Gathering Evidence in Aid of Foreign Litigation Guide |
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Turkey |
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(Europe)
Firm
Pekin Attorney Partnership
Contributors Updated 23 Mar 2022 |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes, it is allowed in Turkish jurisdiction to gather evidence in aid of foreign litigation. The usual manner of Turkish courts for obtaining evidence abroad is requesting the assistance of the foreign state through a Letter Rogatory. It should be noted that in countries part of the Continental European legal system (civil law system) and in countries that have adopted the Anglo-American understanding of the law, different methods to obtain the evidence found in Turkey can be followed. As an example, in states that have adopted the Anglo-American understanding of the law, the 'pre-trial discovery' method can be used to obtain evidence. In addition to these, if there is an international agreement that allows rogatory between Turkey and countries of foreign state consuls working in Turkey, the consuls concerned have the authority to provide evidence, as well. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes, Turkey is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Turkey has concluded three multilateral agreements with provisions on the provision of evidence and more than thirty bilateral agreements on judicial cooperation in legal and commercial matters. Two of the multilateral agreements to which Turkey is a party, which contain provisions on the supply of evidence, were drawn up by the Hague Conference and are the "Convention on Civil Procedure of 1954" and "The Hague Evidence Convention of 1970". The third agreement, which includes a provision regarding the supply of evidence, is the "Agreement on the Collection of Alimony Receivables in Foreign Countries", arranged by the United Nations. It should be noted that only one article (Art. 7) of this last agreement is related to the supply of evidence. The aforementioned article provides that a court of a contracting state dealing with the alimony case may appeal a court of another contracting state to obtain evidence. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | In order to request gathering evidence, the foreign authority must issue the letter of rogatory and send it to Turkey. Thus, the Letter Rogatory reaches the Ministry of Justice, the General Directorate of International Law and Foreign Relations which is the competent Turkish authority, and the request written in this document is examined whether it will be fulfilled. In the examination of the rogatory document in terms of form, the following matters are examined: whether the dispute subject to the rogatory request is related to a legal or commercial issue and whether the rogatory request is related to a case pending or to be pending in the judicial authorities; whether the execution of the rogatory letter is within the jurisdiction of the Turkish judicial authorities; whether the procedure followed in the transmission of the rogatory document to Turkey is appropriate and whether the rogatory document is prepared in Turkish or its Turkish translation is attached. If the Directorate deems it appropriate to fulfill the rogatory request, the rogatory letter is forwarded to the competent court. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Various evidence may be requested by foreign states such as helpful documents, discovery as well as an expert examination. Again, deposition may be requested and the foreign state may also decide on the nature of the questions to be asked of the relevant witness. The foreign state has the obligation to indicate the subject and legal nature of the case, as well as information about the court or authority in which the case is pending. The foreign state must also state the explanation about the requested evidence. For example, if the witness is to be heard, the address of the relevant witness should be stated. Again, if questions are to be asked to the witness, the foreign states should also include information on what these questions are and what should be paid attention to in an examination if experts are asked to make a one in the rogatory document. |
| Who bears the burden of showing whether any privileges apply? | The requested evidence must be available to the court and should be able to assist in the relevant dispute. In this regard, the requested evidence may not be suitable for sharing within the scope of client-attorney confidentiality or confidential information about the government, etc. If such a situation is in question, this matter will be taken into account by the court ex officio upon request of the party defending the confidentiality. Thus, the evaluation of the acceptance of the letter of rogatory is made accordingly. It should be noted that in practice, especially in cases where there are international agreements, it is not very common for the rogatory documents to be rejected, but in order for the evidence not to be shared, the confidentiality concern in question will have to be seriously damaged if the relevant documents are shared. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | After the rogatory document reaches the authorized Turkish authorities, the Turkish authorities examine the request written in this document and decide whether the request will be fulfilled. Therefore, there is no need for an extra explanation regarding the claimability of the relevant evidence. It will be sufficient to transmit the information specified to be written in the rogatory document in the provisions of the relevant law and the provisions of the international contract. In order to see the matters to be considered in the examination of the rogatory document in terms of form, please see our response to "Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests." |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | No, since the relevant evidence will be collected in Turkey, it is not possible to listen to witnesses from afar. Therefore, the relevant witness statements are taken by the relevant authorities in Turkey without the need for technologies such as video conferencing or Zoom. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | If there is a legal provision that prevents the application for rogatory, it may limit the extent to which residents in Turkish jurisdiction may give evidence in a foreign court’s proceedings. If the relevant evidence is confidential information (ex. An information concerning the government and security of the state), and if there is a law or an international agreement that limits the sharing of the evidence by the country to which the rogatory request is directed, blocking statues will be in the way of the rogatory path. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, in principle, the citizens residing in Turkish jurisdiction can voluntarily give evidence in foreign proceedings. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Please note that the arbitration procedure creates a more flexible environment for evidence gathering. For example, in case of an arbitration, it may be possible to take witness statements via video conference. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes, it is allowed in Turkish jurisdiction to gather evidence in aid of foreign litigation. The usual manner of Turkish courts for obtaining evidence abroad is requesting the assistance of the foreign state through a Letter Rogatory. It should be noted that in countries part of the Continental European legal system (civil law system) and in countries that have adopted the Anglo-American understanding of the law, different methods to obtain the evidence found in Turkey can be followed. As an example, in states that have adopted the Anglo-American understanding of the law, the 'pre-trial discovery' method can be used to obtain evidence.
