Subject 15 – Forensic Informatics and Electronic Evidence

Subject 15 – Forensic Informatics and Electronic Evidence

  • Forensic Informatics
  • Forensics Informatics

Forensic informatics; It refers to the whole of the examination processes carried out on various digital media, using scientific techniques to reveal the material truth, taking into account the legal and ethical responsibilities and protecting the integrity of the evidence. 

  • Forensic Informatics Stages 

Forensic informatics stages are generally evaluated under four main headings: collection of materials, evidence collection, analysis and reporting.

  • Persons Who Can Conduct Forensic Informatics Investigation

Forensic informatics examinations can only be carried out by forensic informatics experts. Forensic informatics expertise requires training in this field. Generally, these specialization trainings are attended by lawyers, police officers, gendarmes, engineers (computer, electrical-electronics, software) experts, computer technicians and technicians.

  • Data Recovery with Forensic Informatics 

Forensic analysis tools are used to recover data from a hard disk where data loss has occurred. These tools can analyze the hard disk or hard disk image using many different operating systems.

Forensic software such as Forensic Toolkit, Forensic Explorer, Magnet Axiom, Encase, X-Ways Forensics, Autopsy, etc. are internationally accepted forensic software tools.

  • Forensic Informatics in the Investigation and Prosecution Phases

Forensic informatics examinations are mostly encountered in the operations of the forensic law enforcement unit. In order to be able to perform forensic informatics operations and obtain electronic evidence, it is necessary to seize information systems and other devices in accordance with the rules of forensic informatics, to make backups in accordance with the rules of forensic informatics, to examine the backups taken, to prepare a report to be submitted to the court, and to pack, transport and store them appropriately.The devices found at the crime scene should not be turned off and should be properly backed up and examined by a forensic informatics expert. Since any material cannot be considered as evidence unless it is accepted in court, this forensic informatics process must be carried out in accordance with the procedure. As a matter of fact, forensic informatics sometimes undertakes the function of bringing an electronic data, which is the only evidence in the solution of the case subject to prosecution, before the court by considering the integrity of the evidence without any damage.

  • Special Forensic Informatics Services

It is also possible to receive special services from forensic informatics experts. These services include

  • Computer examinations, data recovery and data deletion services
  • Flash disk, memory card, data recovery and data erasure services
  • CD-DVD-Bluray review and solution
  • Mobile phone and tablet reviews 
  • Image recording, analysis and decoding, photo comparative person detection,
  • Audio recording analysis and solution, voice comparative person identification,
  • Software fraud detection within the framework of intellectual and industrial rights law,
  • Forensic informatics services and detection of cybercrimes 
  • Website, E-mail, E-mail review and detection.
  • Electronic Evidence in Legal Proceedings

According to Article 199 of the Code of Civil Procedure(HMK), Data such as written or printed text, promissory notes, drawings, plans, sketches, photographs, films, images or sound recordings, data in electronic media and similar information carriers that are suitable for proving the facts of dispute are documents according to this Law.

In the Code of Civil Procedure(HMK) , evidence is classified into two categories: conculusive evidence and discretionary evidence.

  • Conclusive Evidence

Confession (article 188 of HMK) : The facts that the parties or their attorneys confess before the court cease to be contentious and do not need proof.)Some doctrinal views suggest that confession is not of conclusive evidence nature but rather a unilateral procedural act that eliminates the need for proof.

Final Judgment (article 303 of HMK) : In order for the formally finalized judgment of one case to constitute a materially final judgment in another case, the parties to the two cases, the reasons for the case, and the judgment clause of the first case and the result of the request of the second case must be the same.

Promissory Notes (article 205 of HMK) : Ordinary promissory notes admitted before the court or accepted by the court to be more than the denier are considered conclusive evidence unless proven otherwise. Electronic data generated by secure electronic signature in accordance with the procedure shall be deemed as promissory notes.)

