Preliminary Examination In Procedural Law: Will The New Code Speed Up Lawsuits?

Herguner Bilgen Ozeke Attorney Partnership


Herguner Bilgen Ozeke Attorney Partnership
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.
Turkey Government, Public Sector
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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 "New Code").

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 ratio legis 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 for settlement.

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 justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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