Supreme Court of Turkey, 2nd Civil Chamber, E. 2014/16139, K. 2015/498, T. 15.1.2015
• PARTIES CANNOT BE EXPECTED TO SUBMIT EVIDENCE WITHOUT A PRELIMINARY HEARING (IF THE COURT PERMITS THE PARTIES TO SUBMIT EVIDENCE AND INDICATES THAT THEIR WITNESSES MUST BE HEARD AND THAT A DECISION MUST BE MADE BASED ON THE OUTCOME / IF THE REQUEST FOR EVIDENCE DISCLOSURE MADE AT THE PRELIMINARY HEARING IS REJECTED DUE TO THE FAILURE TO SUBMIT A RESPONSE – VIOLATION OF THE RIGHT TO BE HEARD)
• A REQUEST FOR EVIDENCE DISCLOSURE • EVIDENCE PRESENTED AT THE PRELIMINARY HEARING (IF THE COURT HAS GIVEN THE DEFENDANT TIME TO PRESENT THEIR EVIDENCE AND THE DEFENDANT HAS NOT SUBMITTED A RESPONSE WITHIN THAT TIME, REJECTING THE REQUEST ON THE GROUNDS THAT THE DEFENDANT HAS NOT SUBMITTED A RESPONSE IS A PROCEDURAL ERROR THAT LIMITS THE DEFENDANT’S RIGHT TO DEFEND THEMSELVES. IF THIS CONSTITUTES A PROCEDURAL ERROR LIMITING THE DEFENDANT’S DEFENSE, A DECISION WILL BE MADE TO COLLECT THE EVIDENCE AND TO GRANT THE DIVORCE)
• RIGHT TO BE HEARD (IF A PRELIMINARY HEARING HAS BEEN HELD AND THE PARTIES HAVE AGREED OR DISAGREED THAT THE PRESENTATION OF EVIDENCE CANNOT BE EXPECTED, THE EVIDENCE WILL BE COLLECTED) DETERMINATION OF ISSUES / GRANTING TIME FOR THE DEFENDANT TO PRESENT EVIDENCE – IN THIS CASE, THE DECISION CANNOT BE MADE IN A WAY THAT LIMITS THE RIGHT TO DEFENSE)
LIMITATION OF THE RIGHT TO DEFENSE (IF THE DEFENDANT REQUESTS TO PRESENT EVIDENCE AT THE PRELIMINARY HEARING, THEY WILL BE GIVEN TIME TO PRESENT THEIR EVIDENCE / THE REQUEST CANNOT BE REJECTED ON THE GROUNDS THAT NO RESPONSE WAS SUBMITTED – THE JUDGMENT IS UNLAWFUL AND UNREASONABLE AS IT VIOLATES THE DEFENDANT’S RIGHT TO BE HEARD)
6100/M. 27, 241
SUMMARY:
Although the defendant’s request to present evidence at the preliminary hearing was rejected on the grounds that the defendant did not submit a response petition during his term of office, the parties cannot be expected to present evidence until the preliminary hearing has been held and the issues on which the parties agree and disagree have been determined. The court should give the parties the opportunity to present evidence, and if they do so, the witnesses should be heard and a decision should be made based on the outcome. The court should give the defendant time to present his evidence, and if he does so, it should collect the evidence and make a decision based on the outcome. A ruling created by violating the defendant’s right to a legal hearing is contrary to procedure and law and must be overturned.
CASE:
At the end of the trial between the parties specified above by date and number, the defendant objected to the decision rendered by the local court regarding the determination of morality, compensation, and alimony. The document was read, discussed, and deemed necessary:
DECISION:
The court rejected the defendant’s (husband’s) request to submit evidence presented at the preliminary hearing on November 14, 2013, on the grounds that the defendant did not submit a defense petition within the hearing period. According to the Civil Procedure Law No. 6100, the parties cannot be expected to submit evidence until the preliminary hearing is held to determine the issues on which the parties agree and disagree.
The court allows the parties to submit evidence, and if they do so, their witnesses must be heard (HMK m. 241), and a decision must be made based on the outcome. This situation constitutes a significant procedural error that restricts the defendant’s right to defense. In this case, the court must grant the defendant time to submit evidence, collect the evidence if submitted, and render a decision based on the outcome. The provision regarding the defendant’s right to legal defense (HMK m. 27) is contrary to procedure and law if violated and requires its violation.
CONCLUSION:
On 15.01.2015, it was unanimously decided that there was no need to examine the defendant’s other appeals for the time being, that the appeal advance fee would be refunded if requested, and that the decision could be corrected within 15 days of its notification.