Prohibition of witness evidence and second witness list in civil procedure law
According to the Code of Civil Procedure, evidence is divided into two categories: definitive and discretionary evidence. While definitive evidence consists of deed, oath evidence and confession, discretionary evidence consists of witness evidence, expert examination, discovery, expert opinion, evidence contract and other evidence not listed in the law.
Undoubtedly, witness evidence constitutes the most frequently used type of discretionary evidence in civil proceedings. The most important feature that distinguishes discretionary evidence from definitive evidence is that discretionary evidence does not have a definitive effect and is kept at the judge's discretion. For this reason, a decision cannot be made about a dispute based solely on witness evidence. The judge reaches a conclusion by evaluating the witness statements. Because according to Article 198 of the Civil Code; The judge evaluates the evidence freely, except for legal exceptions.
Testimony is the reporting of third parties (persons other than the parties to the case) to the court about information they have personally obtained outside of the case, about a fact related to the case. (Mesut Etenhan, Witnesses and Testimony in Civil Procedure Law, Ankara 2005)
Testimony is far from being a reliable means of evidence because the witness is human and human memory is not a reliable tool for preserving in his mind events that are not of particular interest to him. (ERTANHAN, p. 51) For this reason, witness evidence has low evidentiary value. Because human memory is fallible, and weaknesses of will are also susceptible to abuse. On the other hand, especially in some labor receivables cases, there is no other option than reaching a conclusion through witness statements.
It is not possible for the parties to be witnesses in their own cases. However, there is no harm in the testimony of the party's attorneys. Although this issue is controversial, the Supreme Court decisions rule that lawyers can be both attorneys and witnesses. Finally, in the decision numbered 2020/475 K. of the General Assembly of the Supreme Court of Appeals, this situation is stated as follows:
"It has been observed that in the witness list submitted by the defendant-counter-plaintiff, the person who is also the attorney of the defendant-counter-plaintiff is shown as a witness, there is no restriction on the facts in which the witnesses will be heard, and the request to hear this witness in the pre-reversal hearing was rejected by the court. Since the lawyer is a third party compared to the parties in a case he is pursuing by proxy, he is obliged to testify other than the matters he has learned due to his duty, and there is no legal obstacle to being heard as a witness."
Representatives of legal entities cannot be heard as witnesses. In our opinion, although they are not official representatives of the legal entity, those who direct and manage the legal entity should not be heard as witnesses. For example, the father who directs and manages a limited company in which his son is a shareholder cannot be heard as a witness in a case in which the company is a party.
It is not possible for legal representatives to be heard as witnesses.
The situations in which witness evidence can be used are limited. As it is known, HMK's 200 ff. The rule of obligation to prove by promissory note regulated in the articles restricts the situations in which witness evidence can be used. In addition, if there are exceptions to this rule, witness evidence can be used. You can review our detailed explanations on this subject in our article titled Obligation to Prove with Promissory Note.
For 2022, legal transactions whose amount is below 6640 TL can be proven with witness evidence. Legal transactions can be proven with witnesses in cases that constitute an exception to the obligation to prove with deed.
There is no limitation for legal acts. Any legal act can be proven by witnesses. Especially in employee-employer disputes, overtime, weekday work, and work done on public holidays are suitable for proof with witnesses, as they are legal acts.
SHOW OF WITNESSES
Article 240/2 of the Code of Civil Procedure. Article "The party presenting a witness submits to the court the fact that he wants to hear witnesses and the list containing the names and surnames of the witnesses to be heard and their addresses suitable for notification. People who are not shown in this list cannot be heard as witnesses and a second list cannot be given." It includes the provision.
As can be seen, the witnesses are shown by the parties and the names, surnames and addresses of the witnesses are presented to the court. This list presented to the court is called the witness list. In order for witnesses to be heard, the parties must rely on witness evidence in their lawsuit or response petition. However, the witness list does not need to be presented with the lawsuit or the response petition.
The time for submitting the witness list is not regulated by law. On the other hand, as stated in Article 137 of the Code of Civil Procedure, "a preliminary examination is carried out after the petitions are mutually submitted. In the preliminary examination, the court examines the terms of the case and the initial objections, determines the issues of dispute fully, carries out the necessary procedures for the parties to present their evidence and collect the evidence through the preparation procedures, encourages them to reach a settlement (additional statement or mediation" in the cases on which the parties can freely dispose, and records these matters in the minutes." Pursuant to its provision, the witness list is submitted to the court within the time given by the judge). If this definitive period is passed, it is assumed that the party has given up relying on witness evidence.
