The Electronic Document as the Object of Document Forgery Offences

The Electronic Document as the Object of the Offences of Forgery of Documents (Electronic Document As The Subject Of Forgery Offenses) Assoc. Prof. Dr. Murat Volkan DÜLGER/Istanbul Aydın University Faculty of Law, Department of Criminal Law and Criminal Procedure Law

SUMMARY

The legal nature of electronic documents, which have very rapidly taken their place in social life, has long been addressed, and continues to be addressed, by the legislature, the case law of the courts and legal scholarship. Indeed, the legal status and nature of electronic documents are regulated in various laws in our legislation. There is, however, no express provision on whether electronic documents may be the object of forgery offences. The legislation contains no express provision to the effect that the concept of document regulated in Arts. 204-212 of the Turkish Criminal Code (TCK) also covers electronic documents; yet neither is there any provision that would stand in the way of such an interpretation. Both the literal (grammatical) interpretation of the concept of document and the intention of the legislature as expressed in the preparatory works show that it is possible to accept electronic documents, too, as documents in the context of the offences of forgery of documents. The provisions on electronic documents in the other laws of our legal system, the rules of logic and sociological realities, for their part, inevitably make it necessary that electronic documents be capable of being the object of forgery offences. For this reason, an electronic document that possesses the elements of written form, content and an identifiable issuer may be the object of the offences of forgery of documents.

Keywords: Forgery of documents, electronic document, e-signature, alteration and transformation of electronic data, forgery of official documents, forgery of private documents.

ABSTRACT

Legal qualification of electronic documents, which have occupied a significant place in social life, has been interest to the legislator, the judiciary and the doctrine for a long time. As a matter of fact, the legal status of electronic documents is set right in various laws. However there is no explicit disposition regarding whether electronic documents can be subject to forgery offenses. There is no explicit rule stating that the term of document held by articles 204-212 of Turkish Criminal Code includes electronic documents. However, there is no explicit restriction to make such an interpretation. Both the grammatical interpretation of the term of document and the will of the legislator manifest in preparatory works indicate that it is possible to consider electronic documents as “document” in terms of forgery offenses. Also, dispositions in the various fields other than criminal law, rules of logic and social facts, they all indispensably require the acceptance of electronic documents as the subject of forgery offenses. Therefore, electronic documents satisfying the conditions of to be written, content and assignability can be subject to forgery offenses.

Keywords: Forgery, electronic document, e-signature, falsification and alteration of electronic data, forgery of official documents, forgery of ordinary documents.

I.Introduction

Electronic documents are becoming ever more widespread and, with the advantages they offer in every area of life, indispensable. Owing to concerns for the protection of the environment, to the convenience they offer for archiving systems and to the safeguards they provide, the traditional model of communication written on paper is rapidly giving way to digital communication. Electronic documents, which can be transmitted and shared far more quickly, of which multiple copies can be created at far lower cost and whose authenticity can be verified by various security measures, have steadily reduced the need for physical documents. Electronic documents, which also bring about a significant reduction in costs by enabling persons to carry out their transactions themselves thanks to the programs, applications and interfaces that have been developed, are being chosen in both the public and the private sector with an irresistible motivation.

The first to benefit from these blessings of the digital world were those marketing products, soon followed by the financial sector. States wishing to deliver their services to their citizens more rapidly and effectively also adopted digital systems in the wake of the private sector, and public institutions and organisations began to switch to electronic documents on a wide scale. The rapid evolution of orders for goods and services, of electronic banking and, in particular, of the idea of electronic government has led to a large number of transactions to which the law attaches value and which are regarded as important being carried out by means of electronic documents or other electronic means.

The legal nature of electronic documents, which have very rapidly taken their place in social life, has long been addressed, and continues to be addressed, by the legislature, the case law of the courts and legal scholarship. Indeed, the legal status and nature of electronic documents are regulated in various laws in our legislation. Criminal law, by contrast, has lagged considerably behind the other disciplines, and electronic documents, which have long been an undeniable reality of social life, have not been made the subject of adequate regulation and assessment. Yet, in parallel with the development of information technologies, computer crime (or cybercrime) is developing as well, and, despite the security measures that are devised, hackers continue to commit offences by means of software and hardware.

The question that inevitably arises in the face of the phenomenon of computer crime is that of the status under criminal law of acts of forgery carried out on electronic documents, that is, whether these acts constitute an offence. To put it more plainly: can electronic documents be regarded as “documents” in the context of the offences of forgery of documents? In this study I shall examine the answer to this question by a systematic approach.

II.The Concept of Document in Forgery Offences

B.Definition of the Document

The object of the offences of forgery of documents is the “document”. In order to determine which “things” are documents, the meaning, that is, the definition, of the concept of document must first be established. Criminal legislation contains no definition of the concept of document. The concept has, however, been defined in other pieces of legislation.

The definition of document in the Code of Civil Procedure No. 6100 (HMK) is important, even though it provides a definition only for the purposes of that Code. Under Art. 199 HMK: “Data such as written or printed text, deeds, drawings, plans, sketches, photographs, films, visual or sound recordings which are capable of proving the facts in dispute, as well as data in electronic form and similar information carriers, are documents for the purposes of this Code.” The concept of document is also defined in Art. 3(d) of the Law No. 4982 on the Right to Information, where it denotes “all written, printed or reproduced files, papers, books, journals, brochures, studies, letters, programs, instructions, sketches, plans, films, photographs, audio and video cassettes, maps, and carriers of any kind of information, news and data recorded in electronic form, which are held by institutions and organisations and fall within the scope of this Law”.

The General Criminal Assembly of the Court of Cassation, for its part, has defined the document as follows: “writings that serve to produce a legal consequence or to establish or prove a state of affairs”¹.

Although legal scholarship offers various definitions of the document, we may, taking these definitions as a starting point, define the document in legal terminology, by way of a common definition, as any writing whose issuer is identifiable, whose declarations of intent carry legal value and which is of a lasting nature, even if only for a certain period².

C.Elements of the Document

As stated in the explanatory memorandum to Art. 204 TCK and as predominantly accepted in legal scholarship, the document has three basic elements: the document must be in writing, it must have a content of legal value, and its issuer must be identifiable.

1.Written Form

In order to speak of a document, the requirement of written form must first be met. Writing is “the expression of a declaration of intent or of the account of an event by means of suitable instruments and letters that serve to record it”³. The language or the instruments used in the writing are of no importance; it is necessary and sufficient that the writing be legible⁴. A writing that cannot be read for whatever reason cannot be accepted as a document⁵.

In conclusion, for the requirement of written form to be met, the following three conditions must be present: a language must be used, the writing must be recorded on an object suitable for permanence, even if only for a temporary period, and the writing must be legible⁶.

