What is i̇sti̇cvap?

In a legal sense, a party is interrogated by the court about a certain fact that is against him/her

Istivap, which means withdrawal, is stated in Articles 169-175 of the Code of Civil Procedure No. 6100. It is arranged among the articles.

As it is known, in civil proceedings, parties have the right to participate in hearings. In accordance with Article 144 of the Code of Civil Procedure; During the investigation phase, the court may duly invite both parties and hear about the facts put forward in the case. While we act in the light of general rules here, the institution of requisition, which is the subject of our examination, contains different and special regulations than the hearing of the parties. Because every time the parties are heard or their statements are taken by the judge is not a request in the technical sense. Within the scope of the judge's duty to clarify the case, the judge may ask the parties to explain matters that he deems unclear or contradictory; can ask questions. In such a preliminary examination hearing, the party listens to the circumstances of the case and the initial objections if it deems it necessary. During the investigation phase, it can duly invite both parties and hear about the facts put forward in the case.

One of the situations that is important for our analysis is the quality of the request. In other words, whether istikvab is an evidence or a procedural process. Although there are differences of opinion on the issue, the Supreme Court accepts the petition as a procedural process. A provision in this direction has been established in the following decisions:

"Inquiry means that a party is heard by the court about a certain fact that is against him, and it is a procedural process that contributes to the clarification of the case." Y1HD. 2022/3478 K.

"Since the parties are considered as the most suspicious witnesses in their own cases, ijtiwap is not accepted as evidence in itself in the doctrine and the practices of the Supreme Court. However, evidence can be obtained through ijtiwap and in some cases, ijtiwap can help to shed light on the case (Kuru Baki, Code of Civil Procedure, 6th Edition, Vol. II, Page 1952 and 1953)." YHGK 2009/546 K.

SUBJECT OF THE APPLICATION

HMK'S 169/2. According to the article:

"The claim is about the facts that form the basis of the case and the issues that are related to it."

In the legal sense, fact refers to the element facts of a legal norm, situations that can meet, are determined by time and place, have occurred or still exist in relation to the external world or the inner world of man.

It is possible for a party to appeal only for facts that are against itself. The provisions of istikvap do not apply in terms of facts in your favour. Again, there is no questioning about facts that are not in dispute.

As we mentioned above, hearing the parties or taking their statements by the judge is not technically a request. Within the scope of the judge's duty to clarify the case, the judge may ask the parties to explain matters that he deems unclear or contradictory; can ask questions. In addition to the aim of obtaining confession for Istiqvap, special provisions for Istiqvap must be applied.

RESIGNATION PROCEDURE

First of all, it should be noted that in accordance with Article 169 of the Civil Code, the judge can decide on the application. The judge may make this decision ex officio or upon request.

Invitation to Recruitment and the Consequences of Not Obeying the Invitation

An invitation is sent to the party whose approval has been decided. The application invitation is sent to the party personally. As a matter of fact, Article 171 of the HMK is as follows:

"An invitation is personally sent to the person whose request has been decided and it is stated that he/she must be present for the request on the specified day and time. In the invitation, the facts that are the subject of the request are also stated and a warning is made that if the relevant party does not come without a valid excuse or does not answer the questions, he/she will be deemed to have confessed the facts that are the subject of the request.

If the summoned party does not come without an excuse or if he comes and leaves the questions unanswered, the facts asked by the court are deemed to have been admitted.

"The case is about the request for cancellation of the objection. In the invitation to request sent to the defendant, it should be stated that if the person does not come on the specified day without an excuse or if the questions asked are not answered, the signatures under the credit slips belong to the defendant and the plaintiff's claims will be accepted as true. In that case, when necessary, a new invitation to request is issued to the defendant in accordance with the procedure and a decision should be made according to the result, while making a decision in writing based on incomplete examination is against the procedure and law." and requires breaking it." Y13 HD. 2017/1116 K.

"The case is a request to decide that there is no debt due to the checks given for the construction fee in accordance with the agreement on the construction of the marble production factory. What needs to be done is to examine the merits of the dispute by accepting that the checks were given in exchange for the work fee, if the defendant does not attend the hearings and respond to the request based on the result of the request for the check delivery report, otherwise, when the signature on the minutes is denied, the case is decided to be rejected as now." Y15HD. 2012/113 E.

Who Can Be Eligible?

The real person who is a party to the case is requested. The attorney's request is not possible. The party must appear at the hearing in person and be interrogated. The party who does not come despite the invitation is deemed to have realized the fact.

On behalf of legal entities, persons with representation authority are requested.

For a transaction made on behalf of a minor or a restricted person, the legal representative of that person is required.

In cases where minors or restricted persons are granted the right to sue in person, the provision of the second paragraph does not apply.

REQUEST BY REQUEST

As a rule, the person to be requested must appear before the court in person. However, in some exceptional cases, the institution of rogatory, which means cooperation between courts, can be used. These situations are listed in Article 172 of the HMK as follows:

"The person to be interrogated must come in person. However, if the person to be interrogated lives outside the province where the court is located and it is not possible to be interrogated by transmitting audio and video at the same time, the interrogation is made through rogatory.

If the person to be summoned is not able to come to the court in person due to illness, "disability" or similar reasons, the petition is made at his/her location."

The following statements are included in the justification of the article:

"The second sentence of the first paragraph is a new provision. It was hoped that it would be beneficial for the party to come face to face with the judge who will give the verdict, whenever possible, in terms of revealing the truth, and even people who are outside the court's jurisdiction but in the province where the court is located are obliged to come to the court. However, for those who live outside the province where the court is located, this is envisaged to be achieved by taking advantage of technical opportunities for audio and video transmission. The person to be appealed is outside the province where the court is located, and the opportunity to benefit from techniques regarding audio and video transmission If it is not found, it is requested through rogatory."

A judicial decision on the subject is as follows:

"As for the request of the defendant; although it is seen from the documents available within the scope of the file that a notification was sent to the foreign address of the defendant mentioned above, it is clear that this invitation is not in accordance with the procedure, since the defendant's request can only be made through instructions in accordance with HMK 172. The interim decision in this regard was reversed. However, mentioning the contract in the content of the petition does not mean that the contract is accepted by the defendant, and the defendant's request must be made through letter rogatory, in accordance with Article 172 of the Civil Code and the Principles Applicable to International Letter Requests in Legal Matters of the Ministry of Justice. The first instance court did not consider it appropriate to make a decision with an incomplete examination without collecting the evidence that affects the merits of the case. given." ISTANBUL REGIONAL COURT OF COURT 12. CIVIL DEPARTMENT 2020/153 K.

HOW TO DO ISICVAP?

The person whose approval has been decided is personally admitted.

Before starting the request, the judge reminds the party to tell the truth.

During the interrogation, the opposing party and the party's attorneys may be present.

The requested party cannot use written notes without the permission of the court.

At the end of the application, a report is prepared. The statements made by the requested party, the questions asked and the answers given are recorded in the minutes. After the report is read in the presence of the parties, it is signed by the six requested parties. If the requested party refrains from signing the report without giving a justified reason, this situation is determined by the judge through the report.

The provisions of articles 249, 250, 259 and 263 regarding testimony are also applied to istikvap, as long as it does not conflict with its nature.