A Turkish Business Opponent Says Its Records Are Lost: Production and Proof

Short answer: When a business opponent says that relevant records have been lost, a Turkish civil court examines the requested documents, the evidence of their existence or possession and the explanation for non-production. Civil Procedure Code Articles 219–222 contain distinct rules for a party’s documents, third-party records and commercial books. Article 220 can permit the court to accept the other party’s account of a document’s contents after the statutory conditions are met; it does not make every allegation automatically true. Commercial Code Article 82 separately governs retention and applications concerning specified losses of required records. A focused production request and preserved alternative evidence are essential.

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Define what the missing record would establish

A commercial dispute can involve an invoice, delivery record, stock movement, approval email, accounting entry or bank record. These documents do not all prove the same fact. Identify the specific proposition in issue, such as delivery of a particular quantity, receipt of payment or acceptance of an instruction. A request is easier to assess when it explains why that document matters to an identified allegation or defence.

Civil Procedure Code Article 194 requires parties to make their factual allegations sufficiently specific for proof and to identify which evidence supports which fact. Article 190 generally places the burden on the party deriving a favourable legal consequence from the alleged fact, subject to special rules. The assertion that an opponent holds the evidence should therefore be connected to the applicable burden and the particular production provisions.

Prepare a document schedule with the record’s description, approximate date, transaction reference, likely holder and fact to be established. Include the evidence supporting the belief that it exists. This is more useful than a demand for the opponent’s entire business archive. It also permits a targeted response: production, an explanation of absence or a dispute about the record’s relevance or identity.

Show why the record is believed to exist or be in the opponent’s possession

Article 220 identifies several circumstances relevant to an order for production: an admission of possession, silence in response to the request, an official record showing the document’s existence or acknowledgment in another document. Identify the material relied on and supply it. A covering email referring to an attached statement, a signed list of records or a prior filing can be significant, but its exact content should be stated accurately.

Distinguish existence from current possession. A document may once have existed without remaining in the same person’s hands. Record transfers to accountants, storage providers or successor businesses where supported by evidence. Do not present a guess about the holder as an established fact. The court needs to understand both why production is sought from this party and what is known about any claimed loss or transfer.

The opponent’s explanation should be identified precisely. A denial that the document ever existed, a denial of present possession, a claim that it is held by another person and an allegation of destruction raise different questions. Preserve the actual statement rather than summarising every answer as refusal. The legal response under Article 220 depends on the procedural situation and the court’s assessment of the relevant conditions.

Use the statutory production process for documents held by a party

Article 219 requires parties to produce documents in their possession on which they or the other party rely as evidence. Electronic documents are submitted as printouts and, when requested, in an electronic form suitable for examination. For continuously used documents such as commercial books, the provision permits certified copies of the relevant portions. The requested format should preserve the features needed to assess the disputed fact.

Under Article 220(1), the court must be satisfied that the document is necessary to prove the asserted matter and that the request is lawful. Together with the specified circumstances concerning existence or possession, this leads to a peremptory period for production. A lawyer’s informal demand and a court order setting that period are different events. Keep the actual order and the record of its communication in the case file.

The request should make compliance possible. Identify the relevant period, customer or transaction reference and document category with sufficient precision. Where a record includes material outside the dispute, explain why the relevant part is sought and how it relates to the allegation. Article 219’s treatment of continuously used records provides a statutory basis for focusing on relevant certified portions rather than assuming full disclosure is always necessary.

Understand what the court can do when production does not occur

Article 220(2) addresses a party denying possession. The court offers an oath concerning the absence of the document, a diligent unsuccessful search and lack of knowledge of its whereabouts. This is a specific procedural step. A claimant should not replace it with an assertion that the opponent’s denial automatically establishes deliberate destruction. The response and the court’s directions must be recorded accurately.

Under Article 220(3), where the ordered party neither produces the document within the period nor provides an acceptable excuse with evidence in that period, or denies possession and refuses or fails to perform the offered oath, the court may accept the other party’s account of the document’s contents according to the circumstances. The statutory wording gives a qualified evidential consequence, rather than an automatic judgment for the entire claim.

The applicant must therefore state what the missing document is said to contain and why that content matters. A request that the court infer every element of liability from a missing invoice overstates the provision. Connect the proposed evidential consequence to the document and the disputed fact, while addressing the remaining elements of the claim with their own evidence and applicable rules.

