The Preliminary Examination Amoung The Reforms Of The Civil Procedure Act

November 2011

The Civil Procedure Act number 6100 which came into force on the 1st of October 2011 superseded the Civil Procedure and Judicial Act number 1086 and has changed in many ways our procedural law. The most important one of these changes resides in the “preliminary examination” institution.

The preliminary examination, which is established as a phase of the trial proceedings and did not exist in our legislation before the Civil Procedure Act, is regulated between the articles 137 to 142 of the Civil Procedure Act. The reason behind the admission of the preliminary examination institution in the legislation is indicated as the great increase of the workload and the lengthening of the trail period due to the commencement of investigations by the Courts without a proper preparation, i.e. incomplete evidence collection, and without constituting the necessary background in order to resolve the dispute (this fact received in practice a significant complaint and was shown as the reason behind the lengthening of the trail process), and due to the fact that one has to wait until the end of the trail in order to receive information on procedure related trial conditions and the judgments on the first objections. As known, until today, in practice, setting a trial date without respecting the arrangements and phases of trial set in the Civil Procedure and Judicial Act, without even the completion of the exchange phase of the petitions, redundant trials were held, which were causing a very important amount of workload for Courts and parties and where no procedural operations had been made flourished thus the trial period had been lengthened needlessly.
With the Civil Procedure Act and with the “preliminary examination” institution, whose framework is explicitly put forward, it is aimed to preclude these problems, to make the necessary preparation for the trial and to achieve the resolution of the dispute with right and swift steps.
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 period of time accorded to them, it will be assumed that they waive their rights to rely on this evidence. Consequently, this is a regulation, which aims to prevent the trial to stick at some indefinite points and the parties to act in bad faith.
At the end of this trial, if the parties could not have reached an amicable settlement, the points of conflict will be written one by one to the minutes of the trial. The judge, before starting the investigation phase, by examining the objections and defences on the foreclosure and prescription periods, will reach a decision.
If the Courts achieve to apply correctly the preliminary examination institution which came into force with the Civil Procedure Act, as set out in the legislation, it will provide an arrangement which can remove the lengthiness of the trial proceedings which has been the most criticised element of our trial system by courts, lawyers and citizens as for today. With the preliminary examination conducted in accordance with its aim, an opportunity of amicable settlement between the parties will appear, the necessary preparation of the investigation will be made and thus the trial proceedings will be accelerated and consequently it will be useful for the right and quick settlement of disputes.