SECOND WITNESS LIST PROHIBITION
HMK's 240/1. The second sentence of the article states that "a second list cannot be given". This provision is a matter of public order and is observed ex officio. In the decision numbered 2021/807 K. of the General Assembly of the Supreme Court of Appeals, it was stated that "This definitive rule that the second witness list cannot be given is from public order and is taken into consideration by the Judge ex officio. The rule that a second witness list cannot be given is also a rule that serves the procedural economy in terms of completing the cases within a reasonable time." expressions were used.
It is not possible to apply the opposite of this rule. A second witness list cannot be given even with the consent of the parties. A decision of the Supreme Court on the subject is as follows:
"The party submits to the court a list showing all its witnesses about the events that it wishes to prove within the period given by the court. According to the provision of Article 274 of the Code of Civil Procedure, after a witness list is given about an event indicating the names, surnames, addresses and identities of the witnesses and their other qualifications, if any, people who are not shown in this witness list cannot be heard as witnesses and a second list of witnesses cannot be given in accordance with Article 274 of the Code of Civil Procedure. The prohibition of submitting a second list of witnesses is related to public order. Because, This prohibition has been imposed in order to prevent the trial from being delayed and to reduce the work of the courts. Therefore; even if the opposing party consents to the submission of a second witness list, the court cannot hear the second witness list. Y8HD. 2001/2852 K.
Again, islahla It should also be noted that the second witness list cannot be given. The following distinction must be made here. If a new fact is added to the case through amendment, a new witness can be presented to prove this new fact. As a matter of fact, in a decision given by the 4th Civil Chamber of the Supreme Court of Appeals in 2015; "Through reform, the facts relied upon can be changed or new facts can be included in the case. Even if the plaintiff has shown it before, he can also show evidence regarding these new facts he has added to the case. In this case, the hearing of the witnesses cannot be avoided, based on the prohibition that a second witness list cannot be given (TCC. Art. 240/2). The witnesses cited by the plaintiff in the reform petition must be duly heard and all the evidence will be evaluated together and a decision will be made according to the conclusion. should be given." He ruled as follows.
Second witness list ban begins after the specific period given by the judge. The fact that the parties include the names of witnesses in their lawsuit or response petition does not mean that they cannot submit a witness list later. Even though there are contrary views in the doctrine, we believe that what is fair is to provide the witness list within a certain period of time. A provision was made in this direction in the decision of the Supreme Court No. 2014/1007 K. Relevant parts of the decision are as follows:
"It is not specified in the Code of Civil Procedure No. 6100 when the witnesses will be presented. After the issue of dispute between the parties is determined at the preliminary examination hearing, the parties are given time to submit their evidence. The plaintiff stated the name of a witness based on witness evidence in the petition. Since he reported the names of his other witnesses with the evidence list dated 27.04.2012 before the preliminary examination hearing, this list cannot be considered as the second witness list. The plaintiff clearly did not give up on having his witnesses heard. The plaintiff was ruled by the court. "While the witnesses should be duly summoned and heard in accordance with Article 243 and subsequent articles of the Code of Civil Procedure No. 6100, and all the evidence should be evaluated together and a decision should be made according to the result, making a decision in writing with incomplete examination is against the procedure and the law and required reversal."
The decision of the 2nd Civil Chamber of the Supreme Court of Appeals, numbered 2014/14212 E. and 2014/25777 K., established the following provision:
"The defendant-plaintiff (woman) reported the names of two witnesses with the reply and counterclaim petition dated 13.5.2013. After the completion of the exchange of petitions phase, the court determined the issues on which the parties agreed and disagreed on the preliminary examination hearing on 22.10.2013 and gave the parties a definite period of two weeks to submit all their evidence, including the witness, in terms of proving their claims. The defendant-plaintiff (woman) named two more witnesses within the given period. These witnesses were not heard by the court on the grounds that "a second witness list could not be given".
Evidence is shown for controversial facts that the parties cannot agree on and that may be effective in resolving the dispute (TCC Art. 187/1). Since the investigation will be carried out on the controversial issues identified in the preliminary examination (TCC Art. 140/3), the parties cannot be expected to rely on any evidence or present the evidence they rely on before this determination is made. For this reason, the witnesses reported by the defendant-plaintiff (woman) within the period given by the court after the determination of the dispute issues cannot be considered as the second witness list and these witnesses are included in the Code of Civil Procedure Articles 260-265. It must be heard within the framework of the procedure specified in the articles and all the evidence must be evaluated together and a decision must be made in accordance with the result. "Ignoring this issue, making a decision in writing as a result of faulty justification and incomplete examination is contrary to procedure and law, and requires reversal."
