As per Article 293 of the Turkish Code of Civil Procedure No. 6100 ("TCCP''), the parties to a lawsuit are entitled to obtain (and submit to the court) a private expert opinion on the subject matter of the lawsuit, along with the official expert report, which is regulated under Article 266 and the subsequent articles of the TCCP. According to Article 266, the court may decide to obtain an expert opinion upon the request of one of the parties or on its own initiative in cases that require specific or technical knowledge on a non- legal subject matter. Nevertheless, private expert opinions differ substantially from official expert reviews, since the party who obtains the private expert opinion determines both (i) the private expert who furnishes the opinion, and (ii) the subject matter of the opinion itself1.
Pursuant to Article 293 of the TCCP, which regulates the expert review that is one of the types of admissible evidence listed under the TCCP, the parties to a lawsuit are entitled to obtain information and evidence from private and technical experts in order to prove their claims and defenses, and to illuminate the facts of the dispute at hand. Granting the right to obtain a private expert opinion and submit it to the court, this law is aimed at protecting the legal rights and privileges of the parties; therefore, if the parties are not satisfied with the official expert report included in the interim decision of the judge, they are entitled to seek a private expert opinion and submit it to the court for consideration in deciding the outcome of the lawsuit.
Within this framework, the 15th Chamber of the Court of Appeals has stated in a recent decision2 that, when a private expert opinion on matters that require specialized or technical knowledge is submitted to the court and this private expert opinion is related to the subject matter of the lawsuit, the court is obliged to take such a report into consideration and evaluate it while making its decision. In other words, the court must include an assessment of the private expert opinion in its decisionmaking process in the case. Moreover, the Court of Appeals declared that, if one of the parties to a lawsuit objects to the conclusions of the official expert report by relying on a differing private expert opinion, the court is obliged to take such objections into consideration in its assessment of the case. Otherwise, the submitter's "right to be heard"— considered to be the most significant element of the "fair trial" principle, which is regulated under Article 6 of the European Convention on Human Rights, Article 36 of the Turkish Constitution and Article 27 of the TCCP—may be deemed to be violated, according to the decision of the 15th Chamber of the Court of Appeals.
In this manner, the 15th Chamber of the Court of Appeals reversed the decision of the local court, by ruling that the local court had failed to eliminate the contradictions and discrepancies between the private expert opinion that was submitted to the court and the official expert report that had been received and relied upon by the court in its decision. Thus, the decision of the Court of Appeals reiterates that the courts should evaluate the private expert opinions that are submitted to them, and, if necessary, they should once again seek the help of experts in order to obtain an additional report that may clarify or reconcile the contradictions and discrepancies between the private expert opinions and the official expert reports in a given case. Per the decision of the Court of Appeals, additional reports should include justifications of the explanations they put forth (i.e., the positions they take) and they should be convenient to the inspection of judges. Then, in case the additional expert report includes said criterion, judges may be able to shape their decisions by interpreting each aspect of the additional expert report(s) and by this way, they may clarify the contradictions and discrepancies between the private expert opinions and the official expert reports.
Consequently, this decision of the 15th Chamber of the Court of Appeals appears to be an encouraging sign with respect to protecting the rights and benefits of the parties in cases where the official expert report is insufficient or unsuitable for resolving the factual and substantial dispute at the heart of a lawsuit. Therefore, this noteworthy precedent will assist judges in monitoring and examining the reliability of experts and will provide them with a brand-new perspective on which to base their decisions. Regrettably, one drawback of the private expert opinion system is that such opinions are commissioned and obtained by the parties themselves. Therefore, the fees for private expert opinions are paid by the requesting party; consequently, these opinions are often obtained by the "wealthier" party. Thus, the disparity between the financial resources of the opposing parties in a lawsuit may also play a part in the expert opinions presented to the court, and may therefore lead to unjust outcomes in certain cases.
Footnotes
1 Prof. Dr. Hakan Pekcanıtez, Makaleler: Özel Uzman (Bilirkişi) Görüşü ve Değerlendirmesi, On İki Levha Yayıncılık, August 2016, p. 393.
2 The 15th Chamber of the Court of Appeals' decision dated April 19, 2018, with file number 2017/2121 E. and 2018/1651 K.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in December 2018. A link to the full Legal Insight Quarterly may be found here.
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