Showing evidence in civil trial and types of evidence

One of the purposes of Civil Code No. 6100, which is a part of the law, is to complete the trial within a reasonable time. In this respect, the legislator has introduced some restrictions in terms of the duration and form of party transactions. The most important issue for the trial to be concluded as quickly as possible is that the parties are given a certain period of time for their actions and that these periods are illegitimate.

As emphasized in a decision of the General Assembly of the Supreme Court of Appeals:

The obligation of "concretization burden and presentation of evidence" regulated by Article 194 of the Code of Civil Procedure; For the plaintiff party, by regulating the issue of "With what evidence will each alleged fact be proven" in paragraph 1-f of Article 119, titled "Content of the petition", and for the defendant party, by regulating the issue of "With what evidence will each fact put forward as a basis of defense" be regulated, in paragraph 1-e of Article 129, titled "Content of the response petition", "the facts relied upon for the claim and defense" and the evidence with which that fact will be proven" are discussed as a whole, and the fact relied upon and the means of proof of that fact, as well as the necessity of showing the evidence at the same time, are unequivocally explained.

In accordance with the principle of preparation by the parties regulated in Article 25 of the Code of Civil Procedure; "Except for the cases specified by law, the judge cannot collect evidence on his own." For this reason, in trials where the principle of being brought by the parties is applied, evidence must be brought by the parties. However, it should not be forgotten that there are some evidence that the judge can refer to on his own. (expert witness, discovery etc.)

Article 119/1-f of the Code of Civil Procedure considers compulsory elements of the lawsuit petition, and the plaintiff is obliged to inform which evidence will be used to prove each of the facts claimed in the lawsuit petition.

Article 129/1-e of the Law also includes evidence among the mandatory elements that must be included in the petition in response to the lawsuit.

DESTRUCTION OF EVIDENCE

When a party shows all its evidence for a fact that it is obliged to prove and declares that it has no other evidence, it is called exclusion of evidence. Once the evidence is isolated, no new evidence can be presented.

When filing a lawsuit, the plaintiff must present evidence that will prove the facts in the petition. In terms of Article 119/f of the Code of Civil Procedure, the evidence with which each alleged fact will be proven must be stated in the petition. This situation is also a requirement of the obligation to concretize. The defendant must also state his evidence in his response petition.

However, some evidence may not have been presented to the court even though it was stated in the petition. At this point, HMK article 139/ç. According to the article; When sending a preliminary examination hearing invitation to the parties, it is written on the invitation that the parties must present to the court the documents they have shown in their petitions but have not yet submitted within a certain period of two weeks from the notification of the invitation, or make the necessary statement in order to bring the documents to be brought from elsewhere, and if these issues are not fulfilled within the given period, it will be decided that they will be deemed to have given up relying on that evidence." The party must submit the evidence to the court within 2 weeks from the notification of the invitation. The sanction for not complying with the notice is stated in Article 140/5 of the Civil Procedure Code. Accordingly, it is decided that the party who does not present the documents submitted in their petition or does not make the necessary explanation for the submission of documents in accordance with Article 139 shall be deemed to have given up relying on this evidence.

The conclusion of the two provisions is that the parties cannot rely on evidence that they did not state in their petitions. Therefore, the ability to put forward evidence depends on it being stated in the lawsuit or the response petition. It should be noted again that these provisions are only related to the reporting of evidence stated in the petitions but not submitted to the court.

EXAMINATION OF EVIDENCE

Examination of evidence is regulated in Article 197 of the Civil Code. Except for the cases specified by law, the evidence is examined together and at the same hearing, as much as possible, before the court hearing the case. This rule is a consequence of the directness principle. In cases of necessity (HMK 197/2), evidence that is located elsewhere and cannot be brought to the court can be collected through rogatory in that place.

HMK's 197/3. According to the article; During the examination of evidence or hearing of statements, the parties may be present in the court rogatory and exercise their right to explain the evidence. To ensure this, the parties are notified of the date and place of the examination. Upon this invitation, evidence is examined or statements are heard, even if the parties are not present in the court rogatory.