Oath ( article 229 of HM) : If the person invited for the oath is not present at the court without a valid excuse on the appointed day and time, or if he is present but does not return the oath or refrains from fulfilling the oath, he is deemed to have confessed the facts subject to the oath.(2) If the person to whom the oath has been returned refrains from taking the oath, the subject of the oath is deemed to have not been proven.)

  • Discretionary Evidence

Witness (article 240 of HMK) : Persons who are not parties to the case may be cited as witnesses.)

Expert Review (article 266 of HMK) : The court decides to take the vote and opinion of the expert upon the request of one of the parties or by itself, in cases where the solution requires special or technical knowledge other than the law. However, experts cannot be consulted in matters that can be resolved with general knowledge or experience or the legal knowledge required by the profession of judge.)

Discovery (article 288 of HMK): The judge may decide to make an exploration in order to have information about the subject of the dispute by examining himself with the help of his sense organs at his place or in the court. The judge applies for expert assistance when necessary.) 

  • Obligation to Prove by Promissory Note and Commencement of Evidence

According to Article 200 of the Code of Civil Procedure,

  1. Legal transactions made for the purpose of birth, reduction, transfer, change, renewal, postponement, acceptance and redemption of a right must be proved by deed if the amount or value at the time of their execution exceeds two thosuand five hundred  Turkish Liras. Even if the amount or value of these legal transactions falls below two thosuand five hundred  Turkish Liras due to payment or debt recovery, it cannot be proven without a promissory note.
  2. The witness may be heard in case of explicit consent of the other party by reminding the regulation in the first paragraph on the matters to be proved by the promissory note in accordance with this article.

According to Article 202 of the Code of Civil Procedure,

(1) In cases where there is an obligation to prove a promissory note the witness may be heard if the commencement of the evidence is found.

(2) The commencement of evidence is a document which has been given or sent by the person or his / her representative who makes possible the legal transaction in question, although it is not sufficient to fully prove the legal transaction in question. 

  • Supreme Court 13th Civil Chamber Case Number: 2018/406, Decision Number: 2018/7889, Date: 12.7.2018

The case pertains to the demand for the cancellation of the objection raised in response to the collection of the outstanding balance for an immovable property, which was initially sold through an external sales contract and subsequently underwent a title transfer. The defendant, in their petition dated 01.02.2017, submitted to the competent court, stated that the plaintiff, on 07.04.2016, sent a message via social media (Facebook) with the content: ‘… you have sold the apartment, you paid 105 thousand liras, but you still owe me 5 thousand liras. If you don’t pay, I will hand the documents I have to a lawyer. My phone number is 0532 …’ The defendant attached the content of the mentioned messages to their petition. It is evident from the case file that neither the trial court nor the appellate court specifically addressed these messages, and the case was adjudicated based on other evidence presented in the file.Article 199 of the Law on Civil Procedure No. 6100 defines the concept of a document as follows: ‘. Data such as written or printed text, promissory notes, drawings, plans, sketches, photographs, films, images or sound recordings, data in electronic media and similar information carriers that are suitable for proving the facts of dispute are documents according to this Law.’ Therefore, it is necessary to accept that the Facebook records, which the plaintiff relies on as evidence, qualify as documents within the meaning of Article 199 of Law No. 6100. Article 202 of the Law on Civil Procedure further regulates the use of such documents as evidence by stating that “(1) In cases where there is an obligation to prove a promissory note the witness may be heard if the commencement of the evidence is found.(2) The commencement of evidence is a document which has been given or sent by the person or his / her representative who makes possible the legal transaction in question, although it is not sufficient to fully prove the legal transaction in question. “As such, these types of documents have been accepted as commencement of  the evidence.As the defendant also relies on messages sent by the plaintiff through the internet as evidence, an examination and investigation should have been conducted in accordance with the principles and rules outlined above. A decision should have been made based on the results of this examination. However, the judgment, as rendered in writing, with an insufficient examination, is contrary to the procedures and laws and therefore reversal of decision. Furthermore, it is incorrect to have issued a judgment in favor of the accrued interest on the enforcement file without the existence of a default notice. For the reasons stated, it is necessary to decide on the acceptance of the defendant’s appeals on this matter, resulting in the reversal of the decision of the Regional Court of Appeals.” 

