The new Law on Experts No. 6754 ("Expert Law") brought fundamental changes to the system of court-appointed experts in the litigation process. It was intended to establish an effective and organized framework by redefining the qualifications required to be deemed an expert, as well as the procedures for the appointment and supervision of experts. The Expert Law provides regulations for the expert examinations given in judicial, administrative and military jurisdictions; however, it excludes the public institutions that provide expert services and institutions that are authorized to provide expert opinions.
An expert is defined as "a real person or a private law legal person, whose expert opinions are sought, for issues that require specific or technical knowledge" in Article 2 of the Expert Law. Article 3 sets forth the fundamental principles attached to being an expert. These principles dictate that an expert (i) must be independent and impartial, (ii) cannot delegate any aspect of the expert work to any other expert or third party, and (iii) is legally obligated to keep the file confidential. The court can appoint an expert only after determining that the issue in question requires specific or technical knowledge to be settled. The court, however, cannot seek expert opinions for issues that can or should be resolved with the general knowledge, experience or legal knowledge that a judge is expected to possess. The general rule is that the court may seek an expert opinion for any specific matter only once, but if the report needs further examination or clarification on certain points, then the court may request an additional expert report to resolve all outstanding issues.
This legislation aims to keep the experts out of the assessment of legal matters during the litigation process, as this task properly belongs to the judge. Although the Civil Procedural Law No. 6100 ("CPL") already stipulates that the court can appoint an expert only for issues that require specific or technical knowledge to be resolved, in practice, the courts have routinely appointed experts from the legal profession who provided opinions on legal matters, with the caveat that the discretion with regard to legal matters vests solely in the judge, in order to ensure compliance with the CPL. But this well-established practice evidently undermined what the CPL intended, i.e., that the legal matters should remain exclusively in the domain of judge, as dictated by the Turkish Constitution. Thus, to keep the experts from providing legal views, the Expert Law prohibits persons employed by the legal profession from being registered in the Expert Registry—from which the courts are obliged to appoint experts—and further states that they cannot be appointed as experts unless it is certified that they have another profession besides the law. The CPL has also been amended in light of this rule. By amending the CPL and passing the Expert Law, the legislator endeavors to ensure that experts are excluded from expressing opinions on legal matters and that the legal aspects of cases are left exclusively in the judges' domain, as they should be. These twin developments will bring forth a significant change to civil law proceedings in Turkey.
Furthermore, the Expert Law introduces three new bodies to the expert system: (i) Expertise Consultative Committee, (ii) Directorate of Expertise, and (iii) Expertise Regional Committee. The Expertise Consultative Committee is responsible for the due execution of the expertise system and offers solutions to problems encountered during the provision of expertise services. The Directorate of Expertise serves to ensure efficiency and productivity in expertise operations and, to that end, defines principal professions and sub-professions for expertise purposes, sets the ethical principles of expertise services, determines the standards for expert reports and keeps the Expert Registry. The Expertise Regional Committee's duties comprise ruling on the enrollment/disenrollment of experts in the Expert Registry, categorizing experts according to their professions, supervising experts and assessing their performances.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in March 2017. A link to the full Legal Insight Quarterly may be found here.
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