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Electronic Signatures, Contracts, and Archiving in Turkey

Electronic Signatures, Contracts, and Archiving in Turkey

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Contributed by KP Law.

1. Legal framework for writing and electronic contracts

a. What are the requirements in your jurisdiction to consider a document to be in writing? Are there any formal/technical requirements?

The Turkish Code of Obligations (TCO), which is the main source of contract law, is based on freedom of contract and, in connection with this, freedom of form in contracts; however, the validity of some contracts can be conditional on the form it is concluded in. There are two types of forms foreseen in the TCO for documents in written form. These are the “basic written form” otherwise known as the “written form” and the “official written form,’ which as the name suggests, requires an additional ceremony.

When a written form is deemed necessary, contracts must be signed by the debtor. If more than one party is in debt, the text must be signed by all parties. Unless otherwise stipulated by law, a signed letter, a telegram, the originals of which are signed by the parties of the contracts, faxes, or similar communication tools, provided that they are confirmed, or texts that can be sent and stored with a secure electronic signature are also considered in written form.

The “official written form” on the other hand, must be done in front of a competent authority or person in accordance with the procedures and conditions stipulated by law. Unless otherwise stated by law, contracts subject to the official written form requirement are made in the presence of a notary public. Otherwise, the contract will be ineffective. Pursuant to article 60 of the Notary Law, notary publics are obliged to fulfill all legal transactions that will be made in official writing and whose authorities are not specified in the law. However, in some cases, the law has authorized officials other than notaries to perform the official written form. For instance, according to article 26 of the Land Registry Law, land registry guards and officers are authorized to carry out the transactions that impose the debt of the transfer of immovable property and the establishment of limited real rights, which find the most application area among the contract types for which the official written form requirement is sought. Real estate promise contracts can be formally drawn up by notaries in accordance with the Notary Law.

b. Are electronic documents [e.g., an email] per se considered to be in writing under your law?

There is no other mandatory element sought for the basic written form other than the condition of having the signature of the debtor on the contract for it to be considered in writing. In other words, for any document to be considered in writing, it must be signed.  As a rule, there is no requirement that the text of the document must be written by hand, and there is no restriction on a certain font unless otherwise stipulated. Again, there is no limitation in terms of the body in which the text should be written. The fact that paper is generally used in daily life does not mean that this is a legal obligation.

Since there is no limitation in the law, any object or surface could be used for writing the text. The only limitation here is that the text should reflect the declaration of will, especially in terms of the signatory, and that the intention of the person’s declaration of will can be clearly understood. Considering this, the signature is accepted as an essential and sufficient element for written form rather than the structure of the text and where the test takes place. In this case, whether the text is created in the computer environment, by e-mail, by hand, with a typewriter or any other similar device, or by directly using the finger, as long as the text gives a meaning that reflects the declaration of will, it will be considered as a ‘document’.

However, for this ‘document’ to be considered as in ‘written form’ we must further take a look at the signature. In terms of written form, it is the signature that determines whether the requirements of the written form are fulfilled, rather than the document itself. 

Article 15 of the TCO regulates the “signature,” which is the essential element for the written form. However, the regulation here does not contain detailed provisions regarding the signature. It solely mentioned that the signature should be written in the handwriting of the debtor as the only element. TCO requires no other element in order to fulfill the written form requirement other than a signature.

Turning back to the question, whether an electronic document is also considered in written form under Turkish law depends on whether the electronic document is signed. The TCO provides that the signature must be in the handwriting of the debtor. Along with this the TCO also accepts a secure electronic signature to have all the legal consequences of a handwritten signature. As stated in article 14/2 of the TCO, unless otherwise stipulated by law, a signed letter, a telegram, the originals of which are signed by the borrowers, faxes or similar communication tools, provided that they are confirmed, or texts that can be sent and stored with a secure electronic signature are also considered written forms.

