The highest body within the Turkish Court of Appeal system
recently considered time limits for submitting evidence at the
preliminary examination stage. Accordingly, it upheld the Court of
First Instance's decision to reject the defendant's
evidence request because the period to make such a request had
In the case at hand, one party initiated execution proceedings
against the other regarding an alleged debt. The alleged debtor (as
plaintiff) sought a separate court declaration that no debt existed
and also claimed compensation for bad faith.
The defendant sought dismissal of the action and attempted to
submit evidence during the preliminary examination stage. However,
the First Instance Court rejected the evidence on the basis that
the defendant failed to submit it within the permitted time.
The defendant appealed to the Court of Appeal, claiming the
First Instance Court's decision was based on deficient evidence
because the lower court had refused the defendant's witness
examination request. The Court of Appeal reversed the First
Instance Court's judgment and sent the matter back to the First
Instance Court. However, the First Instance Court insisted that its
previous judgment should stand, so the matter was referred to the
highest body within the Court of Appeals (the Assembly of Civil
The Assembly of Civil Chambers confirmed the First Instance
Court's initial decision to reject the defendant's
evidence, noting that:
For negative declaratory judgments
like this, the burden of proof rests with the defendant.
Despite receiving notifications, the
defendant's witness examination requests during the preliminary
examination stage were made after the period to do so had
The First Instance Court cannot grant
time extensions to submit evidence which has not already been
referred to at the preliminary examination hearing.
The Assembly of Civil Chambers based its decision on:
Article 6 of the European Convention
of Human Rights Right to a fair trial.
Article 90 of the Turkish
Article 141 of the Civil Procedure
Case reference: Yarg. HGK. 23/01/2014, 2014/13-856
Information first published in the MA | Gazette, a fortnightly legal update newsletter
produced by Moroğlu Arseven.
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