Can the Party Who Did Not Submit Statement of Defense in Prescribed Period Submit Evidence?
Introduction
The Code of Civil Procedure (CCP) regulates the judicial procedure in our jurisprudence and foresees prescription periods at each stage. Prescription periods constitute a form of sanction that causes the loss of the use of the right for the party who does not comply with the time limit. In this way, it is aimed to ensure that the parties comply with the periods at the trial stage so that the proceedings are not prolonged, and that the trial process is carried out effectively within the framework of the right to a fair trial.
As a rule, the period granted to the defendant to submit the statement of defense under the CCP is two weeks. This period may be extended according to the judicial procedure. Under Article 128 of the CCP, the defendant who fails to respond to the case within the time allotted for the submission of a statement of defense shall be deemed to have denied all of the facts asserted in the statement of claim. Article 141 of CCP stipulates that the claim or defense may not be extended or amended after the mutual submission of the statements.
In practice, the question of whether the party who fails to file a statement of defense may present evidence arises. It is observed that the General Assembly of Civil Chambers of the Court of Cassation (GACC) has changed its opinion on this issue.
Relevant Legal Provisions
Under Article 127 of the CCP, the prescribed period to submit the statement of defense is two weeks upon notification of the statement of claim to the defendant. However, in cases where it is very difficult or impossible to prepare the statement of defense within this period, the defendant, who applies to the court within this period, may be granted an additional period not exceeding two weeks in simple procedure cases and not exceeding one month in written procedure cases, for once only. In practice, it is observed that the courts are often requested to grant additional time for the submission of the statement of defense. In the statement of defense, the defendant is obliged to explain the evidence that shall be used to prove each of the facts asserted as the basis of the defense, the legal grounds relied upon, and the result of the claim in a clear manner.
Article 128 of the CCP regulates what happens if the defendant fails to file a statement of defense. Accordingly, the defendant who has not filed a statement of defense in the prescribed time shall be deemed to have denied all of the facts asserted by the claimant in the statement of claim.
Under Article 129/1/e of the CCP, the evidence that shall be used to prove each of the facts asserted as the basis of the defense must be included in the statement of defense.
Under Article 140/5 of the CCP, during the preliminary review hearing, the parties shall be given a definite period of two weeks to submit to the court the documents they have indicated in their statements but have not yet submitted, or to make the necessary explanation to obtain the documents to be brought from elsewhere. If these matters are not completely fulfilled within the given definite period, it shall be decided that the parties shall be deemed to have waived to rely on such evidence.
Article 141 of the CCP regulates the prohibition of extension of claims and defenses. Accordingly, the parties may freely extend or amend their claims or defenses through their statements of defense and rejoinder. However, the claim or defense may not be extended or amended after the mutual filing of the statements (the provisions on reclamation and the express consent of the other party are reserved). With the amendment made to the Law in 2020, the section on amendments at the preliminary review stage was abolished.
Under Article 145 of the CCP, the parties may not submit evidence after the prescribed period. However, if the later submission of evidence is not intended to delay the proceedings, or if its failure to submit within the prescribed period is not due to the fault of the party concerned, the court may allow the later submission of that evidence.
Opinion of the General Assembly of Civil Chambers of the Court of Cassation
In the previous decisions[1] of the GAAC on the subject, it has been decided that the defendant, who did not file a statement of defense within the prescribed period, shall not be allowed to submit evidence afterward.
In the reasoning of the said decision, the GACC concluded that, if the defendant does not submit a statement of defense within the prescribed period after the statement of claim has been duly notified to the defendant, it is not legally possible for the local court to give the defendant a prescribed period to submit evidence, since there is no evidence submitted in the prescribed period as a basis for the defense. The Court of Cassation also stated that the exceptional conditions set out in Article 145 of the CCP for the subsequent submission of evidence are not in question, and the conditions of Article 141, which regulates the extension or amendment of the defense, have not been met.
In this decision dated 2016, the GACC noted that the phrase “submitted in their statements” was used in the text of the CCP. Furthermore, it is understood that the Court did not consider the failure to allow the non-responding defendant to present evidence as a violation of the right to a fair trial.