To better understand the Turkish Government’s policy on switching to e-documentation rather than physical paperwork, looking at tax regulations would be helpful. In terms of electronic documents, although these are not directly considered within the scope of “written form,’ there are also some documents that must be arranged electronically in terms of Turkish Laws. These should be mentioned briefly;

Pursuant to the General Communique of the Tax Procedure Law, it is regulated that some documents specified in the communiqué are created electronically. Accordingly, e-Documents prepared in accordance with the format and standards determined within the scope of e-Documentation applications are not considered as a novel type of document, but rather an electronic one having the same legal qualifications as documents issued in paper form. Documents issued within the scope of e-Documentation applications are created in the information processing system and notified to the Revenue Administration, through the data processing system/system of private integrators.

Here are some of the documents that are required to be prepared electronically for taxpayers;

  • A regulation has been made for taxpayers, who are obliged to switch to the e-Invoice application to use the e-Archive invoice application.
  • Internet sales platforms, advertisers, and internet advertising intermediaries that are e-Commerce stakeholders have to use e-Invoice and e-Archive Invoice applications.
  • All self-employed people (lawyers, financial advisers, self-employed doctors, architects, engineers, etc.) must issue their self-employment receipts as e-Self-employment Receipts.
  • Traders and brokers engaged in the trade of vegetables and fruits within the scope of the state registration system must participate in e-Invoice, e-Archive Invoice, e-Waybill, e-Producer Receipt, and e-Ledger applications.
  • Insurance, pension, and reinsurance companies are able to issue Insurance Policies and Insurance Commission Expense Documents, banks’ bank receipts, foreign exchange buying and selling documents of authorized foreign exchange institutions, and Expense Compass documents used by all taxpayers as an e-Document.
  • All taxpayers who have a license to operate in the fuel sector, including fuel stations, are obliged to use e-Invoice, e-Archive Invoice, e-Waybill, and e-Ledger applications.
  • It is obligatory to use e-Waybills in the shipment of goods within the scope of the system carried out by the taxpayers within the scope of the fertilizer tracking systems.
  • In the iron and steel industry, in order to reduce tax loss and evasion in the mining field and to prevent unfair competition in the industry, taxpayers engaged in manufacturing, export, or import activities are required to switch to e-Waybill applications.
  • It has been made obligatory for taxpayers, who are included in the e-Invoice application, to issue the producer receipts issued in paper form as an e-Producer Receipt in an electronic environment in their agricultural product purchases from the farmers.

c. What probative power paper and/or electronic documents have that are to be considered in writing?

The general rule of Article 12 of the TCO on the validity of contracts states that “the validity of contracts is not dependent on any form, unless otherwise provided by law. The form envisaged for contracts in the law is the form of validity as a rule. Contracts concluded without complying with the prescribed form shall not be valid.” Hence, there is freedom of form in terms of the establishment and validity of a contract. Therefore, the parties to a contract can establish the contractual relationship by expressing their will to each other in written, verbal, or even implicit form.

However, although the general rule is that of freedom of form, the legislator has made the validity of some contracts subject to the fulfillment of a certain form condition. In this case, a contract cannot be considered valid unless it is made in accordance with the specified form. Such contracts are referred to as contracts subject to form and may appear as an “ordinary written form” or “official written form” (See Section 1.a.).

The form stipulated in the TCO is a condition of validity as a rule, and the form that is a condition of proof can be either determined by the will of the parties or may arise from the law. The form of proof is not a form of validity and is not a matter regulated in the TCO.

Probative power is regulated under the Turkish Code of Civil Procedure (CCP). Very briefly, any paper and/or electronic document that is “in writing” will hold some probative power to some extent. According to Article 199 of the CCP, the word “document” is defined as “a carrier of 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 that are suitable for proving the facts of the dispute.” Whereas a promissory note is considered a written document that constitutes evidence against the issuing person and has the power of definitive proof. It should be noted that the promissory note is a more qualified version of a “document.” Each of these categoric documentations shall have a separate effect in the proof of evidence.

For instance, Article 205 of the CCP defines the legal nature of documents created using secure electronic signatures. According to this, “electronic data duly created with a secure electronic signature are in the form of promissory notes. These data are considered as definitive evidence until proven otherwise.” Contracts signed with a digital signature will be considered within the scope of the “document” defined in the CCP and will fulfill the proof required in cases where there is no obligation to prove by a promissory note in the same law.

