• Recent Decision of the Court of Cassation on the Forfeiture of the Right to Submit Evidence When the Respondent Fails to Submit its Statement of Reply
  • December 23, 2016
  • Law Firm: Erdem Erdem Law Office - Istanbul Office
  • In its recent decision, the General Assembly of Civil Chambers, the Court of Cassation (“GACC”) has analyzed the possibility to submit evidence for a respondent who failed to submit its statement of reply, and a very important decision was granted. In the decision dated 20.04.2016 and numbered 2014/2-695 E., 2016/522 K. of the GACC, it has been decided that the request to submit evidence made by a respondent who failed to submit its statement of reply within the prescribed period cannot be granted. The relevant decision of the GACC of the Court of Cassation is analyzed in this article.

    In General

    The right of the parties to submit evidence, and the timing and scope of this right, are closely related to the right to due process and to submit its claims and defenses, as well as the principle to conduct and finalize the litigation efficiently and within a short time. Accordingly, when granting a decision within the scope of the right to due process set forth under Article 27 of the Turkish Code of Civil Procedure (“TCCP”), in addition to the right of proof, the principles pertaining to efficient conduct of the litigation proceedings shall be taken into consideration.

    Consequences of the Respondent’s Failure to Submit its Statement of Reply

    Pursuant to Article 127 of the TCCP, the prescribed period to submit the statement of reply is two weeks upon notification of the statement of claim to the respondent. However, in case it is very difficult or impossible to draft the statement of reply within this time period considering the overall circumstances, the respondent who files an application to the court within the same time period may be granted an additional period not to exceed one month, for one time, only. In practice, an additional period is often requested of the courts in order to submit the statement of reply.

    The consequences of failure by the respondent to submit a statement of reply are set forth under Article 128 of the TCCP. Accordingly, the respondent who does not submit the statement of reply within the prescribed period is deemed to have denied all of the facts brought forward by the claimant in its statement of claim.

    Analysis of the Decision of the Court of Cassation

    The lawsuit that is subject to the decision of the GACC is a divorce lawsuit, and there are claims pertaining to child custody, alimony and compensation, along with the request for divorce. In the course of this proceeding, the respondent did not submit its statement of reply, and declared that he did not wish to divorce in the preliminary review hearing. The respondent has not been granted an opportunity to submit his evidence, and in the hearing determined for investigation, only the evidence furnished by the claimant has been gathered.

    In this lawsuit, the Court of Cassation analyzed whether the respondent, who did not submit his replies, may submit evidence in order to refute the facts brought forward by the claimant, and whether it is required to grant time in favor of the respondent in order to submit his evidence.

    The GACC, while granting this decision, made reference to the right of due process regulated under Article 6 of the European Convention on Human Rights, and emphasized that one of the most important components of the right of due process is to finalize the litigation within a reasonable timeframe. Again, reference has been made to the decisions granted by the European Court of Human Rights pertaining to the relevant article, and it has been emphasized that not only is it necessary that the member states adopt necessary legislations to ensure that the litigation proceedings are conducted within a reasonable time, in light of the jurisprudence of the court, and also, it has been underlined that the parties shall have a reasonable opportunity to present their claims to the courts, under conditions that would not place themselves in a disadvantageous position vis-à-vis the counterparty.

    Again, the principle to finalize the lawsuits with minimum cost, set forth under Article 141 of the Turkish Constitution, has been taken into consideration, and the right to submit evidence, and the limits thereof, have been evaluated in light of these principles.

    Analysis under the Articles of the TCCP Pertaining to Submitting Evidence

    Following the analysis of the articles referred to above, the GACC of the Court of Cassation has analyzed the articles of the TCCP pertaining to submitting evidence. Pursuant to Article 129/1/e of the TCCP, the statement of reply shall contain clarification on the evidence supporting each of the facts brought forward as a basis for the defense.

    Additionally, pursuant to Article 140/5 of the TCCP, a definitive time period of two weeks shall be granted in favor of the parties at the preliminary review hearing, in order to submit the documents referred to in their statements, but which have not been submitted to the court, or to make the necessary explanations so that the documents, which are required to be requested from third parties, may be submitted. If these obligations are unfulfilled within the definitive time period granted, the failing party shall be deemed to have waived its right to rely upon the relevant evidence. The TCCP, with regard to this article, emphasized that the phrase “referred to in their statements” has been used in the wording of the article.

    Again, pursuant to Article 145 of the TCCP, the parties may not submit evidence after the expiry of the time period prescribed by law. However, if the late submission of evidence does not aim to delay the litigation proceedings, or the failure to submit the evidence does not arise from the fault of the relevant party, the court may allow this evidence to be submitted later.

    What is understood from these provisions is that the TCCP aims to provide for more efficient litigation proceedings by ensuring that the parties submit the issues in dispute, and the evidence that aims to resolve their dispute, prior to the investigation phase, at the beginning of the proceeding.

    Accordingly, the GACC of the Court of Cassation reached the conclusion that if the statement of reply has not been submitted upon the notification of the statement of claim to the respondent, within the prescribed time, there is no evidence submitted as a basis of defense, and that a time period to the respondent may not be granted in order to submit its evidence.

    Additionally, the Court of Cassation stated that the exceptional circumstances set forth under Article 145 of the TCCP have not been met in this case, and also, the conditions laid down under Article 141 regulating the extension or amendment of the defense have not been met.

    The Decision of the 2nd Civil Chamber of the Court of Cassation Dated 03.07.2013

    However, a review of the previous decisions of the Court of Cassation shows that the court has granted decisions that are not in line with the decision that is the subject of this article. The decision of the 2nd Civil Chamber of the Court of Cassation dated 03.07.2013 and numbered 2013/6356 E., 2013/18904 K., may be given as an example to such decisions.

    In this decision, the Court of Cassation stated that the failure of the respondent to submit its statement of reply within the prescribed time does not eliminate its right to submit evidence and to prove its defenses. In the view of the Court of Cassation, the respondent, in such case, may submit evidence in order to refute the facts upon which the claimant’s claims are based, under the condition that the prescribed time period is complied with.

    Additionally, in this decision, the Court of Cassation emphasized that if the respondent, who failed to submit its statement of reply, is not allowed to submit evidence, this would be an infringement of due process rights:

    “The acceptance of the contrary would lead to failure of the respondent who missed the deadline for the statement of reply, or who did not respond to the lawsuit, would subsequently not be able to submit evidence. This would infringe the right of due process laid down under Article 27 of the Code of Civil Procedure.”

    On the other hand, the recent decision of the Court of Cassation does not consider the fact that the respondent who failed to submit its statement of reply would not be allowed to submit evidence as an infringement of the right to due process.

    Conclusion

    The decision of the General Assembly of Civil Chambers the Court of Cassation leads to very important results with regard to proceedings conducted pursuant to the TCCP. Proceedings held according to this precedent would lead to denial of the request for a further time limit in favor of the respondent who failed to submit its statement of reply. Additionally, such respondents would not be able to submit any evidence within the scope of denial of the facts set forth in the statement of claim. As the failure to submit the statement of reply would lead to failure to submit evidence, it is important that the relevant decision of the GACC be taken into consideration, concerning the proceedings conducted pursuant to the TCCP.