We would like to touch upon another important issue in this topic. As we mentioned above, the judge gives time for the presentation of evidence at the preliminary examination hearing. It is also requested that the witness list be presented within this period. However, the decision based on the presentation of evidence within the given time is not sufficient for the witness list ban to begin. In the interim decision, a clear warning must be made that the witness list be presented within a certain period of time. The decision numbered 2021/881 K. of the 1st Civil Chamber of the Supreme Court of Appeals is in this direction, and the relevant parts are as follows:
"In the incident, since the witness list was not included in the warning regarding the exact time given by the court at the preliminary examination hearing for the notification of evidence, it is not possible to talk about the existence of a certain time period duly given to the plaintiff party to notify the names of the witnesses." A new witness list may be given for different facts. The ban on the second diagnostic list was introduced in order to prove the same facts.
After the Supreme Court's reversal decision, the party that has not previously submitted a witness list has the right to submit a new witness list.
If witnesses cannot testify due to legal or actual reasons, a new witness list may be given.
INVITING WITNESSES TO COURT
Article 243 of the HMK, titled Invitation of witnesses, is as follows:
"1) The witness is summoned by invitation. However, the witness who is present by the parties before the invitation is sent is also heard. However, in cases where a definite time is given for the witness list and the day of hearing is determined, even if the list is not given, the witnesses are heard if the party makes them present at that hearing.
2) The invitation must be notified at least one week before the hearing date. In urgent cases, it may be decided that the witness comes earlier.
3) Inviting the witness can be done, if necessary, by using means such as telephone, fax, and e-mail. However, the consequences of not coming despite the invitation do not apply in this case.”
As can be seen, witnesses are duly invited by the court. On the other hand, it is possible for the parties to present their witnesses in court without being notified of the invitation, but the parties cannot be forced to do so and cannot be deemed to have given up on having their witnesses heard because they do not present them in court. In addition, the parties cannot be held responsible for making witnesses available. No definitive deadline can be given on this matter and such an interim decision cannot be made. A Supreme Court decision on the subject is as follows:
"The case is about the request for divorce. The court cannot impose an obligation on the parties to have their witnesses present at the hearing, even though it has no legal basis in accordance with the Code of Civil Procedure No. 6100. No time can be given for this matter. Even if it is given, it will not produce any results. How the witnesses will be invited to the court is shown in Articles 240, 243 and 245 of the Code of Civil Procedure. In this case, the work to be done by the court is if the defendant has not expressly renounced being heard. Inviting the witness to the hearing in accordance with HMK Article 243 with a notification sent to the address of the witness stated in accordance with HMK Article 240/3, forcing the witness who did not come without giving an excuse even though he was invited in accordance with the procedure, forcing the witness to be brought in pursuant to HMK Article 245, and as a result, although a judgment should have been made in accordance with the outcome of the decision to bring the witness by force, without explaining how the hearing of the witness was not effective on the outcome, the provision of a written verdict with incomplete examination was not deemed correct and required reversal. Y2. HD. 2019/11549 K.
One more point needs to be mentioned here. The first paragraph of the article includes the provision that "even if the list is not given, witnesses will be heard if the party makes them present at that hearing." This regulation is not an exception to the second witness list prohibition. In order for the provision to be implemented, the party must not have submitted a witness list at all or in due time. If there is a witness list submitted on time, a witness who is not on the list will be subject to Article 243/1 of the Code of Civil Procedure. cannot be heard according to the article. A decision of the Supreme Court on the subject is as follows:
"In Article 243/1 of the Code of Civil Procedure, "The witness is summoned by invitation. However, witnesses present by the parties may also be heard before an invitation is sent. However, in cases where a definite time is given for the witness list and the day of rest is determined, even if the list is not given, the witnesses will be heard if the party makes them present at that hearing. The plaintiff has relied on witness evidence in his petition, the court has given a definite period of 2 weeks to the plaintiff party to notify the names and addresses of the witnesses, the witness list has been submitted to the court by the plaintiff after the expiry of the definite period, the plaintiff's attorney has declared that the witnesses were present outside the hearing room at the decision hearing, the court has decided to have the names and addresses of the witnesses within the definite time. It is understood that the trial was continued and the case was rejected on the grounds that the plaintiff's request to hear witnesses was not reported. In this case, since the plaintiff's witnesses were present during the hearing, it is not correct that the decision was made with an incomplete examination, while the court should have made a decision based on the conclusion of hearing the plaintiff's witnesses in accordance with Article 243/1 of the Civil Procedure Law, which is a mandatory provision. Y4HD. 2020/153 K.
In another decision, the following provision was made:
"The court gave the defendant's attorney a definite period of thirty days in order to present his evidence at the session and to make a statement about the issue on which they will be heard if he presents witnesses, and the hearing was postponed to a later date. The defendant's attorney presented the list of evidence during the session outside the given specific time period and stated that the witnesses they presented were present on the same day. In this case, no postponement of the hearing was caused. In that case, since the defendant's attorney stated that he had his witnesses ready, these witnesses were heard and all the evidence was evaluated together. "The decision must be made based on the outcome."