2.Having a Legally Meaningful Content

For a writing to have the character of a document, the event recounted or the declaration of intent must be of legal significance or be capable of producing legal consequences. According to this requirement, which is advocated in legal scholarship and has also been adopted by the Court of Cassation, writings that are not such as to produce legal consequences do not have the character of a document. The General Criminal Assembly of the Court of Cassation has likewise held that, in order to be the object of forgery offences, the document must be such as directly to produce legal consequences⁷.

To express this requirement in a different formula: the document must serve as the basis of a legal claim, must be capable of being used as valid evidence against the defendant in an action, and must be capable of proving a claim or a defence⁸.

1.Identifiability of the Issuer

For a writing to be a legally valid document, it must have an issuer and the identity of the issuer must be known. A writing whose author is unknown does not have the character of a document in law.

The fact that the person who issued the document is identified or identifiable is also called the guarantee function of the document⁹. The issuer of the document is not always the person who personally penned or typed it; the issuer of the document is the person to whom the legal declaration of intent in the document belongs. For example, the document may be written by a clerk or by a third person. The document nevertheless belongs to the person in whose name it was drawn up¹⁰. The most important means of indicating the issuer of the document is the signature. The signature or signatures at the foot of a writing are of great importance in determining whether it is a document, since they indicate its issuer.

Writings which, by reason of their particular nature, do not need to be signed may also be accepted as documents. Thus İETT tickets, state monopoly banderoles, theatre tickets and tickets for lotteries of goods, vehicle number plates and engine and chassis numbers are documents although they bear no signature¹¹. The criterion for determining the documents for which no signature is required is that the issuer can be ascertained directly from the document itself, without the need for other evidence. In this context, the issuer of a document must be ascertainable “from the declaration, from the events to which the declaration relates, from the parties to the event and from the other circumstances accompanying them”¹². Where a signature is considered necessary for the writing to be a valid document, an unsigned writing is not accepted as a document¹³.

B.Types of Document

In the TCK, documents are divided into three groups: the “official document”, the “private document” and the “document deemed equivalent to an official document”.

1.Official Document

Art. 204 TCK regulates the offence of forgery of official documents, but the text of the law contains no definition of the official document. The concept of official document is defined in the explanatory memorandum to the article: “An official document means a writing drawn up by a public official by virtue of his or her duties. Accordingly, there must be a connection between the document drawn up and the duty performed by the public official.”

The definitions offered in legal scholarship are likewise in line with the explanatory memorandum. Accordingly, the official document may be defined as a writing drawn up by a public official, by virtue of his or her public duty and in accordance with the procedures and principles laid down by law¹⁴.

On the basis of these definitions it may be said that, in addition to the three elements listed above, a fourth element of the official document also emerges. For a writing to be accepted as an official document, it must also satisfy the formal requirement prescribed, if any; that is, it must comply with the procedures and principles laid down.

2.Private Document

Any document that does not have the character of an official document and is not deemed by law to be equivalent to an official document is a private document. Writings which, although they do not have the character of a document, constitute a commencement of proof in writing are also regarded as private documents¹⁵.

3.Documents Deemed Equivalent to Official Documents

Art. 210 TCK provides that the provisions on forgery of official documents shall apply in respect of negotiable instruments made out to order or to bearer, documents representing goods, share certificates, bonds and wills. As is also explained in the explanatory memorandum to the article, these documents have not been placed on the same footing as official documents merely with regard to the sanction; in the context of forgery offences they are deemed to be official documents “in every respect”: “The article is intended to afford more serious protection to certain papers which occupy a large place in commercial life and which circulate by a simple endorsement or even without the need for one. It has been accepted that, where forgery is committed in the private documents listed in the article, the provisions on the offence of forgery of official documents shall apply. What is at issue here is not merely the application of the penalty for the offence of forgery of official documents. Where forgery is committed in the documents listed, the provisions on the offence of forgery of official documents apply in their entirety.”

I. The Concepts of Electronic Data and Electronic Document A. Electronic Data

Before turning to the concept of electronic document, the concept of electronic data, which may be called the building block of the electronic document, must be addressed. Electronic data (or “data”) may be thought of as the counterpart of the dots of ink that make up the document in the case of physical documents. The concept of data, which is the basic building block not only of electronic documents but of all operations in information systems, is important for an understanding of information systems and electronic documents¹⁶:

The word “veri” is used in our language as the equivalent of the English word data¹⁷. Data are any kind of information¹⁸ converted into digital units in such a way that information systems can process it¹⁹, produce results from it, store it and, when necessary, read it again²⁰. Everything that can be stored and processed in an information system or on media readable by information systems is data²¹. In order to carry out this storage and subsequent reading, a technical alphabet is needed which helps to convert the data into digital codes in an appropriate manner and, when necessary, to restore them to their former state and read them²². It is this alphabet that is called “software language”²³.

An information system is a device that processes any kind of information by means of digital codes called “data”²⁴ and conveys it to its users through software language. What enables information systems to exist and to operate is data; for this reason data are of considerable importance both for electronic documents and for all cybercrime offences.

Accordingly, data may be explained as any kind of information which information systems can process, from which they can produce results based on such processing, which they can store, which they can subsequently read again and process, and which they can transmit to other information systems²⁵.

Although the concept of data appears frequently in criminal legislation, there is no definition of it there. In other legislation, by contrast, the concept of data is expressly defined. Art. 3(a) of the Electronic Signature Law No. 5070 provides a definition of “data”. According to it, electronic data are defined as denoting “records produced, transported or stored by electronic, optical or similar means”. In Art. 2(1)(k) of the Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications, data are defined as follows: “denotes any value that can be processed by a computer..”. According to the definition in Article 1(b) of the European Convention on Cybercrime, “computer data” “means any representation of facts, information or concepts in a form suitable for processing in a computer system, including a program suitable to cause a computer system to perform a function”.

In conclusion, every kind of record, information and value processed by computing devices is electronic data. To recall the analogy above, data are the counterpart in the world of information technology of the dots of ink that give a physical document its existence. Just as, in the physical environment, dots come together to form a meaningful document, so, in the digital environment, an electronic document comes into being when data come together to form a meaningful whole²⁶.

B. Electronic Document

1.Definition

An electronic document, in the simplest terms, denotes electronic data that exist in digitally encoded form in an electronic environment and form a meaningful whole²⁷. In this sense, legal transactions concluded over the internet, declarations of intent sent by e-mail and electronic data recorded on various data carriers and containing a declaration of intent may be cited as examples of electronic documents²⁸.

The definition of document in the Code of Civil Procedure No. 6100 (HMK) is important, even though it provides a definition only for the purposes of that Code. Under Art. 199 HMK: “Data such as written or printed text, deeds, drawings, plans, sketches, photographs, films, visual or sound recordings which are capable of proving the facts in dispute, as well as data in electronic form and similar information carriers, are documents for the purposes of this Code.” This definition expressly states that electronic documents, too, have the character of a “document”.