  • Supreme Court 2nd Civil Chamber Case No: 2013/19577, Decision No: 2014/1926, Date: 5.2.2014

“The court, based on the electronic data and output obtained from the electronic medium submitted to the case file, which includes images and conversations conducted via a social networking site, has accepted the husband’s behavior as damaging to trust and consequently issued a divorce decree.

Electronic data such as photographs, videos, images, or audio recordings, and similar information carriers, can be considered as ‘evidence’ if they are supported by other evidence. These data alone are not sufficient for proving the facts. From the images obtained from the electronic medium on which the judgment is based, it is understood that the individuals in question are relatives of the husband. “The communication records related to the husband’s interactions with his uncle via the social networking site ‘Facebook’ appear to have been created by the plaintiff, giving the impression that she was communicating with ‘her husband’s uncle’ instead of her uncle, and the plaintiff appears to have accepted this. In this case, communication records conducted through a social networking site cannot be taken into account in proving the facts (HMK Art. 189/2).”

  • Illegal Evidence

According to article 38/6 of the Constitution, “Findings obtained through illegal methods shall not be considered evidence.

According to article 189/2 of the HMK , Evidence obtained unlawfully cannot be taken into account by the court in the proof of a case.

Supreme Court 9th Civil Chamber Case No: 2016/15456 Decision No: 2020/4319 Date: 12.3.2020″

“The plaintiff, an employee, claimed that their employment contract was renouncement without just cause after it was alleged that their Facebook account had been accessed from the employer’s computer at the workplace, and the online correspondence was obtained unlawfully The plaintiff sought notice and severance pay. The court, based on the argument that the content of the correspondence related to the social media account had been obtained unlawfully according to Article 189 of the HMK (Code of Civil Procedure), concluded that the termination, which was carried out using unlawfully obtained evidence, was not based on just cause, and accordingly ruled in favor of notice and severance pay.”

“By the court, evidence regarding how the contents of the social media account’s correspondence were obtained has not been collected, and the decision was made without obtaining Facebook correspondence, as the decision to bring the correspondence was withdrawn without collecting any other evidence.

In the appeal petition, it is mentioned that, based on the complaint made by the plaintiff employee against the company manager, a public case for violating the privacy of personal life was filed, and it is stated that an acquittal decision was made in this regard, with the file number being provided.”

The court should bring the aforementioned criminal file, and at the same time, by collecting the evidence relied on by the parties within the scope of the file, it should be determined whether the social media correspondence subject to renouncement has been obtained unlawfully by the defendant employer, and a decision should be made in terms of notice and severance pay subject to the lawsuit.Deciding with incomplete examination was erroneous and required reversal.”

Supreme Court  3rd Civil Chamber C:. 2016/14742 D:. 2017/2577  Date:  7.3.2017 

In order for a piece of evidence to be admitted by the court, it must not have been irregularly and illegally created and illegally obtained. Since evidence created in an unlawful manner and evidence obtained through unlawful means and methods are included within the scope of prohibited evidence, it is no longer possible to accept the evidence accepted within this scope as lawful and legitimate evidence in any way.

The aforementioned principles were also adopted in the decision of the General Assembly of Civil Chambers dated 15.02.2012 and numbered 2011/2-703 E-70 K.

In the concrete case, from the evaluation of the collected evidence together; it is fixed that the footage of the defendant, who is the alimony obligor taking part with the actor named … due to the shooting of the music video of the song the singer listened as a witness, was illegally obtained by the plaintiff alimony obligor (upon the abandonment of the publication of the clip).

On the other hand, the defendant did not accept the fact that the social media accounts where the unlawfully obtained clip images were shared belonged to him, and the plaintiff could not prove that the social media accounts (Facebook/WhatsApp) and the posts on these accounts were made by the defendant.