As can be clearly understood from the provision, the court from which the letter is requested must inform the parties about the letter. Otherwise, the right to legal hearing will be violated. In a Supreme Court decision on the subject, the following provision was made:

"It is correct to have an expert examination as to whether the plaintiff (the defendant of the combined case) is at fault in the occurrence of the malfunction and damage in the dishwasher, which was cited as a justification for termination by complying with the court's decision to overturn, and if so, the rate and amount of damage, and to apply for a letter of rogatory in accordance with Article 197 of the HMK for this purpose. However, despite the clear provision of Article 197 of the HMK, the court on rerogation does not allow the plaintiff (defendant of the combined case) and/or his attorney to conduct discovery and "It was wrong to restrict the right to be heard by taking action in their absence without informing them of the date of expert examination, and to ignore the objections of the plaintiff (joined case defendant) attorney regarding this aspect." Y7HD. 2016/7814 K.

SHOWING EVIDENCE AFTERWARDS

As we stated above, the regulations regarding the presentation of evidence are aimed at completing the trial quickly. In this respect, in Article 145 of the Civil Code; "The parties cannot present evidence after the period specified in the Law." The provision is included. An exception is also included in the same article. Accordingly; If the subsequent presentation of evidence does not aim to delay the trial or the failure to present it in due time is not due to the fault of the relevant party, the court may allow that evidence to be presented later.

Here, it is necessary to distinguish cases where the parties do not submit any evidence. If the parties do not show any evidence during the exchange of petitions, they cannot benefit from the provision of Article 145. As a matter of fact, the following statements were included in the decision numbered 2020/5966 K. of the 17th Civil Chamber of the Supreme Court of Appeals:

"The purpose of the investigation, as a rule, is not to collect evidence, but to examine and evaluate the evidence; otherwise, the investigation cannot be completed and the trial will be prolonged. For this reason, except for very special cases specified in Article 145 and outside the party's sphere of influence, this evidence should not be taken into consideration in cases where evidence is presented later. Likewise, it should not be accepted if the parties present evidence later before the conditions of Article 145 are met or if they attach and submit evidence to their petition in this way when applying for a legal remedy ( Özekes, Pekcanıtez Usul, p.1339 ).

When all these issues are evaluated together; Within the systematics of HMK No. 6100; It is understood that the aim is to conduct the investigation effectively by determining the evidence put forward by the parties for the resolution of the disputes at the very beginning, before proceeding to the investigation phase. In order to complete the trial effectively and within a reasonable time, the presentation of evidence is reserved for the exchange of petitions (case, reply, reply to reply and second reply) phase. Accordingly, the exception introduced by Article 145 does not include allowing the plaintiff or defendant who does not submit any evidence during the mutual submission of petitions to be given a new period to submit their evidence at the preliminary examination hearing."

One last point needs to be mentioned here. Parties cannot provide a second witness list even with the judge's permission.

ILLEGAL EVIDENCE

The second paragraph of Article 189 of the Code of Civil Procedure, which regulates the right of proof, states: "Evidence obtained illegally cannot be taken into account by the court in proving a fact." It is shaped like.

The following expressions were used in the justification of the same article:

"With the second paragraph, the legal framework of the evidence-related aspect of the right of proof has been drawn, and the principle that all kinds of evidence that can be put forward in a case must be evidence obtained by lawful means has been introduced. According to the regulation envisaged in the paragraph, it is regulated that evidence that is understood to have been obtained illegally cannot be taken into account by the court in proving a fact, and the court must take into consideration ex officio the way in which the evidence presented by the parties during the trial was obtained, and the evidence is taken into account in any way." "In case it is determined that it was obtained unlawfully, even if the other party does not raise an objection, the court decides that it is not permissible and the principle of not considering it within the scope of the file has been adopted. The fourth paragraph stipulates that the court may decide on this matter ex officio."