Likewise, Art. 3(d) of the Law No. 4982 on the Right to Information, in defining the concept of document, gives a definition that also covers electronic documents. According to it, document denotes “all written, printed or reproduced files, papers, books, journals, brochures, studies, letters, programs, instructions, sketches, plans, films, photographs, audio and video cassettes, maps, and carriers of any kind of information, news and data recorded in electronic form, which are held by institutions and organisations and fall within the scope of this Law”. It may therefore be said that it is accepted in our legal system that electronic data held on a digital recording medium will be regarded as electronic documents provided the conditions are met²⁹.

In conclusion, an electronic document is a document that can be processed, modified and transmitted by an information system³⁰. While it is evident from the provisions of various pieces of legislation that electronic data may in law have the character of a document, not every kind of electronic data has that character. Different disciplines define the electronic document with different approaches, and some definitions give an excessively broad and vague definition of the electronic document³¹. As regards the electronic document that carries value and produces consequences in the legal sense, however, its elements must be made clear. Particularly when the subject is addressed in the context of criminal law, where the principle of certainty prevails, there is an obligation to draw a definite and limited conceptual framework. For these reasons I shall examine below the elements required for a body of electronic data to acquire the character of a document in the context of criminal law.

1. Elements

I shall examine the elements of the electronic document within the framework of the mandatory elements that a document must possess in the context of forgery offences. Any body of electronic data possessing these elements must be accepted as a “document” in the context of the offences of forgery of documents.

a. The Element of Written Form of the Electronic Document

Writing is “the expression of a declaration of intent or of the account of an event by means of suitable instruments and letters that serve to record it”. An electronic document consists not of letters written in ink in the classical sense, but of digital data. As I have stated above, however, the language or the instruments used in the writing are of no importance; it is necessary and sufficient that the writing be legible³². Electronic documents are documents written in software language, recorded in a manner suited to computing devices and readable by human beings thanks to computing tools that translate this software language into spoken language and present it. In this respect they satisfy all of the conditions required for the requirement of written form to be met, namely the use of a language, the recording of the writing on a suitable object and the legibility of the writing³³.

The fact that electronic documents are written not on physical paper but in information systems, and can be perceived only by the sense of sight, gives rise to hesitation about accepting them as documents, even though they satisfy the requirement of written form. The reason for this hesitation, however, is that, before the electronic document entered our lives, the only instance of the traditional concept of document that was encountered was the document written on a physical surface such as paper, a plate and the like. Apart from this “habit”, there is no difficulty whatsoever as regards the electronic document's possessing the element of written form.

Electronic data which are held in a computing device and can be read by other computing devices (thanks to the common software language they share), but which cannot be displayed in spoken language by means of a screen or similar device and cannot be read with the eye by an ordinary natural person, cannot be said to satisfy the requirement of written form. For example, the data carried by electronic cards and readable by means of magnetic or electronic readers, while satisfying the other conditions of a document, do not have the character of a document in the context of forgery offences, because they are not directly readable by a human being and therefore do not satisfy the element of written form. To give a more concrete example, the electronic or electromagnetic authentication data inside chip identity cards and bank and credit cards do not have the character of a document capable of being the object of forgery offences.

Electronic data which can be read only by computing devices and whose content cannot be read by an (ordinary) human being through a screen or similar device also coincide to a large extent with traditional documents in terms of their functions. However, since electronic data of this kind, which cannot be read directly by a human being, do not satisfy the element of written form of the definition of document in the general sense, it is not possible to accept them as documents. A special provision is needed in order to punish acts of forgery which are carried out on such data and which produce the same result as in the case of traditional documents. As I shall set out below, the provisions proposed in the European Convention on Cybercrime and contained in the criminal legislation of various countries make acts of forgery in respect of any kind of electronic data producing legal consequences an offence, outside or alongside the element of document. Since there is no such provision in the current Turkish Criminal Code (TCK), forgery in respect of data which can be read only by computing devices and which (or at least an equivalent of which) cannot be read by human beings through a screen or similar interface cannot be regarded as forgery of documents.

b. The Content of the Electronic Document

Electronic documents prepared in writing must, according to the content of the writing, have a legally meaningful content. As regards this element, electronic documents do not differ from physical documents. Just as in the case of the physical document, the content of the electronic document is created by persons, and its legal value varies according to what is written in that content. Electronic documents which are legally meaningful by virtue of their content may be characterised as documents in the context of the offences of forgery of documents.

At this point, given that the capacity for data mobility in information systems is very high, an electronic document must have a “fixed” content. A body of data that varies constantly or very greatly cannot be regarded as having a legally meaningful content, since the legal meaning it expresses will also change constantly. In that case, for a body of electronic data to have the character of a document, it must in some way have been finalised and completed. The primary means of completing an electronic document is the electronic signature (e-signature). The e-signature, which at the same time indicates the issuer of the document, also ensures that the document is completed and that the legal meaning it contains is “fixed”. Although the e-signature is the first means that comes to mind, and the most important one, for fixing the content of the document, it is not the only way of fixing the content of a document. Means such as confirmation mechanisms, time stamps and the like, which fix a body of electronic data at a certain stage as regards the content it expresses, may also ensure that the legal meaning is definite and, consequently, that the body of data has the character of a document.

c. Identifiability of the Issuer of the Electronic Document

In order to speak of an electronic document, the person who issued that document must be identifiable. The signature is the most important, perhaps a unique, means of indicating the issuer of a document³⁴. The counterpart in electronic documents of the wet-ink signature on physical documents is the secure electronic signature.

Art. 3 of the Electronic Signature Law (EİK) defines the electronic signature as denoting “electronic data that are attached to other electronic data or are logically linked to electronic data and are used for the purpose of authentication”. The electronic signature is seen to appear in various forms:

• Methods based on the biometric characteristics of persons (these are methods such as voice, retina and fingerprint scanning),

• PIN codes,

• A handwritten signature transferred into electronic form by being passed through a scanner,

• A signature made on computer screens with special pens designed for this purpose,

• Digital signatures created by double-key cryptography.

Simple e-signatures that do not have the character of a secure e-signature may in fact serve to complete and fix the content of an electronic document and to make its issuer ascertainable. However, the simple, non-secure e-signature is not treated as the wet-ink signature of physical documents.

Under Art. 4 EİK, a secure electronic signature, for its part, is one which

a) is linked exclusively to the signatory,

b) is created with a secure electronic signature creation device that is under the sole control of the signatory,

c) enables the identity of the signatory to be established on the basis of a qualified electronic certificate,

d) enables it to be established whether or not any change has subsequently been made to the signed electronic data,

and which is an electronic signature.