In addition, it can be considered that the posts made on social media accounts can only be used as evidence by the owner of the account or the persons who are in the same sharing environment (Facebook/WhatsApp). In other words, in the event that creating a fake profile and making posts or posts made on personal profiles without the knowledge, consent and permission of the account owner are presented as evidence, these should be considered as unlawful evidence within the scope of Article 189/2 of the HMK No. 6100.

As such, the court, considering that some of the evidence presented by the plaintiff alimony obligor was obtained unlawfully and other evidence was created unlawfully, should have decided to dismissal of an action for the abolition of alimony, which cannot be proved by other evidence within the scope of the file, but it is contrary to the procedure and the law to have decided to accept the lawsuit with an erroneous evaluation. 

Supreme Court  4th Civil Chamber C:  2018/5125 D: . 2019/1595 Date:  20.3.2019

“In the concrete case, the judgment was based solely and decisively on the interview recordings that were apparently obtained unlawfully. However, the Chief Public Prosecutor’s Office  decided not to prosecute the defendant on behalf of the public on the grounds that there is no legal evidence that can be considered for an investigation or prosecution, as it is not based on a legitimate wiretapping decision issued within the legal framework. Therefore, the circumstances under which the evidence in question was obtained cast serious doubt on its authenticity and reliability. Therefore, the use of unlawfully obtained interview records as the sole and decisive evidence undermines the fairness of the proceedings. It is clear that the unlawfulness resulting from the unlawful recording of a private conversation between two people and its unlawful publication on the internet violates the right to a fair trial in terms of the whole trial.

When the above-mentioned constitutional and legal regulations, judicial decisions and the entire scope of the file are evaluated together; any evidence that can be put forward in a case must have been obtained in accordance with the law, the way in which the evidence presented by the parties during the proceedings is obtained must be taken into consideration by the court ex officio, and if it is determined that the evidence has been obtained illegally in any way, the court must decide that it is not admissible even if no objection is raised by the other party.

On the other hand, evidence obtained by methods and means that may violate the fundamental rights and freedoms regarding the privacy and protection of private life regulated in Articles 20 to 22 of the Constitution may pose a problem in terms of the defendant’s right to demand respect for his/her private life, if they are taken into consideration as a means of proof. Otherwise, it would mean that the court gives consent to the unlawfulness and the judicial authorities are instrumentalized in it.

In this case, since it is not possible for the plaintiff to obtain rights based on unlawful evidence, it is understood that the request should be completely rejected and the decision should be reversed in favor of the defendant.”

  • Discovery of Evidence and Other Temporary Legal Protections
  • Circumstances in which discovery of evidence may be requested

According to article 400 of the HMK,

(1) Each of the parties may request the procedures such as making an investigation, conducting an expert examination or taking witness testimony in order to determine a case that is not yet to be examined in an ongoing case, or a case to be put forward in the future.

(2) The existence of a legal interest is required for evidence determination. Except where expressly provided for in the law, the legal interest is deemed to exist if it is probable that the evidence will be lost if it is not immediately identified or that it will be significantly more difficult to put forward.

  • Submission of Electronic Evidence to the Court

With the development of information and internet technologies, evidence such as e-mail printouts, facebook, twitter, youtube, printouts, whatsapp call records printouts are presented to courts and prosecution offices as evidence.

According to Article 318 of the Code of Civil Procedure No. 6100 on the submission of evidence, which has similar provisions with the previous law, The parties, together with their petitions, notify all their evidence clearly and by stating which case is evidence; They must include their evidence in their petitions and include information in their petitions that enables them to be found for documents and files to be brought from elsewhere.

According to Article 219 of the Code of Civil Procedure No. 6100 titled “Obligation of the Parties to submit documents”The parties must submit to the court all documents that they or the other party have relied on as evidence.

Electronic documents are submitted to the court by printing out the document and recording in electronic form in a manner suitable for examination upon request.

In order to prevent the loss of electronic evidence, evidence detection regarding the contents may be requested. There must be a legal interest in order to request the determination of evidence. Except for the cases expressly stipulated in the law, legal interest is deemed to exist if it is probable that the evidence will be lost or significantly difficult to assert if it is not immediately detected.