To give an example, since documents signed with a digital signature only contain a digital image and are not handwritten or secure electronic signatures, they can only be treated as documents and not promissory notes, under the CCP. In this case, it is necessary to evaluate two alternative situations:

  • In cases where there is no obligation to prove with a promissory note, a document signed with a digital signature can be accepted as a “document” and have the quality of evidence.
  • In cases where there is an obligation to prove with a promissory note since a document signed with a digital signature is not a promissory note, it can only constitute the beginning of evidence.

Ordinary promissory notes admitted before the court or accepted by the court to be from the denier are considered conclusive evidence unless proven otherwise. As mentioned above, electronic data that are duly created with a secure electronic signature are also considered promissory notes. The judge can ex officio examine whether the electronically signed document presented to the court as evidence has been created with a secure electronic signature or not.

d. What are the general rules and requirements to conclude a contract electronically?

Electronic contracts can be expressed as contracts made in an electronic environment using internet tools. The term “electronic” in the concept of electronic contract refers to the tools used in the establishment and/or performance of the contract. Therefore, just because of this feature, there is no need to create a separate and unique contract category in the form of electronic contracts and to create special rules to be applied to these contracts. In the TCO, provisions regarding the establishment, validity, and performance of contracts can also be applied to electronic contracts to the extent that they comply with their nature.

In terms of its subject, electronic contracts are classified as electronic contracts for “the sale of goods,” “the sale of digital products,” and “the provision of services.”

Pursuant to Article 1 of the TCO, a contract is established by mutual and appropriate declaration of the will of the parties. Unless there is a contrary provision in the law, it does not matter how this will is established. It is sufficient for the parties to declare their will statements mutually and in accordance with each other. Accordingly, in the establishment of electronic contracts, the parties must declare their mutual will in an electronic environment. By using the communication tools provided by technology, the parties have the opportunity to conclude contracts without the need to come together physically.

Provisions in the TCO applicable to the establishment and performance of contracts can also be applied to electronic contracts. Since the TCO will be used to the extent appropriate, there will be no need for special rules for electronic contracts.

As with the contracts within the scope of the TCO, the parties must make a mutual declaration of will to establish electronic contracts. In terms of Turkish law, it is important for the declaration of will to reach the other party, and since there is no obligation to express wills in a certain way, there is no obstacle to the establishment of electronic contracts by electronic means. In other words, the only difference between electronic contracts and traditional on-paper contracts is the method of establishment.

Electronic contracts are established by electronic means, unlike traditional methods. In traditional on-paper contracts, there is no need for a tool to communicate between the parties. However, there is a need for a tool that will enable the parties to transfer their statements to each other in electronic contracts.

For electronic contracts to occur, the proposal and acceptance phase must be completed. Electronic declaration of will is the “electronic form” of the declaration of will. In this respect, in order to be able to talk about an electronic declaration of will, the will to act, the consciousness of the declaration, and the will for legal consequences must be disclosed to the outside world in the electronic environment.

The explanations regarding the proposal and acceptance in electronic contracts can be grouped under four main titles: (1) proposal and acceptance via e-mail, (2) proposal and acceptance via websites, (3) proposal and acceptance via simultaneous communication channels, and (4) proposal and acceptance via social media sites.

The most emphasized issue in all of these is whether the contract is established between those who are ready or between those who are not. As a rule, agreements made via e-mail and websites are between those who are not ready. However, the TCO indicates that contracts concluded with simultaneous communication channels are accepted ad contracts between those who are ready. Although there are various doctrinal discussions about which definition and within which legal legislation the concept of an electronic contract will be evaluated, the TCO clearly states that “any proposal made during direct communication with means of communication such as telephone and computer shall be deemed to have been made among those who are ready.” This provision clearly indicates that the electronic contract can be considered inter praesentes, meaning that it is conducted among those who are ready, with the condition that the contract is concluded through electronic means that provide direct communication.

Contracts made over social media sites may be between those who are ready or those who are not ready, depending on the nature of the communication, and the binding period of the proposal in the agreements made with this tool should be determined according to this determination. Whereas contracts concluded through the website are contracts between those who are not ready as a rule. The debate about whether the website, which is also quite controversial, is considered a suggestion or an invitation to a proposal. However, this has not been definitively resolved.

