Turkish law has, undoubtedly, reached a crossroads. The
unrelenting manner in which principal codes – such as the
Code of Obligations, Commercial Code and Civil Procedural Code
– have been changed in their entirety will have a
tremendous impact on the practice of law. Lawmakers have not
avoided introducing totally new approaches and concepts to all of
these legal regimes in an effort to modernize codes that are
decades old, and this is quite evident in the new Civil Procedural
Code that will enter into force on 1 October 2011 (the
Enacted on 18 June 1927, the former Civil Procedural Code is a
translation of the then-applicable procedural code of the Canton de
Neuchatel from Switzerland (the "Old
Code"). Over eighty-one years in force, the Old Code
developed a fairly coherent system for the practice of civil
procedural law through precedents established by the Court of
Appeals and through contributions made by scholarly opinion. It is,
therefore, not surprising that the argument as to whether a totally
new code is even necessary still continues among the academics.
Yet, the Old Code is regarded as the main reason why lawsuits have
suffered from a lengthy process; and this is, indeed, one of the
major problems with the judicial system in Turkey. Tightening up
the trial procedure was one of the leading concerns of the
Commission when drafting the New Code. For this reason, in a number
of provisions, the New Code compels judges to conclude trials as
soon as possible.
The preliminary examination procedure that has been added as a
new stage of a trial constitutes a breakthrough innovation in
Turkish procedural law. Currently, in many instances, due to its
heavy workload, the court simply decides that an expert witness
report is to be submitted, or grants time to the parties to submit
their evidence, all of which may cause the next hearing to take
place two or three months hence. Lawsuits in large cities, thus,
may exceed a period of 1.5 to 2 years from start to finish. The
ratiolegis of the preliminary examination is to
end this cumbersome practice. Under the New Code, after the
exchange of petitions, the court will first examine the conditions
under which the litigation will be conducted, and the preliminary
objections of the defendant, if any. Then, after having completed
the exchange of petitions, within 3 to 4 months at most, and prior
to analyzing the merits of the case, the court will consider all of
these issues through a preliminary examination.
Within this context, the court may arrange a hearing for the
preliminary examination. A second hearing may only be conducted if
the court considers it possible that the parties may settle, or
whether it is compulsory to hear the parties. This implies that any
work towards this end must be completed within two hearings at the
most. It is also worthy of note that inviting the parties to settle
is another crucial amendment under the New Code. While inviting the
parties to the preliminary examination hearing, the court will also
require that the parties be notified of the necessity of preparing
Despite the delightful innovations to be offered through the
preliminary examination procedure, doubts remain in relation to its
implementation. For instance, in order to examine all of the
abovementioned issues, to record the matters in the dispute
properly, and to evaluate the opportunity for settlement, judges
must be very well-versed in each case. Considering the existing
judicial workload, this may prove to be quite difficult, and the
court may feel compelled to postpone the preliminary examination
itself. In order to prevent this, various scholars have suggested
that a regulation be introduced for the establishment of assistant
judges who will hear the preliminary issues, although the New Code
has not adopted this recommendation. Another concern is that the
workload of the courts will preclude the benefits anticipated from
a preliminary examination. However, one should note that no court
precedent has yet to be established in line with the New Code.
Accordingly, as a result of adaptation to the practice by judges
and lawyers, the questions lingering over its application will
disappear in due course, and the innovations under the New Code
will gradually fall into place.
Obviously, the New Code aims to accelerate trial procedures, and
in this respect, establishment of the preliminary examination stage
is one of the most significant amendments adopted in the New Code.
It will serve as a valuable tool for the timely achievement of
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