Civil Procedure Code No. 6100 (“CPC”) entered into force on 01 October 2011 by replacing the former Civil Procedure Code No. 1086. One of the most significant mechanisms introduced by the CPC was preliminary examination.
Under Turkish law, first stage of a trial is the initiation of a lawsuit and exchange of petitions, which is followed by the preliminary examination. During the preliminary examination, the court examines the causes of action, initial objections, points of dispute; and takes action to gather evidence and allow parties to submit evidence. The court further makes preparatory work and encourages parties to settlement or mediation at this stage.
Law No. 7251 on Amendment of the Civil Procedure Code and Certain Laws (“Amendment Law”) entered into force upon publication in the Official Gazette (31199) on 28 July 2020, and it introduced, among others, significant amendments on preliminary examination.
Background before the Amendment Law
Before the Amendment Law, Article 141 of the CPC sets forth that parties could change or expand their claims or defenses freely with their rebuttal or rejoinder petitions. On the other hand, parties could only change or expand their claims or defenses with the counterparty’s explicit consent during the preliminary examination hearing. If any of the parties failed to appear to the preliminary examination hearing without excuse, the present party could change or expand its claims or defenses without the absent party’s consent. Once the preliminary hearing was completed, claims or defenses could not be changed or expanded.
On the other hand, as per Article 139 of the CPC, along with including any other matters concerning the hearing and consequences of the hearing, the invitation to preliminary hearing had to notify parties that:
- They shall prepare for settlement,
- If only one of the parties appear in the hearing and wish to pursue the trial, the other party shall not be entitled to object to the present party’s proceedings that are performed in their absence,
- In such case, the present party shall be entitled to change or expand their claims or defenses without the absent party’s consent.
Also, Article 150/4 of the CPC concerning the submission of evidence regulates that during the preliminary examination hearing, parties shall be granted with two weeks of definite time to submit the documents that are addressed in their petitions and not filed yet, or make the necessary make necessary explanations as to the documents that need to be brought from elsewhere.
Pursuant to the Amendment Law, Article 141 of the CPC now provides that “Parties can change or expand their claims or defenses freely with their rejoinder or rebuttal petitions. Parties cannot change or expand their claims or defenses once the exchange of petition is completed”.
In parallel to this amendment, the Amendment Law also removed the last part of Article 139 of the CPC which states that “the present party shall be entitled to expand or change their claims without the absent party’s consent during the preliminary hearing”.
In light of the above, in the event that any of the parties fail to appear to the preliminary hearing, the present party shall not be entitled to expand or change their claims without the absent party’s consent. Having said that, as per Article 141/2 of the CPC, the exceptions as to the amendment of case and the counterparty’s explicit consent concerning the expansion and change of the claims and defenses are still in force.
On the other hand, the Amendment Law added a new sentence to Article 139 of the CPC. Accordingly, invitation to the preliminary hearing shall notify the parties that they have to:
- submit all documents specified in their petitions but not filed yet,
- make necessary explanations as to the documents that need to be brought from elsewhere,
within two weeks as of the receipt of the invitation to preliminary examination hearing. Otherwise, parties shall be deemed to have waived from relying on such evidence.
With the Amendment Law, the two weeks of definite time shall begin as of the receipt of invitation to preliminary examination hearing. Therefore, parties should pay the utmost attention to the timing regarding the submission of evidence and file their evidence in due course.
First published by ILO - Litigation Newsletter, in 27.04.2021