What is Evidence?
They are means of proof presented to resolve disputed facts that the parties disagree on and that may be influential in settling the dispute.
Conclusive Evidence and Discretionary Evidence
Conclusive evidence is limited to the types listed in the law, and the judge has no discretion regarding these types of evidence. These include final judgment, oath, and written documents (contracts).
Discretionary evidence, on the other hand, includes inspection, expert testimony, witnesses, and other types of evidence not regulated by law, as specified in Article 192 of the Civil Procedure Code (HMK).
“In cases where the law does not require proof with a specific piece of evidence, other types of evidence not regulated by the law may also be used.”
The Obligation to Prove with a Written Document
Legal transactions exceeding a certain value can only be proven with a written document. This provision is stated in Article 200 of the Civil Procedure Code (HMK).
“(1) Legal transactions made for the creation, cancellation, transfer, modification, renewal, postponement, acknowledgment, or settlement of a right must be proven with a written document if the amount or value at the time they were made exceeds two thousand five hundred Turkish Liras. Even if the amount or value of these legal transactions falls below two thousand five hundred Turkish Liras for reasons such as payment or debt discharge, they cannot be proven without a written document.
(2) In matters requiring proof with a written document under this article, witness testimony may be heard with the clear consent of the other party, provided the regulation in the first paragraph is recalled.”
According to Article 202 of the Civil Procedure Code (HMK), in cases where proof with a written document is required, witness testimony may be heard if there is an indication of evidence.
“(1) In cases where proof with a written document is required, witness testimony may be heard if there is an indication of evidence.
(2) An indication of evidence is a document given or sent by the person against whom the claim is made, or their representative, which, although not sufficient to fully prove the legal transaction in question, makes the legal transaction plausible.”
Can Emails, Messages, and WhatsApp Conversations Be Used as Evidence?
With the advancement of technology, communication through email, messages, and WhatsApp has become widespread in daily life. Whether in social life or business relationships, communication is conducted through these tools. When a legal dispute arises, these message records are naturally sought to be used as evidence. While certain conditions apply, it is possible to present these message records as evidence.
The Lawful Acquisition of Evidence
According to Article 38, Paragraph 6 of the Constitution, “Findings obtained in violation of the law cannot be accepted as evidence.”
For communications recorded in electronic media, such as emails, messages, and WhatsApp conversations, to be used as evidence, these communications must first have been obtained in accordance with the law. Evidence obtained through coercion, deceit, fraud, or without the consent of the relevant individual, such as through unauthorized audio or video recording, would constitute a violation of the law and, therefore, will not be considered by the court. In order for these communications to be presented as evidence, the person presenting the evidence must either be a party to the conversation or, if a third party, must have obtained the consent of the parties involved in the conversation. If it is a group conversation, all participants in the group can use these conversations as evidence. The person who is a party to the conversation must personally record it and must not violate the individual’s privacy. Evidence obtained without the relevant person’s consent constitutes the crime of “unauthorized access to an information system” under Article 243 of the Turkish Penal Code No. 5237. There is no need to use the findings obtained in the commission of this crime; merely gaining access to the information system is sufficient to constitute the crime.
Can Illegally Obtained Evidence Be Used in Court?
As explained above, evidence obtained in violation of the law will not be considered by the judge or the court panel. This is because Article 38/6 of the Constitution states, “Findings obtained in violation of the law cannot be accepted as evidence.”
Can Screenshots Be Used as Evidence?
Although screenshots of message records submitted to the case file can be used as evidence, they must be compared with the phone records. If these records are not compared with the phone records, it is not possible to accept them as documents under Article 199 of the Civil Procedure Code (HMK).
Article 199 of the Civil Procedure Code (HMK):
“Data such as written or printed texts, documents, drawings, plans, sketches, photographs, films, video or audio recordings, and electronic data in electronic media, as well as similar information carriers, are considered documents under this Law.”
Since screenshots can easily be manipulated, they are difficult to accept as evidence on their own but can be used when supported by other evidence. In criminal cases, a screenshot alone may not be sufficient; when the original messages cannot be found and no official verification is made, they may be considered invalid. In debt recovery cases, the Court of Cassation requires that screenshots be consistent with phone records in order to accept messages as evidence. Therefore, in criminal cases, official verification of messages containing criminal content and, in civil cases, expert examination or notarized electronic data verification, enhances the validity of the evidence.
Court of Cassation Rulings
In the concrete case; the plaintiff claimed that a partnership relationship was established with the defendant, within the scope of which a total of 15,000 TL was transferred by the plaintiff and a third party, a friend of the plaintiff, and that an expenditure of 1,229.90 TL was made from a credit card for the shop renovation. The defendant, on the other hand, denied the existence of any partnership relationship with the plaintiff and stated that the total 15,000 TL transferred by the plaintiff and his friend was related to debt payment. The defendant also rejected the 1,229.90 TL claimed to have been spent from the plaintiff’s credit card. As for the SMS records submitted by the plaintiff, which were accepted by the court as an initial piece of evidence, the defendant argued that the plaintiff might have made additions or deletions to the SMS content and therefore did not accept the SMS records.
Although the SMS records presented by the plaintiff to the case file could be accepted as evidence, for these records to be admissible, the SMS records from the plaintiff’s mobile phone need to be compared with these records, and the records must also be extracted from the phone. Although the plaintiff presented the document he claimed to be the SMS record, the court did not compare these records with the SMS records on the plaintiff’s mobile phone. Therefore, it is not correct to accept the SMS records submitted by the plaintiff as a “document” under Article 199 of the Civil Procedure Code (HMK).
