed as a significant deficiency.

The counterpart in Turkish law of the measure of "search and seizure of stored computer data" contained in Article 19 of the Convention is Article 134 of the CMK. The text, however, advances criticisms of the application of Article 134; in particular, it emphasises that remote (online) search — permitted by regulation despite the absence of any statutory basis — is unlawful. It further argues that Article 134 requires re-regulation on matters such as the conditions of seizure, the return of evidence, and the persons to be present during the search.

The measures of "real-time collection of traffic data" in Article 20 of the Convention and "interception of content data" in Article 21 have no direct counterpart in the CMK. It is noted, however, that the provisions of Article 135 of the CMK on the "supervision of telecommunications" may be applied to these measures: Article 20 of the Convention corresponds to the "evaluation of signal data" under Article 135, and Article 21 to the "interception and recording of communications".

The study also draws attention to the reservations entered by Türkiye upon becoming a party to the Convention, on matters such as the principle of dual criminality and the exclusion of certain information systems from scope. In conclusion, the text establishes that for Turkish law to achieve full harmony with the Cybercrime Convention, comprehensive amendments must be made to the CMK, the missing procedural measures must be incorporated into the legal system, and existing practices must be brought into line with the principles laid down by the Convention — respect for fundamental rights and freedoms, and proportionality.