ABSTRACT
Although expert evidence as a means of proof is an essential part of the law of civil procedure, this instrument may subject to debates, arising from expertise activity. The transformation of law, as the result of growing importance of information in other fields of science as well, notably affects the discussions on expert examination. This paper aims to discuss expertise evidence bindingness of expert reports within the law of civil procedure under current developments. Many issues may be reached on the axis of the debates of the appointment of expertise, the assignment criteria of experts, the scope of expert evidence, the conflict of roles between judges and experts, the duration of examination and its expenses.
I. INTRODUCTION
It ıs sıgnıfıcant that justıce whıch constıtute the main purpose of the law and judicial procedure can be secured by revealing the complete truth. In this regard, judges are responsible to resolve legal disputes and to secure remedies in society. To do so, the court may apply to experts’ reports for specialized areas to handle with complexities of cases, such as medicine, engineering, architecture, accounting, mathematics and statistics. It is not expected that judge could have special knowledge on such scientific fields unless he has a special interest in that field1. Parties of case may also require expert’s reports to support their claims and defenses and to evaluate evidences.
Therefore, it is widely accepted that experts are a ‘musthave’ during the adjudication to gain more information about special and technical issues. Along these arguments, legal systems require this expert evidence to eliminate judges’ lack of knowledge in solving factual problems. Despite differences in methods and procedures, judicial authorities benefit from experts in this sense2.
In order to analyze comprehensively the concept of expert evidence, this paper is divided into three chapters and proceeds as follows: the first part examines the concept of expert evidence and the second part discusses whether expert reports will be binding. We believe that it is crucial to discuss the concepts of expert evidence and bindingness the reports respectively for introducing clearly the subject matter.
II. THE CONCEPT OF EXPERT EVIDENCE
Within the Turkish private law context, it is rarely possible to explore a comprehensive and a distinctive definiton. In other words, all definitions of expert evidence concept present the same elements in the law of civil procedure and criminal procedure as well as administrative procedure. All explanations on expert evidence embrace basically the concept of expertise and the elements of expertise. The Expert Evidence Code does not propose a comprehensive explanation so that academia has attempted to promote a solid explanation. Some of these clarifications are illustrated below:
According to Kuru, expert is a person who examine casefile within the limits of issues which is not comprehended by the judge and to give the court sufficient technical and special information about result he reaches3.
According to Eraslan, expert provides special knowledge in judicial cases and when special knowledge is required to evaluate the evidence, expert reports shall be need4.
According to Köroğlu, expert is a person who helps judges in determining the fact and events about disputes, and enlightening and evaluating technical disagreements5.
According to Deryal, during the legal procedure judge consults as an assistant consulted by the judge if required and as an subject of proceeding6.
According to Pekcanıtez, Atalay and Özekes, expert is a person who provides necessary information about principles of experience who deduces from the facts based on these principles or determines subject matter of dispute based on his/her own special knowledge7.
According to Üstündağ, expert is a person who provides necessary information on the demand of the judge about principles of experience which judges do not have or who deduces from the facts or who determines subject matter of dispute based on his/her own special knowledge8.
According to Tanrıver, non-party person whose opinion is requested for matters requiring special and technical knowledge for jugde to solve the dispute is called as expert9.
All these definitions find their basis in the Article 266 of Civil Code of Procedure. Common feature of all these definitions is presented the person whose opinion is requested for the facts requiring special and technical knowledge to be solved.
The approach of the Court of Appeal (Yargıtay) is similar to the academia that the concept of expertise is to enlight the facts based on special and technical knowledge. If the judge does not consult to an expert when needed special and technical knowledge to be solved, this is the reason for reversal of decision10.
We would like to point out that judge shall ask expert’s opinion only when needed special and technical knowledge. Judge does not have any authorities to ask expert’s opinion for legal issues whose solution does not require special and technical knowledge. In other words, judge cannot consult to an expert for cases based on general and legal knowledge. It is because the main duty of the judge is to explore ex-officio relevant legal norms and to apply findings to the case. In addition, judge is considered as the most competent expert in legal issues.
