Turkey: Opinion Of The Court Of Cassation On The Contention Of Expert Opinion And Expert Report

"Expert Opinion" in Short

The notion of Expert Opinion, which entered into our law through the Code of Civil Procedure ("CCP"), has been a frequently resorted to method of helping to resolve disputes by the parties in our judicial system over the course of time. Expert opinion, which is the reflection of the Anglo-Saxon Law concepts, "party expert" or "expert witness" in our legal system, is defined in Article 293 of the CCP:

  1. The parties may obtain scientific opinion from an expert in relation to the subject of the case. Extra time cannot be requested solely based on this purpose.
  2. The judge may decide, upon receipt of the request, or ex officio, to call the expert who has prepared the report to the hearing, and to listen to him/her. The judge and the parties may ask pertinent questions when the expert is called.
  3. If the expert does not appear at the hearing without a valid reason, the report that he/she has prepared shall not be evaluated by the court.

For more detailed information on this topic, you can review our article called, "An Important Innovation Brought by the New Civil Procedure Law: Expert Opinion."1

Throughout the course of the proceedings, parties may submit an opinion from an expert to the court relating to the event or legal matter constituting the issue of dispute, in order to support their claims or defenses. The expert opinion is, at times, presented during the phase of exchange of petitions, and sometimes during the inquiry, especially after the expert investigation, by the party for whom the expert report contains unfavorable analysis and comments.

In accordance with Article 266 of the CPP, the court may decide that there shall be an expert investigation regarding the case, and the opinion of the expert shall be taken regarding the subject of investigation, where the solution of the dispute requires special and technical knowledge other than the law, upon the request of one of the parties, or ex officio.

The expert opinion presented to the file in the course of the proceedings is, to a large extent, supportive of the party that is presenting the opinion. As a natural consequence, the expert opinion presented by one of the parties may contain opposing views and even completely contradict the opinion of the expert report that is already filed with the court. At this stage, it is a matter of debate whether or not the investigation shall be finalized and the case decided, according to the opinion of the court, or whether a new expert examination is to be sought.

What is the Solution of the Supreme Court in the Event of a Contradiction between the Expert Opinion and the Expert Report?

According to the decision of the 15th Civil Chamber of the Supreme Court, dated 10.11.2016 and numbered 2015/5127 E. 2016/4635 K., in the event of a contradiction between the expert opinion that is prepared as a result of the expert examination conducted by the court, and the expert opinion which is presented to the file by one of the parties, the file shall be delivered to a "new panel of experts," as the right to a fair trial of the party who presents the expert opinion to the file might be violated, otherwise:

"The case relates to the request of collection of the receivables arising from the defective manufacture under the contract of construction. In the event where one of the parties objects to the expert report in the file, based on the expert opinion, and these objections are not taken into account by the court, whatsoever, and are not responded to with justifications, the right to a legal hearing of the party that is dependent upon the expert opinion, which constitutes the most important element of the right to a fair trial that is protected under the Article 27 of the CCP numbered 6100, Article 36 of the Constitution, and Article 6 of the European Convention of Human Rights, shall be violated. The opinion of the expert submitted to the file contains findings and opinions contrary to the expert report, and there are serious contradictions between the expert report and the expert opinion. As it is incorrect to make a judgment on the basis of an inadequate and substantially challenged expert report, instead of having the file sent to a new expert committee in order to resolve the conflict between the expert report and the expert opinion, and evaluating and discussing this expert report with justification, the decision must be reversed."

"... Defendant's attorney has made substantial objections to the expert report and supported his objections by the expert opinion taken according to Article 293 of the CCP numbered 6100. The expert opinion, as regulated under Article 293 of the CCP numbered 6100, also referred to as the special expert in practice, is regulated as the parties' way to obtain information from a special and technical expert determined by them, in order to enlighten and comprehend the case, and to prove their claims and defenses. The parties shall submit an expert opinion to the court in order to defend their interests and to shed light on the case in order to render a just and fair judgment, in the event they are not satisfied by the expert report taken by the court. In particular, the court is obliged to take into account and evaluate the expert opinion submitted by the party, if it is relevant to the case, where special and technical information is required ... As it is incorrect to make a judgment on the basis of the inadequate and substantially challenged report, instead of having the file sent to a new expert committee in order to resolve the conflict between the expert report and the expert opinion, and evaluating and discussing this expert report with justification, the decision must be reversed."

The 15th Civil Chamber of the Supreme Court ruled that it is compulsory to remove the contradiction between the expert report obtained by the court, and the expert opinion submitted by the party, and that this can only be resolved through the court ordering another expert report.

The Supreme Court has again made it clear that expert opinion cannot be excluded if it is contradictory to the court-appointed expert report. Where the parties object to the expert report based on expert opinion, the evaluation of these objections by the court is a requirement of the right to legal hearing.

The Court of Cassation has also linked taking a new expert report for the purpose of eliminating the contradiction between the expert report and the expert opinion, and evaluating the expert opinion with justifications, with the right to legal hearing. 2

The Doctrine also defends that the Contradiction should be resolved through New Examination

This is also the point of view of in the doctrine. It is expressed that the procedure of hearing the expert by the court, where the expert answers the questions of the judges and the parties, is very important to reveal the impartiality and the scientificness of the expert opinion.3 In the event that the parties support their objection to the opinion of the expert appointed by the court with the report of an expert witness, the court should review the expert witness' report on a substantive basis, and should not prioritize the report of the expert witness appointed by the court without doing so. 4

Although it is not possible to generalize, as is often the case in practice, courts hold expert opinions as secondary, while continuing review and rendering judgment on the basis of expert reports that are present in the file. However, the "Expert Opinion" concept defined in the CCP even allows the expert who gives the opinion to be summoned to the hearing and questioned, although this continues to exist in our judicial system as a method that is almost never resorted to. Nevertheless, the expert must be considered according to the clear provision of law, and in the event it is ruled that the expert is not to be heard, this decision must be justified. 5

In conclusion, in the event that the present expert report in the file and the expert opinion submitted by one of the parties are contradictory, or contain opposing opinions, the court should form a new expert committee in order to eliminate the conflict between the expert report and expert opinion and, thus, finalize the judgment by thoroughly examining the claims and defenses of the parties, in a manner that makes it eligible for Supreme Court review.

Footnotes

[1] An Important Innovation Brought by the New Civil Procedure Law: Expert Opinion, May, 2011, http://www.erdem-erdem.av.tr/publications/law-post/an-important-innovation-brought-by-the-new-civil-procedure-law-expert-opinion/

[2] Prof. Dr. Mustafa Serdar Özbek, Law Journal numbered 2017/1 of the Union of the Turkish Public Notaries

[3] Prof. Dr. Baki Kuru - Prof. Dr. Ramazan Arslan - Prof. Dr. Ejder Yılmaz, Medeni Usul Hukuku Ders Kitabı, 22th Edition, Ankara, 2011, p. 456

[4] Dr. Cenk Akil, Medeni Yargılama Hukukunda Mahkeme Tarafından Atanan Bilirkişi-Uzman Tanık Ayrımı, Ankara Barosu Dergisi, 2011/2, p.175

[5] Prof. Dr. Hakan Pekcanıtez – Prof. Dr. Oğuz Atalay – Prof. Dr. Muhammet Özekes, Medeni Usul Hukuku, 14th Edition, p.799-800

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
ELIG Gürkaynak Attorneys-at-Law
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
ELIG Gürkaynak Attorneys-at-Law
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions