Parties Cannot Be Expected To Submit Evidence Before The Preliminary Examination Hearing – Court Of Cassation Decision
T.C. JUDICIAL COURT 2ND CIVIL CHAMBER E. 2014/16139, K. 2015/498, T. 15.1.2015
– THE PARTIES CANNOT BE EXPECTED TO SUBMIT EVIDENCE WITHOUT A PRELIMINARY EXAMINATION HEARING (The Court Should Provide the Parties with the Opportunity to Submit Evidence and If They Show Evidence, Their Witnesses Should be Listened to and a Decision Should Be Made in Accordance with the Result to Be Realized / Injustice of Rejecting the Request for Submission of Evidence Made at the Preliminary Examination Hearing Due to Failure to Submit a Reply Petition – Violation of the Right to Legal Hearing)
– REQUEST FOR NOTIFICATION OF EVIDENCE MADE DURING THE PRELIMINARY EXAMINATION HEARING (The Court’s Rejection of the Request on the Grounds that the Defendant Did Not Submit a Reply Petition in Due Time is a Procedural Error Restricting the Defendant’s Defense / If the Defendant is Given Time to Notify the Evidence, the Evidence will be Collected and a Decision will be Made According to the Result – Divorce Case)
– RIGHT TO BE HEARD BY LAWYER (The Parties cannot be expected to submit evidence before the Preliminary Examination Hearing is held and the issues on which the parties agree and disagree are determined / The defendant will be given time to submit his evidence and the evidence will be collected if he shows it – No decision can be made in a way that restricts the right to defense)
– RESTRICTION OF THE RIGHT TO DEFENSE (The Defendant, who requested to submit evidence at the Preliminary Examination Hearing, will be given time to submit his/her evidence/the request cannot be rejected due to the lack of an answer petition – The Judgment Established by Violating the Defendant’s Right to Legal Hearing is Contrary to Procedure and Law)
6100/m. 27, 241
SUMMARY : Although the defendant’s request to submit evidence at the preliminary examination hearing was rejected on the grounds that the defendant did not submit a reply petition in due time, the parties cannot be expected to submit evidence before the preliminary examination hearing is held and the issues on which the parties agree and disagree are determined. The court should give the parties the opportunity to submit evidence, and if they do so, the witnesses should be heard and a decision should be made in accordance with the result. The court should give the defendant time to submit his evidence, and if he does, his evidence should be collected and a decision should be made according to the result. The judgment established by violating the defendant’s right to be heard is contrary to the procedure and the law and requires reversal.
LAWSUIT : At the end of the trial of the case between the parties, the judgment given by the local court, dated and numbered above, was appealed by the defendant in terms of fault determination, damages and alimony, and the documents were read and discussed accordingly:
DECISION : The request of the defendant (husband) to submit evidence at the preliminary examination hearing dated 14.11.2013 was rejected by the court on the grounds that the defendant did not submit a reply petition in due time. According to the Code of Civil Procedure No. 6100, the parties cannot be expected to submit evidence before the preliminary examination hearing is held and the issues on which the parties agree and disagree are determined. The court should give the parties the opportunity to submit evidence, and if they present evidence, the witnesses should be heard (Art. 241 of the CCP) and a decision should be made according to the result. This situation is an important procedural error that restricts the defendant’s right of defense. In that case, the work to be done by the court is to give the defendant time to submit his evidence, and if he does, to collect his evidence and make a decision according to the result. The judgment established by violating the defendant’s right to be heard (Art. 27 of the CCP) is contrary to the procedure and the law and requires reversal.
CONCLUSION : It was unanimously decided on 15.01.2015 that the appealed judgment shall be DISMISSED for the reason shown above, the other appellate objections of the defendant according to the reason for the reversal shall not be examined for the time being, the pre-appeal fee shall be returned to the depositor if requested, and the way of decision correction shall be open within 15 days from the notification of this decision.