Bilişim Sistemine Girme Suçu

Among the unlawful acts specific to information systems, the most widespread is unauthorised access. Just as entry into a person's private property is today impossible without a judge's or prosecutor's authorisation, unauthorised access to a person's information systems should likewise be impossible. Unauthorised access has accordingly been made a distinct offence in the Turkish Criminal Code.

The offence of accessing an information system (and remaining there) was regulated in Turkish criminal law for the first time by the Criminal Code, Law No. 5237, although it had also appeared in the draft codes of 1997, 2000 and 2003. In the author's view, this regulation filled a significant gap in Turkish law.

Unauthorised access was chosen as the subject of examination because it is a new offence type and constitutes, as it were, the gateway to a great many cybercrimes.

In unauthorised access to a system, the method used for access is immaterial.

As at the date the paper was presented, Article 243(1) of the Criminal Code penalised the act of unlawfully accessing the whole or part of an information system and continuing to remain there. The second paragraph accepted as a ground of mitigation the commission of these acts in respect of systems usable against payment. The final paragraph treated the destruction or alteration of the data contained in the system as aggravating circumstances. In the author's assessment this regulation, capable of being effective particularly against hackers, is entirely apposite. The paper discusses all these matters and also presents the doctrinal debates and judicial decisions on them.

The heading of the article was set as "accessing an information system", the drafting seeking to convey that the access itself is what matters; in this sense the offence is a formal (conduct) offence. On the wording in force at the date of the paper, the offence arose where both accessing the system and remaining within it occurred unlawfully. Yet the marginal heading — "Accessing an Information System" — was misleading (on the then text), since it gave the impression that the mere act of access was penalised of itself. For this reason, in naming the offence the author preferred "accessing and remaining in an information system", so that the name should fully answer to the content of the provision.

Following the method of analysis prevailing in Turkish criminal law, the paper first examines the legal interest protected; it then assesses the elements of the offence, the circumstances affecting it and its special forms of appearance, and closes with a brief account of the sanction and the investigation procedure.

The study ends with proposals for amendment of the provision: for instance, that commission of the offence upon the information system of a bank or credit institution or of a public institution should be an aggravating circumstance, as should its commission by public officials through abuse of the facility afforded by their office.

The study had also argued that the conjunction "and" in the first paragraph should be changed to "or" — a point subsequently taken up by the legislature, which amended the text accordingly.