By virtue of these features, the secure electronic signature provides a far more effective safeguard and a more comprehensive authentication than the wet-ink signature. Indeed, various provisions of the legislation expressly state that the secure e-signature is the equivalent of the wet-ink signature. Under Art. 5 EİK, “a secure electronic signature produces the same legal consequence as a handwritten signature.” Furthermore, under Art. 205(2) of the Code of Civil Procedure (HMK), “electronic data duly created with a secure electronic signature have the status of a deed.”

Qualified electronic certificates are issued by Electronic Certification Service Providers (ESHS) that have notified the Information and Communication Technologies Authority (BTK). The ESHSs recognised by the BTK in Turkey are the following:

• E-Güven,

• TürkTrust,

• E-Tuğra,

• E-imzaTR

• TUBİTAK-UEKAE

• Certification Centre of the General Directorate of Security (EGMSM).

Just as, in the case of physical documents, a wet-ink signature is not an absolute requirement for a writing to have the character of a document, and writings from whose content the identity of the issuer can clearly be ascertained may also be accepted as documents, so too, in the case of electronic documents, electronic data that have not been signed with a secure e-signature but whose content has been fixed and whose issuer is clearly ascertainable (e.g. data signed with a simple e-signature) may have the status of an electronic document. Indeed, in our legislation the secure electronic signature is not an absolute condition for attributing legal value to an electronic document. First of all, in defining the document, Art. 199 HMK states that “data in electronic form” may be documents, without requiring a secure electronic signature. In addition, Art. 5(3) of the Law on Family Physicians provides, without making a secure electronic signature a condition: “The personal records of family physicians are kept in the relevant provincial and district health administration units. The records used by family physicians, whether kept in printed or electronic form, the health files of individuals and documents such as reports, referral documents and prescriptions have the character of official records and papers.”

Certain electronic data that express the intent of a natural or legal person may have the character of an electronic document even if they have not been signed with a secure electronic signature. The criterion here is that the other elements of the document are satisfied and that the identity of the issuer can be ascertained from the electronic document. Documents with or without a barcode issued in the framework of e-government services may be cited as an example. For these are documents that are in writing, have legal content and are established to have been issued by the institution concerned.

At this point, the element that the content of the document must be the intent of a natural or legal person is important. Similar content generated automatically by information systems does not have the character of a document, since it does not reflect the intent of a natural or legal person. In this sense, the log records in a database used by a ministry cannot be accepted as documents in the context of forgery offences.

II. The Interpretation of the Concept of Document in Forgery Offences and the Status of Electronic Documents 1. Interpretation in Criminal Law

Interpretation is the intellectual activity undertaken in order to investigate and understand the true meaning of a word, an expression or an entire provision contained in the text of a law³⁵. In determining the meaning of a rule of law, or of a term or word used in that rule, recourse is had to the following tools:

• Literal (grammatical) interpretation,

• Preparatory works,

• The scheme of the law,

• The rules of logic,

• Sociological realities,

• Comparative law,

• The general principles of law.

By using these tools, purposive (teleological) interpretation, corrective interpretation, restrictive interpretation and extensive interpretation may be carried out. What matters in criminal law is to bring out the true purpose of the norm by using the methods of interpretation. To that end, the method of purposive interpretation is generally used, and within that framework restrictive, corrective or extensive interpretation may also be undertaken. Extensive interpretation differs from analogy, which is prohibited under the principle of legality. Whereas in analogy a gap in the law is filled by way of similarity, in extensive interpretation the true intention of the legislature in an existing rule of law is brought to light. Extensive interpretation may be resorted to so long as it does not lead to analogy or to uncertainty. So that extensive interpretation does not amount to analogy, arbitrary interpretations must be avoided; the elements of the rule or of the concept must be identified one by one, as I have done above, and an analytical assessment must be made.

2. The Interpretation of the Concept of Document and the Acceptance of Electronic Documents as “Documents”

We have established above that electronic documents satisfy all the elements of the concept of document as determined by legal scholarship and the case law of the courts. We must nevertheless also confirm this assessment by means of the tools of interpretation recognised in criminal law.

a. Literal (Grammatical) Interpretation

While the concept of document is defined in the explanatory memorandum to Art. 204 TCK, there is no definition in the text of the law. In that case, the general definitions of the concept must be consulted.

In the dictionary of the Turkish Language Association (TDK), the concept of document is defined as “a writing, photograph, picture, film or similar record or paper that bears witness to a fact”. Whereas the repealed Turkish Criminal Code No. 765 used the terms “varaka” and “evrak”, the Turkish Criminal Code No. 5237 has opted for the concept of document (belge). “Varak” is defined in the dictionary as written paper, whereas document is a more comprehensive concept that also encompasses the term “varak”. It may be surmised that the legislature made this change of terminology in order to render the concept in Turkish. If, however, the law is interpreted by the method of literal interpretation, a change in, and a widening of, the scope of the law is inevitable. In many laws, examples of which I have cited above, it is stated in defining the concept of document that, apart from written paper, it also encompasses films, photographs, audio and video cassettes, and carriers of any kind of information, news and data recorded in electronic form.

The definitions of the document in different disciplines are likewise broad enough to cover electronic documents. Information scientists, for example, define as documents “objects that carry information, such as clay tablets, sculptures, papyri, maps, manuscripts, books, journals, pictures, films, CD-ROMs, DVDs, Web pages accessible over a network, etc.”³⁶. ISO 15489, the first international records management standard, defines the document as follows: “A document is information created, accepted (received) and maintained as information and evidence by a person or organisation in the performance of transactions or of legal obligations”³⁷. According to the definition given by the Association of Records Managers and Administrators (ARMA International), the document is understood as “information which organisations produce as a result of their activities and which, regardless of its characteristics, medium or physical structure, is recorded”³⁸.

A literal interpretation based on these data will lead to the result that the concept of document also covers electronic documents. At this point it may be said that, in particular, the change of concept made in the criminal code (the preference for the concept of “belge” over “varaka”) has resulted in a provision under which the scope of the offences of forgery of documents also covers electronic data.

b. Preparatory works

While the concept of document is defined in the explanatory memorandum to Art. 204 TCK, the text of the law contains no definition. This gap is one deliberately left by the legislature. For this problem was raised during the deliberations on the Law in the Justice Sub-Committee, but the idea of defining the concept of document was abandoned on the consideration that any definition that might be given could prove too narrow for practice in the future³⁹.