On the other hand, other conditions should also be sought for the contract to be valid for the parties. These conditions can be briefly listed as; the competence of the parties, the fact that the contract is not contrary to the mandatory provisions of the law in general, the subject of the contract is not impossible, and the will of the authorized parties to conclude the contract is healthy. In this context, it can be stated that in contracts where many dynamics are sought, it is possible for more than two parties to form contracts in which they will impose debts and rights on each other, provided that all the above-mentioned terms and conditions are fully met.

In summary, while an electronic contract is no different than an ordinary contract, it is necessary to evaluate it within the framework of the TCO and see if it meets the essential elements of being a contract under the TCO. This assessment should be made for each concrete case.

e. Are there any sector-specific rules that define further requirements to conclude contracts electronically [e.g., contracting via an authenticated electronic channel, contracting via video chat, etc.]?

In light of the above, it should also be briefly mentioned that the obligation to inform before the conclusion of electronic contracts brought by the Law on the Regulation of Electronic Commerce (E-Commerce Law) is extremely important. Now, before the establishment of electronic contracts, service providers are obliged to pre-inform the other party with regard to the electronic contract. Although failure to fulfill this obligation to pre-inform does not prevent the establishment of an electronic contract, criminal and legal liabilities of service providers may arise due to the failure to provide this information.

If one of the parties to electronic contracts is a consumer, the electronic contract will also be considered a distance contract. This also leads to the Turkish Consumer Protection Law. Distance contract pursuant to Article 48 of the Consumer Protection Law is considered a contract concluded by using remote communication tools between the parties until and including the moment the contract is established, within the framework of a system created for the remote marketing of goods or services, without the simultaneous physical presence of the seller or supplier and the consumer.

The Regulation on Distance Contracts stipulates that distance contracts refer to contracts made in writing, visual, telephone, and electronic media or using other communication tools and without confronting the consumers, and the delivery or performance of the goods or services to the consumer is agreed upon immediately or afterward. The same is valid for distance contracts for financial services. The Distance Contracts Regulation on Financial Services defines such contracts as financial contracts established between the provider and the consumer through the use of remote communication tools within the framework of a system established for the remote marketing of financial services.

During the pandemic, the Turkish Banking Regulation and Supervision Authority (BRSA) has onboarded a new regulation with regard to distance contracts called the Regulation on Remote Identification Methods to be Used by Banks and Establishment of Contractual Relationship in Electronic Environment. According to this regulation, provisions regarding the establishment of a contractual relationship in the electronic environment are set forth. It is established that, following the identification (for KYC purposes) stage, in cases where the customer’s declaration of intent to establish the contract is established remotely, “the written form” requirement for these contracts is deemed to have been fulfilled.

Before the contractual process is commenced, remote identification from the customer is required. Remote identification can take place with the customer representative and customer by video calling and communicating with each other online, without the need to be physically in the same environment.

Similar to the BRSA, the Insurance and Private Pensions Regulation and Supervision Agency introduced a Regulation on the Activities to be Evaluated within the Scope of Insurance and the Insurance Contracts Concluded at a Distance, entering into force last year. Accordingly, within the framework of a system established for the remote marketing of insurance products, insurance companies will be able to conclude a contract with the pension company or insurance intermediary that provides insurance, by using a remote communication tool without the simultaneous physical presence of the persons. In line with this regulation, authorized institutions that conclude or mediate a distance insurance contract through a remote communication tool will have to have the necessary and sufficient organization and technical infrastructure.

Another area where remote electronic contracts take place is Payment and Securities Settlement Systems, Payment Services, and Electronic Money Institutions. According to the Law on Payment and Securities Settlement Systems, Payment Services and Electronic Money Institutions (Payment Services Law), the framework agreement of payment services, shall be executed in “written form” or by the use of distance communication tools, whether at a distance or not, over an information or electronic communication device, which the Central Bank of the Republic of Turkey determines can replace the written form and can be arranged in a way that will be established through methods that will allow the verification of the customer’s identity. This is also a huge step forward in the digitization of all the physical paperwork and documentation to take place electronically.

