When a water leak in a home is repaired, when a defective part of a machine is replaced, or when a leased business premises is refitted, the problem may disappear, but the evidence showing what the problem was may disappear with it. In a lawsuit brought later, it is not enough to say that you are in the right. You must show that the damage exists, its extent, its cause and its connection to the other party.
Evidence preservation is a temporary legal protection under which a court collects and secures evidence for a claim that is to be brought or is already pending, under the conditions set out in the law and before the time for examining it has come. On-site inspection, expert examination and witness hearings may be used for this purpose. The main regulation is Articles 400–405 of the Code of Civil Procedure No. 6100 (HMK). Evidence preservation does not by itself mean that compensation will be awarded or that the case will be won. [1]
At the outset, three distinctions matter: preserving evidence, asserting the main claim and protecting time limits are separate tasks. An application for evidence preservation does not, on its own, interrupt the statute of limitations on the claim. The one-week objection to a preservation order and the two-week objection to an expert report should not be confused with each other. This guide addresses the general HMK system for civil courts in Türkiye; criminal investigations, administrative court proceedings and arbitration are subject to separate procedures that must be assessed separately.
What need does evidence preservation meet?
In a dispute, two different questions arise: what actually happened, and what is the legal consequence of it? Evidence preservation secures the possibility of answering the first question later. For example, the spread of moisture in a wall, the faulty part of a machine or the level of work that was not delivered is recorded. Whether the contract was breached, who is responsible and how much compensation is payable are then assessed in the main dispute.
If the court accepts the application for preservation, this does not show that the applicant is right in the main action. Likewise, rejection of a preservation application does not mean that the person has lost all of his or her substantive rights. A rejection may be based, for example, on a failure to explain the danger that the evidence will be lost, or on a request for an inspection that goes beyond the scope of the preservation.
Is evidence preservation the same as a declaratory action?
No. A declaratory action under Article 106 of the HMK aims to establish whether a right or legal relationship exists or does not exist, or whether a document is forged. Material facts cannot by themselves be made the subject of a declaratory action. Evidence preservation, by contrast, secures the evidence of a fact that will be assessed later. The everyday expression "evidence preservation action" should not give the impression that these two institutions are the same. [1]
"What damage is there in the apartment?" is a question that may be investigated within a preservation proceeding. A request that the court "order the contractor to be liable for all of its debts and to pay money" requires a judgment on the merits. Naming the application correctly is as important as framing the result sought from the court correctly.
What requirements apply to evidence preservation?
A connection with a future or existing dispute must be shown
Under Article 400 of the HMK, the fact whose preservation is requested must be connected with a pending action or an action to be filed in the future. The purpose is to collect in advance evidence that has not yet reached the stage of examination. Investigating all the activities of the other party without showing any legal dispute is not the purpose of the preservation institution. [1]
For this reason, it is not enough for the petition to say only "let my damage be determined". It should explain which contract, delivery, event or conduct is disputed, which claim may arise, and what the requested technical examination would clarify for that claim. The final amount of loss may not yet be known. Nevertheless, the subject of the examination must be capable of being identified.
The legal interest must be explained on the facts of the case
Apart from the cases expressly provided for by law, a legal interest is deemed to exist where the evidence will disappear, or its submission will become considerably more difficult, unless it is established now. The fact that no action has yet been filed does not by itself create a legal interest. Instead of a general concern, it must be shown how the delay will affect the evidence. [1]
A compulsory plumbing repair starting the next day, a defective part that must be removed, a product that is deteriorating, or a witness whose testimony may become harder to take later may all serve as examples for this assessment. A repair appointment, a service notice, dated images, the storage conditions of the product or documents explaining the witness's situation make the request more concrete. The court assesses the risk described together with the scope of the examination requested.
The other side may argue that there is no risk of change, that the same evidence is already kept securely, or that the request is unnecessarily broad. These defenses do not mean that the application will necessarily be rejected. They do require the applicant to explain why judicial protection is needed now.
Preservation is not a way of obtaining unlawful evidence
The idea that evidence may disappear does not justify entering another person's account without permission, obtaining private correspondence or creating unlawful recordings. Under Article 189(2) of the HMK, evidence obtained unlawfully may not be taken into account in proving a fact. A preservation application does not by itself remedy the unlawfulness of material already in one's possession. [1]
In which situations does evidence preservation become important?
The examples below are hypothetical. In each of them, what is decisive is not only the type of dispute, but the likelihood that the evidence will change and whether the examination is genuinely necessary. A more detailed discussion of this subject is available in our article Protecting Assets in the Liquidation of a Partnership.