However, in a more recent decision of the GACC, it has been acknowledged that the defendant, who has not filed a statement of defense, can make a defense within the framework of the denial and can submit evidence to prove it.[2] This decision was previously analyzed in another article of ours.[3]
In this decision, which is in a completely different direction compared to its previous decision, the GACC put forward the following reasoning: “Failure to reply may be in the form of the defendant's deliberate failure to reply, or it may be by omitting the reply period. The defendant, who is deemed to have denied the case, cannot file a rejoinder afterwards. This is because the rejoinder is filed against the statement of defense. The defendant who has not filed a statement of defense is presumed to be contented only with the denial, and may defend only within the framework of the denial at the preliminary examination and trial stage, and may show evidence in this direction (Pekcanıtez, p. 1206). On the other hand, as a result of the defendant's failure to file a statement of defense in the prescribed period, it is natural that the claimant shall no longer be able to file a rejoinder, the preliminary review stage shall commence due to the completion of the stage of mutual submission of the statements under Article 136 of the CCP, and the prohibition on the extension or amendment of the claim and defense shall commence for the parties regarding the pending case, except in exceptional cases arising from the law. The fact that the defendant, who is deemed to have denied the case for not responding within the prescribed period, asserts or explains a matter that is included in the content of the existing facts does not indicate that new facts have been raised. In this respect, it is possible for the defendant, who did not file a reply in the prescribed period, to present evidence against the claimant to prove that the facts disclosed by the claimant in the statement of claim are not true (denial). However, if the defendant asserts new facts under the excuse of showing the counter-evidence of the denial of the case, he/she shall be expanding his/her defense. In this case, the court should examine the evidence to be submitted by the defendant to prove that the claimant's claim is not true, evaluate it together with the claimant's evidence, and make a judgment according to the conclusion it reaches (Kuru, Baki: Civil Procedure Procedure C. II, Istanbul, 2001, p. 1848). It should be noted immediately that the prohibition of extension and amendment of the defense primarily includes pleas and related facts. This is because a defense cannot be taken into consideration by the court unless it is asserted by the parties. On the other hand, a distinction should be made in terms of objections. Because the judge has to consider the objections to the extent that they are included in the scope of the file and understood from the file. The later assertion of objections that are included in the case file and among the case materials is not an extension of the defense. The assertion of the grounds of objection and the facts related to them, which cannot be understood from the case file, shall be deemed as an extension of the defense.”
As can be seen, unlike its previous opinion, the GACC, in its reasoning with references to the legal literature, stated that the defendant who did not file a response within the prescribed period may only make a defense within the framework of the denial and submit evidence in this direction and that stating or explaining a point regarding the content of the existing fact should not be considered as a new fact or evidence. On the other hand, as a limit to this, the court emphasized that “a new fact” cannot be asserted.
Conclusion
In a case, if the defendant party fails to file a statement of defense within the prescribed reply period, he/she is deemed to have denied the case by law. Each party may expand its claims and defenses, and assert new facts and evidence during the exchange of statements. However, the party who fails to submit a reply to the case shall be deemed to have only denied the case, and shall not be able to present any new facts or evidence. At this point, the question of whether the party can submit evidence during the trial shall arise.
This issue has also come to the attention of the General Assembly of Civil Chambers of the Court of Cassation. The GACC also guides the practice with its decisions.
In its decision dated 2016, which we referred to above, the GACC stated that the defendant who does not reply cannot submit evidence, that there is no possibility to submit evidence within the scope of denial, and that this would not violate the right to a fair trial. However, in a more recent decision dated 2021, it is understood that this position has changed. In the above-mentioned decision, this issue was discussed and it was stated that the non-responding defendant may present evidence “within the framework of denial of the case”, but that the limit of this is not to present new facts, and that introducing new facts or evidence under the excuse of presenting evidence within the scope of denial would be contrary to the prohibition of the extension of the defense.
- Decision of General Assembly of Civil Chambers of the Court of Cassation dated 20.04.2016 and numbered 2014/2-695 E., 2016/522 K.
- Decision of Civil Chambers of the Court of Cassation dated 24.06.2021 and numbered 2017/11-144 E. – 2021/834 K.
- Recent Decision Of The Court Of Cassation On The Forfeiture Of The Right To Submit Evidence When The Respondent Fails To Submit İts Statement Of Reply, Att. Ezgi Babur, Erdem & Erdem Newsletter, July 2016.
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