According to the announcement named “Guiding Principles which experts will follow and Standards to Be Included in the Expert Reports are determined” and dated 07.09.2020 of the Department of Expertise of General Directorate of Legal Affairs of the Ministry of Justice;
As a result of the research conducted by the Ministry of Justice within the scope of the assignment made for the Department of Expertise in accordance with the Article 6 of the Law of Expertise numbered 6754; “Guiding Principles which experts will follow and Standards to Be Included in the Expert Reports” are determined.
It is aimed with this regulation to increase the awareness and efficiency of the experts about the expertise activities and to ensure the unity of practice in this field by establishing a minimum standard that will be valid throughout the country for the writing of expert reports and their services.
“Guiding Principles which experts will follow and Standards to Be Included in the Expert Reports” are determined as follows:
- Since the expert must have a very good knowledge and skills in the field of expertise which the expert is assigned to, the expert should pay particular attention and care to this issue in the selection of basic and sub-specialties when applying for registration to the expert lists.
- In case the expert determines that the subject does not fall within his field of expertise as a result of the preliminary examination after his assignment, he/she should notify the authority that made the assignment within one week at the latest and should not accept the assignment.
- If the expert hesitates about his field of duty and its limits, he should definitely request the remedy of this hesitation in written from the authority that assigned him/her and he/she should carry out the examination according to the written instructions given by the authority.
- The expert should definitely request to perform the assignment in accordance with the provisions of the legislation, to notify its scope and limits and to answer the questions asked from the authority which makes the assignment.
- The expert is obliged to accept the assignments made from all provinces and districts within the jurisdiction of the expert’s regional board which he is registered to, if he does not have a valid excuse, and he/she should not forget that his/her refusal to accept his/her duty as an expert may require a sanction such as being removed from the registry and from the list.
- In cases where it is possible to examine the file through National Judiciary Informatics System, the expert should request authorization to examine the file through National Judiciary Informatics System from the authority that has made the assignment without submitting the file or document physically in order to minimize the loss of time and effort.
- Since the expert will assist the judge in the realization of the right and justice while making his examination, he must prepare his report in a manner that will answer all the questions he/she is asked and with the utmost care and attention with this sense of responsibility.
- The expert may need the knowledge and assistance of another expert to clarify or identify a problem that he/she is assigned to. In this case, he/she should apply to the authority that assigned him/her and request the assignment of another expert in the field of expertise that he/she needs and should benefit from that expert’s knowledge in this way.
- When the expert is faced with a situation that does not fall into his area of expertise when he/she makes a comprehensive analysis on the subject of the assignment and if this situation does not directly affect the conflict and the solution of the problem, he/she should definitely not make any determination or should not explain his/her opinion on this matter in the report. It should not be forgotten that the expert’s duty is to make determinations and express opinions with the data given to him/her or the information in his/her field of expertise.
- The field of duty of the expert is generally limited to his/her field of knowledge and expertise, and specifically to the questions asked. The expert cannot go beyond the duty and authority given to him/her. Even if the authority that assigned him/her requests to do so, he/she cannot examine the claims and defences and comment on them for whatever reason. It is the authority that makes the assignment itself that will interpret and evaluate the claim and defence.
- The expert can refer to the information of the parties, if he/she needs it while preparing the report, within the knowledge and approval of the authority that assigned him/her. In such case, the expert submits his/her request in written to the authority that made the assignment, stating that he/she wishes to consult the information of the parties. However, the expert cannot listen to the one party without the presence of the other one, even if it is approved by the relevant authority.
- In case the party of the file, counsel or a third party communicates with him, the expert avoids giving information about the file he/she was assigned to and immediately informs the authority that made the assignment.
- While preparing his/her report, the expert is obliged to show the concrete and specific reasons which are the basis of the report, in accordance with the scientific data. The expert report should also include justification based on information and documents which is sufficient for the audit of the authority that makes the assignment and the appeal courts.
- When the expert is required to make measurements to be used in his/her evaluation, he/she should make these measurements himself/herself, and not make an evaluation based on the measurements given by the parties. He/she should include the unit prices taken as basis for calculation and the criteria on which it is based in the report as an expositional.
- The expert should definitely not make evaluations in his/her report and should leave the interpretation and discretion of the incident to the judge after explaining the concrete incident clearly in his/her report.
- Whether special or technical knowledge is required in the concrete case and determining them is a legal process and it is the duty of the judge. Therefore, the expert cannot make legal qualifications and evaluations while preparing his/her report. In case of hesitation, he/she should request information from the authority making the assignment about the legal problem and the scope and limits of the area of investigation.
