EXPERT WITNESS IN TURKISH LAW
Baris Erkan Celebi, Attorney at Law
Witness expert is a new institution which was introduced to the legislation in 2011 by the article 293 of the Civil Procedure Code. However, prior to the Civil Procedure Code parties also used to submit witness expert opinion within their statement or as attached to it.
The regulation on witness expert’s opinion was inspired by and refers to the Anglo-Saxon based institution called “partisan expert” in which the experts are appointed by the parties and the trial is conducted based on the private experts. On the other hand, in German and Swiss law on which the Turkish law is based, witness expert is not regulated and instead the parties submit witness expert opinion within their statement or as attached to it as in the era prior o the CPC.
Unlike expert’s report, witness expert’s report can be issued on the legal issues of the case as well as on the issues that require technical knowledge. Again, unlike expert’s repot, witness expert does not have legal or criminal liability, barring his/her liability to the party who benefits from the opinion as per the provisions of independent contractor agreement. This is the reason the objectiveness of witness experts is subject to hot debate and the courts sometimes disregard witness experts’ opinion. However, courts must evaluate the witness expert’s opinion and, should they rule on the contrary to the opinion, they need to state their grounds for the contrary decision and rebut the opinion via the expert reports appointed by the court. Otherwise it would violate the fundamental right to be heard by the court and therefore violate the right to fair trial. Whether the witness expert’s opinion is objective or not, insofar as it is within the subject of the case, the submitted information and opinion would create a rich environment for knowledge, increase the quality of the trial and serve the issuing of the most accurate judgment.
Finally, the new developments brought to the institution of court experts have increased the significance of the witness expert. Particularly, strictly prohibiting the law graduates from being appointed as experts and from submitting opinion on legal matters will cause the parties to rely more heavily on the institution of witness expert in order to convince the judge on legal matters and thereby bring the Turkish expert system closer to the aforementioned partisan expert system in the Anglo-Saxon law.