The use of illegal evidence is strictly prohibited and it is stated that this situation must be taken into account by the judge. The 3rd Civil Chamber of the Supreme Court of Appeals made detailed evaluations regarding prohibited evidence in its decision numbered 2017/2577 K. The relevant parts of this decision are as follows:

Article 189/2, titled "Right of Proof", of the Code of Civil Procedure No. 6100, which came into force on 01.10.2011. In the article; "Evidence obtained illegally cannot be taken into account by the court in proving a fact." With this provision, it is clearly accepted that evidence obtained illegally will not have the power of proof.

Thus, the legal framework of the evidence-related aspect of the right of proof in Civil Trial has been drawn; The principle has been introduced that all kinds of evidence that may be put forward in a case must be obtained by lawful means and, in other words, it must not be prohibited evidence.

According to the aforementioned regulation, the evidence that is understood to have been obtained illegally cannot be taken into account by the court in proving a fact, and the court must ex officio take into account the way in which the evidence presented by the parties during the trial was obtained, and if it is determined that this evidence was obtained by legally legitimate means and methods, and that the evidence was obtained illegally by any means, even if the other party does not raise an objection on this issue, the court decides that the evidence presented is not permissible and does not consider it within the scope of the file. principle has been adopted.

On the other hand, although there was no clear legal provision in the Civil Procedure Law until 01.10.2011 regarding the evaluation of illegally obtained evidence in the trial, a clear regulation was made in both the repealed CMK No. 1412 and the CMK No. 5271. Article 254/2 of the repealed CMUK No. 1412. "Evidence obtained illegally by the prosecution authorities cannot be used as a basis for judgment." It is said that, in Article 206/2-a of the Criminal Code No. 5271, "the evidence requested to be presented will be rejected if it is obtained illegally", and in the sixth paragraph of Article 38 of the Constitution, it is clearly stipulated that findings obtained illegally cannot be accepted as evidence, and although this Constitutional rule seems to be related to criminal justice, all types of jurisdictions are included in the body of judicial justice. It has been accepted in judicial practices that it is a regulation that is also valid in terms of civil jurisdiction.

One of the illegalities mentioned here is unjust interference in private life. However, no interference can be made in the area of ​​private life that concerns only the individual. For example, a person's private life and sexual life are like this. If evidence is obtained by violating this confidential area of ​​life, the evidence in question cannot be used as evidence in a criminal court, regardless of who, how and for what purpose it was obtained. Because the secret area of ​​life constitutes a ban on obtaining evidence. ( Öztürk, B. Evidence Prohibitions in the Light of New Supreme Court Decisions, Ank.1995, p.116 et al. )

Although there were different approaches in the judicial practices before the Code of Civil Procedure No. 6100, depending on the characteristics of the concrete event, it is seen that the unlawful obtaining of evidence and its unlawful creation were handled differently, and although the evidence created unlawfully was not accepted in the trial in any way, different evaluations were made regarding the evidence obtained unlawfully, depending on the characteristics of the event. However, the principle of the State of Law in Article 2 of the Constitution and Article 38/6 of the Constitution. The regulation in the article stating that evidence obtained by illegal means and methods cannot be used in the trial in any way and the above-mentioned article 189/2 of the Code of Civil Procedure No. 6100. When the article is evaluated together; It is clearly accepted that evidence obtained illegally will not have the power of proof. Therefore, it is no longer possible to use illegal (created or obtained) evidence as a means of proof.

For an evidence to be accepted by the court, it is necessary that the evidence was not created irregularly or illegally and was not obtained illegally. Since the scope of prohibited evidence includes evidence created illegally and evidence obtained by illegal means and methods, it is no longer possible to accept evidence accepted within this scope as lawful and legitimate evidence.

TYPES OF EVIDENCE

Evidence is a means of proof that helps to convince the judge whether a material fact has occurred or not. Civil Procedure Law divides evidence into two: definitive (legal) and discretionary evidence.