Incomplete work and defective construction
Where insulation is to be applied, cladding is to be removed, or a new contractor is to complete the work, the existing condition will change. It may become unclear which element was left incomplete, which part does not conform to the contract, and what the scope of the subsequent work was. The contract, project, technical specification, delivery documents and existing images should be prepared together.
Requesting only a single total repair cost from the expert may not be sufficient. The location, amount, technical nature, probable cause and method of remedy of each defect should be stated separately. Improvements the applicant later carried out should be distinguished from the remedy of the original defect. The other party's argument that "this damage was caused by later use or by another intervention" can only be tested in this way.
Damage and ordinary wear on the return of leased premises
Where leased premises are repainted or a new tenant moves in, it may become difficult to establish the earlier condition. Entry and exit records, key handover, inventory lists, earlier images and notices given are important. Not every deterioration is damage for which the tenant is liable; Article 334 of the Code of Obligations No. 6098 (TBK) separately regulates wear and deterioration arising from use in accordance with the contract. [2]
The obligation of the landlord to notify the tenant on return of any deficiencies that the landlord intends to hold the tenant responsible for is also considered separately under Article 335 of the TBK. Deficiencies and defects identified should be notified in writing immediately. For deficiencies that cannot be identified by ordinary inspection, written notice must likewise be given immediately once they are discovered. An application for evidence preservation does not automatically replace the necessary notices of defect or damage. Whether a petition or a report serves a notice function is assessed by its content, by whether it reaches the addressee, and by its timing. [2]
Flood damage and damage arising from neighboring property
The appearance of water damage and its source are not the same question. A mark on a wall may come from the plumbing of the upstairs apartment, from a shared line, from the external façade or from another cause. The examination should, as far as possible, also investigate alternative causes. Damaged items, cleaning and compulsory repair costs should be documented separately.
Where there is an urgent danger to electrical installations, the load-bearing structure or health, safe intervention should not be delayed. The reason why the intervention could not wait can be recorded with images before, during and after the intervention, a service report and the replaced parts. The effort to preserve evidence is not a justification for allowing the damage to grow.
Vehicle, machine and product failures
Replacing parts or carrying out extensive repairs may make it harder to examine the source of a fault later. The serial number, vehicle mileage, service history, fault records, conditions of use and the time the fault appeared should be considered together. Where possible, the removed part should be identified and kept, and the operation during which it was removed should be documented.
Responsibility among the seller, manufacturer, service provider and user cannot be determined in advance. Questions to the expert should separate technical causes and probabilities, rather than declaring who is legally liable. Whether the sale was a consumer transaction or a commercial one may change the applicable defect rules and the subsequent route of recourse.
Table 1. The relationship between the event and the evidence to be preserved
| Event | Information that may be lost | Basic record to prepare |
|---|---|---|
| Transfer of the construction to another contractor | The level of the earlier work and its defects | Contract, project, dated site images |
| Refitting of leased premises | Damage at the time of return | Entry and exit records, inventory list |
| Repair of a water leak | The source and spread of the leak | Image before intervention, service record |
| Replacement of a part in a vehicle or machine | The nature and cause of the defective part | Serial number, service history, removed part |
| Digital content that may be deleted | The appearance and context of the content at that time | Full address, date, original file and technical record |
From which court is evidence preservation requested?
Before an action is filed, there are two options for application
Under Article 401(1) of the HMK, before an action is filed, evidence preservation may be requested either from the court that will hear the main action, or from the civil court of peace (sulh hukuk mahkemesi) in the place where the object of inspection or expert examination is located or where the witness resides. For this reason, it cannot be said that in all cases one must apply only to the civil court of first instance or only to the civil court of peace. [1]
When identifying the court that will hear the main action, it is necessary to examine whether the dispute is a consumer, commercial, lease, employment or other private law relationship. For example, the rules on jurisdiction for a main action arising from a lease relationship and for a main action arising from a consumer sale are not the same. The petition should explain which of the options was used for the application.
If an action has been filed, the request is directed to the court hearing that action
Under Article 401(4) of the HMK, for requests for evidence preservation made after an action has been filed, the court in which the action is pending has both subject-matter and territorial jurisdiction. Where the evidence is located elsewhere, the necessary steps may be taken through the relevant court. It should not be assumed that, while a pending action exists, a separate preservation file may be opened on the basis of pre-action alternatives. [1, 9]
Under Article 401(3) of the HMK, in the main action it may not be argued that the court that carried out the evidence preservation lacked subject-matter or territorial jurisdiction. This does not mean that the court that carried out the preservation may in every case hear the main action. The rule on the use of the preservation file and the conditions of subject-matter and territorial jurisdiction for the main action are assessed separately.
