THE DECISION OF THE SUPREME COURT THAT THE PRESENTATION OF EVIDENCE FROM THE PARTIES CANNOT BE EXPECTED WITHOUT A PRELIMINARY EXAMINATION HEARING - AŞIKOĞLU LAW OFFİCE
Aşıkoğlu started his position as the Alanya Public Prosecutor in 2009 and continued until 2013 when he quit his position to initiate his career as an attorney at law.
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THE DECISION OF THE SUPREME COURT THAT THE PRESENTATION OF EVIDENCE FROM THE PARTIES CANNOT BE EXPECTED WITHOUT A PRELIMINARY EXAMINATION HEARING

08 Feb THE DECISION OF THE SUPREME COURT THAT THE PRESENTATION OF EVIDENCE FROM THE PARTIES CANNOT BE EXPECTED WITHOUT A PRELIMINARY EXAMINATION HEARING

Posted at 20:38h in General, INFORMATION by
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T.C. THE DECISION OF THE SUPREME COURT
2. law office
E. 2014/16139
K. 2015/498
T. 15.1.2015
• SUBMISSION OF EVIDENCE FROM THE PARTIES CANNOT BE EXPECTED WITHOUT A PRELIMINARY EXAMINATION HEARING (IF THE COURT GIVES THE PARTIES THE OPPORTUNITY TO SUBMIT EVIDENCE AND SHOWS THAT THEIR WITNESSES SHOULD BE HEARD AND A DECISION SHOULD BE MADE IN ACCORDANCE WITH THE RESULT THAT WILL TAKE PLACE / THE REQUEST TO REPORT EVIDENCE MADE AT THE PRELIMINARY EXAMINATION HEARING IS INCORRECT DUE TO THE FACT THAT THE PETITION FOR AN ANSWER IS NOT SUBMITTED – A VIOLATION OF THE RIGHT TO A LEGAL HEARING)
• REQUEST TO REPORT EVIDENCE MADE AT THE PRELIMINARY EXAMINATION HEARING (IF THE COURT GIVES THE DEFENDANT TIME TO REPORT HIS EVIDENCE / IF THE REFUSAL OF THE REQUEST IS A PROCEDURAL ERROR THAT RESTRICTS THE DEFENDANT’S DEFENSE ON THE GROUNDS THAT THE DEFENDANT HAS NOT SUBMITTED AN ANSWER PETITION DURING THE TIME PERIOD, A DECISION WILL BE MADE BASED ON THE COLLECTION OF HIS EVIDENCE AND THE RESULT THAT WILL RESULT IN A DIVORCE CASE)
• RIGHT TO LEGAL REST (A PRELIMINARY EXAMINATION HEARING WILL BE HELD AND THE PRESENTATION OF EVIDENCE FROM THE PARTIES CANNOT BE EXPECTED WITHOUT DETERMINING THE ISSUES THAT THE PARTIES HAVE AGREED ON AND CANNOT AGREE ON / IF THE DEFENDANT IS GIVEN TIME TO REPORT THEIR EVIDENCE, THE EVIDENCE WILL BE COLLECTED – THE DECISION CANNOT BE MADE IN A WAY THAT RESTRICTS THE RIGHT TO DEFEND)
* RESTRICTION OF THE RIGHT OF DEFENSE (THE DEFENDANT REQUESTING TO GIVE EVIDENCE AT THE PRELIMINARY EXAMINATION HEARING WILL BE GIVEN TIME TO GIVE HIS EVIDENCE / THE REQUEST CANNOT BE REJECTED DUE TO THE FACT THAT THE PETITION FOR AN ANSWER HAS NOT BEEN SUBMITTED – THE PROVISION ESTABLISHED BY VIOLATING THE DEFENDANT’S RIGHT TO LEGAL REST IS CONTRARY TO THE PROCEDURE AND LAW)
6100/m. 27, 241
ABSTRACT: Although the defendant’s request to provide evidence at the preliminary examination hearing was rejected on the grounds that the defendant did not submit a response petition during the period, the parties cannot be expected to provide evidence before the preliminary examination hearing is held and the issues that the parties have agreed on and cannot agree on are determined. If the parties are given the opportunity to present evidence by the court and show it, their witnesses should be heard and a decision should be made in accordance with the outcome that will take place. The court should give the defendant a period of time to give his evidence, and if he shows it, his evidence should be collected and a decision should be made according to the result that will be obtained. It is contrary to the provisions, procedures and laws established by violating the defendant’s right to be heard legally and required to be overturned.

CASE: At the end of the trial between the parties, the judgment given by the local court, the date and number of which are shown above, was appealed by the defendant in terms of deciphering defects, compensations and alimony, the documents were read and discussed and considered as necessary:

DECISION: The defendant (husband)’s request to give 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 response petition during the period. According to the Civil Procedure Code No. 6100, a preliminary examination hearing can be held and the presentation of evidence cannot be expected from the parties until the issues that the parties have agreed on and cannot agree on are determined. The court gives the parties the opportunity 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 situation is a significant 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 be heard legally (HMK m. 27) it is contrary to the provisions, procedures and laws established by violation and required to be violated.

CONCLUSION: It was decided unanimously on 15.01.2015 that the appealed decision should be OVERTURNED for the reason shown above, that there is no place for the defendant’s other appeals to be examined for now, that the appeal fee should be returned to the depositor if requested, within 15 days from the notification of this decision, the way to correct the decision was open.

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