Oath is accepted as evidence according to the rules of Turkish civil procedural law, even though the term itself is not defined by the Law on Civil Procedure No. 6100 ("Law No. 6100"). Scholars define oath as oral statements made by the parties confirming accuracy or denying the claims about a certain event related to the dispute. By relying on an oath, a party asks the counterparty to testify under oath about a certain event in order to prove its case. An oath is considered and treated as conclusive evidence under the Law No. 6100. Therefore, after an oath takes place in accordance with the required procedure, the facts of the event that the oath relates to are deemed to be proven.
When the repealed Law on Civil Procedure No. 1086 ("Repealed Law") was in force, the Court of Appeals stated its opinion that, in civil proceedings, the parties could rely on oath as evidence, and that the courts could ask the parties whether they were willing to rely on oath as evidence, even in cases where the evidence list did not specifically include "oath," but instead included a phrase such as "miscellaneous evidence" or "all kinds of evidence." After the Law No. 6100 came into effect, certain civil chambers of the Court of Appeals still followed the aforementioned approach with respect to this issue; however, certain others developed or adopted a different approach, which will be explained below.
Article 194(2) of the Law No. 6100 provides that "The parties are required to expressly state the evidence that they rely on and which event is to be proven by each evidence." Moreover, Article 119(l)(e) of the Law No. 6100, which governs and regulates the contents of lawsuit petitions, provides that a lawsuit petition must indicate which event will be established and proven by which piece of evidence. These provisions were only introduced to Turkish civil procedural law with the Law No. 6100; in other words, the Repealed Law did not contain such provisions. Certain civil chambers of the Court of Appeals have concluded, based on these provisions, that the parties are obliged to specifically include "oath" in their evidence lists in order to be able to ask the counterparty to testify under oath if need be during the proceedings, and that merely mentioning "miscellaneous evidence" or "all kinds of evidence" in their evidence lists is insufficient and does not confer the right to rely on oath as evidence.
Due to the conflicting approaches of the various chambers of the Court of Appeals on this matter, this issue has been brought before the General Civil Assembly on the Unification of the Precedents of the Court of Appeals ("General Civil Assembly"), which rendered its decision No. 2015/2 E. and 2017/1 K. on 3 March 2017, unifying the divergent precedents and practices. In this decision, the assembly concluded that, in civil proceedings, merely including "miscellaneous evidence" or "all kinds of evidence" in the evidence list is not sufficient to give the right to rely on oath as evidence. In the same vein, the assembly declared that the courts cannot remind the relevant party of the option to rely on oath as evidence either.
The General Civil Assembly justified its decision by explaining that Articles 194(2) and 119(l)(e) of the Law No. 6100 oblige die parties to clearly explain which piece of evidence will be used to prove which particular event; therefore, a party that fails to specifically indicate "oath" as evidence in its evidence list cannot be granted the right to rely on oath in the ensuing proceedings.
On the other hand, it is worth noting that the General Civil Assembly was not unanimous in its decision and that it had members who did not agree with this ruling. These dissenting members argued that, by mentioning and including "miscellaneous evidence" or "all kinds of evidence" in the evidence list, the parties demonstrate their willingness to rely on every type of evidence, including an oath, which are available in civil proceedings. Nevertheless, the majority was not persuaded and did not agree with or adopt this approach.
As a result, following the General Civil Assembly's decision, it is no longer possible to rely on oath as evidence in civil proceedings if the evidence list does not indicate "oath" specifically, but instead merely mentions "miscellaneous evidence" or "all kinds of evidence." Surely, this new rule is applicable for the cases that are adjudicated under the Law No. 6100.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in September 2017. A link to the full Legal Insight Quarterly may be found here
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