Legal evidence means evidence that the judge cannot use his discretion in the presence of such evidence. In the presence of legal evidence, the fact is considered proven. However, it should not be forgotten that in cases where the spontaneous investigation principle is applied, the judge is not bound by definitive evidence.

Discretionary evidence is evidence that gives discretion to the judge. The judge evaluates whether the evidence proves the fact or not.

The definitive evidence is as follows:

1- Confession.

2- Final judgment.

3- Promissory note.

4- Oath evidence.

Appreciative evidence can be listed as follows:

1- Witness,

2- Expert witness,

3- Discovery,

4- Expert opinion,

5- Other evidence not regulated by law.

EVIDENCE CONTRACT

Article 193 of the Code of Civil Procedure regulates the evidence contract. The relevant article is as follows:

"The parties may decide, in writing or through their signed statements to be recorded in the minutes before the court, to prove the facts that are prescribed by law to be proven with certain evidence, with other evidence or evidence; and they may also accept that the facts that are not prescribed to be proven with certain evidence, be proven only with certain evidence or evidence. Evidence contracts that make it impossible or extremely difficult for one of the parties to exercise the right of proof are invalid."

As explained in the justification of the article:

In the first paragraph, it is accepted that the parties may decide that the facts that are foreseen to be proven with certain evidence by law can also be proven with other evidence or evidence, or that they may impose restrictions on the proof of facts that are not prescribed to be proven with certain evidence, with certain evidence or evidence.

In the first case, non-exclusive evidence contract; In the second case, an exclusive evidence contract will arise. In the same paragraph, it is also stated how to make an evidence contract. Due to the importance of the evidence contract, it has been accepted that it can be made in writing or by signing statements to be recorded in the minutes. While an evidential contract can only be made expressly, it is not possible to make an implied evidential contract.

In the second paragraph, the limits of the evidence contract are specified. Since the evidence contract directly concerns the right to prove, the limits on this issue must also be set forth. Especially in practice, it is seen that from time to time the stronger party forces the other party to make an evidentiary contract in a way that completely eliminates or complicates the right of proof. For this reason, evidential contracts that make it impossible or extremely difficult for one of the parties to exercise their right of proof will be deemed invalid.

In practice, it is seen that evidence contracts are generally made as an annex to work contracts. In cases where the parties sign annexes such as technical specifications and general specifications for construction works, considering them as annexes to the contract, it is necessary to talk about the existence of an evidentiary contract. The Supreme Court also points to this situation in many of its decisions.

"In the article 8.2.1.1 of the contract signed between the parties, the General Specification for Construction Works is listed among the annexes of the contract. In accordance with the 3/e of the 39th article of the said specification regarding provisional progress reports and the 9th paragraph of the 40th article titled accounting with the final progress report, in case the contractor objects to the progress payments, he will submit to the administration what his opposing views are and the grounds on which he is based and submit a copy of it to the progress payment report. "It is stated that he must write and sign the statement with a written reservation in my petition dated . . . and submit the progress payment report to the administration, and that if the contractor does not notify his objections in this way, he will be deemed to have accepted the progress payment as it is. Since this arrangement made in the said specification is in the nature of an evidence contract in accordance with Article 193 of the Code of Civil Procedure No. 6100, it is automatically taken into consideration by the courts and the Supreme Court in case of appeal, as per its duty." Y15 HD. 2018/872

"The case is about the request for the collection of the progress payment deduction arising from the work contract. In the incident, the final progress payment in which the deduction was made was written and signed by the assigning contractor with a reservation, and it was understood that the petition of objection to the progress payment was not attached. These regulations regarding interim and final progress payments in the General Specification for Construction Works are in article 287 of the repealed Code of Civil Procedure No. 1086 (Article 287 of the Civil Code No. 1086), which was in force at the time the contract was made. In accordance with Article 193 of Civil Code No. 6100, it is an evidentiary contract and is binding on the parties and must be taken into account ex officio by the judge." Y15 HD. 2020/1544 K.