1. Legal Basis of Evidence Law in Turkey
Evidence law in Turkey is mainly codified in the:
- Code of Civil Procedure (Hukuk Muhakemeleri Kanunu – HMK, No. 6100, 2011) – governs evidence in civil and commercial cases.
- Code of Criminal Procedure (Ceza Muhakemesi Kanunu – CMK, No. 5271, 2005) – governs evidence in criminal proceedings.
- Special laws (e.g., Enforcement and Bankruptcy Law, Administrative Jurisdiction Law) also contain evidence rules in their fields.
These laws define which facts need to be proven, what constitutes valid evidence, and how courts must evaluate them.
2. Fundamental Principles
a. Burden of Proof (İspat Yükü)
- Civil cases: The burden of proof lies with the party asserting the claim (HMK Art. 190).
- Criminal cases: The burden lies with the prosecution; the principle of presumption of innocence applies (CMK Art. 2).
b. Free Evaluation of Evidence (Hakimin Takdir Yetkisi)
- Judges evaluate evidence freely, guided by logic, experience, and law.
- However, some evidence has conclusive effect (kesin delil), binding the court.
c. Legality of Evidence (Hukuka Aykırı Delil Yasağı)
- Unlawfully obtained evidence (e.g., illegal recordings, searches) is inadmissible, both in civil and criminal cases.
- This is strongly enforced in criminal law, protecting constitutional rights.
d. Principle of Orality and Immediacy (Sözlülük ve Doğrudanlık)
- Evidence must be presented and examined before the court in hearings.
3. Types of Evidence in Civil Procedure (HMK)
The HMK recognizes both conclusive evidence and discretionary evidence:
- Conclusive Evidence (Kesin Deliller):
- Official Documents (Resmî Belgeler): Public records, notarized documents, court judgments.
- Final Judgments (Kesinleşmiş Hükümler): Binding on subsequent cases.
- Oath (Yemin): If the court directs a decisive oath to one party, the case may be resolved solely on its acceptance/refusal.
- Discretionary Evidence (Takdiri Deliller):
- Private Documents: Contracts, receipts, signatures (their authenticity may be contested).
- Witness Testimony (Tanık Beyanı): Important but limited in high-value disputes.
- Expert Reports (Bilirkişi Raporu): Especially in technical, financial, or scientific matters.
- On-Site Inspection (Keşif): Court visits to examine property, sites, or objects.
- Presumptions (Karine): Legal or factual presumptions may shift the burden of proof.
Documentary Evidence Requirement
- For disputes over obligations exceeding a certain monetary threshold, written evidence is required (HMK Art. 200). Witnesses alone are not sufficient unless exceptions apply.
4. Evidence in Criminal Procedure (CMK)
Criminal evidence rules emphasize human rights and fair trial guarantees:
- Unlawfully obtained evidence is inadmissible (CMK Art. 217).
- Presumption of innocence means any doubt benefits the defendant.
- Expert opinions, witness testimony, forensic evidence play key roles.
- Judges cannot convict based solely on unlawfully obtained or weak evidence.
Distinctly, criminal law in Turkey is cautious about secret surveillance, wiretapping, and digital evidence, requiring judicial authorization.
5. Distinct Features of Turkish Evidence Law Compared to the Rest of the World
a. Strong Role of Written Evidence in Civil Law
- Unlike common law countries (UK, US), where oral testimony and cross-examination dominate, Turkish civil procedure (like other civil law systems) prioritizes written evidence.
- For contracts above a threshold, documents are mandatory; witnesses cannot replace them.
b. Oath as a Decisive Evidence
- The “decisive oath” (kesin yemin) is unique: if one party swears or refuses to swear, it may resolve the entire dispute. Common law systems do not use this method.
c. Limited Discovery / Disclosure
- In Anglo-American law, discovery allows broad access to the opponent’s evidence.
- In Turkey, evidence presentation is party-driven: each side must submit their own evidence, with limited court-ordered disclosure. This reduces fishing expeditions but can disadvantage weaker parties.
d. Strict Exclusionary Rule for Illegal Evidence
- In criminal law, Turkey has a rigid ban on unlawfully obtained evidence, similar to Germany, but stricter than some common law systems where balancing tests may admit evidence if probative value outweighs harm.
e. Judge-Centered System
- As a civil law system, Turkey gives judges an active role in evaluating evidence and conducting proceedings. This contrasts with adversarial systems where the parties drive the evidence presentation.
f. Importance of Expert Reports
- Courts heavily rely on expert witnesses (bilirkişi) in technical disputes, often more determinative than witness testimony.
6. Practical Issues and Criticism
- Delays in Expert Reports: Over-reliance on experts causes delays.
- Formality of Evidence Rules: Strict documentary requirements sometimes hinder justice.
- Digital Evidence Challenges: Courts are adapting to electronic signatures, emails, and blockchain records.
- Balancing Privacy and Justice: Exclusion of unlawfully obtained evidence sometimes prevents truth-finding.
Conclusion
The Evidence Law in Turkey balances between protecting rights and ensuring efficient adjudication. Its distinctive features include the priority of written documents, the decisive oath, the strict prohibition of illegal evidence, and the judge-centered model.
Compared to common law countries, Turkish law limits oral testimony and discovery, while emphasizing documents and expert reports. These features reflect its civil law heritage, providing predictability but sometimes criticized for rigidity.
For foreigners litigating in Turkey, the key takeaway is clear: always secure written documentation, expect judge-driven proceedings, and be prepared for strict rules on admissibility of evidence
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