Where the matter is at the stage of appeal, or where the relationship is subject to an arbitration agreement, the place of application must be examined separately. Article 414 of the HMK contains special provisions on arbitration. General statements about first-instance proceedings cannot be carried over as they are to arbitration or to the appellate stage. [1, 9]
How is a petition for evidence preservation prepared?
Describe the event, the risk and the requested step together
Under Article 402(1) of the HMK, the petition must contain the fact whose preservation is requested, the questions to be put to the witness or expert, the reasons giving rise to the concern that the evidence will be lost or that its presentation will become more difficult, and the name, surname and address of the person against whom preservation is requested. There is an exception under which the request may be valid where the circumstances do not allow the other party to be identified. A known person may not be concealed merely so that he or she does not take part in the proceedings; this exception does not justify such concealment. [1]
The place or object to be examined must be identified in a way that leaves no room for confusion. For an apartment, an independent section may be used; for a machine, its serial number; for a vehicle, distinguishing information; for digital content, the full address and the relevant time period. The applicant's legal relationship and authority to act should also be clear. As a rule, a person with legal capacity to sue may apply personally; representation by a lawyer is not a general requirement. Special rules on statutory representation and the representation of legal persons also apply. [1: Art. 51–52, 71]
A good application enables the court to answer three questions: what is to be examined, why it must be examined now, and which questions are to be answered by which expertise? Access to the place where the evidence is located, the keys or access conditions necessary for the inspection, and the timetable for urgent intervention also make it easier to reach an enforceable decision.
Put technical questions to the expert, not legal conclusions
An expert gives an opinion on matters requiring special or technical knowledge. The legal characterization to be made by the judge cannot be left to the expert. Instead of an outcome-focused statement such as "the defendant is at fault; determine that he is liable", questions should be framed in a way that brings out technical findings. [1: Art. 266, 279/4]
In a hypothetical water leak case, the following questions may be useful:
- In which parts and to what extent are moisture, cracks and surface deterioration present?
- What are the probable technical causes of the leak in the installations and building elements examined?
- Can the findings be explained by alternative causes; which examinations could not be carried out?
- What is the required method of remedy; which work items and quantities are necessary?
- Can pre-existing wear be technically separated from the damage caused by the event?
- If a cost calculation is made, which date, unit price, quantity and tax assumptions were used?
The questions must be adapted to the file. Preparing a long list of questions in every case does not improve the examination. Any part that could not be examined or any missing data must be clearly stated, and the expert's assumptions must not be presented as if they were observations made.
Can evidence be preserved without notice to the other party?
In the ordinary procedure, the other party is given the opportunity to take part
Where the application for preservation is accepted, the decision and the petition are served on the other party. The decision states how and when the preservation will take place, that the other party may attend, and that any objections and additional questions must be notified within one week. After the preservation, the record and, where there is one, the expert report are also served on the other party by the court, of its own motion. This final obligation is regulated in Article 402(4) of the HMK. [1]
The participation of the other party is not merely a formality. It matters for showing which part was examined, explaining an alternative cause, noting a missing measurement and raising additional questions. There is a clear difference between a party who was duly invited and failed to attend and a party who was never informed at all.
In urgent preservation, the reasons for not giving prior notice must be justified
Article 403 of the HMK makes it possible to carry out preservation without prior service where it is necessary to protect the rights of the applicant. Writing the word "urgent" is not sufficient for this purpose. Where the notice would be awaited, the application must explain which evidence would be lost or why the examination would be rendered ineffective. [1]
Once the preservation has been completed, the petition, decision, record and, where there is one, the report are served on the other party by the court of its own motion. The other party has a right to object to the preservation decision within one week of service. The fact that prior notice was not given does not mean that the other party's rights of objection and information are removed.
How are photographs, digital records and repair documents preserved?
The context of an image matters at least as much as the image itself
A photograph may show how damage looks; however, it does not always prove the date of the damage, its cause or who is responsible. Alongside close-up images, general images that make clear which part of the premises is shown should also be kept. Original files should be preserved; relying only on low-resolution copies passed through a messaging application is not sufficient.
In practice, the date of the event, the time it was noticed, the person who took the image, the device and any subsequent interventions may be recorded in a short chronology. This record does not by itself guarantee accuracy; it makes it easier to compare the documents with one another. Creating a working copy without altering the original file is useful, since it allows one to explain later what was done to the material.
