What is oath evidence?

YİBK, in a decision dated 03.03.2017, stated that "Oaths are verbal statements that confirm the issue of whether an event concerning the solution of the case of one of the parties is true or not, in accordance with the procedure specified in the law, before the court, with the values ​​considered sacred, and are loaded with the quality of definitive evidence." He used the expressions. Articles 225-238 of the Code of Civil Procedure No. 6100. Its articles regulate the evidence of oath. Oath evidence is conclusive evidence and concludes the dispute once and for all. Additionally, another feature of oath evidence is that it is a last resort. In other words, the party applying for oath evidence will not be able to put forward any other evidence. The party who will rely on oath evidence must clearly state this in the evidence section of its petition. Otherwise, an oath offer cannot be made.

In one of its jurisprudence, the Supreme Court emphasized that oath evidence should be clearly stated in the evidence section and ruled that the phrase "all kinds of evidence" does not include oath evidence, therefore oath evidence cannot be relied upon. HMK 227/1. Article "Even the party who has declared that he has evidence other than an oath to prove the fact in dispute may offer an oath." He edited his judgment. As is clearly understood from the provision, the existence of evidence other than the oath does not mean that an oath cannot be offered. The point that should be taken into consideration here is HMK 227/2. It is matter. The relevant article states: "After the person to whom the oath is offered declares that he is ready to take the oath, the other party cannot give up his offer, rely on any other evidence or present any new evidence." He clearly stated that the oath is a last resort.

SUBJECT OF THE OATH

Articles 225 and 226 of the Civil Code specify the subject of oath evidence. According to Article 225, the subject of the oath must be important for the solution of the case and the party to whom the oath is offered must know the subject. In one of its decisions, the Supreme Court stated that "since the subject of the oath is the facts originating from the person himself, it was not correct to make a judgment based on erroneous justification, ignoring the fact that it can only be about the parties of the basic relationship." He explained this issue with his statements. As a matter of fact, HMK 225 states, "The subject of the oath is the facts that are important for the solution of the case, are controversial and originate from the person himself. A person's knowledge of a matter is considered a fact originating from him." It is in the form.

FACTS THAT CANNOT BE SUBJECT TO THE OATH

Facts that cannot be subject to oath under Article 226 of the Code of Civil Procedure:

a) Facts over which the parties cannot freely dispose.

b) Situations where the declaration of will of both parties is not deemed sufficient by law for the validity of a transaction.

c) Events that will affect the honor and dignity of the person taking the oath or expose him to criminal investigation or prosecution.

He stated it by counting. Facts over which the parties cannot freely dispose cannot be subject to oath. What is meant by this statement are the cases in which the principle of ex officio investigation is applied. Secondly, a legally invalid transaction will not become valid with an oath. For example, the transfer of title deed is done officially in the land registry. An officially executed sales contract is required to prove the title deed transfer. In such disputes, the dispute cannot be based on evidence of oath and will only be proven according to the existence of the formal conditions prescribed by law. The last sentence of the article states that "facts that will affect the honor and dignity of the person taking the oath or that will expose him to criminal investigation or prosecution cannot be subject to the oath." Regarding this issue, the Supreme Court said, "In the concrete case, the case based on the allegation that the corn they planted was reaped and sold by the defendants is of a nature that may require a criminal investigation or prosecution on the part of the defendants. Therefore, a verdict cannot be made on the basis of oath evidence." There is a decision as follows.

INVITATION TO THE OATH

HMK 228

(1) If the person to whom the oath is offered is not personally present at the hearing, an invitation is issued to him/her to take the oath.

(2) It is written in the oath invitation that the questions to be asked about the matters subject to the oath are stated, and that if the person does not come to the court in person on the day and time appointed for the oath without a valid excuse, or does not return the oath or refrains from taking the oath, he will be deemed to have confessed the facts subject to the oath.

Article 228 of the Code of Civil Procedure regulates the procedure for invitation to take the oath. According to the relevant article, it is regulated that a decision cannot be made regarding the case without a proper oath proposal. If the article is not complied with, that is, if the decision is made without a proper oath invitation, this issue may be grounds for reversal. As a matter of fact, in a decision dated 2019 of the 3rd Civil Chamber of the Supreme Court of Appeals, it was stated that "..the action to be taken by the court should primarily consist of inviting the person to take the oath in accordance with Article 228 of the Code of Civil Procedure, reminding the material facts subject to the oath, and recording the relevant oath statement in the minutes as the defendant's statement. However, it was not deemed appropriate for the court to make a written decision without complying with these issues, and this necessitated reversal...".

Again, according to the relevant article, if the party to whom the oath has been duly offered does not personally come to the court on the appointed day and time for the oath without a valid excuse, or if he does not return the oath or refrains from taking the oath, he will be deemed to have admitted the facts subject to the oath. Naturally, in such a case, the case will be concluded against you due to the nature of the oath as conclusive evidence.

CONSEQUENCES OF NOT TAKING AN OATH

According to Article 229 of the HMK, the consequences of not taking the oath are as follows:

1- If the person invited to take the oath does not appear personally in court on the appointed day and time without a valid excuse, or if he is present but does not return the oath or refrains from taking the oath, he is deemed to have confessed the facts subject to the oath.

