BERK ÇEKTİR

Court experts -- practice under Turkish law

Courtroom proceedings do not only consist of the application of legal knowledge and »»

Courtroom proceedings do not only consist of the application of legal knowledge and the description of facts. The ordinary course of life is indeed not ordinary and disputes are widely varied. The judge is in charge of solving the dispute and making a decision on the matter. However, there can be extrajudicial matters on which a judge may not have expertise.

In such cases, judges consult with experts who specialize in those matters. The mission of the experts is to assist the judge with their knowledge. The judge decides if the proceedings require it or not. According to the Code of Civil Procedure, an expert is a person consulted on a matter of know-how or technical knowledge.

The application conditions and procedure involved in this assignment are determined by regulations made by the Ministry of Justice.

According to the regulations, a person who wants to be appointed as an expert by the court should apply to the relevant commission by a deadline. The commission determines which professionals are eligible to participate as experts through these applications. However, the commission cannot deem an expert eligible to testify on matters the judge can solve with his or her own legal knowledge.

Here are the terms of the application to be included in the list of experts. The first qualification is to be of mature age and to be of sound mind; and the second major qualification is to have at least three years of experience in one’s profession.

The reports experts submit to the court are not entrusted to the judge. Instead, experts can mostly affect the outcome through their testimony. The matters upon which experts are consulted are extrajudicial and the judges are supposed to lack knowledge on them. Therefore, it is crucial to require substantial experience in people who act as experts.

Judicial proceedings are delicate and demanding work. That is why it is very important the information submitted to the judge be definitive and certain for the sake of the accuracy of the case’s judgment. Consequently, the role of experts should be made more efficient and reliable with new legislation.

However, the major problem in the Turkish judicial system is that the judges have a tendency to appoint a legal expert to give testimony on matters of law. This is, in one sense, transferring the judicial authority to a third party. Any judge reading this may protest that a judge never transfers judicial authority in this way, but in practice, I think, appointing a legal expert is leaving the decision in the hands of a third party. Certainly, the judge may come to a conclusion that contradicts the legal expert’s opinion. But I wonder how many judges have made decisions contrary to the legal expert’s opinion. Are there statistics on this?

2012-06-24

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Columnist:: BERK ÇEKTİR