T.C. SUPREME COURT 2. LEGAL DEPARTMENT E. 2014/16139, K. 2015/498, T. 15.1.2015
• THE PARTIES CANNOT BE EXPECTED TO SUBMIT EVIDENCE WITHOUT A PRELIMINARY EXAMINATION HEARING (IF THE COURT ALLOWS THE PARTIES TO SUBMIT EVIDENCE AND SHOWS THAT THEIR WITNESSES SHOULD BE LISTENED TO AND A DECISION SHOULD BE MADE IN ACCORDANCE WITH THE RESULT THAT WILL TAKE PLACE / THE REQUEST FOR NOTIFICATION OF EVIDENCE MADE AT THE PRELIMINARY EXAMINATION HEARING WAS REJECTED DUE TO THE FACT THAT THE RESPONSE PETITION WAS NOT SUBMITTED – VIOLATION OF THE RIGHT TO LEGAL REST)
• A REQUEST FOR NOTIFICATION OF EVIDENCE MADE AT THE PRELIMINARY EXAMINATION HEARING (IF THE COURT HAS GIVEN THE DEFENDANT A PERIOD TO REPORT HIS EVIDENCE AND SHOWS THAT THE REFUSAL OF THE REQUEST ON THE GROUNDS THAT HE HAS NOT SUBMITTED A RESPONSE PETITION DURING THE DEFENDANT’S TERM IS A PROCEDURAL ERROR THAT RESTRICTS THE DEFENDANT’S DEFENSE, A DECISION WILL BE MADE BASED ON THE RESULT THAT HIS EVIDENCE WILL BE COLLECTED AND THE RESULT WILL BE A DIVORCE CASE)
• THE RIGHT TO LEGAL REST (EVIDENCE WILL BE COLLECTED IF A PRELIMINARY EXAMINATION HEARING IS HELD AND THE PARTIES AGREE AND DISAGREE THAT THE PRESENTATION OF EVIDENCE CANNOT BE EXPECTED FROM THE PARTIES WITHOUT DETERMINING THE ISSUES / IF THE DEFENDANT IS GIVEN TIME TO REPORT HIS EVIDENCE – IT CANNOT BE DECIDED IN A WAY THAT RESTRICTS THE RIGHT TO DEFENSE)
- RESTRICTION OF THE RIGHT TO DEFENSE (THE DEFENDANT WHO REQUESTED TO REPORT EVIDENCE AT THE PRELIMINARY EXAMINATION HEARING WILL BE GIVEN TIME TO REPORT HIS EVIDENCE / THE REQUEST CANNOT BE REJECTED DUE TO THE FACT THAT A RESPONSE PETITION HAS NOT BEEN SUBMITTED – THE PROVISION ESTABLISHED BY VIOLATING THE DEFENDANT’S RIGHT TO LEGAL REST IS PROCEDURAL AND ILLEGAL)
6100/M. 27, 241
ABSTRACT : Although the defendant’s request to report evidence made at the preliminary examination hearing was rejected on the grounds that the defendant did not submit a response petition during his term, the presentation of evidence cannot be expected from the parties until the preliminary examination hearing is held and the issues that the parties agree on and disagree on are determined. The court should be given the opportunity to present evidence to the parties and, if they show it, their witnesses should be listened to and a decision should be made in accordance with the result that will take place. The court must give the defendant a period of time to report his evidence, and if he shows it, collect his evidence and make a decision based on the result that will be the result. The provision established by the violation of the defendant’s right to legal rest is contrary to procedural and legal and required to be violated.
CASE: The decision given by the local court at the end of the trial between the parties, the date and number shown above, was appealed by the defendant in terms of decency determination, compensations and alimony, the document was read and discussed and considered as necessary:
DECISION: The court rejected the defendant’s request to report the evidence made by the defendant (husband) at the preliminary examination hearing dated 14.11.2013 on the grounds that the defendant did not submit a response petition during his term. According to the Law on Civil Procedure No. 6100, the presentation of evidence cannot be expected from the parties until a preliminary examination hearing is held and the issues that the parties have agreed on and cannot agree on are determined. The court allows the parties to submit evidence and, if they show it, their witnesses should be heard (HMK m. 241) and a decision must be made in accordance with the result that will take place. This described circumstance is an important procedural error that restricts the defendant’s right to a defense. In that case, the work to be done by the court consists of giving the defendant time to report his evidence, collecting his evidence if he shows it, and making a decision based on the result that will be obtained. The defendant’s right to a legal hearing (HMK m. 27) the provision established by violation of it is contrary to the procedure and the law and required its violation.
CONCLUSION: It was unanimously decided on 15.01.2015 that there is no place for the defendant’s other appeals to be examined for the time being, if the appeal advance fee is requested, the depositor will be refunded, and the way to correct the decision will be open within 15 days of the notification of this decision.