2- If the person to whom the oath is returned refrains from taking the oath, the fact about the oath is deemed not to have been proven.

Returning an oath means asking the other party to take the oath without taking the oath personally from the person to whom the oath is offered. The person to whom the oath is offered may request the court to require the other party to take the same oath. In this case, if the other party accepts the oath and swears on the subject for which the oath is offered, he will prove his claim. However, if he refrains from taking the oath, the claim will be deemed not proven. Article 231 of the Code of Civil Procedure states that the oath cannot be returned: "If the fact that constitutes the subject of the oath arises from the person of only the party to whom the oath is offered, and not from both parties, the oath cannot be returned." He limited it to his expressions.

PERSONS WHO WILL FULFILL THE OATH

Oaths may be offered to and sworn by the parties. In other words, witnesses cannot be offered an oath in a case.

In terms of legal entities and minors, Article 232/2 of the Code of Civil Procedure. The article provides that "If one of the parties is a legal entity or a minor or a restricted person, the oath may be taken or returned by the person or body authorized to represent the legal entity or by a legal representative in order to prove the fact regarding a transaction made on their behalf." Again, Article 232/3 states, "In cases where minors or restricted persons are granted the right to sue personally, the provision of the second paragraph does not apply."

FORM OF THE OATH

The form of the oath is stated in Article 233 of the Code of Civil Procedure;

"(1) The oath is taken before the court.

(2) Before the execution of the oath, the judge explains to the person who will swear the oath on which subject he will swear, explains the meaning and importance of the oath, and draws his attention to the fact that he will be punished if he swears falsely.

(3) If the person taking the oath claims that the subject of the oath is not clear enough; The judge makes his decision on this issue immediately after taking the opinion of the opposing party.

(4) Then "Do you swear on your honor, dignity and all the beliefs and values you consider sacred that you will answer the questions asked to you truthfully and not hide anything?" he asks. That person said, "I swear on my honor, dignity, and all my beliefs and values that I consider sacred, that I will answer the questions asked to me truthfully and that I will not hide anything." By saying this, an oath is deemed to have been taken.

(5) While the oath is being administered, everyone present, including the judge, stands up. " Edited as it is.

"The party proposing the oath submits the oath proposal to the court in the form of an oath text, but the judge is not bound by this text and decides on which issues he will swear the oath. Before the execution of the oath, the judge explains to the person taking the oath on which subject he will swear, explains the meaning and importance of the oath, and draws his attention to the fact that he will be punished in case he swears perjury. If the person who will swear the oath claims that the subject of the oath is not clear enough, the judge immediately decides on this issue after taking the opinion of the other party.

The judge may ask the person taking the oath questions that he deems related to the subject of the oath in order to complete the missing points or to clarify unclear issues. The judge listens to the statement of the person taking the oath, records it in the minutes, and reads what is written out loud in his presence; He asks whether he insists on his statement and records the answer in the minutes." Y3HD2019/3383

"The party offering the oath informs the court about the facts about which he is proposing the oath to the other party. The judge prepares the question and formula of the oath. In preparing the oath question, the judge makes use of the issues stated by the person proposing the oath. The oath question must be prepared accurately and accurately.

Since the oath evidence is conclusive evidence, that is, it binds the judge and beyond that, it definitively resolves the dispute, the question of the oath must be determined clearly enough.

While preparing the text of the oath, the judge pays attention to the fact that the text of the oath is appropriate to the event. Otherwise, the oath made according to the prepared oath text may not achieve its purpose. While preparing the text of the oath, the judge must act within the framework of the will of the person proposing the oath; The other party must also take the oath within the framework of the oath offered to him/her.

Before the execution of the oath, the judge explains to the person who will take the oath what subject he will swear on, explains the meaning of the oath and its importance, and draws his attention to the fact that he will be punished if he swears falsely.

If the person taking the oath claims that the subject of the oath is not clear enough; The judge immediately makes his decision on this issue after taking the opinion of the opposing party.

The judge takes an oath in accordance with Article 233 of the Civil Code. As a rule, it is not possible to use any other formula other than the oath formula stated in the law. The judge may ask the party taking the oath any questions he deems necessary in order to complete, clarify and clarify any unclear points. ( HMK article 237 )

If the party summoned to take the oath does not come to the hearing where the oath will be taken, and if his absence is not based on a valid excuse, or if he does not take the oath even though he attends the hearing or is present at the hearing where the oath is offered, and does not return the oath to the other party, he is deemed to have evaded the oath. This behavior of the person who refrains from taking the oath is considered as an admission of the subject of the oath." Y3HD. 2016/9255 K.

REMINDER OF OATH EVIDENCE TO THE COURT

The parties are not in a position to know when it is time to provide oath evidence. This order is known to the court. For this reason, the judge should remind the party who has not been able to prove his claim otherwise that he has the right to take an oath if he relies on oath evidence. This is the opinion of the Supreme Court.

"Since the party relying on oath evidence cannot otherwise know that this evidence has come due to the fact that its claim or defense has not been proven by other evidence, the court is obliged to remind the requester that he has the right to offer an oath. In this case, as a rule, a decision cannot be made without the right to offer an oath." Y15HD.2019/2686 K.