Although the preparatory works reveal no intention that electronic documents, too, should be accepted as documents in the context of forgery offences, the legislature did express the intention that the concept of document should not be perceived as limited to physical paper and that it should be determined by legal scholarship and case law in the light of sociological developments and needs. In that case, it may be said that the intention of the legislature at the preparatory stage is compatible with the acceptance of electronic documents as documents.

c. The scheme of the law

Although there is no direct indication in the scheme of the TCK that electronic documents are to be counted as documents, the legal value of the electronic document and of the electronic signature is recognised in many provisions of the legislation. Apart from the Electronic Signature Law, which directly regulates the electronic signature and electronic documents, many special laws contain provisions attributing legal value to the electronic signature or to electronic documents. Within the framework of the principle of the unity of the law, these provisions contained in other laws must be taken into account and an interpretation consistent with them must be adopted.

Art. 5 EİK:

A secure electronic signature produces the same legal consequence as a handwritten signature.

Art. 198/A of the Notaries Law:

Information and documents relating to all transactions carried out by notaries are recorded and stored in the Information System of the Union of Turkish Notaries. The sealing procedure specified in the laws is not applied to documents signed with a secure electronic signature, and no copy is additionally required. A document created with a secure electronic signature is not additionally drawn up in physical form unless this is requested. Where a physical copy needs to be produced from the electronic environment, it is signed and sealed by the notary's office with a statement that it is identical to the original of the document. Where a document signed with a secure electronic signature conflicts with its copy bearing a handwritten signature, the document bearing the secure electronic signature that is recorded in the information system used by notaries shall prevail.

Art. 199 HMK:

Data such as written or printed text, deeds, drawings, plans, sketches, photographs, films, visual or sound recordings which are capable of proving the facts in dispute, as well as data in electronic form and similar information carriers, are documents for the purposes of this Code.

Art. 205 HMK:

Electronic data duly created with a secure electronic signature have the status of a deed.

Art. 445(2) HMK:

Actions may be brought, fees and advances may be paid and case files may be inspected in the electronic environment by using a secure electronic signature. Records and documents which this Code requires to be prepared in physical form may be prepared and sent in the electronic environment with a secure electronic signature. Records and documents created with a secure electronic signature are not additionally sent in physical form, and no copy of the document is required.

Art. 38/A of the Code of Criminal Procedure (CMK):

(3) Any document or decision which this Code requires to be prepared in physical form may be drawn up, processed and stored in the electronic environment and signed with a secure electronic signature.

(4) Documents and decisions signed with a secure electronic signature are sent to other persons or institutions in the electronic environment. Documents or decisions sent after being signed with a secure electronic signature are not, unless this is necessary, additionally drawn up in physical form and sent to the institutions and persons concerned.

(5) Where a document bearing an electronic signature conflicts with the document bearing a handwritten signature, the document bearing the secure electronic signature that is recorded in UYAP shall be deemed valid.

Art. 8/A of the Enforcement and Bankruptcy Law:

Electronic data duly created with a secure electronic signature have the status

of a deed. A secure electronic signature has the same evidential force as a handwritten signature. A secure electronic signature may be used in place of a handwritten signature, except for transactions which the laws expressly state cannot be carried out with a secure electronic signature.

Art. 24 of the Turkish Commercial Code (TTK):

The procedures and principles for keeping commercial register records in the electronic environment are set out in the regulation to be issued under Article 26 of the Law. A central common database in which these records and the content required to be registered and announced are regularly stored and which can be made available in the electronic environment is established at the Ministry of Customs and Trade and the Union of Chambers and Commodity Exchanges of Turkey.

Art. 64 TTK:

Where commercial books are kept in the electronic environment, the approval of a notary or of the commercial registry directorate is not required at the opening of these books or at the closing of the journal and of the board of directors' resolution book. The manner in which commercial books kept in physical form or in the electronic environment are to be kept, the time of entry in the books, the renewal of approval and the form and principles of the opening and closing approvals are determined by a communiqué issued jointly by the Ministry of Customs and Trade and the Ministry of Finance.

Art. 94 TTK:

Where there is no contract or commercial custom concerning the accounting period, the last day of each calendar year shall be deemed to have been accepted by the parties as the day on which the account is closed. Unless the party receiving the statement showing the balance determined raises an objection, within one month of the date of receipt, through a notary, by registered letter, by telegram or by a written communication bearing a secure electronic signature, that party shall be deemed to have accepted the balance

Art. 5(3) of the Law on Family Medicine:

The personal records of family physicians shall be kept at the relevant provincial and district health administration units. The printed or electronically kept records used by family physicians, the health files of individuals and documents such as reports, referral notes and prescriptions have the status of official records and documents.

Art. 142 of the Tax Procedure Law:

The Ministry of Finance and Customs is authorised to require taxpayers to issue documents by using electronic devices whose specifications it determines, and to require that the stamps produced by the special devices to be used be affixed to documents. Documents issued by means of electronic devices and documents bearing stamps produced by special devices shall be deemed to be documents issued in accordance with the provisions of this Law.

Art. 132 of the Tax Procedure Law:

The results of an inspection may also be recorded, at the place of inspection, by means of an “inspection slip” drawn up in electronic form, which is of the same nature as the inspection slip provided for in Article 131 of this Law. This slip shall be signed by means of electronic signature tools by the person in respect of whom the inspection is carried out or by that person’s authorised representative. Where the inspection slip is not signed by means of electronic signature tools, a form shall be signed on which is written a unique code that represents the inspection slip and guarantees that the content of the inspection slip cannot be altered.

Apart from the provisions quoted above, the legislation contains a large number of other rules that attach legal consequences to electronic documents and electronic signatures. That being so, a systematic reading of the legislation requires that electronic documents be accepted as documents in the context of the forgery offences as well.

d. Rules of logic

As discussed above, when the concept of document is broken down analytically into its constituent elements, the electronic document satisfies all the mandatory elements of a document, namely being in writing, having legally meaningful content and having an identifiable issuer. In this context the rules of logic require that electronic documents be accepted as “documents” for the purposes of the forgery offences as well.

The legal interest protected by the offences of forgery of documents is public trust. The aim is to prevent the trust placed in the genuineness of official or private documents (a trust resting on the assumption that a document one sees is genuine) from being damaged by acts of forgery, and to protect the social, commercial and legal relations that can function soundly by virtue of that trust. The same element of trust is present in the case of electronic documents, which are used ever more widely and in many respects offer a more comprehensive and more robust guarantee than physical papers. Those signed with a secure e-signature, in particular, provide a far higher level of assurance than physical documents bearing a wet-ink signature. Matters that cannot be established in a document bearing a wet-ink signature, such as whether the document was changed after it was signed, the time at which the document was drawn up and, at first sight, whether the signature belongs to the person to whom it is attributed, are guaranteed in documents bearing a secure e-signature. Consequently electronic documents, which by their very mode of operation give rise to a more robust and more comprehensive presumption of trust, are a fortiori suitable for protection by the offences of forgery of documents.

e. Sociological facts

As I noted in the introduction, the trend towards the electronic environment in social, commercial and legal transactions is an unstoppable and undeniable fact. Within this social reality, which needs neither explanation nor proof, the e-Correspondence Project run by the Ministry of Development and the Registered Electronic Mail (KEP) Project run by the Information and Communication Technologies Authority (BTK) in particular are bringing the electronic document to the point of being a necessity rather than a choice.

