TÜRKIYE Law and Practice Contributed by: Faruk Aktay, Ayşe Müge Aktay and İrina Gül Coşkun, Aktay Law Firm
Because parties must advance the costs associ- ated with their evidentiary requests, the scope and expense of the process are naturally limited. Broad, open-ended discovery and party-driven disclosure mechanisms do not exist in the Turkish system. 5.2 Discovery and Third Parties It is possible to obtain documents or other evidence from third parties who are not parties to the lawsuit. Under Articles 219–226 of the CPC, the court may order a third person to produce a document or record that is relevant to the dispute. The request must be made through the court, and the third party may refuse only where a statutory ground exists, such as profes- sional secrecy or the risk of criminal liability. If the refusal is unjustified, the court may impose coercive measures or accept the opposing party’s assertions regarding the content of the document. Third parties may also participate as witnesses under the witness-examination rules of Articles 240–265 of the CPC, in which case, they will testify under oath before the court. In matters requiring technical exper- tise, the court may appoint an expert, who is like- wise a third party but acts in a different capacity. All such measures are administered by the court and are designed to provide limited, case-specific access to Turkish law does not recognise broad discovery or general disclosure obligations. Each party is respon- sible for presenting the evidence on which it relies, and there is no duty to disclose all documents relevant to the dispute. Under Articles 219–226 of the CPC, a party may request the court to order the opposing party to produce a specific document; if the requested party unjustifiably refuses, the court may accept the requesting party’s assertions regarding the docu- ment’s content. Evidence may be submitted with the initial pleadings and, in limited circumstances, during the course of the proceedings if its late submission is justified. Through- out this process, the court exercises control over the gathering and admission of evidence, ensuring that only relevant and necessary material is considered. evidence rather than broad discovery. 5.3 Discovery in This Jurisdiction
There are no detailed rules resembling common-law discovery regimes. 5.4 Alternatives to Discovery Mechanisms As Turkish civil procedure does not provide for dis- covery, evidence is developed and admitted through the party-presentation system under the supervision of the court. Each party must submit the evidence on which it relies within the deadlines established by the CPC and the timetable set during the preliminary examination phase. Evidence may consist of docu- ments, witness testimony, expert reports, on-site inspections and other material evidence. Under Articles 219–226 of the CPC, the court may order a party or a third person to produce a specific document if it is relevant to the dispute. Witnesses are heard by the court in accordance with Articles 240–265 of the CPC, and technical issues are typically addressed through expert examination under Articles 266–287 of the CPC. Where there is a risk that evi- dence may be lost, parties may request the preserva- tion or determination of evidence ( delil tespiti ). Only legally obtained evidence may be relied upon, pursuant to Article 189 of the CPC. Throughout this process, the court controls the admission, relevance and probative value of the evidence to ensure a com- plete and lawful evidentiary record. 5.5 Legal Privilege Turkish law recognises a broad form of attorney–cli- ent confidentiality. Under Article 36 of the Attorney- ship Law, lawyers are required to keep confidential all information they obtain in the course of providing legal services, and this obligation continues indefinitely. Article 37 grants lawyers the right to refrain from tes- tifying regarding matters learned through professional activity, and such information cannot be compelled. Although Turkish law does not use the common-law terminology of “privilege” or “work product”, commu- nications and materials prepared by lawyers in the performance of their duties are protected by this con- fidentiality regime. A lawyer may not disclose information to the detri- ment of the client, although they must not engage in conduct that would make them complicit in a crimi-
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