Content of the Invitation to be Sent to Witnesses
In the invitation to be sent to the witnesses;
WITNESS NOT COMING TO COURT
According to Article 245 of the HMK:
Subject to the provisions of the law, everyone called to testify must appear. A witness who does not appear without an excuse even though he is duly summoned will be brought by force and will be subject to the expenses caused by his failure to appear and a disciplinary fine of up to five hundred Turkish Liras. If the forcibly brought witness later states the reasons that would justify his not coming, the expenses and disciplinary fines imposed against him will be waived. As can be seen, it is mandatory to comply with the witness invitation sent by the court. Otherwise, a decision will be made to bring the witness by force and the witness who does not come without an excuse will be punished with a disciplinary fine.
CONSTITUTION WITH HEARING SOME OF THE WITNESSES
According to Article 241 of the HMK; If the court obtains sufficient information about the issue sought to be proven through the testimony of some of the witnesses, it may decide not to hear the rest.
There is no limit on the number of witnesses to be shown on the witness list. Any party may request that any number of witnesses be heard. Although this is the rule, if the judge concludes that it is unnecessary to hear a large number of witnesses or that it is done for the purpose of prolonging the case, he may not hear all the witnesses, provided that he shows it in his reasoned decision.
241. The following expressions were used in the justification of the article:
This article, titled "Confining it with hearing some of the witnesses", expresses an opportunity given to the court to prevent the efforts of the party who wants to act with the intention of prolonging the case. Considering that the second paragraph of the previous article places the burden on the party who presents the witness to explain the facts about which the witnesses will be heard, in this context, if sufficient results have been achieved by listening to some of the witnesses shown in the witness list by the parties, it may be decided that the hearing of the others will be deemed to be waived."
According to the decision of the General Assembly of the Supreme Court of Appeals No. 2021/771; In accordance with Article 241 of the Code of Civil Procedure, if the court obtains sufficient information about the matter sought to be proven through the testimony of some of the witnesses, it may decide not to hear the rest. Article 241, titled "Confining it with hearing some of the witnesses", is an opportunity granted to the court, which aims to prevent the efforts of the party who wants to act with the intention of prolonging the case. In this context, the court may decide that if sufficient results have been achieved by hearing some of the witnesses listed by the parties in the witness list, the hearing of the others will be deemed to be waived. However, this opportunity provided by the article should be evaluated very carefully by the court; It should not be overlooked that each witness may not have the same information, that other witnesses may present enlightening information about the incident to the court, and that limiting the number of witnesses may lead to a violation of the parties' right to a fair trial and legal hearing.
In order for the court to be satisfied with hearing some of its witnesses, the party presenting the witness must waive or make an interim decision on this issue. This should also be stated in the reasoned decision. Otherwise, there will be a violation of the law. Finally, in a decision of the Supreme Court, a ruling was made as follows: "The main and the merged case is about the prevention of seizure and compensation between the stakeholders, and the other merged case is about the request for title deed annulment and registration in proportion to the inheritance share based on the legal reason of muris collusion. In the incident, although the court complied with the reversal order, the investigation was not carried out in accordance with the necessary principles and in the manner specified in the reversal, especially despite the fact that a list of 5 witnesses was given by the defendant, the court was content to hear only 1 defendant witness, and the other witnesses were not heard." "Although there was no waiver of the defendant in terms of witnesses, it is understood that the conclusion was reached without making an interim decision in accordance with Article 241 of the Code of Civil Procedure." Y1HD. 2021/1402 K.
In another Supreme Court decision, "The defendant requested the witness stated in the evidence list to be heard, but the court refused to hear this witness of the defendant on the grounds that sufficient information was obtained. In order for the said witness not to be heard, the matter sought to be proven by the witnesses heard must have been sufficiently clarified. If this is not the case, the court cannot refrain from hearing the witness based on this provision. It is understood that these conditions are not met. In that case, the defendant's witness must be heard in accordance with the procedure and a decision must be made." Expressions are used.
Do not hesitate to testify
According to Article 247 of the Code of Civil Procedure No. 6100; In cases clearly stated in the law, a person summoned as a witness may refrain from testifying.
It will be possible for witnesses to refrain from testifying only if there is a reason regulated by law. A witness who cannot rely on a reason written in the law will not be able to use his right to refrain. Because, as we mentioned above, it is mandatory to testify.
247. According to the second paragraph of the article; If there are reasons to refrain from testifying due to personal reasons, the judge reminds in advance that the person called as a witness has the right to refrain.
Refraining from Testifying for Personal Reasons
The following people have the right to refrain from testifying for personal reasons:
- The fiancée of one of the two parties.
- Spouse of one of the parties, even if the marriage bond has been terminated.
- He or his spouse's descendants or descendants.
- Those who have a filial bond with one of the parties.