In such a case, the court should have compared the SMS records presented by the plaintiff with the records on the plaintiff’s phone, taking into account the legal provisions and the explanations above. If the records were consistent, they should have been accepted as evidence and the judgment should have been made accordingly. However, with incomplete investigation and examination, the judgment rendered in writing was deemed incorrect, and it required reversal.
Conclusion: Considering the principles explained above, the judgment rendered in writing is incorrect. Therefore, the appeal objections are accepted, and the judgment is REVERSED in accordance with Article 428 of the Civil Procedure Code (HUMK), and the advance appeal fee is refunded to the appellant upon request. The decision was made unanimously on 15.03.2016. (Court of Cassation 3rd Civil Chamber 2015/2739 E., 2016/3873 K., 15.03.2016)
Case: Following the trial of the negative declaratory action between the parties, the judgment was made based on the reasons stated in the decision, leading to the dismissal of the main case and partial acceptance and partial rejection of the consolidated case. The judgment was appealed by the parties’ attorneys within the statutory time limit. The case file was reviewed, and the necessary deliberations were made.
Decision: In the main case, the plaintiff argued that the defendant initiated the enforcement proceedings under the file numbered 2009/16466 by the 12th Enforcement Office, as well as the claim for attorney’s fees related to the revocation of power of attorney in the file numbered 2009/867 by the 15th Labor Court. The plaintiff claimed that they did not owe the defendant any money. The plaintiff had been appointed as an attorney by the defendant with the power of attorney dated 05/05/2009 and was subsequently dismissed on 08/10/2009 for reasons deemed necessary. The plaintiff also claimed that they had filed a lawsuit with the 15th Labor Court to cancel the debt arising from the Social Security Institution (SGK) and that the defendant was dismissed before attending the first hearing of that case. The plaintiff argued that the attorney’s fee demanded was excessive and that some payments had been made to certain individuals designated by the defendant for attorney fees, which was confirmed by correspondence between the parties. The plaintiff requested a declaration that they did not owe any money to the defendant in relation to the enforcement file numbered 2009/16466, as well as a judgment ordering the defendant to pay bad faith compensation.
In the consolidated case, the plaintiff argued that the defendant initiated enforcement proceedings in the file numbered 2010/218 by the 1st Enforcement Office and claimed attorney fees in the file numbered 2008/112 by the 5th Civil Court due to the revocation of power of attorney. The plaintiff also stated that they intervened in the mentioned case in the capacity of an individual notified on behalf of the company, as the defendant submitted a power of attorney for the case, but the plaintiff did not make any written statements and did not attend any hearings in the case. The plaintiff sought a declaration that they did not owe any money to the defendant concerning the debt in the enforcement proceedings and also requested the defendant to pay bad faith compensation.
The defendant has requested the dismissal of the case.
The court has decided to dismiss the main case and partially accept the joined case, determining that the defendant is not responsible for the 37,071.00 TL from the … 1st Enforcement Office’s 2010/218 Enforcement file; the decision has been appealed by both parties.
- Upon examining the parties’ objections to the appeal of the joined case; based on the written records, the evidence supporting the decision, the legal grounds, and particularly the proper evaluation of the evidence, it is concluded that there is no error in the appreciation of the evidence. Therefore, all of the parties’ objections to the appeal must be rejected.
- Upon examining the plaintiff’s objections to the appeal of the main case; the plaintiff filed the present case seeking a determination that they are not indebted due to the enforcement proceedings initiated by the defendant’s lawyer for the collection of attorney fees. Based on the expert report, the court decided to reject the case. In the expert report, it was determined that there was no written fee agreement between the parties and the attorney’s fee was calculated. However, in the email correspondence sent by the defendant’s lawyer to the plaintiff on 2nd September 2009, a breakdown of the expenses was provided, including 5,800.00 TL for the lawsuit against the SHK, a 2,000.00 TL fee for expert consultation, and the remaining 8,000.00 TL for attorney’s fees. The email requested payment of these amounts, and it was explained in parentheses that the remaining amount was calculated after the submission of the objection petition, with a 2,000.00 TL payment made. It appears that the court did not consider the aforementioned email correspondence. Article 199 of the Civil Procedure Code (HMK) states: “Written or printed texts, deeds, drawings, plans, sketches, photographs, films, video or audio recordings, and electronic data, as well as similar information carriers, are documents under this Law.” This regulation recognizes email correspondence as a document. Therefore, the court should have evaluated the email correspondence and the payments made by the plaintiff to decide whether the plaintiff owed the debt. The decision to dismiss the case without proper examination is contrary to procedure and the law, and it constitutes grounds for annulment.
Conclusion: For the reasons explained in paragraph 1, all of the parties’ objections to the appeal of the joined case are rejected. For the reasons explained in paragraph 2, the decision is annulled in favor of the plaintiff. The remaining 1,898.32 TL court fee is to be collected from the defendant who appealed, and the remaining 25.20 TL court fee is to be collected from the plaintiff who appealed. The decision can be corrected within 15 days from the notification in accordance with Article 440/I of the Civil Procedure Code (HUMK). The decision was unanimously made on 10th June 2020. (Supreme Court 13th Civil Chamber, 2017/1014 E., 2020/4488 K., 10.06.2020)
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