2. Digital signatures

a. Are there any laws regulating the use of digital signatures in your jurisdiction?

As a result of the increase in transactions in the electronic environment, the question arose as to whether the declarations of will declared in this environment really belong to the said person. Various methods have been developed in order to determine the identity of the person in a computer environment and to ensure that it can be known that the declaration they convey really belongs to them. The most common and reliable of these methods is the method of expressing the declaration of will with a personal encryption method, which is also reflected in the Electronic Signature Law.

The existence of a law called Electronic Signature Law (ESL) may lead to the suspicion that all signatures to be created in the electronic environment are subject to this law and therefore must meet the conditions set forth in it, otherwise the signature effect cannot be exerted in the electronic environment. Indeed, since the legislator felt the need to make a law regarding the signature in the electronic environment, they should have dealt with this area specifically and subjected it to an exclusive regulation. However, when the law is examined, it is understood that this conclusion or determination is not correct because the law has regulated only one of the many signature types that can be brought to the agenda in the electronic environment.

b. Is there any difference between the different types of digital signatures in your jurisdiction?

An “electronic signature” is defined in the ESL as “electronic data that is added to another electronic data or has a logical connection with electronic data and is used for authentication purposes.” Although the law prefers a broad definition, it regulates the details and principles regarding the type of signature that it accepts as a “secure electronic signature” in its following articles and throughout the law.

Electronic signatures can be created using different techniques, from the simplest to the most complex. For example, the simplest electronic signature technique is to transfer the handwritten signature of the person to the computer environment by being read in the scanner and added to the prepared texts or messages. The biometric method, which is obtained by using body features such as fingerprint, palm, voice, and retina, is another electronic signature technique.

The electronic signature method that can fulfill the functions of a handwritten signature in legal terms is considered a digital signature. A digital signature is based on the encryption of documents created and sent electronically with the double-key encryption technique. In the digital signature method, the signer has two keys, public and private, which have a mathematical connection between them and are functionally united. The secret key, known only to the signer, is used to encrypt a prepared text, that is, to sign it. If the public key is known by everyone, it is used to read the signature created with the private key, in other words, to determine whether it belongs to the signer.

A “secure electronic signature,” on the other hand, does not meet the broad definition of a digital signature. In accordance with Article 4 of the ESL, a “secure electronic signature:”

a) depends exclusively on the signatory,

b) is created with the secure electronic signature creation tool only at the disposal of the signer,

c) enables the identification of the signer based on the qualified electronic certificate, and

d) enables the determination of whether any changes have been made to the signed electronic data afterward, signature.

All the remaining articles of the ESL cover “secure electronic signatures” and not “electronic signatures.” Therefore, although a broad definition was provided in the law for electronic signatures, a “secure electronic signature,” which expresses a narrower meaning, is not considered an electronic signature in the sense given in the definitions section. As a natural consequence of this determination, signatures other than a secure electronic signature are not considered within the scope of the ESL and are excluded from the scope of this regulation. More precisely, the ESL does not regulate that other signatures will be invalid but rather limits its scope to secure electronic signatures. Thus, the law does not contain regulations for other signatures and excludes them from its scope.

In this case, since there is no other special regulation regarding other types of signatures, general provisions should provide guidance and whether other signatures will be valid or not should be evaluated according to the TCO, not according to the ESL.

c. What probative power each type of digital signature has in your country?

As mentioned in Section 2.b., an “electronic signature” is defined as an umbrella expression in the ESL. An electronic signature is defined as electronic data that is attached to another electronic data or has a logical connection with electronic data and is used for authentication purposes. Whereas a “secure electronic signature” is exclusive to the signatory, created with the secure electronic signature creation tool only at the disposal of the signer, enables the identification of the signer based on the qualified electronic certificate, and enables the determination of whether any changes have been made to the signed electronic data afterward.

A digital signature, on the other hand, also falls under the category of an electronic signature. This type of signature refers to electronic records or traces created to perform the function of signing electronic documents with a virtual visual image or sign, which is not based on a qualified electronic certificate produced by electronic certificate providers and does not need to go through a competent authority.