III. LEGAL NATURE OF EXPERT EXAMINATION
Within the civil procedure, claims and defenses presented by the parties depend on facts and these facts should be proven by the parties. In this case, burden of proof provisions in legal proceedings determine the party which the judgement will be against. The activity of proving is a way of convincing the judge on existence of the evidence11. Proof is an instrument to prove the accuracy of assertion. The most significant distinction between the means of proof in the civil procedural law lies on the issue of binding of the proof on the judges. If the judge is bound with a proof, it is considered as proof positive. However, if the expert reports are left to the judge discretion to evaluate the proof, it is considered as discretionary proof.
Expert proof is applied as discretionary proof. As mentioned above, discretionary proof provides the judge a discretionary field to evaluate the proof along with the other findings. Within this context, the judge does not exercise discretionary power of evidence, but rather he explores the power in the evaluation and prediction of proofs without constraint12. As a result, this power leads to two arguments: firstly, the judge has discretionary power to consider whether expert evidence is requested to clarify special and technical issues. Secondly, judge has discretionary power to evaluate and interpret the expert proof.
The issue on what limitations of discretionary power judges have and which means of proof are binding are always discussed in literature, and the Court of Appeals has also criticized this question.
IV. THE BINDINGNESS OF EXPERT REPORTS
Judge is the most significant expert within the legal procedure. That is to say that during the legal procedure, the judge has authority to determine the material facts, to evaluate and to apply legal provisions for the concrete case. Although judge has authority and discretionary power within legal procedure, the issues based on special and technical knowledge require more than that. For this reason, the court also consults to experts to secure justice, as in other countries. Evaluating legal facts of the case, judges apply to expert reports for special and technical issues.
Despite the importance of expert reports, there is a controversy about their bindingness in the literature and the Turkish jurisdiction. To be clear, some scholars claims that expert reports are binding and the judge cannot reach to a conclusion against the expert report on the ground that the judge does not apply to an expert if not required. if the judge does so, he should be bound with expert reports. If the judge has special and technical knowledge, he does not request expert’s opinion. This is also the result of the the principle of the judicial economy13.
In contrary to this approach, Deryal highlightes that expert report is not binding due to the article 282 of Civil Code of Procedure, which states; “Judge evaluates expert’s vote and opinion with other proofs without constraint14." However, that may not lead to the clash of judge’s decision and the expert’s opinion. Indeed, the judge does evaluate expert evidence as he does for the other means of proof and he does use the reports’ contribution to resolve the dispute. In doing so, the judge should be restricted by the expert evidence and as expected he cannot judge arbitrarily in the sight of scientific evidence15.
Karafakih is on the same page with Deryal, judge evaluates the expert report impartially and indepently, but judge’s discretionary power shall not be limitless such he does so in the evaluation of witness statements. It is because judge sends the case file to expert in order to enlight the facts, so judge shall not decide without considering the expert report based on scientific data. If the judge considers that expert examination is not inadequate, he may demand for more expert examinations. In such a case, judge should reach to a conclusion based on one of these expert reports16.
According to Pekcanıtez/Atalay/Özekes, expert report is not binding for the judge. Judge evaluates expert’s opinion under the other means of proof as expert evidence leaves the judge discreation to evaluate. The relevant provision promote that judge is not bound with expert reports or the way of methods reports are applied to. It is unquestionable that the expert reports are not an indisputable reports. To consider it otherwise shall not comply with the relevant provision of the Code17. This approach is also assimilated by decisions of the Court of Appeals18.
Contradictive opinions on the bindingness of expert reports may lead to diversities in practice. While some courts use expert reports for the justification, the others evaluate all means of proof as a whole as expert report is not binding. Despite all the differences between scholars’ opinions, Court of Appeals considers the relevant provision that judge shall obtain additional report from expert if it is inadequate and even if additional report is still not convincing, judge shall request more expert examinations to secure justice19.
V. CONCLUSION
Despite contradictive opinions in the literature and the decisions of the Court of Appeals, the common view is that expert reports are not binding even if the report is not subjet to objection by the parties. From my perspective, if the judge is not satisfied with the expert report, he may have some options to do. Firstly, he may request an additional report from the same expert or expert committee. In case of that additional report is not adequate about the involvement of the holistic approach or it is clear that requested report will not be comprehensive enough, the judge shall apply to a new expert examination. It is worth mentioning that a new expert examination request is a second option, namely the second stage after the consideration of additional expert report. Secondly, if the judge requests a new expert examination, experts shall be different persons. The last point is about the function of new expert examination. This new experts re-examines ‘the facts’ under the case file. He shall not apply to the previous reports or court’s decisions to evaluate. In this sense, judge shall not request expert exam1ination to evaluate former expert reports. Otherwise, it would cause to a quasi-delegation of authority of jurisdiction, which is not possible in legal sense20. We consider that judges are the unique authority to evaluate the expert reports so judges have roles in securing justice in the society.