The Electronic Document Management Systems used by private and public institutions alike have all but consigned the management of physical paperwork to the shelf.

In line with the approach and objectives of the Ministry of Justice, legal services too are steadily being transformed into an entirely paperless, electronic format. The intention reflected in the explanatory memorandum to Art. 445 of the Code of Civil Procedure (HMK) clearly shows the will to move to a paperless system in legal services, which are one of the most important settings in which documents are used⁴⁰:

In the process of e-Transformation and e-Government, the Ministry of Justice aims to establish … e-justice by making use of all the necessary technological developments. Within this framework, in order to move the institution to a paperless office environment, to create an adjudication mechanism that is swift, effective, reliable, fair, efficient, transparent and consistent with ethical values, and to ensure that accurate and consistent information can be obtained and shared quickly and easily at the desired time within the limits of the powers conferred by the legislation and that all kinds of administrative activities as well as audit, inspection and investigation can be carried out swiftly and effectively, it has put into operation the National Judiciary Informatics System (UYAP), one of the scalable, multi-user and business-oriented management information systems developed to increase productivity and efficiency… With UYAP, all the information and documents of the judicial and administrative units are stored in the database accurately and consistently, in an unalterable and secure manner, and unauthorised access is not permitted…

Furthermore, thanks to the integrations established between UYAP and the information systems of other public institutions and organisations (such as criminal records from the Judicial Records Information System of the General Directorate of Judicial Records and Statistics, civil registry records from MERNİS of the General Directorate of Population and Citizenship Affairs, driving licence records from POLNET of the General Directorate of Security, the outcome of service of documents from the PTT, exchange rates from the Central Bank, and the records of wanted persons from KİHBİ and POLNET), the information and documents needed by the courts can be accessed electronically.

This evident social reality, in which electronic documents are taking the place of physical documents, requires that such data be accepted as documents in the context of the offence of forgery.

f. Comparative law

Article 7 of the European Convention on Cybercrime, to which Turkey is a party and which it has ratified and brought into force, provides that the falsification of electronic data, where it produces legal consequences, is to be punished as the offence of computer-related forgery:

“Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the input, alteration, deletion, or suppression of computer data, resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible. A Party may require an intent to defraud, or similar dishonest intent, before criminal liability attaches”

Although by its wording this provision envisages criminalising the falsification of data not only in respect of documents but in every case in which legal consequences arise, it is apparent from the Explanatory Report to the Convention that the real aim is to criminalise the falsification of electronic documents and that, since the concept of document is defined in different ways in the legislation of the member states, the intention was to prevent such acts from going unpunished where the concept of document in national law does not cover electronic documents⁴¹.

This provision concerns data which are the equivalent of a public or private document having legal effect. The unauthorised “input” of correct or incorrect data corresponds to the making of a false document. Subsequent alterations (modifications, variations, partial changes), deletions (removal of data from a data medium) and suppression (holding back, concealment of data) correspond in general to the falsification of a genuine document.

In almost all of the States Parties to the European Convention on Cybercrime, forgery committed on electronic data is punished. Forgery in electronic data is a criminal offence under the laws of Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Denmark, Finland, Georgia, Germany, Japan, Lithuania, Malta, Moldova, the Netherlands, the Philippines, Switzerland, the former Yugoslav Republic of Macedonia, Ukraine, Australia, Austria, Canada, the United Kingdom, Belgium, Croatia, Cyprus, France, Germany, Japan, Luxembourg, Moldova, Poland, Portugal, Romania, Tonga and the USA⁴².

Section 267 of the German Criminal Code (StGB) provides for the offence of forgery of documents, Section 268 for the offence of forgery of technical records and Section 269 for the offence of forgery of data of probative value. The offence of forgery of documents of probative value is defined as follows: “Whoever, for the purpose of deception in legal transactions, stores or alters data of probative value in such a way that a counterfeit or falsified document would result if they were perceived, or uses data stored or altered in this way, shall be punished with imprisonment for a term not exceeding five years or with a fine.” As can be seen, this provision makes electronic data having the character of a document the subject matter of the offence. The offence of forgery of technical records (StGB § 268), for its part, criminalises the use, for the purpose of deception in legal transactions, of electronic data which do not have the character of a document and which are “generated wholly or partly automatically by information systems”.

The Swiss Criminal Code defines the concept of document. Art. 110(5) of the Swiss Criminal Code defines it in these terms: “a document is a sign intended to prove facts of legal significance, or a writing intended for and suitable for that purpose. Computer or tape recordings serving the same purpose are treated as equivalent to the written form.”

Of the States Parties to the European Convention on Cybercrime that punish forgery of electronic documents, 29 have, as in the example of Germany, a specific provision on electronic documents. 11 countries, including France and Spain, criminalise forgery of electronic documents within the scope of the general offence of forgery of documents⁴³.

g. The position under the Turkish Criminal Code (TCK)

The legislation contains no express provision to the effect that the concept of document governed by Arts. 204-212 TCK also covers electronic documents; nor, however, is there any provision that would preclude such an interpretation. Both the literal (grammatical) interpretation of the concept of document and the intention of the legislature as expressed in the preparatory works show that it is possible to accept electronic documents, too, as documents in the context of the offences of forgery of documents. The provisions on electronic documents in the other laws of our legal system, the rules of logic and sociological facts, for their part, make it inescapably necessary that electronic documents be capable of being the subject matter of forgery offences. What is more, the European Convention on Cybercrime, to which we are a party and which we have duly brought into force, places our country under an obligation to criminalise and punish forgery of electronic documents. From the standpoint of comparative law and the general principles of law, too, there is nothing to prevent forgery of electronic documents from being treated, by way of interpretation and without any separate legislation, as falling within general forgery. On the contrary, the fact that 11 member states of the Council of Europe have adopted this practice is a datum that supports the legal validity of this interpretation.

An electronic document that has the elements of written form, content and an identifiable issuer may be the subject matter of the offences of forgery of documents. What must be borne in mind, however, is that here it is not the printout or the screen image of the electronic document but the electronic document itself that is the document. The subject matter of the offence, likewise, is the electronic data that make up the electronic document. Just as forgery cannot be committed on a photocopy in the case of physical documents, forgery carried out on the printout of an electronic document does not constitute an offence either. Where, however, the printout of an electronic document is turned into a physical document by a wet-ink signature and that physical document is falsified, the offence of forgery will be constituted by reason of the act committed on the physical paper.

