The most essential regimes of the civil procedure law are those on burden of proof and principles on the method of proving an event or transaction. Article 200 Code of Civil Procedure No. 6100 ("CCP") sets forth the obligation to prove by deed. According to this article, the party who bears the burden of proof is obligated to prove existence of the transactions that exceeds the sum of four thousand eight hundred Turkish Liras with deeds, and in such a case opposing party cannot produce a witness without prior consent of the party who presented a deed regarding the disputed issue.

Apart from mentioned article, which is also named as prohibition of proof by witness, Article 199 of CCP brings another instrument of proof called "document", without actually mentioning its conclusive force in the civil procedure law. In another words, Article 199 of CCP, without recognizing its probative force and indicating if it is an exception to the obligation to prove by deed, defines a civil procedure law instrument named "document". Article 199 of CCP defines "document" as follows: "written or printed texts or documents, certificates, drawings, plans, sketches, photographs, films, visual or audio data and electronic data and other means of collection of information that are convenient for proving the facts related to the dispute"

In Turkish legal doctrine,1 it is indicated that Article 199 of CCP shall not be regarded and interpreted as an exception to the obligation to prove by deed. That said, such an approach brings the question of why CCP contains Article 199. The recent decision of High Court of Appeals dated 10.6.2020, and numbered 2017/1014 E., 2020/4488 K. ("Decision") sheds a light to this question.

In the Decision, it is discussed whether e-mail messages, which falls under the definition of "document" as per Article 199 of CCP, between an attorney and a client should be taken into consideration in the assessment that is made for determination of whether the defendant is indebted, even in a case where the debt in question exceeds four the limit of "thousand eight hundred Turkish Liras". In the Decision, the court concludes that e-mail messages sent by the parties shall be regarded as document in accordance with Article 199 of CCP and valued as instrument of proof even in the scenario where the value of the disputed transaction is greater than the limit that is set out for proof by deed.

In that sense the Decision keeps the CCP in tune with rapidly growing digital era and develops the formulaic concepts of civil procedure law to match with the realities of the current circumstances. So this decision enhances and confirms the significance of e-mail correspondences in evidentiary law and also shows that the everyday e-mail correspondences can be used as evidence even in cases where the dispute is subject to the obligation to prove by deed. This ultimately requires the sender and recipient of such messages to more diligent with an eye towards possible use of these messages as evidence.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in December 2020. A link to the full Legal Insight Quarterly may be found here


1 Ali Cem Budak, Varol Karaaslan, Medeni Usul Hukuku, Adalet Yayinevi, Istanbul 2017, s.233.

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