Since the action for discovery of evidence is in the nature of a kind of a declaratory action, it would be meaningless to request a judgement of performance in this case. In this case:
The parties may be heard,
Witnesses may be heard,
Discovery is available,
An expert report may be issued,
Letters can be written to the relevant persons and institutions and the evidence in their possession can be obtained,
Other necessary measures may be taken to obtain evidence and preserve the evidence obtained.
However, it would be unlawful to make a judgement in such a way as to recognise rights on the parties or to put them into debt as if there is a request for performance as a result of the evidence determination. In other words, as a result, the court examining the request for the determination of evidence may determine the evidence regarding the existence of a breach of law, determine which party is responsible for the breach of law, ensure that the existing damage is calculated if there is damage, and make decisions that do not contain a performance judgement.
In addition, in the event that a judgement containing any performance judgement is rendered, it cannot be said that this judgement rendered in the case of determination of evidence has the quality of enforceability.
HOW IS IT ENSURED THAT THE EVIDENCE IN QUESTION IS DETERMINED IN THE DISCOVERY OF EVIDENCE CASE?
The judge examining the request for the determination of evidence can ensure that the relevant documents are brought and added to the file by writing a writ to the necessary places mentioned above, listen to witnesses, make a detailed examination and obtain findings on the subject for which evidence is requested to be determined by on-site discovery, and have an expert report prepared by an expert in the field.
In most cases, the person against whom discovery is requested and the person requesting discovery do not face each other as they would in a real case. Interrogation is also rarely conducted in a discovery case. In fact, the person against whom a determination is requested cannot even learn the contents of this case file, that is, the documents in the file, by seeing them in his UYAP citizen system until he learns them through the notification to be made to him in accordance with Article 402/3 of the CCP (as in the requests for protection and prevention measures numbered 6284). If it is desired to obtain information about the content of the file before the notification to be made, the court penal office examining the request for the determination of evidence should be visited.
In this way, it is not possible to talk about the certainty of the evidence put forward in the determination of evidence, since the person against whom the determination is requested is not confronted as much as in the conditions of a normal lawsuit and contradiction is not ensured in this way. Pursuant to Article 405 of the CCP, the file of the evidence determination shall be considered as an annex to the main case file and shall be merged with it. Each party to the main lawsuit may rely on these minutes and reports in order to prove the statements in their claim or defence, in other words, the party against whom the determination is requested may also rely on the findings in their favour as a result of the determination of evidence.
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