In the ordinary course of things an electronic document is presented in the electronic environment. Accordingly, if a falsification is to be spoken of, that falsification must also have taken place in the electronic environment, and it must likewise be established in the electronic environment, by means of a digital forensic examination.

Once it has been established that there is no obstacle to an electronic document being the subject matter of these offences, it must be determined which offence is constituted, depending on the nature of the document and of the act committed. For the purposes of this determination electronic documents must be assessed by the same criteria as physical documents.

III. Forgery Offences Arising in Respect of Electronic Documents

In this part I shall examine the offences of forgery of electronic documents by following the scheme of the TCK.

a. Offences of Forgery of Official Documents

Where an electronic document drawn up by a public official in connection with his or her duties is drawn up falsely, altered or used, the offence of “forgery of an official document” governed by Art. 204 TCK will be constituted; where an electronic document of this kind is damaged, destroyed or concealed (for example, locked by encryption), the offence of “damaging, destroying or concealing an official document” under Art. 205 TCK will be constituted.

The point to be noted with regard to the offences of forgery of official documents is that, for there to be an official document at all, the document must, in addition to the three elements of a document, also satisfy any requirement of form that has been prescribed, that is to say, it must comply with the procedures and principles laid down⁴⁴. In this respect an official document can be the subject matter of the offence in the form of an electronic document only if provision has been made for it to be drawn up electronically. Likewise, if provision has been made for an electronic official document to be drawn up by a special procedure, for example with a secure electronic signature, through a particular application or by using a verification mechanism such as a barcode, it is mandatory that it be produced in accordance with that procedure. An electronic document that has not been produced by that procedure cannot, just like a driving licence without a seal, be the subject matter of the offences of forgery of official documents.

Where an electronic document is drawn up on the basis of a person’s declaration, making an untrue declaration in respect of that document constitutes the offence of “false declaration in the drawing up of an official document” governed by Art. 206 TCK. On this point there is in fact nothing peculiar to electronic documents. Whether the official document to be prepared on the basis of the declaration is an electronic document or a physical one, the offence of false declaration in the drawing up of an official document will be constituted where an electronic form having the character of a declaration relating to it is filled in untruthfully. What matters here is that the official document in question is to be drawn up on the basis of the declaration of the person concerned and that there is an express rule requiring that person to make a truthful declaration.

The electronic application made in order to obtain a building registration certificate under the scheme known as the “zoning peace” is of this kind. Provisional Article 16 of the Zoning Law states that building registration certificates are to be issued on the basis of the declaration of the owner of the building and recorded in the Building Registration System. Again pursuant to the same provision, the Ministry of Environment and Urbanisation, which is empowered to determine the procedures and principles governing this application, laid down and publicly announced the rule that the declarations forming the basis of the building registration certificate must be true. The building registration certificate issued by the Ministry of Environment and Urbanisation is an official electronic document which does not bear a secure electronic signature but which, by its nature, may be issued unsigned. This offence will be constituted where the information on which the issuing of this document is based is entered into the system incorrectly.

b. Offences of Forgery of Private Documents

Where other electronic documents which are not official documents but which satisfy the elements of a document are drawn up falsely and used, the offence of “forgery of a private document” under Art. 207 TCK is constituted. Where an electronic document of this kind is damaged, destroyed or concealed (for example, locked by encryption) in order to prevent its being used in a legal relationship, the offence of “damaging, destroying or concealing a private document” under Art. 208 TCK is constituted. Electronic correspondence, contracts (online GSM contracts), commercial books and electronic boarding passes, for example, may be the subject matter of the offences of forgery of private documents. A document produced by a tachograph device is likewise a private document, because this device in fact produces a private document on behalf of the person using it. The function of the device here is similar to that of a printer. The unsigned tachograph printout clearly shows its issuer by virtue of the identity card inserted into the device. The device’s mechanism for verifying identity and content performs the same function as a physical document’s bearing a wet-ink signature and being certified as a “true copy of the original”. Accordingly, where the settings of this device are changed (manipulation of the “true copy of the original” seal) or data are generated from the device with a card belonging to someone else (falsity of the signature), the offence of forgery of a private document will be constituted.

Since in electronic documents the signature mechanism is a system that covers the whole of the content, and since it is not possible to sign without content and then to fill in the space above such a blank signature, the offence of “abuse of a signature given in blank” under Art. 209 TCK is not constituted in respect of electronic documents. For as an electronic signature amounts, so to speak, to signing every single letter, indeed every single dot, in a document, there can in fact be no “blank” in an electronically signed document. For this reason electronic documents cannot give rise to the offence of abuse of a signature given in blank. Adding to the content of an electronic document after the event will directly constitute the offence of forgery of a private document.

c. Documents Deemed to Be Official Documents

Among the documents deemed to be official documents that are listed in Art. 210(1) TCK, special requirements of procedure and form are prescribed, as in the case of official documents, for negotiable instruments made out to order or to bearer, documents representing goods, share certificates and bonds. At least for the time being it is not possible for these documents to be drawn up in the electronic environment. Should provision to that effect be made in the relevant legislation, the provisions on forgery of official documents will, by virtue of Art. 210(1), apply to the electronic formats of these documents as well. A will, on the other hand, may be drawn up electronically under Art. 198/A of the Notaries Law, and an electronic will is deemed to be an official document by virtue of Art. 210(1).

The provision in Art. 210(2) of the Turkish Criminal Code (TCK) concerning documents drawn up by a physician, dentist, pharmacist, midwife, nurse or other member of the health professions also applies to electronic documents drawn up by such persons. Indeed, a similar approach is confirmed by Art. 5(3) of the Law on Family Medicine: “The personal records of family physicians shall be kept at the relevant provincial and district health administration units. The printed or electronically kept records used by family physicians, the health files of individuals and documents such as reports, referral notes and prescriptions have the status of official records and documents.”

d. Circumstances Entailing a Lighter or a Heavier Penalty

With regard to the offences of forgery of documents, there is no obstacle to applying to electronic documents the provision of Art. 204(3), under which the penalty to be imposed is to be increased “by one half where the official document is one which, by virtue of a statutory provision, is valid until it is proved to be forged”, and the provision of Art. 211 TCK, under which the penalty to be imposed is to be reduced “by one half where the offence of forgery of a document is committed for the purpose of proving a claim based on a legal relationship or of documenting a true state of affairs”. Where an electronic document is of the kind described (for example, court judgments bearing an e-signature, or documents drawn up electronically at a notary’s office), the circumstance entailing a heavier penalty will have materialised. Where forgery offences are committed in respect of an official or private document for the purposes specified in Art. 211 (for example, falsely filling in the electronic commercial books for a claim that actually exists, or producing a counterfeit of a lost online boarding pass), the qualified form entailing a lighter penalty will have materialised.

e. Concurrence: The Relationship between the Falsification of Electronic Data, Forgery of Electronic Documents and Art. 244 TCK

Since electronic documents consist of electronic data, forgery of such documents can only take the form of damaging, altering or destroying the data that make them up in the information system in which those data are located. The falsification in this way of data held in an information system is, however, separately defined as an offence in Art. 244 TCK:

(2) Any person who damages, destroys, alters or renders inaccessible data in an information system, inserts data into the system or sends existing data elsewhere shall be punished with imprisonment for a term of six months to three years.