A screenshot does not replace a full digital examination
Article 199 of the HMK brings electronic data within the scope of documents. However, it may be disputed which account, date or content a screenshot actually belongs to. The web address, the complete relevant page, linked content and, where possible, the original technical records should be considered together. Where the integrity or source of a digital item requires technical examination, that need must be stated clearly in the request. [1]
A notarial preservation can help document content seen at a specific moment; however, it does not in every case establish who produced the content or the accuracy of all technical records. Passwords, private correspondence and data relating to health or third parties should not be copied unnecessarily. Instead of unrelated personal data, the data to be examined and the limit of access should be defined.
If repairs are needed, plan the handling of evidence and loss together
Preservation by the court before repair may reduce the evidential problems that may later arise. However, in events where urgent intervention cannot be postponed, safety and the limitation of damage take priority. The explanation of the person carrying out the intervention, the order of work, the parts removed, the invoices and the before-and-after images should be kept together.
Where circumstances allow, giving the other party a suitable opportunity to inspect may reduce later disputes. However, the urgency of the event, a security risk or the possibility of destruction of the evidence cannot be disregarded in order to apply the same notice method to every file. The intervention carried out and the reason for it should be recorded in writing.
How are court preservation, notarial preservation and expert opinion distinguished?
The preservation procedures under Article 61 of the Notaries Act No. 1512 (Noterlik Kanunu) and the expert opinion obtained by a party under Article 293 of the HMK are not the same procedure as judicial evidence preservation carried out by the court. The tool to be used is chosen according to the nature of the information to be preserved and the needs of any subsequent dispute. Article 401(2) of the HMK expressly preserves the provisions on the establishment of facts by notaries. [1, 4]
Table 2. Function of protection and examination tools
| Tool | Main function | Result it does not produce by itself |
|---|---|---|
| Judicial evidence preservation | Collecting evidence in advance through a judicial procedure | A ruling on liability and compensation in the main action |
| Notarial preservation | Documenting a fact within the notary's authority | Resolution of every technical cause and fault |
| Expert opinion obtained by a party | Presenting a scientific or technical assessment | The same procedural safeguards as a court-appointed expert report |
| Interim injunction | Temporary protection of the right in dispute | Automatic collection of all evidence |
| Action for performance | A ruling for performance or payment | Actual collection of the judgment in every case |
For example, a technical private report may help develop the questions to be put to the court. However, it does not replace a judicial preservation procedure which requires that the other party be given an opportunity to take part. Conversely, the existence of a court report does not make a party's reasoned expert opinion pointless. How such an opinion is assessed depends on its content and on the procedure followed in the proceedings.
Where the protection of the thing to be examined, the prevention of its removal or some other temporary measure is needed, a preservation application alone may not be sufficient. An interim injunction or a special protective measure that may apply must be requested separately, on its own conditions. A decision to preserve evidence does not, for example, itself create a sales prohibition or a payment order.
How are objection periods calculated in evidence preservation?
An objection to the preservation decision is different from an objection to the report
Objections that the conditions for preservation are absent, that the scope is excessively broad, or that no prior notice was necessary for the act, relate to the preservation decision. An objection that the report contains an erroneous measurement, an incomplete examination or an unreasoned cost calculation aims at the expert's assessment. Both may be needed in the same file.
The one-week period under Article 402(3) and Article 403 of the HMK is not the same as the two-week period for objecting to an expert report under Article 281 of the HMK. Under Article 404 of the HMK, the provisions on the collection of the chosen evidence apply. For this reason, the system of objection to, and explanation of, a report applies to an expert report obtained during preservation as well. An application made for one type of objection does not automatically extend the period for the other. [1, 10]
Table 3. Subject and starting point of the periods
| Step | Period and starting point | Distinction to note |
|---|---|---|
| Objections and additional questions in ordinary preservation | One week from service of the decision under Article 402(3) of the HMK | Do not let the period run while waiting for the site inspection |
| Objection to an urgent preservation decision | One week from service of the documents under Article 403 of the HMK | It is an objection to the decision; the report is examined separately |
| Objection to the expert report | Two weeks from service of the report | Article 281 and Article 404 of the HMK are considered together |
| Request for an additional period for the report | Application within the first two-week period | Where the conditions are met, only once and for no more than two weeks |
| Main action after preservation | Limitation or preclusive period specific to the dispute | There is no general time limit for filing an action that runs from the preservation |
| Judicial recess | Evidence preservation and objections to it are heard during the recess | Do not rely on an automatic extension of the period during the recess |
An additional period is not automatic
Where preparing a response to the report is very difficult or impossible, or where it requires special or technical work, an additional period may be requested from the court within the first two-week period. Under Article 281(1) of the HMK, the court may grant one additional period, not exceeding two weeks, running from the end of the first period. The fact that a request has been made is different from its being granted. This provision cannot be used as a general extension for the one-week period applicable to the preservation decision. [1]
The type and scope of service must be checked
The date of the decision, the date on which the report was placed in the file and the date of valid service must be distinguished from one another. In electronic service, under Article 7(a) of Law No. 7201 on Notification (Tebligat Kanunu), the end of the fifth day following the day on which the notice reaches the electronic address is taken into account. The calculation of periods expressed in weeks and whether the last day falls on a public holiday are assessed under Articles 92–93 of the HMK. [1, 5]
Article 103(1)(a) of the HMK lists evidence preservation and objections relating to it among the matters heard during the judicial recess. Where there is a defect in service or a different period is notified, the procedure in the file and its legal nature should be examined. It is not safe to conclude from a general statement in an old decision that all objections are of unlimited duration.
