Jewelry is considered personal property. Jewelry placed on a woman at the time of marriage is considered a gift to her, regardless of who donated it. The ownership of jewelry placed on a man at the time of marriage is determined by considering the customs and traditions of the region.
In its decision dated May 24, 2004, the 2nd Civil Chamber of the Turkish Court of Cassation, Case No. 2004/5985, K. No. 2004/6650, dated May 24, 2004, stated that, based on real-life experiences, the normal course of life is for jewelry to be on a woman’s person or to be kept or preserved at home. Leaving jewelry in the man’s possession is considered contrary to the normal course of life. These jewelry items are considered to be easily concealed, portable, and easily transported, and it is always possible for a woman planning to leave the house to conceal them beforehand.
A lawsuit requesting the return of jewelry can be filed simultaneously with a divorce case, or it can be filed as a separate lawsuit after the divorce case is filed. The generally accepted views on who bears the burden of proof in a lawsuit for the return of jewelry are as follows:
According to Article 6 of the Turkish Civil Code, unless otherwise stipulated in law, each party is obligated to prove the existence of the facts on which they base their claim. As accepted both in legal doctrine and by the Court of Cassation’s precedents, the burden of proof falls on the person alleging or defending a situation that violates the normal course of life. On the other hand, anyone seeking to derive personal rights from an alleged event must prove the alleged event.
Since Court of Cassation decisions generally accept that a woman leaving the house takes her jewelry with her, the woman leaving the house is obligated to prove that the jewelry remained in the house. However, in some cases, the opposite of this presumption may be considered. In particular, it must be accepted that the woman, who did not leave the house with the intention of divorce and was separated from her husband by a sudden incident, did not take her jewelry with her.
The relevant Court of Appeals decision is as follows:
COURT OF APPEALS, GENERAL ASSEMBLY OF LAW, DOCUMENT: 2010/6-46, DECISION: 2010/75
In her petition, the plaintiff’s attorney stated that the parties were married on July 4, 2006, that the jewelry worn during the wedding was kept in a bank safe, that her client was abandoned in Izmir, where she went on a trip, and that she was unable to retrieve her jewelry after seeking refuge with her family. She requested the recovery of 5,000.00 YTL, with prejudice to any additional rights if the same were not obtained. She amended her claim to 12,175.00 YTL. The defendant’s attorney argued for the dismissal of the case, stating that the plaintiff gave the jewelry in question to her mother while she was going on her honeymoon.
According to Article 6 of the Turkish Civil Code, unless otherwise provided by law, each party is obligated to prove the existence of the facts on which they base their claim. As accepted both in legal doctrine and in the precedents of the Court of Cassation, the burden of proof falls on the person alleging or defending a situation that violates the normal course of life. On the other hand, anyone seeking to derive rights from an alleged event for their own benefit must prove the alleged event.
The plaintiff woman claimed that the jewelry in question remained with the defendant, while the defendant’s husband argued that he had taken it. According to experience, the normal course of action is for such items to be on the woman’s person or to be kept or preserved at home. In other words, leaving them to the defendant’s possession and protection is incompatible with the normal course of action.
Furthermore, jewelry is a type of item that can be easily stored, carried, and transported. Therefore, it is always possible for a woman planning to leave the house to remove and conceal these items beforehand, and it is also possible for her to take them with her when leaving. Consequently, it must be accepted that the jewelry was on her under normal circumstances.
The plaintiff bears the burden of proof to prove the existence of the jewelry in question, that they were forcibly taken from her when she left the house and prevented from being taken, and that they remained in the house.
In the present case, the plaintiff seeks the return of the jewelry in question, which were given to her as a gift and gift to her during her marriage. However, the plaintiff has failed to prove, through the testimony of witnesses, that the woman was prevented from removing the jewelry in question from the date of her departure, that they were forcibly taken from her, and that she had not had the opportunity to remove them beforehand. As explained above, the burden of proof rests with the plaintiff. The court, however, reversed the burden of proof and, at the hearing on May 21, 2008, offered the plaintiff an oath on its own motion that the jewelry remained with the defendant and was not returned to her. The plaintiff swore the oath, which she then swore. The burden of proof is on the plaintiff, and since the plaintiff has relied on oath evidence, meaning all kinds of legal evidence, in the evidence list dated 04.12.2007, the plaintiff should be reminded of his right to offer an oath to the defendant that the jewelry was taken from him, that they were prevented from being taken, and that they remained with the defendant, and a decision should be made according to the result.
It was found to have been opened at 8:45 a.m. on the date of the opening.
Considering this date and time, it appears that it was the day after the court placed a precautionary measure on the defendant’s account. Furthermore, it is clear that the items placed in the safe at the time the safe was opened were not items that would have necessitated their placement so early in the day.
Therefore, since it is established that the plaintiff did not leave the house in a heated argument or with the intention of separating, but rather that he and his wife went to Izmir and began living separately following an argument they had while sitting in a cafe there, the defendant cannot benefit from the presumption in his favor. In this case, the burden of proof would shift, and the burden of proving that the gold was not his is now on the defendant. It was determined that the defendant’s safe was opened at an unusual hour the day after the precautionary measure was placed on the defendant’s account, and that the safe contained documents that would not normally be kept in a bank safe. Thus, while the local court obtained substantial evidence proving that the jewelry in question remained with the defendant, an oath was offered to the plaintiff, ex officio, to strengthen the judge’s opinion.
Considering the entire scope of the case, the unfolding events, and the supplementary oath taken by the plaintiff, there is no error in concluding that the plaintiff has proven his case and accepting the case.
However, since the defendant’s attorney’s appeals regarding the price of the jewelry, which was awarded by the court according to the reversal method, were not reviewed, the case should be referred to the Special Chamber for review.
CONCLUSION
For the reasons explained above, while the local court’s decision to accept the case, on the grounds that the burden of proof falls on the defendant, is appropriate, the case is referred to the 6th Civil Chamber of the Court of Cassation for review of the defendant’s appeals regarding the price of the jewelry.