Evidence (delil)

Scope

The subject of proof consists of the contested facts on which the parties do not agree and which may be decisive in resolving the dispute; facts that are generally known or admitted need not be proved (Code of Civil Procedure (HMK) Arts. 187–188). Unless the law provides otherwise, the burden of proof lies on the party who derives a right in that party’s favor from the legal consequence attached to the alleged fact (Art. 190). The statute separately regulates documents and instruments, oath, witnesses, experts and on-site examination; unless a particular form of evidence is mandatory, forms of evidence not regulated may also be used (Art. 192). Photographs, audio and video recordings and electronic data are also regarded as documents (Art. 199). Except for statutory exceptions, the judge evaluates evidence freely (Art. 198).

Practical significance

The parties must substantiate the facts and state clearly which evidence is offered for which fact (Art. 194); as a rule, evidence cannot be offered after the period specified in the statute; however, the court may permit it if the later submission of the evidence is not intended to delay the proceedings or if the failure to submit it in time was not due to the fault of the party concerned (Art. 145). Legal transactions whose value on the date they were made exceeds the monetary limit valid on that date and updated each year according to the revaluation rate are, as a rule, proved by an instrument (a signed written document); witnesses may also be heard where the opposing party expressly consents, in the case of initial written evidence (delil başlangıcı) and in other exceptional cases listed in the statute (Arts. 200–203, Supplementary Art. 1). If there is a risk that evidence will be lost or that its submission will become considerably more difficult, preservation of evidence may be requested even before a lawsuit is filed (Art. 400). Keeping contracts, correspondence and payment records in an orderly way is therefore important.

Concepts often confused

Evidence differs from the burden of proof: evidence is a means of proving, whereas the burden of proof determines which party bears the consequences if a fact cannot be proved. Preservation of evidence is likewise not the evidence itself but interim legal protection that secures evidence to be used in the future. The rules of evaluation also differ: in civil procedure, the statute gives certain evidence probative force that binds the judge and requires proof of certain legal transactions by instrument (HMK Arts. 200, 204); in criminal procedure, the judge bases the judgment only on evidence brought to the hearing and discussed in the judge’s presence, evaluates it freely according to personal conviction, and a crime may be proved by any evidence obtained lawfully (Code of Criminal Procedure (CMK) Art. 217).