- The expert’s determination and comment on the subject of the dispute by evaluating only the evidence obtained during the trial without relying on special or technical knowledge is against the basic principles of expertise. However, the prohibition of evaluating the evidence does not mean that the expert cannot benefit from the evidence in any way, and can benefit from the evidence as an assistant or as a supervisor in the evaluation of his/her private or technical knowledge that he/she will use in solving the case problem.
- The expert report should be legible in terms of format, style and language which enables the authority making the assignment and the parties can understand. While preparing his/her report, the expert should prefer the Turkish equivalents of the words related to technical terms and concepts, if possible, and write their Turkish equivalents. If there is a technical concept, an explanation should be made about this concept without going into details.
- The expert should also evaluate the expert opinions submitted to the file during the trial in terms of special and technical information and discuss in the report, if requested by the authorized authority, while preparing the report.
- The expert should reflect all the documents he/she examined within his/her work (commercial book, receipt, invoice, bill, etc.) while preparing the expert report in a convenient way for judicial review.
- The expert may always request documents such as letters, minutes, photographs, printed works, pictures, films about the questions asked to be answered during the preparation of the opinion requested from him/her, or that will facilitate his/her work from the authority that makes the assignment.
- Unnecessary details in the expert report will cause the essence of the work to be overlooked and they also make it difficult to understand the opinions put forward and to control the report. For this reason, the expert should pay attention to prepare his/her report briefly, concisely and clearly.
- In case the subject matter of the expert report is long and especially if there are multiple questions, dividing the report into paragraphs and separate headings will prevent the expert’s erroneous and contradictory explanations, as well as allowing the readers of the report to easily and completely understand the opinions put forward.
- The expert should devote his/her report completely to all material facts, especially within the limits determined by the court; the concrete questions that are asked should be answered one by one in the order they are asked, by showing their scientific basis clearly, comprehensibly and completely.
- If the expert is assigned to a file that requires viewing examination, he/she should definitely ask for an appropriate time period for him/her to examine the file before the viewing, and if there is a lack of information and documents required for the execution of the viewing, he/she should draw the attention of the authority with his/her special or technical knowledge.
- If the expert is assigned to a file that requires viewing examination, the expert should submit the information about the ground condition of the area subject to the viewing, the location information, coordinates, weather at the location of the viewing and the means by which the location of the viewing can be reached to the authority that made the assignment. According to the status of the file, the necessary equipment (GPS, cors, etc.) must be kept with him/her at the time of the viewing.
- Determination of the defect is possible with a normative assessment and is only under the authority of the judge. The expert cannot make any evaluation regarding the defect (primary / secondary faulty, flawless, percentage defect rate) that is exclusively under the authority of the judge. The contrary attitude means exceeding the limits of the expert duty and taking the place of the judge.
- If the expert will not be able to deliver his/her report within the given time, he/she should apply to the authority that made the assignment before the end of the period and request an additional time by stating the reason for the delay.
- The expert may be assigned to clarify the contradictions between the previous expert reports obtained within the file and to issue a new report. In such cases, the expert should prepare his/her report by explaining which of the findings and evaluations in the reports that conflict with each other he/she agrees with or if he /she will submit a different opinion and evaluation, he/she should discuss the reasons for this and prepare his/her report accordingly.
- If the expert is assigned to receive an additional report within the file, he/she should prepare a report in a nature that will produce a solution to the problem which requires additional report to be obtain and will not allow an additional report to be received again.
- The expert is obliged to explain the justification of the results reached by using his/her special and technical knowledge in the report to be prepared. The justification will prevent the possibility of the expert making arbitrary and sloppy explanations to a great extent and makes it easier to audit the report by the judicial authorities and parties at every stage. In order for the expert opinion announced to be considered justified, in principle, it should not allow questions such as “why or what for” to be asked.
- In case the experts are assigned as a committee, it should not be ignored that it is a necessity of the assignment to have the meetings and negotiate as a committee and to prepare the expert report together. In case the experts are assigned as a committee, the expert who is in opposition of the concluded opinion, can submit a separate report after signing to state his/her negative vote against the expert report after negotiations.
News Source: Department of Expertise of General Directorate of Legal Affairs of the Ministry of Justice (https://bilirkisilik.adalet.gov.tr/Home/SayfaDetay/bilirkisilerin-uyacagi-rehber-ilkeler-ve-bilirkisi-raporlarinda-bulunmasi-gereken-standartlar-belirlendi07092020105636 )