How is the preservation report assessed in the action?
A report does not on its own produce a final result
Under Article 405 of the HMK, the preservation file is treated as an annex to the main action file and is merged with it. Each party may rely on the records and reports. The applicant cannot assume that only the parts favorable to it will be used. Preservation may support the applicant's claim, but it may also weaken it. [1]
Article 282 of the HMK applies to an expert report obtained during preservation; the judge assesses the opinion together with the other evidence. The reasoning of the report, the documents used, the measurements and whether the report answers the objections raised are important. The fact that no objection was raised to the report within the time limit has procedural consequences; however, this does not mean that every legal assessment in the report becomes a final ruling binding on the judge.
Case law on an unserved report that has been objected to
In its decision of 21 November 2016, E.2016/3681, K.2016/4768, the 15th Civil Chamber of the Court of Cassation (Yargıtay 15. Hukuk Dairesi) held that it was not appropriate to rely on a report obtained in the absence of the other party and subjected to objection, in a dispute concerning the installation of an air conditioner. The judgment was quashed on the ground that the court should have ordered an expert examination assessing the claims and objections of the parties. The practical importance of the decision is that a preservation report cannot be substituted for adversarial examination. [6]
In its decision of 11 December 2017, E.2017/2611, K.2017/17356, the 3rd Civil Chamber of the Court of Cassation (Yargıtay 3. Hukuk Dairesi) also considered a report obtained for damage to leased premises that had not been served on the other party and was not accepted in the proceedings. It emphasized that a new expert examination should address the objections. It also stated that the amount of loss in a preservation report does not create an acquired right in favor of the applicant. [7]
These decisions should not be read as meaning that every objection automatically destroys a report. Service, participation, the answering of specific objections and the court's own assessment are all important. The obligation of the court to serve the report of its own motion under Article 402(4) of the HMK is also linked to these procedural safeguards.
What can be done if the subject of examination has since changed?
A repeat of the same examination may not be possible because of repair or demolition. In such a case, it becomes important whether earlier photographs, measurements, records and technical records can be used in the new assessment. The result of a report and the raw data on which the report is based are not the same thing.
In his 2025 study, Barış Küçük discusses the violation of the right to be heard in urgent preservations and the effect on later examination of findings in reports subjected to objection. The problem identified in the study is that, when the consequences of incomplete service are assessed, the status of evidential data that cannot be restored must also be clarified. This discussion does not establish a general rule of automatic acceptance binding the court. In practice, the aim is to ensure an assessment that genuinely examines the other party's objections and can be reviewed. [10]
When should an action be filed after evidence preservation?
There is no general two-week or two-year rule
Articles 400–405 of the HMK do not regulate a general time limit for filing the main action that begins to run merely because evidence has been preserved. The time limit for an interim injunction under Article 397 of the HMK does not apply automatically to evidence preservation. Where the file contains an injunction or other protection, the time limits for that protection must be monitored separately. [1]
This does not mean that one may wait indefinitely. The statute of limitations applicable to the claim, a preclusive period, a notice of defect or a special condition for bringing the claim may continue to run. The date on which the period starts depends on the nature of the contract and the claim, and on delivery, discovery, damage and the relevant special provisions.