Although it is possible to determine by whom, when, and where the documents have been signed with this signature, it should be accepted that since Article 14 of the TCO stipulates that contracts in written form must obtain the signatures of those who undertake debt, a digital signature will not be accepted suitable for such cases.

Accordingly, the following transactions cannot be completed with a digital signature:

  • An assignment of receivables
  • Pre-emptive rights
  • Installment sales contracts
  • Promises of reward
  • Real estate brokerage contracts
  • Intellectual property license agreements

The following transactions, on the other hand, cannot be performed with a secure electronic signature or digital signature, but will be carried out with a wet signature in the presence of official institutions such as a notary public or land registry office:

  • Real estate sales premise agreements
  • Getting married
  • Inheritance and successions
  • Official wills
  • Companies’ articles of association
  • Transfers of intellectual property rights

Unless otherwise stated by law, contracts can be concluded with an electronic signature, and the signature made in this way will replace the written form specified in the TCO.

Finally, yet importantly, a type of e-signature that should be mentioned is the mobile electronic signature. Mobile e-signature is an application that enables secure electronic signature transactions as wet signatures in accordance with the ESL and the relevant legislation using a mobile phone and GSM SIM card. The only difference between a mobile electronic signature and an electronic signature is the use of a SIM card inserted in a mobile device as an electronic signature creation tool. Since the legislation on electronic signature also covers mobile electronic signatures, the mobile electronic signature also provides the legal validity provided by secure electronic signatures in an electronic environment.

d. Are there any specific groups of people that are required to have digital signatures [e.g., attorneys, notaries, government officials, etc.]?

Anyone who wishes can apply individually for an e-Signature. In particular, taxpayers who will use e-Self-employment Receipts must obtain an e-Signature in order to register with the Private Integrator or RA systems. Apart from this, the places where e-Signatures are used are:

  • E-Government Applications
  • E-EIAs (Environmental Impact Assessments)
  • The UYAP (National Judicial Network Project)
  • Ensuring Inter-Institutional Communication (Police Departments, Population, and Directorates of Citizenship Affairs)
  • Registered Electronic Mail Systems (KEP)
  • Commercial registry transactions within the scope of MERSIS (Central Registry System)
  • Applications (YGS, KPSS, LES, Passports, etc.)
  • MERNIS (ID Number) transactions
  • EKAP (Electronic Public Procurement Platform) transactions
  • e-Prescription Project & e-Pulse & TITCK Project (Ministry of Health) transactions
  • e-Foreclosure Project (Social Security Institution) transactions
  • e-OKUL (Ministry of National Education) transactions
  • POLNET (Police Computer Network) operations
  • GIMOP (Customs Administrations Modernization Project) transactions
  • TAKBIS (Land Registry and Cadastre Information System) transactions
  • TPE (Turkish Patent Institute) transactions
  • TPE (Turkish Patent Institute) transactions
  • DMO (Electronic sales application) transactions
  • RTUK (Radio and Television Supreme Council) procedures
  • In sending bank instructions
  • In e-Signing electronic archives
  • UTS (Product Tracking System) transactions
  • Trademark patent applications,
  • Expert applications for conciliators
  • Export support payment applications
  • Foreigners’ work permit applications
  • Authorized obligee applications
  • Employee service contracts and all other contracts
  • Participation in tenders

e. Are non-personalized digital stamps recognized in your country with probative power [e.g., digital stamps used by companies, government, or administrative bodies]?

The ESL  refers to a timestamp as a record of electronic data verified with an electronic signature by the electronic certificate service provider in order to identify when it was produced, modified, sent, received, and/or recorded. It is used to prove that electronic data such as documents, records, and contracts existed before a certain time in electronic media. It ensures that reliable time information can be added to transactions in the electronic environment. It can be used on all kinds of electronic data such as electronic applications, minutes, contracts, and similar electronic data that should have time information on it.

However, it should be separately mentioned that currently Turkey does not have a specific law on non-personalized digital stamps.

3. Digital archiving

a. Are there any laws regulating digital archives and digital archiving in your jurisdiction?