An excuse should be evaluated with its supporting material. A broad statement that a computer failed does not explain which records were affected, when the failure occurred, what search or recovery was undertaken or whether copies remained elsewhere. Those are factual questions for the file. They should be raised through a targeted request and the court’s procedure without asserting intentional misconduct that the evidence has not established.

Examine the commercial retention duty and any claimed loss certificate

Commercial Code Article 82 requires merchants to retain the specified commercial books, financial and organisational records, incoming commercial correspondence, copies of outgoing correspondence and supporting accounting documents. The article defines commercial correspondence broadly by reference to a commercial matter. Whether a particular missing record falls within a mandatory category should be identified from the text and the nature of the record.

Article 82(5) sets a ten-year retention period for the listed categories. Paragraph (6) specifies that the period begins at the end of the calendar year associated with the relevant final entry, preparation or correspondence event. This should not be converted into an unexplained ten years from the first transaction date for every document. Identify the applicable record and statutory starting event before alleging a retention breach.

Paragraph (7) addresses required books or documents lost during the legal retention period because of specified causes such as fire, flooding, earthquake or theft. The merchant can seek a court document within thirty days after learning of the loss from the competent court at the commercial enterprise’s location. The application is non-contentious, and the court can direct collection of necessary evidence. The thirty-day period concerns this application, not the opponent’s production deadline or the substantive claim’s limitation period.

If a party relies on such a loss document, obtain the actual decision and identify the records and event it covers. Its existence should not be described as proof that every disputed transaction occurred as the merchant claims or that all alternative evidence has disappeared. Conversely, absence of a particular document does not itself prove deliberate destruction. Assess the retention framework, claimed loss and procedural production consequences separately.

Apply the special rules for commercial books without overstating their effect

Article 222 allows the court to order commercial books in a commercial case on its own initiative or a party’s request. It sets conditions concerning completeness, proper keeping, required opening and closing approvals and consistency of entries. A spreadsheet prepared for litigation should not simply be labelled statutory commercial books. Identify the actual records and the legal requirements relevant to their evidential status.

Paragraph (3) contains further conditions for qualifying books to operate in their owner’s favour, including their relationship with the other party’s books, non-production and contrary conclusive evidence. It expressly provides that where the other party’s properly kept books contain no entry on the relevant matter, the books cannot be used in their owner’s favour. The result therefore requires careful reading of the particular statutory situation rather than the slogan that one company’s ledger always proves the debt.

Paragraph (5) addresses another distinct situation: even a non-merchant party declares that it will accept the entries in the merchant opponent’s books, and the opponent avoids producing them. The statute attaches a specified proof consequence to that combination. It should not be detached from its conditions and applied to every refusal of any business document. Counsel must decide which paragraph fits the actual party status and evidential position.

Commercial Code Article 83 expressly permits production of parties’ commercial books in commercial disputes even where they are foreign natural or legal persons. Article 84 addresses examination of relevant portions with the parties’ participation and copies where needed. Foreign status is therefore not a sufficient answer to the production question, although obtaining and using records physically abroad can require additional procedural steps.

Seek an existing copy from a third-party holder through the proper procedure

Article 221 governs documents held by a third person or institution. If the court determines that the record is necessary to prove the asserted matter, it orders production. The person ordered must produce the document in their possession or explain the inability with evidence. The court can hear that person as a witness if the explanation is insufficient, subject to the statutory framework.

The provision also preserves the relevant grounds for refusing production or testimony by reference to witness-refusal rules. A third-party request therefore needs legal assessment rather than an assumption that every accountant, bank or service provider must deliver all information on demand. Identify the record, the holder and the basis for seeking it, and let the court determine the appropriate lawful scope and procedure.

Records outside Turkey require separate attention to the available international evidence route. A domestic production request is not proof that a foreign holder can be compelled by the same mechanism in its own country. Our guide to taking evidence abroad in Turkish civil cases addresses that framework. Confirm the relevant country relationship and procedure before promising access to a foreign archive.

Make electronic material readable and technically examinable

Article 199 includes electronic data within the concept of a document. Article 219 then addresses its production format, while Commercial Code Article 86 requires the person producing retained records only through an image or data carrier to provide the tools needed to read them, at that person’s expense, and readable copies where necessary. A declaration that a file exists in an obsolete system does not answer how it will be examined.

