It is common practice for Turkish courts to appoint a group of experts to render an opinion on a lawsuit. This group also previously included a legal expert. Despite the widespread use of experts and their reports, there were few regulations on the matter and the Court of Appeal was hitherto responsible for enforcing certain standards for expert reports.
It has been a while since the Law on Experts No 6754 was published in the Official Gazette dated 24 November 2016 (“Law”). This law prohibits the appointment of legal experts and establishes new bodies to maintain quality standards. The Law was recently followed by the Regulation on Experts published in the Official Gazette dated 3 August 2017 (“Regulation”). The Regulation provides a framework for increasing the quality of expert reports and covers the following areas: (i) effective prohibition of legal experts; (ii) uniform outline requirements; and (iii) the introduction of key performance indicators for experts and their effective supervision.
Effective Prohibition of Legal Experts
In spite of the clear prohibition on appointing legal experts, before the Law was introduced Turkish courts tended to appoint a legal expert from a group of experts. This practice frequently resulted in a legal opinion on the merits of the case which was not binding on the court yet was deemed by the parties to be crucial for the judgment.
Article 10 of the Law provides that legal experts cannot be registered to the experts list unless they can provide a qualification other than a legal qualification. The Ministry of Justice noted in its circular dated 23 January 2017 that the lists for 2017, which had been prepared according to the former laws on experts, included legal experts and that the courts should be careful not to appoint them.
Furthermore, the Law also provides that, if the court’s appointment of an expert was in breach of the law, then this would result in a disciplinary warning for the judge. This provision resulted in many courts acting in accordance with the long neglected prohibition on appointing legal experts.
A criticism that lawyers frequently hear from judges is that the legal expert can no longer define the scope of the report for the other experts. In order to prevent any digression from the legal aspects of a dispute, the Regulation also sets forth specific guidelines for the preparation of the expert report.
Mandate for and Outline of Expert Reports
Pursuant to Article 3 of the Law, the judge must clearly define the scope and extent of the issue to be examined by the experts. Based on this principle, Article 51 of the Regulation sets forth that the court’s decision on the appointment of an expert must include the following elements:
- The subject of the review, determined to the fullest possible extent and greatest possible clarity.
- Specific questions to be answered by the expert.
- The expert fee as determined by the court.
- The timeframe for the submission of the report.
- Criminal sanctions if the report is contrary to the facts.
The Regulation also sets forth uniform standards for outlining expert reports. Pursuant to Article 55 of the Regulation, the expert report must include the following elements:
- Date and period of appointment.
- Subject of review.
- The factual elements that need to be observed and examined.
- Methodology of the review.
- Scientific and technical grounds.
- Reasoned conclusion.
Moreover, the same article also provides that the experts cannot make any legal evaluations in their reports.
In order to enforce these standards, the regional expert committees as established by the Law are granted the authority to assess the quality of experts and expert reports on a number of grounds.
Performance Indicators for Experts
Pursuant to Article 72 of the Regulation, the regional expert committees can evaluate the experts and expert report based on the following performance indicators:
- The time granted to the expert and the time used by the expert.
- Declaration of opinion on legal matters.
- Delegation of report preparation.
- Compliance with the report preparation technique (indicated above).
- Reliance on the report in the court judgment.
- Compliance with ethical principles.
- Additional report request arising from the expert’s fault.
- (Court decision for) a new expert report.
- Preparation of a report outside the expert’s main or side competencies.
- Refraining from preparing the report.
- Failure to submit the report within the time granted by the court.
If the expert fails to meet the performance standards, the regional expert committee may decide that the expert be removed from the official list, as according to Article 48 of the Regulation.
The standards introduced by the Law and the Regulation are a new challenge for the courts, as the judges can no longer rely on a second opinion from legal experts on the merits of the lawsuit. Lawyers wishing to obtain a judgment in favour of their clients should therefore shift their focus away from the legal outcome of the experts’ reports and on to the opinion of the judges.