The Trial Cannot Proceed Without Notifying The Defendant Of The Preliminary Hearing Date.
The court summons the parties to a preliminary hearing, examines the conditions of the case and initial objections during the preliminary hearing, fully determines the matters in dispute, performs the preparatory procedures and necessary actions for the parties to present their evidence and for the evidence to be collected, encourages the parties to settle in cases where they have full discretion, and records these matters in the minutes.
The investigation cannot proceed without the preliminary examination being completed in accordance with the procedure and the necessary decisions being taken (HMK.m.137).
The General Assembly of the Supreme Court has also accepted that the investigation hearing cannot proceed without the preliminary examination hearing and the necessary procedures being carried out at the hearing, and that this regulation is mandatory (HGK. 13.03.2013, 2012/14-802 case, 2013/347 decision).
In light of this situation, proceeding to the investigation stage and continuing the trial to render a judgment after completing the preliminary examination stage in the defendant’s absence, without notifying them of the preliminary examination hearing date, thereby restricting their right to defense under the right to be heard (HMK Art. 27), is contrary to procedure and law and requires reversal.
Example case:
The lawsuit was filed on February 17, 2014, and the defendant did not respond to the lawsuit. After the exchange of pleadings, the court proceeded to preliminary examination and decided that the preliminary examination should be held in a hearing. However, the date of the preliminary examination hearing was not notified to the defendant, and it was decided to proceed to the investigation stage in the preliminary examination hearing without the defendant’s participation.
Given this situation, it is contrary to procedure and law to proceed with the trial and render a judgment by moving to the investigation phase after completing the preliminary examination phase in the defendant’s absence, without notifying the defendant of the preliminary examination hearing date, thereby restricting the defendant’s right to a defense under the right to be heard (HMK m.27), and this requires reversal.