Oath Evidence In Procedural Law
Evidence of Oath is a verbal statement of one of the parties on the truth of an event that concerns the solution of the case, in front of the court with the procedure specified in the law, confirming it with the values considered sacred and attributed to it as conclusive evidence.
According to Article 225/1 of the CCP, the subject matter of the oath, as in all means of proof, are the facts that are important for the solution of the case, which are disputed and arise from the person himself/herself.
Facts that cannot be freely disposed of by the parties, cases where bilateral declarations of will are not deemed sufficient by law for the validity of a transaction, facts that may affect the honor and dignity of the oath-taker or expose him/her to criminal investigation or prosecution cannot be the subject of the oath (Art. 226 CCP).
The party who has the burden of proof may propose the oath. The party who does not bear the burden of proof has no legal consequence or benefit from offering an oath.
For the explained reason, the plaintiff or the defendant must clearly establish the relationship between facts and evidence in order to prove their claim or defense. In this context, it is possible for the party to explicitly resort to oath evidence.
In the event that the party who does not explicitly apply for oath evidence includes phrases such as “other evidence, all kinds of evidence, and other evidence” in its petition, there are various opinions as to whether these phrases can be considered as the party’s application for oath evidence and whether the judge will remind the party who has the burden of proof to be reminded of the “right to offer an oath”. Considering the provision of Article 136/2 of the CCP, it is not possible for the judge to remind the parties of their right to offer an oath if they have used phrases such as “other evidence, all kinds of evidence, and other evidence”. As a matter of fact, the General Assembly of the Court of Cassation Unification of Jurisprudence has accepted this issue with its decision dated 03.03.2017 and numbered 2015/2 2017/1