An application for preservation does not by itself interrupt the statute of limitations
The grounds for interrupting the limitation period under Article 154 of the Code of Obligations No. 6098 (TBK) and evidence preservation are not the same legal acts. The opening of a preservation file should not be treated as if an action for the principal claim had been filed. Where there is another ground for interruption, such as an acknowledgment of the debt, an action or an enforcement proceeding, its effect is assessed separately. [2]
In its decision of 24 October 2024, E.2024/2916, K.2024/3723, the 6th Civil Chamber of the Court of Cassation (Yargıtay 6. Hukuk Dairesi) upheld a dismissal on the ground of limitation. Preservation had been requested in 2017, but the action was filed in 2020; the court held that the five-year period applying from delivery had expired. That decision does not mean that every construction or consumer dispute is subject to a five-year period. The practical risk it illustrates is that the main claim may be delayed on the assumption that preservation has been carried out. [8]
Mediation and preservation can be planned together
The existence of a mediation requirement as a condition precedent to the main action does not mean that one must await the end of the mediation before urgent evidence is preserved. Evidence preservation is not itself the main action. However, the mediation and other conditions precedent for the subsequent action must be fulfilled separately.
Under Article 18A(15) of Law No. 6325 on Mediation in Civil Disputes (Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu), where mediation is a condition precedent to the action, the limitation period is suspended from the application to the mediation office until the final minutes, and the preclusive period does not run. In voluntary mediation, the start of the process and the calculation of the period are assessed under Article 16. That effect arises from the relevant mediation provisions, not from the application for evidence preservation. A simple meeting, a negotiation or a statement that "we will reach an agreement" does not by itself produce the same result. [3]
An amount in the report does not by itself determine the type of action
The fact that a report states a price does not mean that the claim has become fully and definitively determinable in every case. In its decision of 18 May 2022, E.2022/397, K.2022/701, the Civil General Assembly of the Court of Cassation (Yargıtay Hukuk Genel Kurulu) assessed together conflicting reports and heads of loss that could only be clarified during the proceedings. The fact that preservation had been carried out beforehand was not treated as an obstacle to an action for an indeterminate claim in that case. [11]
The dissenting view in that decision argued that the applicant was in a position to determine the amount from its records and from the report to which it had not objected. The conclusion to be drawn is therefore not that every preservation file is suitable for an action for an indeterminate claim. Whether the amount is determinable at the time the action is filed must be examined concretely, in light of the documents available and the conditions of Article 107 of the HMK. [1, 11]
How are the costs of evidence preservation and lawyers' fees assessed?
Under Article 402(2) of the HMK, no further steps are taken until the preservation costs determined by the court have been paid in advance. The court fee or exemption, the number of experts, their fields of expertise, the place of inspection, travel, samples and laboratory examination all affect the total cost. For this reason, giving one single "evidence preservation price" for all files would be misleading. [1]
Table 4. Separation of cost items
| Item | Depends on | Record to be kept on file |
|---|---|---|
| Court fee and filing expense | Type of procedure and any applicable exemption | Assessment and payment record |
| Expert fee | Expertise, scope of the examination and tariff | The court's order for the advance or fee |
| Site inspection and travel | Location, distance and conditions of inspection | Breakdown of inspection costs |
| Technical examination | Samples, measurements or laboratory requirements | Scope of the examination and cost record |
| Service and other expenses | Number of parties and procedures | Payment and service records |
| Lawyers' fees | Work undertaken and fee agreement | Separation of the scope of preservation and the main action |
Necessary preservation costs are assessed in connection with the main action and under the rules on litigation costs. Paying the advance at the outset and the question of who ultimately bears the costs are different matters. It cannot be said that every payment will necessarily be recovered from the other party. Expenses that are unnecessary or unrelated to the dispute may also be assessed differently. [1: Art. 323, 326]
A fee agreement with a lawyer should make clear whether it covers only the preservation application, participation in the inspection and objection to the report, or also the main action. The adverse costs award the court may order in favor of the other side and the fee the person has agreed with his or her own lawyer are not the same item.
Persons who cannot meet litigation costs may, where the conditions are met, also benefit from legal aid under Article 334 et seq. of the HMK for temporary legal protection applications. Documents showing financial circumstances and the basis of the application are submitted. Applying to the court for legal aid for costs and applying to the bar for lawyer assistance are separate processes; acceptance in one does not automatically remove all other costs. [1]
What should be done if preservation is refused or the examination is obstructed?
For decisions on evidence preservation, the right of appeal granted for interim injunctions and attachments under Article 341 of the HMK cannot be generalized directly. It should not be assumed that under the general HMK system there is an independent right of appeal or of cassation against a decision on evidence preservation. The objection provided for by law against a preservation decision and the appeal against the final judgment are separate routes. [1]
The reasons for the rejection should be examined. Remedying an incomplete explanation, documenting a new situation, or a new request that meets the conditions may be possible. However, repeating the same unsupported request before different courts is not a solution. Where the deadline for the main action is approaching, the risk of waiting for the outcome of preservation should also be addressed separately.