In addition to these, if there is an international agreement that allows rogatory between Turkey and countries of foreign state consuls working in Turkey, the consuls concerned have the authority to provide evidence, as well.
Yes, Turkey is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Turkey has concluded three multilateral agreements with provisions on the provision of evidence and more than thirty bilateral agreements on judicial cooperation in legal and commercial matters. Two of the multilateral agreements to which Turkey is a party, which contain provisions on the supply of evidence, were drawn up by the Hague Conference and are the "Convention on Civil Procedure of 1954" and "The Hague Evidence Convention of 1970". The third agreement, which includes a provision regarding the supply of evidence, is the "Agreement on the Collection of Alimony Receivables in Foreign Countries", arranged by the United Nations. It should be noted that only one article (Art. 7) of this last agreement is related to the supply of evidence. The aforementioned article provides that a court of a contracting state dealing with the alimony case may appeal a court of another contracting state to obtain evidence.
In order to request gathering evidence, the foreign authority must issue the letter of rogatory and send it to Turkey. Thus, the Letter Rogatory reaches the Ministry of Justice, the General Directorate of International Law and Foreign Relations which is the competent Turkish authority, and the request written in this document is examined whether it will be fulfilled. In the examination of the rogatory document in terms of form, the following matters are examined: whether the dispute subject to the rogatory request is related to a legal or commercial issue and whether the rogatory request is related to a case pending or to be pending in the judicial authorities; whether the execution of the rogatory letter is within the jurisdiction of the Turkish judicial authorities; whether the procedure followed in the transmission of the rogatory document to Turkey is appropriate and whether the rogatory document is prepared in Turkish or its Turkish translation is attached. If the Directorate deems it appropriate to fulfill the rogatory request, the rogatory letter is forwarded to the competent court.
Various evidence may be requested by foreign states such as helpful documents, discovery as well as an expert examination. Again, deposition may be requested and the foreign state may also decide on the nature of the questions to be asked of the relevant witness.
The foreign state has the obligation to indicate the subject and legal nature of the case, as well as information about the court or authority in which the case is pending. The foreign state must also state the explanation about the requested evidence. For example, if the witness is to be heard, the address of the relevant witness should be stated. Again, if questions are to be asked to the witness, the foreign states should also include information on what these questions are and what should be paid attention to in an examination if experts are asked to make a one in the rogatory document.
The requested evidence must be available to the court and should be able to assist in the relevant dispute. In this regard, the requested evidence may not be suitable for sharing within the scope of client-attorney confidentiality or confidential information about the government, etc. If such a situation is in question, this matter will be taken into account by the court ex officio upon request of the party defending the confidentiality. Thus, the evaluation of the acceptance of the letter of rogatory is made accordingly. It should be noted that in practice, especially in cases where there are international agreements, it is not very common for the rogatory documents to be rejected, but in order for the evidence not to be shared, the confidentiality concern in question will have to be seriously damaged if the relevant documents are shared.
After the rogatory document reaches the authorized Turkish authorities, the Turkish authorities examine the request written in this document and decide whether the request will be fulfilled. Therefore, there is no need for an extra explanation regarding the claimability of the relevant evidence. It will be sufficient to transmit the information specified to be written in the rogatory document in the provisions of the relevant law and the provisions of the international contract. In order to see the matters to be considered in the examination of the rogatory document in terms of form, please see our response to "Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests."
No, since the relevant evidence will be collected in Turkey, it is not possible to listen to witnesses from afar. Therefore, the relevant witness statements are taken by the relevant authorities in Turkey without the need for technologies such as video conferencing or Zoom.
If there is a legal provision that prevents the application for rogatory, it may limit the extent to which residents in Turkish jurisdiction may give evidence in a foreign court’s proceedings. If the relevant evidence is confidential information (ex. An information concerning the government and security of the state), and if there is a law or an international agreement that limits the sharing of the evidence by the country to which the rogatory request is directed, blocking statues will be in the way of the rogatory path.
Yes, in principle, the citizens residing in Turkish jurisdiction can voluntarily give evidence in foreign proceedings.
Please note that the arbitration procedure creates a more flexible environment for evidence gathering. For example, in case of an arbitration, it may be possible to take witness statements via video conference.