(3) Where these acts are committed on an information system belonging to a bank or credit institution or to a public institution or organisation, the penalty to be imposed shall be increased by one half.

(4) Where the obtaining by a person, through the commission of the acts defined in the paragraphs above, of an unjust benefit for himself or herself or for another does not constitute another offence, a sentence of imprisonment for a term of two to six years and a judicial fine of up to five thousand days shall be imposed.

Accordingly, where the data making up an electronic document are falsified, both forgery of documents and the offence governed by Art. 244(4) TCK of obtaining a benefit by destroying and altering data are constituted. In that case one and the same act gives rise to more than one offence. However, since Art. 244(4), in parallel with Art. 44 governing notional concurrence, states that a penalty is to be imposed for this offence “where it does not constitute another offence”, it is not possible to impose a separate penalty under Article 244 for an act that constitutes the offences of forgery of documents. A penalty will be imposed only for the relevant act of forgery. For Art. 244(4) has the character of a subsidiary norm; where a primary norm exists, this norm is not applied. The primary norm in the matter of forgery, for its part, consists of Articles 202 et seq. of the TCK.

Although Art. 212 TCK provides that, in respect of the offences of forgery of documents, it is not the rule of notional concurrence laid down in Art. 44 but the rule of real concurrence that is to apply, the condition of application in Art. 244(4), “where it does not constitute another offence”, precludes the application of real concurrence. For this reason there is no conflict between Art. 212 TCK and Art. 244 either. For when Art. 212 provides that a separate penalty is to be imposed for the offence of forgery of documents, its basic aim is not that a penalty should be imposed for the other offence as well, but that a penalty should be imposed for forgery of documents. Art. 244(4), on the other hand, provides that where the act at the same time constitutes another offence the penalty for the offence in that article is not to be applied, and this rule has no effect on the penalty for the offence of forgery of documents. Consequently, although the two provisions appear to conflict, there is nothing to prevent their being applied together. In the result, in respect of an act constituting both offences, a penalty will be imposed only for the offence of forgery of documents.

Where a falsification is carried out in respect of a body of data that does not have the character of an electronic document, for example in the database of a public institution or in the authentication data of a chip card, the offence governed by Art. 244(2) or by Art. 244(4) will be constituted, depending on whether a benefit has been obtained.

If a falsification carried out in a body of data that does not have the character of an electronic document leads directly and inevitably to the production of a document, then what is in fact constituted is the offence of forgery of documents. What is at issue here is not an electronic document being the subject matter of the offence, but the falsity of a document being brought about by means of the falsification of electronic data. Just as the offence of theft may be committed by altering the data in a bank’s information system, or the offence of fraud by a similar act, so the falsity of a document may be brought about by altering the data in an electronic database.

The document whose falsity is brought about here may be either a physical document or an electronic one. For example, where data drawn from a database are printed out and the printout is turned into a document by a wet-ink signature, falsifying the data in the database concerned brings about the falsity of the physical document, and the offence of forgery of documents is committed. In legal scholarship there are views that explain similar situations, in which the falsity of physical papers is brought about, in terms of indirect perpetration⁴⁵. In any event, in cases where it can be established that the act led directly to forgery of a document and that the intent was directed at forgery of a document, it is beyond doubt that acts of this kind, which are not carried out directly on the document, will constitute the offences of forgery of documents. To maintain the contrary would be like claiming that, where the offence of forgery of documents is committed by using another person or an instrument as a tool, no offence of forgery arises on the ground that the perpetrator did not carry out any act directly on the document. To maintain the contrary would, from another angle, also require one to argue that an act carried out by falsifying the data in a bank’s information system, which are not in fact movable property, is not theft either. That would run counter to settled and undisputed case law and scholarly opinion. For these reasons, where a falsification carried out on a body of electronic data constitutes forgery of documents, a penalty will be imposed for the offence of forgery of documents, and no penalty will be imposed for the offence in Art. 244(4) on account of its condition of application, “where it does not constitute another offence”.

The preliminary draft bill prepared by the General Directorate of Legislation of the Ministry of Justice envisaged that, where electronic documents are falsified for the purpose of committing the offence of forgery of documents, real concurrence would apply, in parallel with Art. 212 TCK. I do not know what became of this preliminary draft, which at present is not among the announcements of the General Directorate of Legislation; if it or a similar text is submitted as a bill and enacted, a separate penalty will be imposed for the acts in question both for the offences of forgery of documents and under Art. 244. Indeed, according to the preliminary draft, the paragraph 5 that was planned to be added to Article 244 reads as follows:

Where a false document is drawn up on the basis of data created through the commission of the acts defined in the second and third paragraphs, the provisions on the offences of forgery of documents shall apply in addition.

In a case that came before the General Criminal Assembly of the Court of Cassation, the accused had colluded with an official working in the student affairs office of the university which the accused attended and had his or her own grades changed in the university’s information system; in respect of this act the criminal court of first instance gave judgment under Art. 244(2) TCK, that is, for the offence of altering data in an information system. The 11th Criminal Chamber of the Court of Cassation, however, set aside the decision of the criminal court of first instance, stating that the offence in question might constitute the offence of forgery of a private document and that this had to be assessed by the assize court. The General Criminal Assembly of the Court of Cassation, for its part, found the local court to be right, stating that the offence charged in the indictment was the offence of altering data in an information system and that, accordingly, no trial could be held in respect of an act that had not been made the subject of the indictment (the principle that there can be no trial without a charge)⁴⁶.

In this decision the approach of the 11th Criminal Chamber of the Court of Cassation confirms the approach I have set out above. Moreover, although I do not agree with it (for the difference lies not in the facts but in their legal characterisation, and this is not contrary to the principle that there can be no trial without a charge, since the judge is not bound by the legal characterisation), when it is also borne in mind that the reasoning of the General Criminal Assembly for setting the decision aside was not that the offence of forgery of documents would not be constituted, but that judgment could not be given for that offence on account of the principle that there can be no trial without a charge, there is no obstacle to applying the offence of forgery of documents to the facts that were the subject of the decision.