- Relatives by blood, including the third degree, or by in-laws, even if the marriage bond that creates them has been eliminated.
- Foster family and their children and the child under protection.
Refraining from Testifying Due to Secret
"Article 249 of the Code of Civil Procedure states: "Persons whose testimony will be sought regarding information that must be kept secret in accordance with the law may refrain from testifying about these matters. However, without prejudice to the provision of the Attorneyship Law No. 1136 dated 19/3/1969, these people cannot refrain from testifying if the secret owner allows the disclosure of the secret." It is emphasized that the witness may refrain from testifying when his testimony is requested about information that must be protected as a secret by law, but he cannot refrain from testifying in cases where the secret owner allows the secret to be disclosed, without prejudice to the provision of the Attorneyship Law No. 1136.
As a matter of fact, lawyers are prohibited from disclosing what has been entrusted to them or what they have learned due to their duties and their duties in the Union of Turkish Bar Associations and bar association bodies. They can testify about these matters with the consent of the employer. However, even if the lawyer has obtained his/her consent, he/she may refrain from testifying and will not be held legally or criminally liable due to such hesitation (Article 36 of the Lawyers' Law no. 1136).
During the discussions held in the General Assembly of Law, it was stated that hearing the person who is also the attorney of the defendant-counterclaimant as a witness would be contrary to the principle of equality of arms and fair trial, that the defendant-counterplaintiff's attorney should be heard as a witness after quitting his duty as lawyer in the case, that the provisions regarding representation will be applied in cases pursued through attorney in accordance with Article 72/1 of the Code of Civil Procedure, that the attorney is the representative of the party even if he is not a party, that the duties of attorney and witness in the same case are incompatible, that attorneys' duties in civil cases are incompatible. Considering that they actively carry out all procedures, both procedural and substantive, on behalf of the party at all stages of the trial, that persons who are not parties to the case should be presented as witnesses (HMK Art. 240/1), that hearing the witness who is also the party's representative will cause loss of rights, considering that attorneys are present during the hearing of other witnesses, and for these reasons, the decision to resist should be approved, but the file should be sent to the Special Chamber for examination of other appeal objections. However, this opinion was expressed by the majority of the Board for the reasons explained above. has not been adopted." YHGK 2020/475 K.
Refraining from Testifying Due to the Danger of Violation of Interest
Testification may be refrained from in the following cases:
a) If the witness's statement will directly cause material damage to himself or to one of the persons listed in Article 248.
b) If the statement of the witness will violate the honor or reputation of the witness or one of the persons listed in Article 248, or will cause a criminal investigation or prosecution.
c) If the witness's statement will cause the secrets of his profession or art to be revealed.
Exceptions to the Right to Refrain from Testifying
In cases stated in articles 248 and 249 and paragraph (a) of article 250;
a) A person who is present as a witness during the execution of a legal transaction, about the basis and content of that transaction,
b) About events arising from the birth, death or marriage of family members,
c) About cases of financial disputes between family members arising from familial relations,
ç) Testimony cannot be avoided regarding the actions performed by one of the parties as the legal predecessor or representative of one of the parties.
Reporting and Examining the Reasons for Hesitation
A person who hesitates to testify must state the reason for hesitation and the evidence that will justify this reason, in writing before the day of hearing, or orally at the hearing to which he is invited. The witness who has previously informed the reasons for hesitation and the basis for this does not have to come to court on a certain day. After listening to the parties present at the hearing, the court decides whether the hesitation from testifying is justified.
"The plaintiff stated that one of the witnesses would not testify, but he did not give up. The stated witness must be called. Refraining from testifying is possible only after coming to the court if he has an excuse. In that case, the witness declared by the plaintiff should be called by the court. If he hesitates when he comes to the court, the reason for hesitation should be asked and if the reason is accepted, he should not be heard. Otherwise, his statement should be consulted." Y9HD. 2015/23251 E.
The Consequence of Not Accepting the Reservation
If the witness refrains from testifying without giving a legal reason, does not take an oath, or hesitates to testify even though the reason given by him is not accepted by the court, he is ordered to pay a disciplinary fine of five hundred Turkish Liras to five thousand Turkish Liras and the expenses incurred for this reason, and the trial is postponed to another day to be heard again. If the witness does not answer the questions asked to him or refuses to swear, he is sentenced to disciplinary imprisonment by the court for a period not exceeding two weeks.
IDENTIFICATION OF THE WITNESS AND OBJECTION TO WITNESSES
According to Article 254 of the HMK; During the hearing, the witness is first asked about his name, surname, date of birth, profession, address, whether he is related to the parties or any other closeness, and whether he has a situation that may affect the trust in his testimony.