The parties may also have the content of the website or social media content determined by e-detection method from the website of the Turkish Notary Association, if the nature of the content is suitable for this. 

The above-mentioned e-mail printouts, facebook, twitter, youtube printouts, whatsapp call records printouts are also within the possibility that if the evidence is not immediately identified as stated in this article, it may be lost or significantly difficult to assert.

  • Criminal Court Practices

According to Article 217 of the Code of Criminal Procedure (“CMK”);

(1) The judge shall only rely upon evidence that is presented at the main hearing and has been discussed in his presence while forming his judgment. This evidence is subject to free discretion of the conscious opinion of the judge. 

(2) The charged crime may be proven by using all kinds of legally obtained evidence.

  • Supreme Court of Appeals 18th Criminal Division Case Number: 2015/5331  Decision Number: 2015/6405

“In the concrete case, considering the statement of the attorney for the participants, the documents submitted and the evasive statement of the defendant; in the face of the understanding that the e-mail address from which the insulting messages were sent was used in the form that the defendant filled out and signed to receive a scholarship on the previous date; a defendant with more than reasonable suspicion of guilt, Although it cannot be learned from the e-mail provider company when and from which IP number the e-mail came from, due to the deletion of the e-mail because the 60-day storage period has passed, due to the fact that the investigation authority did not request it in time; By investigating who the defendant’s relatives, friends, people in his social and business environment are and the interests of the defendant, investigating the correspondence made through the e-mail address subject to the crime and the areas followed, if necessary, by obtaining an expert report and evaluating all these issues together; While it is necessary to determine the legal status of the defendant, it has required REVERSED to establish a written judgment with incomplete investigation and research. “

  • Fruit of the poisonous tree 

It is a legal term used to describe illegally obtained evidence. The logic of the terminology is this: If the source of the evidence (“the tree”) or the evidence itself is tainted, anything derived from it (“the fruit”) is also tainted.

As stated in the established Supreme Court decisions;

“The concept of unlawfulness is a whole. What is considered contrary to one branch of law or one law cannot be considered in accordance with another law or law. In the application of the law, something legitimate cannot be built on something that is unlawful. For example, even if a lawful search is conducted at the address specified in the defense obtained by prohibited methods, the evidence obtained will be unlawful. This is called “the indirect effect or remote effect of unlawful evidence” or “the fruit of a poisonous tree is also poisonous”. In this respect, these confessions accepted as admissions are not valid and sufficient for conviction. At the stages where the defendant’s statement, interrogation and defense are taken, the defendant may be forced to make a confession under this pressure, as a result of the search conducted without complying with the rules of law, and as a result of the search reports stating that (criminal property) was found and thus feeling cornered. This pressure and corneredness felt by the accused arises from the fact that the record of the discovery of evidence obtained through unlawful search, which is not among the prohibited methods listed in Article 135/a of the CMUK (Article 148 of the CMK), is shown to him every time he is deposed.In this way, evidence of confession-admission was obtained from the accused through the illegally obtained evidence, and the accused was enabled to incriminate himself/herself. According to the provision of Article 254/2 of the CMUK (Article 148/3, 217/2 of the CMK), this confession cannot be taken as a basis for the verdict. If the search was not carried out in accordance with the procedures stipulated by the Law, the evidence obtained in this way is unlawful, and it cannot be said that the defense, which is the material element of the crime, but which is the material element of the crime, but which is obtained unlawfully by putting this evidence in front of the defendant and asking what he / she has to say against it, is based on free will, without external interference. Just as the defense taken without appointing a defense counsel or without reminding the defendant of his legal rights, despite the defendant’s request or legal obligation, is unlawful, and it cannot be examined whether the crime is admitted in the defense taken in this way. Likewise, although it was obtained unlawfully and does not have the characteristic of being “evidence”, it should not be attributed value, since the “confession” in the defense taken on the basis of it by showing it to the accused as the greatest evidence for the conviction of the crime, will not be based on free will. Would the defense to be made before the subject and material element of the crime obtained as a result of unlawful search and seizure procedures and the defense to be made after the seizure of the item subject to the crime be the same?If the Public Prosecutor or the Judge had asked the defendant to make a defense as if the item subject to the crime had not been seized, stating that it was obtained unlawfully, would the defendant have confessed to the crime in the same way? Even if a confession is made when the material element of the crime is not present, this confession cannot be accepted as sufficient evidence for conviction, as it will remain abstract. In the decisions of the CGK dated 25.11.2014 and numbered 2014/166-514, dated 28.4.2015 and numbered 2013/464, 2015/132, it has been stated that a conviction cannot be established on the basis of a confession that is not supported by other material evidence other than the material evidence obtained in the search, which is accepted to have been made unlawfully.In the face of the explained positive legal norms and the decisions of the CGK; evidence obtained “unlawfully” cannot be taken as a basis for judgment. This is a requirement of the right to a fair trial, which is enshrined in Article 6 of the European Convention on Human Rights and which has been added to our Constitution (Art. 36).”

