1. INTRODUCTION
Expert examination is an evidentiary mechanism set out
under the Code of Civil Procedure (CCP) under the heading of “Proof and
Evidence,” to which courts resort when the resolution of disputes before them
requires knowledge in fields outside the legal domain.
“Judges cannot be expected to possess specialized or
technical knowledge in fields outside the law; it is precisely at this point
that the expert comes into play. By providing specialized or technical
knowledge within their expertise, an expert plays an important role in the
resolution of the dispute at issue. To this end, however, the expert must
prepare the report in accordance with the law.” [1]
Objections to an expert report are set out under
Article 281 of the CCP as follows: “The parties may, within two weeks from
the date on which the expert report is served on them, request the court to
have the expert complete any matters they consider to be missing in the report,
provide clarification on any matters that are unclear, or appoint a new expert.”
This article examines the legal consequences of
failing to object to an expert report under Article 281 of the CCP, in light of
legal scholarship and previous case law, with particular reference to a 2026
decision of the General Assembly of Civil Chambers of the Court of Cassation.
2. LEGAL NATURE OF AN EXPERT REPORT
The court may, either upon the request of one of the
parties or on its own motion, order that an expert’s opinion be obtained where
the resolution of an issue requires specialized or technical knowledge outside
the field of law. However, an expert may not be appointed in matters that can
be resolved through general knowledge or experience, or through the legal
knowledge required by the judicial office. In terms of its legal
classification, expert examination is set out under the CCP within the section
on proof and evidence. The legal nature of an expert report is subject to
debate. According to one view, “if the adjudicating authorities can learn about
traces and remnants of the past only through the expert’s statement, the expert
opinion will constitute evidence. If the expert merely explains a rule of
experience to the adjudicating authorities or assists them in drawing certain
conclusions through the application of such a rule, the expert opinion will
serve to assist in the evaluation of evidence and will not constitute evidence.
Accordingly, depending on the circumstances, an expert opinion may at times
constitute evidence, at times serve as a means of evaluating evidence, and at
times perform both functions.” [2]
The following is a leading decision of the Court of
Cassation addressing the legal nature of an expert opinion.
Decision,
bearing the Basis number 2017/494, the Decision number 2021/506 and dated 15.04.2021,
of the General Assembly of Civil Chambers of the Court of Cassation
“Article 266 of the Code of Civil Procedure Nr. 6100
(CCP) provides that, where the resolution of an issue requires specialized or
technical knowledge outside the field of law, the court may, upon the request
of one of the parties or on its own motion, order that an expert’s opinion be
obtained. Pursuant to Article 282 of the said Code, the court freely assesses
expert opinions, which constitute discretionary evidence, together with the
other evidence. Under Article 281/2 of the CCP, it is for the court to remedy
or clarify any deficiencies or ambiguities identified in expert reports. In
such circumstances, the court may obtain a supplementary report from the
experts who prepared the report or, pursuant to Article 281/3 of the CCP,
appoint a new panel of experts and obtain a report following a renewed
examination.” [3]
An expert report may be regarded as discretionary
evidence. The judge freely assesses the expert’s opinion together with the
other evidence. Although an expert report constitutes evidence, the judge is
not bound by the expert’s findings and may assess them within the scope of the
judge’s discretionary power.
3. OBJECTION TO AN EXPERT REPORT UNDER ARTICLE 281 OF
THE CCP
The parties may, within two weeks from the date on
which the expert report is served on them, request the court to have the expert
complete any matters they consider to be missing from the report, provide
clarification on any matters that are unclear, or appoint a new expert. If it
is very difficult or impossible to prepare the submission within this period,
or if doing so requires specialized or technical work, the party applying to
the court within the prescribed period may be granted an additional period,
commencing upon expiry of the original period, for one time only and not
exceeding two weeks. In order to remedy or clarify any deficiencies or
ambiguities in the expert report, the court may obtain a supplementary report
from the expert by formulating new questions, or may, on its own initiative,
require the expert to provide oral explanations at a hearing designated for
that purpose. Where the court considers it necessary for the truth to be
established, it may also order a renewed examination to be conducted by a newly
appointed expert.
The parties may object to an expert report within two
weeks of its being served on them. The statutory time limit is a forfeiture
period. The right to object to an expert report is provided for within the
scope of the parties’ right to be heard.
4. DECISION OF THE 10TH CIVIL CHAMBER OF
THE COURT OF CASSATION, BEARING THE BASİS NUMBER 2024/957 AND THE DECISION
NUMBER 2024/2592, HOLDING THAT A PROCEDURAL VESTED RIGHT HAD ARISEN
“Pursuant to Article 266 of the Code of Civil
Procedure Nr. 6100 (CCP), where the resolution of an issue requires specialized
or technical knowledge outside the field of law, the court may, upon the
request of one of the parties or on its own motion, order that an expert’s
opinion be obtained. (Amended sentence: 03.11.2016-6754/
art.49) However, an expert may not be appointed in matters that can be resolved
through general knowledge or experience, or through the legal knowledge
required by the judicial office. (Supplemented sentence: 03.11.2016-6754/art.49)
Persons with a legal education may not be appointed as experts unless they can
document that they possess separate expertise in a field outside the law.
Article 281/1 of the same Code provides: ‘The parties may, within two weeks
from the date on which the expert report is served on them, request the court
to have the expert complete any matters they consider to be missing from the
report, provide clarification on any matters that are unclear, or appoint a new
expert. (Supplemented sentence: 22.07.2020-7251/art.24) Where it is very difficult or impossible to
prepare the submission within this period, or where doing so requires
specialized or technical work, the party applying to the court within this
period may be granted an additional period, commencing upon expiry of the
original period, for one time only and not exceeding two weeks.’
