CODE ON EXPERTNESS
The new Code on Expertness (in Turkish “Bilirkişilik Kanunu”, hereinafter referred to as the “Code”) numbered 6754 published in the Official Gazette dated 24 November 2016 determines the modalities applicable to the Expertness and brings about certain amendments and complementary provisions to certain legal texts in force settling this field.
The amended legal texts are, among others, the Criminal Procedure Code (in Turkish “Ceza Muhakemesi Kanunu”) and the Civil Procedure Code (in Turkish “Hukuk Muhakemeleri Kanunu”) having heretofore been deemed as the principle legislation upon the matter; yet, it shall be noted that the entry in force of the Code did not result in the abrogation of the related provisions of the said texts.
To draw a brief yet important outline to the aforementioned legislation;
- The Code basically constitutes the legal basis for the establishment of the administrative body that shall henceforth be competent for the Expertness, and sets forth the principles to be respected in the performance thereof; and,
- The legal texts referred to, particularly Civil and Criminal Procedure Codes, remain in full force with regard to their provisions regulating the performance of the Expertness, as amended to ensure their compliance with the Code.
A. Administrative Bodies Established with the Code
To ensure a centralized and integrated body for the conduct, as well as the tracking and the problem-solving mechanisms for the Expertness, the Code foresees the establishment of the below institutions:
-
- The Advisory Board of Expertness (in Turkish “Bilirkişilik Danışma Kurulu”);
- The Expertness Department (in Turkish “Bilirkişilik Daire Başkanlığı”) to be established under the Directorate General of Legal Affairs of the Ministry of Justice (in Turkish “Adalet Bakanlığı Hukuk İşleri Genel Müdürlüğü”);
- The Regional Expertness Boards (in Turkish “Bilirkişilik Bölge Kurulu”) to be established at the respective regions where the Regional Courts of Justice (in Turkish “Bölge Adliye Mahkemesi”) are located.
The composition and the duties of the above institutions having been determined by the Code; the Advisory Board of Expertness shall be presided over by the Undersecretary of the Ministry of Justice and its secretarial operations shall be conducted by the Expertness Department in charge, among other duties, for the due establishment of the Expert Registry (in Turkish “Bilirkişilik Sicili”).
As per the Regional Expertness Boards; these Boards shall (i) monitor the compliance of the Expertness activities with the legislation in force, (ii) evaluate the applications for the registration to the Expert Registry, (iii) proceed to the registration to and to the removal from the said list, (iv) prepare the Expert List as per the principal and the secondary expertness fields of the registered experts.
B. Definition and Scope of Expertness
As defined in Article 2 of the Code, an Expert is a real person or a private law legal entity resorted to in cases where a special or technical knowledge is required beyond general and legal knowledge of the judge, so as to obtain an assessment to be stated verbally and/or in written for the conclusion of a given case.
Registration to the Expert Registry requires the compliance of the applicant with certain criteria determined as per Article 10 of the Code. In this respect, for the positive evaluation of his/her application, the applicant shall; among others, (i) neither have been sentenced for the crimes listed in Article 10.1.a of the Code nor dismissed temporarily or permanently from his/her profession, (ii) not have been removed from the Expert Registry upon his/her own request, (iii) complete the basic Expertness education, (iv) have a work experience of a minimum of five (5) years in the field of his/her expertise declared at the application file and (v) dispose of an official document serving as the proof for the fact that he/she has the qualifications required for the professional performance as per the applicable legislation.
C. Principles
In line with Article 266 et seq. of the Civil Procedure Code and Article 62 et seq. of the Criminal Procedure Code, the Code determines the principles to be respected at the performance of Expertness.
In this respect, Expertness shall be performed in person by the Expert assigned within the frame of a given case; with due regard to the principles of good faith and confidentiality, in a manner to be independent, neutral and objective, as limited to the special and the technical knowledge as well as to the required field of expertise that shall be expressly specified by the assigning body. The confidentiality principle expands beyond the term of the duty and shall be respected without any limit of time.
Once assigned, the Expert shall duly assess the file and the elements constituting an integral part thereto (e.g. related documents, data storage devices, manuals, objects serving as proof etc., if any) delivered to himself/herself, and prepare an Expert Report that shall be submitted to the Court within the time granted for such duty. The Expert Report shall be prepared in a manner to comprise a detailed explanation with regard to the questions directed by the Court based upon the technical and the professional knowledge of the Expert and no legal assessment shall be made within such Report.
All the above being said, it shall be noted that the Expert Reports do not dispose of an imperative character for the conclusion of the proceedings for which they are issued. The Judge shall consider such Reports without being bound by the stance disclosed therein. Hence, as per the Turkish Law, the Expert Reports are deemed as discretionary proof (in Turkish “takdiri delil”) and not as definitive proof (in Turkish “kesin delil”).
D. Conclusion
As disclosed here above, in the first place, the new Code on Expertness regulates the modalities of the Expertness and therefore standardizes this branch via a centralized establishment defined therein along with its sub-branches, the composition thereof and the duties attributed thereof.
In the second place, the Code determines the criteria for the registration of the applicants to the Expert Registry, reiterates and elaborates the principles to be respected at the performance of expertness activities and makes certain amendments at various Codes in force regulating Expertness so as to ensure their conformity with itself.
Nonetheless, the provisions of Civil and Criminal Procedure Codes regulating the modalities to be pursued for the performance of the Expertness respectively at civil and criminal proceedings remain in force, without prejudice to the provisions of the new Code.
Our law firm remains at your disposal for any further queries you may require.