  • Difficulties in Collecting Evidence in Cybercrimes

The following points are stated in the non-prosecution decisions issued by the Information Crimes Prosecutors’ Offices;

“The headquarters of hosting companies such as Facebook, Twitter, Instagram, Hotmail, Skype, Youtube, Google, Yahoo, which are widely used in the internet environment, are located in the United States of America.

The majority of the crimes committed in the virtual environment in our country are committed by using the websites belonging to the aforementioned hosting providers. In order to access the identity information of the suspect in cybercrimes, the process called “log file”, which is kept on the main service providers of electronic transactions and called “log file

IP (internet protocol) numbers, which are the identity files of the computers that operate here, and the traffic information necessary for the investigation of these crimes is requested from the US judicial authorities through criminal referral.

In the letter dated 20/01/2015 of the Ministry of Justice, General Directorate of Foreign Relations and European Union, Criminal Referral and Notification Office; In the legal system and practice of the United States of America regarding International Judicial Assistance, there is a distinction of “serious crime / minor crime” in the legal system and practice of the United States of America, and it does not fulfill the requests related to minor crimes by categorizing the criminal referral requests from other states, according to the criminal legislation of the United States of America, hacking the password of the Facebook account, writing various writings on the wall of the account, adding photographs, requesting money, credit, etc. from the person’s circle of friends through the account. The United States accepts crimes such as requesting money, credits, etc. from the person’s circle of friends through the account, spending over the internet by obtaining credit card information through the account in the light category, and in case of a request for criminal referral from the aforementioned state regarding such crimes committed both in the internet environment such as Facebook and in real environment, the requests are not fulfilled,

Since it is understood that there is no possibility of investigation and evidence collection according to the reasons explained above, it is decided on behalf of the public that there is NON-PROSECUTION.

  • Search of computers, computer programs and transcripts, copying and provisional seizure

According to Article 134 of the CMK,

(1) Upon the motion of the public prosecutor during an investigation with respect to a crime, the judge shall issue a decision on the search of computers and computer programs and records used by the suspect, the copying, analyzing, and textualization of those records,the existence of strong grounds for suspicion based on concrete evidence and  if it is not possible to obtain the evidence by other means. Decisions made by the public prosecutor shall be submitted for the approval of the judge within twenty-four hours. The judge shall render his/her decision within twenty-four hours at the latest. If the time limit expires or if the judge decides otherwise, the copies and transcripts shall be destroyed immediately.

(2) If computers, computer programs and computer records are inaccessible, as the passwords are not known, or if the hidden information is unreachable, then the computer and equipment that are deemed necessary may be provisionally seized in order to retrieve and to make the necessary copies. Seized devices shall be returned without delay in cases where the password has been solved and the necessary copies are produced.

 (3) While enforcing the seizure of computers or computer records, all data included in the system shall be copied. 

(4) In cases where the suspect or his representative makes a request, a copy of this copied data shall be produced and given to him or to his representative and this exchange shall be recorded and signed.

