Turkey: "Arraignment" In New Civil Procedure Law

Last Updated: 6 August 2013
Article by Gürhan Aydın

The new Civil Procedure Law (the "CPL") has been in force in Turkey since 1 September 2011, replacing the previous Civil Procedure Law No. 1086 ("Law No. 1086"). The CPL deals (as did Law No. 1086) with all procedural issues in civil litigation (such as jurisdiction of Turkish courts, competence, filing lawsuits, witness testimony, submission of evidence, appeals, etc.). One of the procedural actions, an "arraignment", is regulated under Articles 169 – 175 of the CPL.1

Under Article 169 of the CPL:

"The court may decide ex-officio or upon the request of the parties for the arraignment of each of the parties.

The arraignment will be related to the facts that constitute the base of the lawsuit or other issues that relate to these facts."

As can be seen from the above mentioned article, the CPL does not define arraignment and only regulates its procedure.

In scholarly opinion, an arraignment is defined as the interrogation of the parties to a lawsuit by the judge, regarding the facts of a dispute. As the main purpose of an arraignment is to obtain the interrogated party's acknowledgment of facts that a judge is trying to clarify, the facts, which the judge seeks to clarify, will be to the interrogated party's disadvantage. The Court of Appeals defines arraignment as follows:

"An arraignment is a procedural action in a lawsuit, which the judge may call upon ex officio or upon the request of one of the parties, for the purpose of clarifying specific issues in connection with the lawsuit and for the purpose of obtaining the acknowledgment of a party on the facts being to that party's disadvantage."2

In this regard, "arraignment" is a technical term used for the interrogation of the parties, in compliance with the procedure set forth under the CPL.

Procedure of and Preparation for Arraignment

Under Article 173 of the CPL, the person who will be interrogated during an arraignment must be a party that the court decides is necessary to interrogate. Accordingly, the lawyer of a party cannot be subject to an arraignment. If the party that the court decided to interrogate is a legal entity, under Article 170 of the CPL, the legal entity must be represented by its legal representative during the arraignment.

The court must serve the person it decides to interrogate, with an official invitation containing the following:

  • date and time of the arraignment hearing;
  • facts that are the subject of the arraignment; and
  • a warning stating that the party to be interrogated will be deemed to have acknowledged the facts if that party is not present at the hearing without any valid excuse or if he does not answer the questions asked by the judge.

At the end of the arraignment hearing, the court prepares minutes of the arraignment and in these minutes, the interrogated party's explanations, questions asked and answers given are recorded and the minutes are signed by the interrogated party.

It is worth emphasizing that, although not clearly stipulated in the arraignment related provisions of the CPL, the lawyers of both parties can also ask the interrogated party questions. This is the result of Article 1523 of the CPL, which (differently from the abolished Law No. 1086) states that:

"The lawyers present in the hearing can directly ask questions to witnesses, the expert witnesses and other persons invited to the hearing, within the limits of hearing discipline."

The parties' lawyers' right to ask questions is also encouraged by the preamble of this article:

"In a trial, both the parties and their lawyers have the right to ask questions."

In light of the above, it is clear that there are no obstacles for the lawyers to ask direct questions to the person interrogated. However, lawyers cannot answer the questions asked to the person interrogated or help him/her by any means during the arraignment.

Arraignment as "Evidence"

It is debatable whether or not a party's acknowledgement obtained during an arraignment can be considered as definite evidence. The General Assembly of the Civil Chambers of the Court of Appeals held in its decision dated 18 November 2009 that:

"As the parties are deemed to be the most suspicious witnesses in their own lawsuit, an arraignment is not accepted in itself as evidence by scholars and in the Court of Appeals' practice. However, evidence may be obtained with arraignment and the arraignment may help to enlighten the lawsuit in some cases".4

In another decision of the Court of Appeals dated 10 February 2004, it was held that:

"The party relying on the purchase agreement as the legal transaction cannot prove the existence of that purchase agreement through an arraignment."5

The 3rd Civil Chambers of the Court of Appeals has also held that an arraignment cannot be accepted as evidence:

"The subject of an arraignment is specific facts related to the lawsuit. Arraignment is possible particularly in the event of ambiguous and indefinite situations that need to be enlightened. This enables the defense of the plaintiff and the defendant to be clarified. This should be the purpose of the arraignment. For this reason, an arraignment cannot be accepted in itself as evidence. Unless otherwise stipulated in the law, each of the parties is obliged to prove its claims. In this regard, as a rule, the burden of proof is on the plaintiff. The plaintiff is obliged to prove the facts on which it bases its claims. When the plaintiff proves its claims, then the defendant has the burden to prove the facts on which it bases its defenses. At this stage of the trial, an arraignment should be used to enlighten the facts that need to be enlightened and one should be careful not to use arraignment in a manner harming and removing the above mentioned rules of burden of proof."6

Accordingly, it would be appropriate to say that arraignment cannot be accepted as evidence, but as a tool for the judge to clarify the facts in dispute.

Differences between Parties' Hearing and Arraignment

Under Article 144 of the CPL, the judge may decide to hear the parties' verbal statements in relation to the facts giving rise to the dispute. However, a "parties' hearing" must not be confused with arraignment. The main purpose of an arraignment is to obtain an acknowledgment regarding the disputed facts, whereas, the main purpose of a parties' hearing is to hear the parties' explanations regarding unclear issues for clarification. Basically, the purpose of a parties' hearing is to enlighten the case and to resolve the contradictions in the facts of a case.

Another significant difference between an arraignment and a parties' hearing is that, if the party is not present before the judge without any excuse when called by the judge, that party will be deemed to have accepted and acknowledged the facts forming the subject matter of the arraignment, whereas, in a parties' hearing, that party will only lose its right to object to the procedural actions of the relevant hearing.

Conclusion

Although arraignments are not very common in practice, they are used when the facts of the dispute need to be clarified. Judges must be prudent in utilizing the arraignment process and must not regard arraignment as definite evidence. Judges must not render a decision solely relying on the parties' statements obtained during an arraignment. The rules of burden of proof are clear. If these rules are violated by accepting arraignment as definite evidence, the Court of Appeals frequently overrules the court of first instance's decision, if based solely on the statements obtained during an arraignment.

Footnotes

1 Arraignments were regulated under Articles 230 – 235 of Law No. 1086

2 Decision of the 6th Civil Chamber of the Court of Appeals, dated 21 May 2012 and numbered 2012/4304 E., 2012/7562 K.

3 Law No. 1086 did not contain a similar article, permitting lawyers to ask questions to the witnesses, expert witnesses and other persons invited to the hearing.

4 Decision of the General Assembly of Civil Chambers of the Court of Appeals, dated 18 November 2009 and numbered 2009/6-477 E., 2009/546 K.

5 Decision of the 13th Civil Chamber of the Court of Appeals, dated 10 February 2004 and numbered 2003/11403 E., 2004/1235 K.

6 Decision of the 3rd Civil Chamber of the Court of Appeals, dated 4 April 2012 and numbered 2012/5220 E., 2012/9054 K.

© Kolcuoğlu Demirkan Attorneys at Law, 2013

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Gürhan Aydın
 
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