The purpose of the provision is to help the judge evaluate witness statements. Because, if there is a reason that will affect the statements of the witness, the judge will keep a distance from the statements of that witness. According to the decision of the General Assembly of the Supreme Court of Appeals No. 2014/1090; In accordance with Article 254 of Civil Code No. 6100, the essential thing is that the witnesses tell the truth unless there is serious and convincing evidence and events to the contrary. Kinship or other closeness alone cannot be considered a reason that devalues the witness statement.
The existence of hostility between the witness and the plaintiff or defendant is considered as a situation that will reduce the evidential force of the witness statements. The Supreme Court has many decisions on this issue. Especially in business cases, the statements of witnesses who are at odds with the defendant workplace are treated with caution. Some sample Supreme Court decisions on the subject are as follows:
"If the court has heard those who filed a lawsuit against the defendant as witnesses, the testimonies of these workers should be approached cautiously. These statements should be evaluated together with other side evidence and a conclusion should be reached. In the dispute, it is understood that the plaintiff's witnesses have filed a lawsuit against the defendant from their own statements. The position of the witnesses is in a position to affect the trust in their testimonies. For this reason, their testimonies alone cannot be considered sufficient for proof." Y9HD. 2021/13551 K.
"The burden of proving the existence of the receivable is on the plaintiff, and the plaintiff has relied on witness statements as evidence. While the testimony of employees at the workplace or in a neighboring workplace is important in determining the fact of the employee's employment, it should also be investigated whether there is a situation that may affect the confidence in the testimony of the person to be heard as a witness. If those who filed a lawsuit against the defendant have been heard as witnesses, the testimonies of these workers should be approached cautiously. These statements should be evaluated together with other collateral evidence and a conclusion should be reached. In the dispute, it is understood that the plaintiff's witnesses have filed a lawsuit against the defendant from their own statements. "The position of the witnesses is such that it affects the trust in their testimonies. Therefore, their testimonies cannot be relied upon." Y9HD. 2021/2107 K.
"In accordance with the stable practice of the chamber, if those who filed a lawsuit against the defendant were heard as witnesses, the testimonies of these workers should be approached cautiously. These statements should be evaluated together with other ancillary evidence and a conclusion should be reached. In the expert report on which the court ruled, it was accepted that the plaintiff worked overtime and worked on national and national holidays, and the receivables were calculated. However, it was understood that the worker who was heard as the only plaintiff witness filed a lawsuit against the defendant in a similar way. The position of the witness is in a position to affect the trust in his testimony. For this reason, his testimony cannot be relied upon. In this respect, it is erroneous to decide to accept these demands instead of rejecting them, as the plaintiff worker cannot prove with concrete and objective evidence that he worked overtime and worked on national holidays." Y9HD. K. 2020/4964
Objection to Testimony
According to Article 255 of the HMK; If there are reasons that require doubt about the accuracy of the witness's testimony, such as being useful in the case, either party can claim and prove it.
"The plaintiff's witness statements were used as a basis when calculating the overtime and general holiday pay receivable in the expert report on which the verdict was based. However, it is established that the plaintiff's witnesses also have cases against the defendant; the hostile witness statement alone cannot be relied upon without supporting it with other evidence. For this reason, while the plaintiff's overtime and general holiday wage request should be calculated on the basis of the defendant's witness statements and the periods on leave should be excluded in the calculation, it is inaccurate to make a decision based on faulty evaluation." Y22 HD. 2018/26259 K.
"According to Article 198 of the HMK, the witness statement is discretionary evidence and the judge is not bound by the witness statement. If there are signs and evidence that the witness is not telling the truth, he may decide against the witness statements. However, in accordance with Article 255 of the HMK, unless there is convincing evidence and events to the contrary, the main thing is that the witnesses tell the truth. Kinship or any other closeness cannot be considered as a reason that devalues the witness statement in itself. (General Assembly of Law. 30.01.2013 day E: 2012/2- 697 E., K: 2013/167) In this case, the statements of the plaintiff's witnesses are consistent and support each other in the point that, except for the 2 pairs of earrings that are the subject of the case, the other jewelery items were taken from the plaintiff's hands and exchanged for cash by the defendant immediately after the wedding. In this case, the court, considering the above-mentioned legal provisions and explanations; "While it should have been decided to accept the case in terms of 13 Republic gold coins, 4 rings and 8 bracelets, which were proven to have been exchanged and spent by the defendant, it was not deemed appropriate to make a written judgment based on incomplete examination and erroneous evaluation, necessitating reversal." Y3HD. 2018/1221 K.
"The court's decision, which was based on the expert report that calculated the plaintiff's national holiday, general holiday and week holiday based on the statements of the plaintiff's witnesses, who had animosity between them and the defendant, had to be reversed." Y2 HD. 2018/25895 K.
HEARING OF WITNESSES
Witnesses are heard in the court hearing the case.