BIBLIOGRAPHY
Baki Kuru, Hukuk Muhakemeleri Usulu, Vol.3, 6th Edition, Istanbul 2001.
Cenk Akil, “Yargıtay Hukuk Genel Kurulu’nun Hâkimin Bilirkişi Raporuyla Bağlı Olup Olmadığı Hakkında Vermiş Olduğu 24.12.2008 Gün 2008/4-734 E. ve 2008/766 K. Sayılı Kararının Tahlili”, Ankara Üniversitesi Hukuk Fakültesi Dergisi (AÜHFD), Vol.1, 2011.
Claus Roxin, İspat Hukukunun Esasları, İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi, Year:4, Vol. 8, Autumn 2005/2.
Ejder Yılmaz, Usul Ekonomisi, AÜHFD, 2008.
Hakan Pekcanıtez/Oğuz Atalay/Muhammet Özekes, Hukuk Muhakemeleri Kanunu Hükümlerine Göre Medeni Usul Hukuku, 14th Edition, Ankara 2011.
Hasan Köroğlu, Türk Mahkemelerinde Bilirkişilik ve Bilirkişi Kurumları, Ankara 2001.
İ. Hakkı Karafakih, Hukuk Muhakemeleri Usulünün Esasları, Ankara 1952.
M. Kâmil Yıldırım, Medeni Usul Hukukunda Delillerin Değerlendirilmesi, Kazancı Hukuk Yayınları, Publication No:84, Istanbul 1990.
Mahmut Kahraman/Fatma Kurt, Deniz İhtisas Mahkemelerinde Bilirkişi Delilinin Gerçeğin Ortaya Çıkarılmasına Yönelik Etkin Kullanımı, Prof. Dr. Ergon A. Çetingil ve Prof. Dr. Rayegan Kender’e 50. Birlikte Çalışma Yılı Armağanı, Istanbul 2007.
Orhan Eraslan, Bilirkişilik Kavramı ve Hukuk Sistemi İçindeki Yeri Paneli, 03 Nisan 2003, Hukuk Merceği Konferans ve Paneller 2003, Ankara Barosu Yayını (A Publication of Ankara Bar), 2003
Saim Üstündağ, Medeni Yargılama Hukuku, Istanbul 1997.
Süha Tanrıver, “Hukuk Yargısı Bağlamında Bilirkişilikle İlgili Temel Problemler ve Çözüm Arayışları”, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, Vol.11, Özel sayı Prof. Dr. Bilge Umar’a Armağan, 2009
Yahya Deryal, Türk Hukukunda Bilirkişilik, 4th Edition, Ankara 2012.
FOOTNOTE
1 Cenk Akil, “Yargıtay Hukuk Genel Kurulu’nun Hâkimin Bilirkişi Raporuyla Bağlı Olup Olmadığı Hakkında Vermiş Olduğu 24.12.2008 gün ve E 2008/4- 734, K.2008/766 Sayılı Kararının Tahlili”, Ankara Üniversitesi Hukuk Fakültesi Dergisi (AUHD), 2011, Vol. 3, p. 699.
2 Mahmut Kahraman/Fatma Kurt, “Deniz İhtisas Mahkemelerinde Bilirkişi Delilinin Gerçeğin Ortaya Çıkarılmasına Yönelik Etkin Kullanımı”, Prof. Dr. Ergon A. Çetingil ve Prof. Dr. Rayegan Kender’e 50.Birlikte Çalışma Yılı Armağanı, Istanbul 2007, p. 710.
3 Baki Kuru, Hukuk Muhakemeleri Usulü, Istanbul 2001, 6th Edition, Vol.3, p.2622.
4 Orhan Eraslan, Bilirkişilik Kavramı ve Hukuk Sistemi İçindeki Yeri Paneli, 03 Nisan 2003, Hukuk Merceği Konferans ve Paneller 2003, Ankara Barosu Yayını (A Publication of Ankara Bar), 2003, p. 61.