If the inspection is obstructed by preventing entry to the place, by not showing the item, or by failing to produce the relevant document, the situation should be reported to the court and recorded in the record. The obligation to submit to an inspection and the consequences of failing to do so are regulated in Article 291 of the HMK; where documents are not produced, Article 219 et seq. may become relevant. A preservation decision is not a general authority for the applicant to use force, pick a lock or take items on its own initiative. [1] The right of a shareholder to request information and inspect the company's books and documents is explained in our article The Right to Information and Inspection in Limited and Joint-Stock Companies.
How should the file be followed from application to the main action?
Evidence preservation should not be regarded as simply filing a petition and waiting for a report. The fact to be preserved, the field of expertise, the scope of the inspection, service and the time limits should be followed together. There is no fixed completion period for every file; urgency, the place of inspection, and the nature of the work of the expert and the technical procedures affect the timetable. What is prepared before the application matters as much as the transfer of the report obtained into the subsequent action.
- Record the event. Separate the dates, persons, contract, the risk of change and the documents available.
- Identify any urgent step. Assess together the evidence that must be protected by a safety intervention.
- Frame the correct request. Specify the court, the other party, the item to be examined and the technical questions.
- Follow the decision. Check the advance, the expert's expertise, the date of the inspection and the notice to the other party.
- Monitor the scope of the preservation. Have the areas that could not be examined and the statements of the parties recorded, and justify any further examination that is needed.
- Review the report and the service. Calculate the time limits for the decision and the report separately, and explain technical objections with documents.
- Do not delay the main claim. Monitor notices, mediation, limitation and the conditions for bringing the claim separately, and link the preservation file to the main file.
In matters handled by a lawyer, it is not enough to tell the client only that "a file has been opened". What step has been taken, what result is expected, whether any additional expense is needed and what the upcoming dates are should be communicated clearly. A written record of the work done strengthens both file management and the client's understanding of the process. This working method is not a promise that the report will be favorable or that the case will be won.
Conclusion
The value of evidence preservation lies in protecting today's situation in a way that can be discussed and reviewed tomorrow. To achieve this, one must apply to the correct court, make the risk of loss concrete, frame the technical questions well and respect the procedural rights of the other party. An incomplete service or an unreviewable report may weaken the effect of the evidence that was meant to be protected.
A completed preservation does not mean that the necessary notice has been given, that the limitation period has been interrupted, that the main action has been filed or that the damage will be recovered. The timetable of the main claim must be managed alongside the evidence file. What needs to be protected is not only a photograph of the damage, but the evidential integrity that can explain when, where, under what conditions and how the damage occurred.
Frequently Asked Questions
Can evidence preservation be requested without filing an action?
Yes. There must be a connection with a future action and a legal interest. The likelihood that the evidence will be lost or that its presentation will become considerably more difficult must be made concrete. The application court before filing suit is determined under Article 401(1) of the HMK. Details: Application requirements.
Is a lawyer always required for evidence preservation?
As a rule, a person with legal capacity to sue may apply personally. Representation, the rules applicable to legal persons and special procedural rules are assessed separately. Because of the technical questions and the errors that may be made in relation to jurisdiction, the time limits and service, legal preparation of the application is important. Details: Petition and representation.
Can an application be made if the other party is not known?
Where the circumstances do not allow the other party to be identified, Article 402(1) of the HMK allows the request to be treated as valid. The reason why the other party cannot be identified must be explained. Failing to name a known person is not covered by this exception. Details: Identifying the other party.
How long does evidence preservation take?
There is no fixed completion period that applies to every file. Urgency, the court's workload, the place of inspection, and the expert and technical procedures all have an effect. Where there is a date on which the evidence will change, it should be shown with documents in the application. Details: Following the file.
Must I wait for mediation to end before preserving evidence?
The existence of a mediation condition precedent for the main action does not require waiting for the end of the process in order to preserve evidence. However, preservation does not replace the mandatory mediation. The time limits for the two steps are followed separately. Details: Mediation and time limits.
Is it unlawful to preserve evidence without notifying the other party?
Not in every case. Where the requirement of Article 403 of the HMK is met, urgent preservation may be carried out. The documents must then be served on the other party and its right to object protected. Details: Urgent preservation procedure.
Are the objection periods for the decision and for the report the same?
