How is Evidence Preservation Conducted in Turkish Law?
What is Evidence Preservation?
Also known as an ”Evidence Preservation Case”, ”Evidence Preservation” is the process of immediately examining and recording evidence to eliminate the risk of losing the evidence or encountering difficulties in presenting it in the future, before filing a lawsuit or before the stage of presenting evidence.
Evidence is the tools used to prove the facts in court. Therefore, evidence is vital for success in a lawsuit because proving the claims related to the case happens during the investigation stage of the trial.
In this article, we will detail what evidence preservation is, why it is necessary, its process, and its application, step by step, for our readers.
The Institution and Importance of Evidence Preservation
The plaintiff must present the evidence to prove their claim in the Code of Civil Procedure (HMK) article 119 in the complaint petition. However, examining the evidence during the investigation stage can take time, and the evidence may be lost or become difficult to use during this process.
Therefore, preserving evidence is crucial for fair resolution of lawsuits. To counter this danger, the institution of evidence preservation has been established to collect and preserve evidence related to a future or pending lawsuit under certain conditions.
Evidence Preservation: Precautionary Measure or Temporary Legal Protection?
Although some Supreme Court decisions consider evidence preservation as a precautionary measure, the more accurate view is that it is one of the temporary legal protection measures. Temporary legal protection includes broad or narrow legal protection given to protect the parties against risks that may arise before or after the trial until the outcome of the lawsuit is revealed.
What are the Conditions for Evidence Preservation?
The person requesting evidence preservation must be in a party position in a pending or future lawsuit. The evidence requested to be preserved must be related to the lawsuit. Additionally, the requested evidence must not yet be due for examination. The person requesting the preservation must have a legal interest in preserving the evidence in advance.
What is the Legal Interest Condition in Evidence Preservation Requests?
The person requesting evidence preservation must have a legal interest in preserving the evidence in advance. This is necessary to preserve evidence that may be lost or difficult to present in the future. For example, in cases where the person who will testify as a witness in the future has poor health or is about to embark on a long journey, taking their statement in advance provides legal interest.
Because during the trial, it may be challenging to assess the damage. The opposing party may argue that the applicant is acting in bad faith or that the request is irrelevant to the dispute to oppose evidence preservation. However, if it is possible to preserve the evidence, it is assumed that the risk of losing the evidence has not materialized.
It is not sufficient for the person requesting evidence preservation to merely repeat the expressions in Article 400 of the HMK; they must explain the reasons for their request and the basis for it with justifications.
In cases where evidence preservation is requested under a special legal provision, the legal interest condition is not required. Even if the initial request is rejected, the party can later request evidence preservation again if conditions change. However, if the conditions remain the same and only the initial request is rejected, reapplying to another court does not create legal interest.
Evidence Preservation: Disputes Between Parties and Obtaining Evidence Through Discovery
The facts forming the basis of the evidence preservation request must be disputed between the parties. In other words, the fact that is subject to evidence preservation must contain a disagreement between the parties. This applies only when the fact is requested to be established, and when there is an agreement between the parties, an evidence preservation request is not appropriate.
In practice, it is often observed that those requesting evidence preservation seek to obtain evidence through discovery and apply to other courts when they do not achieve the desired result.
Therefore, courts must consider the conditions specified in Article 400 of the HMK, ask whether the party has applied to another court, and notify the other party to take their defense. It is requested that the minutes of the evidence preservation be immediately notified to the other party and that the costs be collected in advance.
The lack of disagreement between the parties in uncontested legal matters does not mean that evidence preservation cannot be performed.
Matters to be Specified in the Petition for Evidence Preservation Request:
The evidence preservation request is submitted to the court with a petition. The court cannot perform the evidence preservation process on its own. The petition should specify the facts, witnesses, and questions to be directed to the experts, as well as the reasons justifying the evidence preservation request.
If the party requesting evidence preservation cannot determine the opposing party through no fault of their own (such as if the opposing party has fled), the petition should not be rejected. Article 406/2 of the Draft Code of Civil Procedure states that the request will be considered valid if the requesting party is unable to identify the opposing party due to circumstances and conditions.
If the person requesting evidence preservation has written the opposing party’s name or address incorrectly, this error can be corrected according to HMK 183.
The evidence preservation petition is submitted in three copies. The first copy remains in the court, the second is sent to the opposing party, and the third is given to the expert, if any.
Evidence preservation requests are made with a written petition, and oral requests are not accepted.
Before filing a lawsuit, the person requesting evidence preservation must pay the application fee and fixed decision fee in advance. The plaintiff can request both evidence preservation and file the main lawsuit with the same petition, so only one application fee is collected. The person requesting evidence preservation must deposit the costs related to the requested matter in advance with the court cashier. These costs are included in the litigation expenses of the lawsuit to be filed later.
The incorrect naming of the evidence preservation request does not result in its rejection. For example, if a petition clearly indicates an evidence preservation request but is named as a lawsuit, this does not bind the judge. The judge must apply the provisions related to evidence preservation for this request and accept the request as valid. However, if there is uncertainty about the requested matter in the evidence preservation petition, the judge may ask the party to clarify.
The requesting party is not expected to prove all the facts completely. The proof of facts should be to the extent that the judge can use them reliably in the decision-making process. At this stage, the judge’s personal qualities become important; they must not only apply reason and legal norms but also evaluate complex and diverse aspects.
The petition owner should indicate on what subjects the witnesses and/or experts should testify regarding the requested evidence. Additionally, if there are any evidence that will facilitate the decision-making process, the requesting party should include them in the request. The evidence preservation request can be subsequently limited or withdrawn.
The Plaintiff and Defendant in Evidence Preservation Requests
Article 400/1 of the HMK uses the term “either party” when referring to those who can request evidence preservation. Therefore, before filing a lawsuit, any party can make the request.
If the plaintiff or defendant consists of more than one person, it is referred to as joinder of parties.
In mandatory joinder of parties based on substance, the parties must act together and request evidence preservation jointly. However, in formal mandatory joinder of parties, each party can independently request evidence preservation.
In voluntary joinder of parties, the lawsuits are filed together, and each party can individually request evidence preservation.
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How is Evidence Preservation Conducted in Turkish Law
