The court invites the parties to a preliminary hearing to examine the conditions and objections in the first hearing of the case, determines the exact nature of the matters in dispute, organizes the necessary preparatory process for the parties to present their evidence and for the collection of evidence in a manner freely available to the parties, encourages them to settle, and examines the issues in this report.
An investigation cannot be initiated without a proper preliminary examination and the necessary decisions being taken (HMK.m.137).
The General Assembly of the Court of Cassation has also accepted that the investigation hearing cannot proceed without a preliminary examination hearing and without the necessary procedures being carried out at the hearing, and that this regulation is mandatory (HGK. 13.03.2013, No. 2012/14-802, No. 2013/347 decision).
In this situation, proceeding with the trial to the investigation stage in the absence of the defendant, after the preliminary examination stage has been completed, without notifying the defendant on the day of the preliminary examination hearing, violates the defendant’s right to be heard (HMK Art. 27) and is contrary to procedure and law.
An example:
The case was served on February 17, 2014, and the defendant did not respond to the lawsuit. Although the court decided to conduct a preliminary examination upon the exchange of petitions, it was decided to proceed to the investigation stage at the preliminary examination hearing, which the defendant did not attend, and it was decided to proceed to the investigation stage without notifying the defendant on the day of the preliminary examination hearing.
In this situation, the defendant’s right to be heard (HMK Art. 27) was violated when the preliminary hearing date was not notified to the defendant and the trial proceeded to the investigation stage in his absence after the preliminary investigation stage was completed, as this is contrary to procedure and law.
An example:
The case was notified on February 17, 2014, and the defendant did not respond to the case. Although the court decided to conduct a preliminary examination upon the exchange of petitions, it was decided to proceed to the investigation stage at the preliminary examination hearing, which the defendant did not attend, and it was decided to proceed to the investigation stage without notifying the defendant on the day of the preliminary examination hearing.
In this situation, the defendant’s right to be heard (HMK m.27) was violated because the defendant was not notified on the day of the preliminary examination hearing, and the trial proceeded to the investigation stage in his absence after the preliminary examination stage was completed. Therefore, the ruling is contrary to procedure and law and must be overturned.