The court may decide to hear the witness at the place where the event took place or where the thing was found, if it is necessary for the truth to be revealed.
The court hears the witness who cannot come due to illness or "disability" at his/her location.
The court of the place where the witness is located may decide to hear the witness who is outside the court's jurisdiction. The details of where, on what day and at what time the witness decided to be heard through rogatory will be notified to the parties upon their request. In this case, the judge determines the reasons on which the witness will be heard. (HMK 259)
Before the witness is heard, he is informed by the judge about the incident he will testify about and is asked to tell what he knows about the subjects he will testify about. (HMK article 260)
As a rule, witnesses are heard in court. However, if it is necessary for the truth to be revealed, the witness may decide to be heard at the place where the event took place or where the thing was found. On the other hand, in real estate cases, witnesses must be heard at the place where the real estate is located. An example Supreme Court decision is as follows:
"The case is a title deed cancellation and registration case for the transfer of ownership filed in accordance with Article 14 of the Cadastre Law No. 713/1 and 3402 of the TMK, based on the legal reasons of possession and transfer from the heir, which provide the gain. Focusing on how the immovable property subject to the case was transferred from the plaintiff's grandfather to his father, and from his father to the plaintiff, is subject to sharing among the heirs of the estate after the death of the deceased. "It is necessary to investigate whether the property is kept, whether all heirs participated in the sharing, whether it was transferred from the deceased to the plaintiff as a result of sharing or through sale or donation. Since the dispute is about the real estate, it is mandatory for the witnesses to be heard at the discovery place, not at the trial sessions. In this respect, it is not right to hear the witnesses during the trial." Y8HD. 2011/5005 K.
The parties may ask questions to the witness through the judge. Lawyers have the right to ask direct questions to witnesses.
How the Witness is Heard
HMK M.261
1) Witnesses are heard separately by the judge, and those who have not yet been heard cannot be present in the hall while one of them is being heard. Witnesses are confronted when necessary.
2) The witness explains what he knows verbally and is heard without interruption. During the hearing, the witness cannot use written notes. However, if the witness tells the judge that he has to look at his writings in order to determine dates and figures or to explain or remember some issues, the judge may decide to look at his writings immediately or to be heard again at a hearing to be determined.
3) After the witness finishes speaking, the judge may ask other questions in order to clarify or complete the points he expressed.
4) In the collective court, the president allows each judge to ask questions directly to the witness.
5) The words of the witness are written in the minutes and read in front of him, and he is made to sign the bottom of the report.
Witnesses can be confronted when necessary. Especially in the presence of contradictory statements, contradictions must be resolved by confrontation. Otherwise, it will not be possible to explain which witness's statement was given priority and why. As a matter of fact, this issue was mentioned in the following Supreme Court decision:
"The case is about the request for extra payment. The court conducts on-site reconnaissance and ensures that the party witnesses are heard at the discovery place, asking the party witnesses in detail about who used the immovable properties in question, all or a part of them, in what quantity and for what purpose, which of the immovable properties in question are used by the plaintiffs or whether there is a place they can use, trying to resolve the contradiction between the statements of the party witnesses by confronting them, and in case the contradiction between the statements cannot be resolved, which party witness's statement should be "It should be stated in the justification of the decision that it is considered superior, the defendant's petition submitted to the court containing his statements regarding the use of the immovable properties in question should also be taken into consideration, from now on, all the witness statements of the parties should be discussed and evaluated together, and the condition of prohibition of usufruct in the immovable properties where wheat and sunflower cultivation is done and owned by the parties should be sought." Y8HD. K. 2019/342
The following decision includes statements about hearing witnesses during confrontation and discovery:
"The case is about the prevention of seizure based on possession and the request for retaliation. The task to be done by the court is to carry out a survey at the location of the immovable property in dispute, to call the witnesses of the parties who were previously heard by the court in accordance with Articles 243 and 244 of the Civil Code No. 6100, and to hear them at the location of the discovery at the property as much as possible (TCC Article 259, 290/2.m), the second litigant." Asking and determining separately the issues of who the flat on the first floor previously belonged to, who transferred it from whom to whom and when, who is in possession and disposal, again in case of a contradiction between the statements, trying to resolve the contradiction by confrontation in accordance with Article 261 of the Code of Civil Procedure, at this stage, taking into account the statements, information and documents in the case file (especially the title deed registration information and possession transfer agreements), again on behalf of the plaintiff and the defendant within the scope of the file. "It is necessary to determine without any hesitation which flat the numbers mentioned in the real estate tax records and water and electricity subscription facility documents, which are understood to be registered, belong to, through on-site observation, in accordance with the provision of Article 290 of Civil Code No. 6100, the pictures of the real estate should be taken and placed in the file after being approved by the court judge, and then all the evidence within the framework of the claim and defense should be evaluated together and a decision should be made according to the opinion to be reached." Y8HD K. 2018/11183
They Will Be Heard Without Oath
The following people are heard without oath:
a) Those who have not completed the age of fifteen at the time of rest.
b) Those who do not have the power of discernment to understand the nature and importance of the oath.