The Regulation on Government Archive Services partially regulates digital archiving. The purpose of this regulation is to manage the arrangement of documents resulting from the work and transactions of public institutions and organizations; to ensure that they are protected under the necessary conditions, to prevent loss for any reason, to ensure that they are evaluated in the service of the state, real and legal persons, and people of science, to identify the archived documents held by institutions, organizations, and individuals and the documents that will become archival documents in the future, to sort out the documents that do not need to be kept and last but not least, to regulate the procedures and principles regarding the destruction of archival documents and the transfer of archival documents to the Administration of State Archives.

b. What are the main legal and technical requirements to digitally archive documents?

The digitization of documents is carried out in accordance with the procedures and principles determined by the Administration of State Archives. Pursuant to the Regulation on Government Archive Services, documents in hard copy can be incorporated into an electronic document management system in order to preserve the integrity of the transactions and files. In all kinds of digital imaging operations, the Electronic Document and Archive Management System and the standard numbered TS13298 is taken into account. The Electronic Document and Archive Management System is a system that enables the archiving and management of all kinds of documentation created by institutions during their activities, from their production to their final liquidation, whereas the TS13298 standard is a standard prepared for the purpose of protecting and keeping the document quality of the documents produced or to be produced.

When digitizing archival documents, the relevancy between digitalized documents and their tangible copies/ hard copies should be kept during the process. Similarly, the relevancy between digitalized images and their metadata should be preserved as well. When deemed necessary, the obliged parties can digitize their hard-copy documents that are in their possession, which have the quality of archival documents, to save them from being a single copy, to prevent the documents other than the archive documents from being worn out and to be able to use them effectively. Documents that are not used frequently or those documents that do not need to be stored at the end of their storage periods or those documents that will be destroyed are not subjected to the digitization process.

c. Is there any difference in your country’s regulations between the digital archiving of paper and electronic documents?

An archive document, according to the Regulation on Government Archive Services, is a document produced 20 years after its last transaction date or 15 years after being finalized in use. This is a document that does not function in the daily workflow and has completed its storage periods and storage plans if any. This document can be in written form, drawn, illustrated, visual, audio, or electronic media, as to any political, social, cultural, legal, administrative, military, economic, religious, scientific, literary, aesthetic, biographical, geological, and technical value and contain information.

The Regulation on Government Archive Services sets forth that the obliged parties of this regulations (obligors) have the liability to protect all kinds of documents they behold, against fires, theft, humidity, heat, flood, dust, and destruction of all kinds, from animals and insects and keeping them in their current original order. As for documents created and/or stored in an electronic environment, which clearly indicates digital documentation, the obligor must take necessary security measures against all kinds of disasters, cyber-attacks, software/hardware origin, or other possible threats/risks. Along with this, the obligor must execute a disaster recovery plan and establish its backup units in order to prevent possible document loss.

Also, all kinds of information and documents in electronic form or electronic environment are kept in electronic archives in a way that can be accessed, stored, cleared, and transferred. Apart from physical archives, electronic documents are expected to be stored in the electronic document management system, where the documents are stored in the file/folder they belong to, according to the hierarchical structure and file codes they are defined in. Whereas the arrangement of different types of documents such as film, photograph, record, audio and video tape, and similar documents can be done according to different systems and processes.

While there is no direct statement openly indicating the differences between the digital archiving of paper and electronic documents, the above-stated regulations set forth the indirect separations of the archiving of electronic documents from physical/tangible documents within the Regulation on Government Archive Services.

d. Is any third party required to participate in the process of digital archiving in your country [e.g., a trusted service provider, government / administrative bodies, etc.]?

Pursuant to the Presidential Decree on The Department of State Archives, the Administration of State Archives (Administration), is subject to a general budget and is established under the Administration in order to organize archive services and activities and to provide document management in the public sector (the Department of Information Processing and Electronic Archives is one of the service units).

e. Are there any sector-specific requirements and rules for digital archiving [e.g., archiving both the software and the related data to retrieve information in the financial sector]?

N/A

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Guide Contributor For Turkey

Onur Kucuk

Managing Partner 

onur.kucuk@kplawtr.com

+90 507 709 68 07

 

Melodi Ozer

Associate 

melodi.ozer@kplawtr.com

+90 507 709 68 07