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NEWSLETTER 2011
296
Under civil procedure, the parties frequently submit to the court
the opinions with regards to technical matters, including legal issues,
provided from the experts, in order to support their claims or defenses.
Therefore, the New CPL regulated a practice which was applied, even
though it was controversial.
The aforesaid article regulates that the parties may not demand
additional time in order to provide an expert opinion, the judgment
may not be delayed, and that the judge shall evaluate the expert opinion
submitted to the file in his own discretion. This disposition aims to
prevent the claims which are submitted in order to delay and extend the
trial period in bad faith. It should be emphasized that the expert opinion
is not binding upon the judge.
In the second paragraph of the Article, it is clearly stipulated that the
expert whose opinion is consulted may be heard in the court. The expert
whose opinion is needed by the party in order to support its claims or
defense may be summoned by the court
ex officio
or upon request of the
other party. During the hearing, the parties or the judge may interrogate
the expert. It is stated in the legal ground of the Article that the aim of
the disposition is to clarify the issues requiring a special expertise and
to prevent the judgment to be adversely affected by contradictory or
imperfect knowledge or misinformation.
Summoning the expert to the hearing is widely exercised in several
law systems. By this way, the difficulties for the court resulting from
abstract or incomprehensible technical issues shall be removed in order
to clarify the subject matter.
In the last paragraph of the Article, it is emphasized that the judge
shall not take the report drafted by the expert into consideration in order
to prevent delay of the judgment in the event that the expert does not
appear without a justified reason in the hearing in which he is summoned.
Since the hearing of the expert aimed to clarify the doubts resulting from
the report and the report causing doubts may not be taken as a basis for
a fair judgment, the absence of the expert in the hearing may cause such
sanction for the report.