(5) It is also permissible to produce a copy of the entire data or some of the data included in the system, without seizing the computer or the computer records. Copied data shall be printed on paper and this situation shall be recorded and signed by the related persons.

  • Location, listening and recording of correspondence

According to Article 135 of the CMK,

(1)In the investigation and prosecution of an offense, if there are strong grounds for suspicion based on concrete evidence that a crime has been committed and there is no other means of obtaining evidence, the telecommunication communication of the suspect or defendant may be intercepted, recorded and signal information may be evaluated with the decision of the judge or the public prosecutor in cases where delay is inconvenient. 

The public prosecutor shall immediately submit his/her decision to the judge for approval and the judge shall render his/her decision within twenty-four hours at the latest. In case the time limit expires or the judge decides otherwise, the measure shall be immediately lifted by the public prosecutor.

(2) The request shall be accompanied by a document or report showing the owner and, if known, the user of the line or means of communication for which an injunction will be issued pursuant to this Article.

(3) The communication of the suspect or defendant with persons who may refrain from testifying shall not be recorded. In the event that this is understood after the recording has taken place, the recordings shall be immediately destroyed. 

(4) The decision issued pursuant to the provision of the first paragraph shall specify the type of offense charged, the identity of the person against whom the measure is to be applied, the type of communication tool, telephone number or code enabling the identification of the communication link, the type, scope and duration of the measure. The cautionary decision may be issued for a maximum of two months; this period may be extended for one more month.

However, if deemed necessary in relation to crimes committed within the framework of the activities of the organization, the judge may decide to extend the above periods for a period of not more than one month at a time and not exceeding three months in total.

  • Appointing of the undercover investigator

According to Article 139 of the CMK;

(1) In the event that there are strong grounds for suspicion based on concrete evidence that the offense under investigation has been committed and no other evidence can be obtained, public officials may be assigned as secret investigators. The appointment pursuant to this Article shall be decided by the judge.

(2) The identity of the investigator may be changed. Legal transactions may be carried out with this identity. Necessary documents may be prepared, changed and used if necessary for the establishment and maintenance of the identity.

(3) The decision on the appointment of an investigator and other documents shall be kept at the relevant Chief Public Prosecutor’s Office. The identity of the investigator shall be kept confidential even after the termination of his/her duty. 

 If it is mandatory for the investigator to be heard as a witness in the prosecution phase, he/she shall be heard in a private environment without the presence of those who have the right to be present at the hearing or by changing his/her voice or image. In this case, the provision of Article 9 of the Witness Protection Law dated 27/12/2007 and numbered 5726 shall be applied by analogy.

(4) The investigator shall be obliged to conduct all kinds of investigations regarding the organization whose activities he/she is assigned to monitor and to collect evidence related to the crimes committed within the framework of the activities of this organization.

  • Surveillance with technical means

According to Article 140 of CMK;

(1) If there are strong grounds for suspicion based on concrete evidence that the following crimes have been committed and evidence cannot be obtained by any other means, the activities of the suspect or defendant in public places and his/her workplace may be monitored by technical means and audio or video recordings may be taken

(2) Surveillance by technical means shall be decided by a judge, and in cases where delay is inconvenient, by the public prosecutor. Decisions made by the public prosecutor shall be submitted to the approval of the judge within twenty-four hours. The judge shall render his/her decision within twenty-four hours at the latest. In case the time limit expires or the judge decides otherwise, the records shall be destroyed immediately.

(3) The decision on surveillance with technical means may be issued for a maximum period of three weeks. This period may be extended for one more week if necessary. However, if deemed necessary in relation to crimes committed within the framework of the activities of an organization, the judge may decide to extend the above-mentioned periods for no more than one week at a time and for a total period not exceeding four weeks. 

(4) The evidence obtained shall not be used except for the investigation and prosecution of the above-mentioned crimes; if it is not necessary for criminal prosecution, it shall be immediately destroyed under the supervision of the public prosecutor.

(5) The provisions of this article may not be applied in the residence of the person.



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