Time and Form of the Oath
The oath is taken before the witness is heard.
When the oath is administered, everyone present, including the judge, stands up.
The judge asked the witness, "Do you swear on your honor, dignity and all the beliefs and values you consider sacred that the answers you will give to the questions you will be asked as a witness will not be contrary to the truth and that you will not hide anything from your knowledge?" he asks. In response, the witness said, "I swear on my honor, dignity, and all my beliefs and values that I consider sacred, that I will answer the questions truthfully, without hiding anything." By saying this, an oath is deemed to have been taken.
Prohibited Behaviors
The parties are prohibited from interrupting the witness or praising or insulting him or her with words or actions. If the party or his representative who acts contrary to this principle continues his behavior despite the judge's warning, action will be taken in accordance with Articles 79 or 151. (HMK article 262)
Giving False Testimony or Providing Benefits and Its Consequences
ARTICLE 264
1) If the judge obtains sufficient evidence or indication that the witness lied during his testimony or testified for benefit, he prepares a report and immediately sends this report to the Chief Public Prosecutor's Office.
2) The judge may also decide to arrest the witness and any partners in the crime and refer them to the Chief Public Prosecutor's Office for prosecution.
Understanding that false testimony has been committed is grounds for retrial. (HMK 375)
SENDING A QUESTIONNAIRE TO THE WITNESS
As we mentioned above, the main thing is to hear the witnesses in court. Because when necessary, witnesses will be asked questions and explanations will be made. On the other hand, an exceptional method is included in Article 246 of the Civil Code. Accordingly; In cases where it is deemed necessary, the judge may decide to send a question paper to the witness so that he can submit his answers in writing within a determined period of time, instead of being heard orally. Taking action in this way cannot prevent the judge from assessing whether the answer given by the witness is sufficient for the verdict. The judge may invite the witness to listen if the written answers given are insufficient.
In order for this exceptional case to apply, there must be a reason such as the witness having a serious illness. Finally, the following statements are included in the justification of the article:
This article, titled "Sending a question paper to the witness", is essentially the version of Article 256 of Law No. 1086 expressed in modern Turkish.
In this provision, in addition to granting the court a clearer and broader discretion by calling it "cases deemed necessary" instead of "exceptional circumstances", it also allows the court to decide this on its own, without seeking the consent of the parties, as an expression of this right of discretion. The court should use its discretion on this matter very moderately, depending on the specific circumstances. It should be noted that hearing the witness before the court is a result of the face-to-face principle, and sending the question paper will be a very exceptional case.
Aspects such as time, distance, expense issues, the presence of the witness in a foreign country, the absence of an obligation to be heard in front of the court, and the fact that the witness is someone who can respond in writing may be criteria in the use of discretion.
The third sentence in the article is a new provision, and if the judge finds the written answers given by the witness insufficient, it is possible to invite the witness to the court to be heard.
Sending a question paper to the witness was not common in practice. However, it has been witnessed that some judges resorted to this method due to the pandemic. In our opinion, this practice is erroneous and has caused and will lead to very erroneous evaluations, especially in business cases where decisions are made solely on witness statements. Moreover, considering the Covid-19 epidemic within the scope of a state of exception is contrary to the purpose of the provision. Immunization of only the witness in the hall where the judge, clerk, bailiff, parties and their attorneys are present should not be seen as a situation that will affect the contagion of the epidemic. As a matter of fact, in the justification of the article, it is stated that this method should be used very moderately and regarding exceptional cases, "Aspects such as time, distance, expense issues, the presence of the witness in a foreign country, the absence of an obligation to be heard before the court, and the fact that the witness is a person who can respond in writing may be criteria in the use of discretion." sampling was done. In our opinion, this provision should only be implemented in the cases listed in the justification. It is undisputed that the practice of sending a question paper to a witness using the pandemic as an excuse, when it is not even clear to whom the question paper was sent, will lead to very wrong results. For example, the defendant employer can fill out his witness's form as he wishes. In our opinion, decisions made in this way will be seen as a reason for appeal or reversal by the Supreme Court. A Supreme Court decision on the subject is as follows:
"The hearing of this witness could not be completed because one of the defendant-plaintiff man's witnesses in the evidence list became ill and was hospitalized while his statement was being taken. The witness whose statement is incomplete must be called again to be heard, if his address is outside the jurisdiction, an instruction must be written to the local court to determine his statement, and if the health problems of the said witness prevent him from being heard before the court, the witness's statements must be determined by sending a question paper to the witness to state his answers in writing."
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