Türk Ceza Muhakemesi Hukukunda Bilgisayar Araması ve Elkoyma

COMPUTER SEARCH AND THE SEIZURE OF THE EVIDENCE FOUND

People today have moved both their private and their working lives onto the computer. As a natural consequence, the field in which offences are committed — and even the field in which the evidence of classical offences is stored — has shifted to the computer environment, making searches of computers a necessity for the detection of offences and the reaching of evidence. Yet since such searches are at the same time an interference with private life, they must be conducted with the utmost care and with the least possible intrusion. It must not be forgotten that reaching the material truth — the aim of criminal procedure — is not an absolute aim to be attained at any price and without exception; not touching fundamental rights and freedoms is essential. Indeed, the fundamental human-rights instruments — Article 12 of the Universal Declaration of Human Rights and Article 8 of the European Convention on Human Rights — expressly require respect for everyone's private life.

In the Turkish legal system, computer search is regulated in Article 134 of the Code of Criminal Procedure — a provision containing many points open to criticism, for which reason computer search in Turkish law was chosen as the subject of the paper. Since seizure, the indispensable consequence of search, also appears in the text of the provision, seizure too is assessed. Each paragraph of the article is evaluated separately; the views of the doctrine and the judicial decisions are addressed, and solutions are proposed.

Starting from the elements adopted for the conduct of a search, one of the forms of search (Art. 134/5) is named "simple search": it can apply where a specific, previously known item is sought (a file of known name, for example). By contrast, where no datum known in advance or directly targeted exists, and evidence is sought in the computer generally in relation to the offence under investigation, the first paragraph applies — a form the paper names "search of the computer". Because the "simple search" has almost no possibility of application in practice, the paper assesses the "search of the computer" first and the "simple search" thereafter.

Since the legal nature and the subject-matter of the search determine its limits, the paper briefly discusses this question at the outset. Provisions bearing on computer search in Article 17 of the Regulation on Judicial and Preventive Searches and Article 9/2 of the Regulation on Crime Objects are also assessed at the relevant points.

The grounds for amendment are set out in conclusion as follows:

• Given today's technology, the concept "computer" no longer meets the need; and since practice and the Criminal Code use the concept "informatics", the heading and text of the provision should use that concept — securing conceptual unity as well.
• The possibility of gathering evidence by remote and even online access, unregulated in the statute, must without fail be introduced — but tied to very strict conditions, preventing the exposure of the private lives of the accused or of third persons and respecting the sovereign rights of other states.
• The text of Article 134/5 (examined in the paper under the heading "simple search") should be repealed entirely: it has almost no capacity for application; where applied, it fails to secure the safety and reliability of the evidence; and the searches it would allow can in any event be conducted under the first paragraph.
• Under the present text, seizure cannot be effected where the system is not encrypted or where no hidden data are thought to exist. Yet for evidence to be captured soundly and its integrity preserved, seizure should take place before the search even begins, and the search should be conducted upon the seized data. The conditions of seizure must therefore be regulated anew.
• The present text requires the immediate return of seized data to their owner. This sentence too should be rewritten, preventing return where the very possession of the seized data is itself an offence.
• Further, because counterfeit data can easily be produced in the computer environment and existing data easily altered, a conviction should not be founded on such evidence alone: it must be corroborated by other evidence, and unless so corroborated, the principle that the benefit of the doubt goes to the accused must govern.
• Finally, where a search or seizure has been carried out contrary to Article 134, the evidence obtained is unlawful and cannot form the basis of the judgment.