Identify the format, date range, attachments and features relevant to the disputed fact. A printed summary may assist reading while omitting information present in the original electronic record. Preserve the lawfully held source and document how the submitted copy was made. Where technical expertise is required, frame the issue clearly so the court can assess whether an expert examination or further production is needed.

The separate guide to WhatsApp and email evidence explains identity, integrity and context. In a missing-record dispute, those principles help assess replacement copies and extracts. A recovered attachment or forwarded email should be described according to its actual origin, not presented as an untouched original from the opponent’s system when that has not been established.

Preserve independent evidence and use lawful methods

Continue preserving available contracts, delivery documents, bank records, correspondence and contemporaneous acknowledgments while the production issue is resolved. A missing document can be important without being the only record relevant to the transaction. Map each alternative source to the fact it supports and identify its limits. Avoid combining several incomplete records into an assertion stronger than their actual content.

Article 189(2) excludes unlawfully obtained evidence from proving a fact. A suspicion that the opponent is withholding records does not authorise access to its accounts, devices or systems without authority. Use the court’s production and evidence procedures. Record how material already supplied to the client was obtained so its admissibility and provenance can be assessed honestly.

If evidence faces a specific risk of loss or later use will become substantially harder, assess the evidence-preservation provisions in Articles 400 and following. That is a separate procedure with its own conditions, including legal interest. A demand to preserve records should describe the actual material and risk. Neither a preservation request nor a production order guarantees that deleted information can technically be recovered.

Build a clear record of requests, responses and judicial decisions

Retain the document schedule, supporting evidence of existence, production application, court order, service record, response and any subsequent direction together. For each document, record whether it was produced, partly produced, denied, reported lost or identified as held elsewhere. This gives the court a reliable basis for deciding whether the conditions of the relevant paragraph have been met.

When production occurs, assess the material itself rather than treating delivery as confirmation of the allegation. Check completeness, dates, context and consistency with other evidence. If a relevant portion is missing, identify the gap specifically. If the record contradicts the initial description, correct the factual presentation. The objective is a supportable account of the transaction, not preservation of an assumption made before the documents were available.

The final evidential submission should distinguish established facts, the contents of produced documents and the inference or consequence requested for non-production. Cite the applicable paragraph and explain how its conditions appear in the file. This disciplined approach makes a commercial records dispute reviewable and avoids both extremes: treating a claimed loss as the end of the case or treating it as automatic proof of every allegation.

Frequently asked questions

1. Does an opponent’s failure to produce a document automatically prove my claim?

No. Article 220 contains specific conditions and permits a conclusion about the document’s contents according to the circumstances. Other elements of the claim still require assessment.

2. What should a production request identify?

Identify the document, likely holder, relevant period or transaction, the fact it supports and the evidence of its existence or possession.

3. What happens if the opponent denies having the document?

Article 220(2) provides an oath procedure concerning possession, diligent search and knowledge of the document’s whereabouts. The court controls that process.

4. How long are the specified commercial records retained?

Article 82 sets ten years for the listed categories, with the starting events specified in paragraph (6). Identify the applicable record and calendar-year rule.

5. Is the loss-certificate application period fifteen days?

The checked current Article 82(7) states thirty days from learning of the qualifying loss. That period should not be confused with another procedural deadline.

6. Does a loss certificate prove the merchant’s account of the transaction?

It addresses the loss within its scope. It does not itself prove every underlying disputed transaction or eliminate alternative evidence.

7. Can a third-party accountant be asked to produce records?

Article 221 provides a court-controlled route for necessary third-party documents, subject to its conditions and applicable refusal rules.

8. Can foreign commercial books be relevant in Turkey?

Commercial Code Article 83 expressly includes foreign natural and legal persons. Obtaining records abroad can require additional international procedural analysis.

9. May I access the opponent’s system to recover missing evidence?

A records dispute does not authorise access without permission. Article 189 excludes unlawfully obtained evidence; use lawful production and preservation procedures.

10. Is a readable printout always the complete electronic evidence?

No. Article 219 also addresses electronic material suitable for examination when requested, and Article 86 concerns the means of reading retained digital records.