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NEWSLETTER 2011
298
The Scope of the Preliminary Examination
The preliminary examination phase starts after the initiation of the
lawsuit and the mutual exchange of the petitions when these petitions are
examined in a preliminary way by the Court. Without the completion of
the preliminary examination, it shall not be moved on to the investigation
phase and as long as it is not necessary, it shall not be set a trial date. The
Act, in order to avoid unnecessary trial burden, has given to this rule a
mandatory character.
The Court, in this phase will examine the trial conditions, the first
objections, establish exactly the points of conflict (the points where
the parties agree and disagree), will make the necessary operations in
order for the parties to present their evidence by making the preparatory
operations and in order to collect the evidence, will encourage the parties
to find a compromise and will write all of these to the minutes.
The Trial of the Preliminary Examination
If the Court does not give a refusal decision on the file relating to the
trial conditions and first objections, it will invite the parties to the trial
by setting a trial date. This trial will certainly be held after the exchange
of the petitions. The invitation of the parties to a compromise, the exact
establishment of the points of conflict will be realised in the preliminary
examination trial. Additionally, if the Court cannot reach a decision on
the procedural issues it will resort to the parties’ statements in this trial
in order to be able to reach a decision. In other words, the Court, at this
phase cannot hear witnesses, make discovery, receive opinions of experts
and propose oath statements.
As it is aimed to move on to the investigation phase by carrying out a
fast and an efficient trial proceeding, as a rule the preliminary examination
is settled in one trial. However, in cases of possible amicable settlement
between the parties or necessary situations a new trial day can be set but
only once. In the preliminary examination trial, it is given to the parties
a precise two weeks time in order for them to present documents that
they have referred to in their petitions but have not submitted yet or to
make the necessary explanation so as the documents can be brought from
somewhere else. If the parties do not comply with these points in the