5 Hasan Köroğlu, Türk Mahkemelerinde Bilirkişilik ve Bilirkişi Kurumları, Ankara 2001, p. 31.
6 Yahya Deryal, Türk Hukukunda Bilirkişilik, 4th Edition, Ankara 2012, p. 25.
7 Hakan Pekcanıtez/Oğuz Atalay/ Muhammet Özekes, Hukuk Muhakemeleri Kanunu Hükümlerine Göre Medeni Usul Hukuku, 14th Edition, Ankara 2011, p. 518.
8 Saim Üstündağ, Medeni Yargılama Hukuku, 6. Edition, Istanbul 1997, p. 740.
9 Süha Tanrıver, “Hukuk Yargısı Bağlamında Bilirkişilikle İlgili Temel Problemler ve Çözüm Arayışları”, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, Vol.11, Özel sayı Prof.Dr.Bilge UMAR’a Armağan, 2009, p. 575.
10 Supreme Court General Assembly, dated 05.10.2011 and numbered E.2011/19-481, K.2011/595; Supreme Court General Assembly, dated 27.04.2011 and numbered E.2011/4-62, K.2011/223.
11 Claus Roxin, “İspat Hukukunun Esasları”, İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi, Year: 4 Vol. 8, Autumn 2005/2, p. 265.
12 M. Kamil Yıldırım, Medeni Usul Hukukunda Delillerin Değerlendirilmesi, Kazancı Hukuk Yayınları, Publishing No: 84, Istanbul 1990, p.87.
13 Judicial economy is one of the principles dominating civil procedural law. It is an important tool serving for the purpose of judicial proceeding, which is regulated in the article 141 of Turkish Constitution and in the article 77 of Civil Code of Procedure. Judicial economy which is one of the duties of the judge is a tool expediting the judicial proceeding in accordance with legal regulations and preventing proceeding to take time longer than normal time stipulated in regulations in addition to that it prevents unnecessary expense. Ejder Yılmaz, Usul Ekonomisi, AÜHFD, 2008, p. 243; According to Court of Appeals, judicial economy is one of the most substantial rules regarding security of justice in a cheap, prompt and accurate way. Decision of General Assembly of Civil Chambers, dated 10.4.1991 and numbered 15-91/202.
14 Deryal, p. 370.
15 Deryal, p. 371.
16 İ. Hakkı Karafakih, Hukuk Muhakemeleri Usulünün Esasları, Ankara 1952 p. 220.
17 Pekcanıtez/Atalay/Özekes, p. 531.
18 3. Civil Chamber of Court of Appeals, dated 24.02.2014 and numbered E.2013/19342, K.2014/2744.
19 It is stated in the decision of Supreme Court General Assembly of Civil Chambers dated 24.12.2008 tarih and numbered E.2008/4-734, K.2008/766 that; “All speakers mentioned that judge is not bound by expert report during negotiation. This issue is quite correct. However judge cannot see himself/herself in the place of expert. Judge cannot determine by his/her personal knowledge defect rate which is requiring special and technical knowledge. This idea is also supported by other decisions of General Assembly of Civil Chambers such as the decision dated 2.4.1986 and numbered E.1984/4-847, K.1986/338; or the decision dated 8.11.1995 and numbered E.1995/19-601 , K.938; the decision dated 2.4.2003 and numbered E.2003/4-185, K.263; the decision dated 7.3.2007 and numbered E.2007/11-94, K.113; the decision dated 19.3.2008 and numbered E.2008/11- 262, K.260; the decision dated 14.5.2008 and numbered E.2008/11-392, K.377. Because judge cannot determine defect rate by his/ her personal knowledge, s/he is obliged to send the case file to another expert for examination. This idea is rupported by the decisions of General Assembly of Civil Chambers such as the decision dated 8.12.2004 and numbered E.2004/4-642, K.648; the decision dated 2.3.2005 and numbered E.2005/11-81, K.118; the decision dated 30.1.2008 and numbered E.2008/11-42, K.45; the decision dated 5.11.2008 and numbered E.2008/4- 655, K.664”.
20 As it is mentioned in the decision of General Assembly on the Unification of Judgments dated 04.06.1958 and numbered 15/6, judges have responsibility to conclude judicial proceeding in minimum expense and the shortest duration in addition to the responsibility tor ender a just verdict in accordancce with legal principles. Therefore judge shall not ask expert’s opinion for issues within the limits of jurisdiction and authority of jurisdiction shall not be delegated to expert.
