Turkey: The Court Of Appeals' Noteworthy Precedent Regarding The Contradictions Between Private Expert Opinions And Official Expert Reports

Last Updated: 27 December 2018
Article by Gönenç Gürkaynak Esq, Ceyda Karaoğlan Nalçacı, Tuğba Uluay and Şive Sepici

Most Read Contributor in Turkey, December 2018

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.


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.

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.

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
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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.


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.


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