No. Under the one-week system in Article 402(3) and Article 403 of the HMK for the decision, and the objection to the expert report under Article 281 of the HMK, are distinct. The content of the service and the step being objected to are examined together. Details: Objection periods table.
Is it mandatory to file an action within two weeks after evidence preservation?
There is no such general requirement merely because of evidence preservation. Interim injunction and other temporary protection periods are separate. The limitation and preclusive periods of the claim itself must be protected. Details: When the main action should be filed.
If there is a preservation report, can another expert examination still be carried out?
Yes. For a report that is incomplete, contradictory or not open to verification, an explanation, a supplementary report or a new examination may be considered. The preservation report is not a final judgment binding the judge in every respect. Details: Assessment of the report.
Are a photograph and a service report sufficient?
They may be useful for certain facts; they are not sufficient in every dispute. The date, place, technical cause, integrity and the other party's objections are important. The need for a court preservation is assessed in light of these gaps and the risk that the evidence will change. Details: Preserving images and records.
Can I repair my home or vehicle before the preservation takes place?
The risk that the repair will change the evidence must be assessed. Where it cannot be postponed because of safety or to prevent the damage from growing, the reason for the intervention and the before-and-after condition must be documented in detail. Where possible, carrying out the preservation first may make proof easier. Details: Preparing before repair.
Does the other party pay the cost of evidence preservation?
The required advance is, as a rule, taken from the applicant at the outset. The final burden of costs is determined under the rules on the relationship with the main action and on litigation costs. It cannot be guaranteed that every expense will be recovered from the other party. Details: Separating the costs.
Can evidence preservation be carried out during the judicial recess?
Yes. Under Article 103(1)(a) of the HMK, evidence preservation and objections relating to it are among the matters that may be heard during the judicial recess. For this reason, one should not rely on an automatic extension of the time limits. Details: Service and the recess.
Is the person who obtained a preservation report obliged to use it?
The findings may be favorable or unfavorable to the applicant. Under Article 405 of the HMK, both parties to the main action may rely on the records and reports. It cannot be assumed that only the parts selected by the applicant will have an effect. Details: Use of the report by both sides.
Sources
- Code of Civil Procedure No. 6100 (Hukuk Muhakemeleri Kanunu), in particular Arts. 27, 51–52, 71, 92–93, 103, 106–107, 189, 199, 219–221, 266, 279–283, 291, 293, 316, 323, 326, 334–340, 341, 389–397 and 400–405, 414. Official text · UYAP legislation record.
- Code of Obligations No. 6098 (Türk Borçlar Kanunu), in particular Arts. 154, 334–335 and the defect provisions relevant to the type of contract. Official text.
- Law No. 6325 on Mediation in Civil Disputes (Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu), in particular Arts. 16 and 18A. Ministry of Justice legislation page.
- Notaries Act No. 1512 (Noterlik Kanunu), Art. 61. Official text.
- Law No. 7201 on Notification (Tebligat Kanunu), Art. 7(a). Official text.
- 15th Civil Chamber of the Court of Cassation (Yargıtay 15. Hukuk Dairesi), 21 November 2016, E.2016/3681, K.2016/4768. Full text of the decision.
- 3rd Civil Chamber of the Court of Cassation (Yargıtay 3. Hukuk Dairesi), 11 December 2017, E.2017/2611, K.2017/17356. Full text of the decision.
- 6th Civil Chamber of the Court of Cassation (Yargıtay 6. Hukuk Dairesi), 24 October 2024, E.2024/2916, K.2024/3723. Full text of the decision.
- Tahiroğlu, Fatih. "Medenî Usûl Hukukunda Delil Tespitinde Görevli ve Yetkili Mahkeme" (The Competent and Authorized Court for Evidence Preservation in Civil Procedure Law). Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi, 12(2), 2022, pp. 1241–1260. Article.
- Küçük, Barış. "Acele Hallerde Delil Tespiti Yoluyla Elde Edilen Bilirkişi Raporlarına İtirazın Hukuki Sonuçları" (Legal Consequences of Objections to Expert Reports Obtained Through Urgent Evidence Preservation). Selçuk Üniversitesi Hukuk Fakültesi Dergisi, 33(3), 2025, pp. 1989–2013. DOI: 10.15337/suhfd.1676305. Article.
- Civil General Assembly of the Court of Cassation (Yargıtay Hukuk Genel Kurulu), 18 May 2022, E.2022/397, K.2022/701, in particular paras. 36–45. Full text of the decision.
Decision links lead to the full texts in the DeJure legal database; access may require a subscription.