… As expressly stated in the judgment, dated 18.02.2021
and bearing the Basis number 2018/10(21)-94, and the Decision number 2021/111, of
the General Assembly of Civil Chambers of the Court of Cassation: ‘A procedural
vested right arises in favor of the party who objects to an expert report when
the opposing party fails to object to that report. In other words, where one
party does not object to an expert report, a new expert examination is
conducted upon the objection of the other party, and the second expert report
is even more unfavorable to the party who objected to the first report, the
court must render its decision on the basis of the first expert report, since
that report has become final with respect to the party who failed to object to
it, thereby giving rise to a procedural vested right in favor of the other
party.’” (Kuru, B., Hukuk Muhakemeleri Usulü (Civil Procedure), Istanbul 2001, Volume:3,
p. 2753)" [4]
The decision of the 10th Civil Chamber of
the Court of Cassation, also referring to the decision of the General Assembly
of Civil Chambers of the Court of Cassation, expressly establishes that failure
to object to an expert report gives rise to a procedural vested right.
5. AN ANALYSIS OF THE GENERAL ASSEMBLY OF CIVIL
CHAMBERS’ DECISION DATED 06.05.2026, AND BEARING THE BASIS NUMBER 2026/129 AND THE
DECISION NUMBER 2026/299, HOLDING THAT FAILURE TO OBJECT DOES NOT GIVE RISE TO
A PROCEDURAL VESTED RIGHT
“…The judge
freely assesses the expert’s opinion together with the other evidence. Since
the legal assessment and characterization of the facts fall within the judge’s
duties, a deficient or erroneous report should not be regarded as acquiring
binding finality merely because the parties have failed to object to it.
Accordingly, failure to object to an expert report cannot be deemed to give
rise to a procedural vested right. Moreover, since an expert report constitutes
discretionary evidence, it is subject to the judge’s free assessment. The mere
fact that a party has failed to object to a report does not preclude the judge
from assessing that report together with the other evidence. Any contrary
approach would effectively transform the expert report into conclusive evidence
and would be incompatible with the principles governing the assessment of
evidence. Likewise, requiring the judge to render a decision in accordance with
an expert report would be incompatible with the principle of judicial
independence set out under Article 138 of the Constitution.
Moreover, situations may arise in which neither party
objects to the expert report. In such a case as well, the parties’ failure to
object to a report that is unsuitable to serve as a basis for a judgment does
not give rise to a procedural vested right that would bind the judge as to the
outcome of the proceedings. Accepting that the judge must resolve the dispute
on the basis of an erroneous report merely because neither party has objected
to it would be incompatible not only with the express statutory provisions and
the fundamental principles of procedural law referred to above, but also with
the judge’s duty to ascertain the material truth.
Furthermore, attaching a legal consequence in the
nature of a vested right to every procedural act performed by the court or the
parties would also be contrary to the principle that the court is bound by the
parties’ claims. In any event, the fact that certain procedural acts may be
performed only within a specified procedural period is a consequence of
procedural economy; the expiry of such period does not confer a right on the
opposing party, but merely results in the party who failed to act within the
prescribed period being unable to exercise that right.
…It was concluded that interpreting the relevant
provision of the Code concerning objections to expert reports as establishing a
procedural vested right in favor of the opposing party as a consequence of
failing to object to an expert report would not constitute a foreseeable
interpretation of that provision. Accordingly, it was found that there was no
statutory basis for the interference in question, whereby the portion of the
claim exceeding the amount calculated in the first expert report obtained
during the proceedings was dismissed on the ground that a procedural vested
right had arisen in favor of the defendant because the report had not been
challenged. …” The decision therefore emphasized that a procedural vested right
arising from an expert report had no statutory basis and, consequently, that
the interference with the right of access to a court could neither be regarded
as pursuing a legitimate aim nor considered proportionate.
… Since the
claimant’s counsel did not make any declaration of intent in the nature of a
procedural act disposing of the action in response to the expert report dated 03.03.2023,
the claimant’s counsel’s failure to object to the report cannot be construed as
acceptance of the report. Accordingly, it cannot be accepted that a procedural
vested right arose in favor of the defendant on this ground.
In conclusion,
given that the claimant’s failure to object to the accounting expert report
does not constitute acceptance of the report, and that there is no basis for
finding that a procedural vested right arose in favor of the defendant, and also
that failure to object to an expert report, as a procedural act, cannot be
construed as extinguishing a substantive right of the claimant, it is concluded
that the judgment maintaining the previous decision was well-founded.
Although,
during the deliberations of the General Assembly of Civil Chambers, it was
argued that it was erroneous to reach a decision by disregarding the procedural
vested right that had arisen in favor of the defendant as a result of the
claimant’s failure to object to the accounting expert report dated 03.03.2023,
and that the judgment maintaining the previous decision should therefore be
reversed and a decision rendered in accordance with the grounds set out in the
reversal decision, this view was not adopted by the majority of the General
Assembly.” [5]
As is evident
from the above-mentioned decision of the General Assembly of Civil Chambers
dated 06.05.2026, the judge must freely assess an expert report together with
the other evidence. The judge is not bound by the report, as an expert report
constitutes discretionary evidence. The parties’ failure to object to the
report does not render it binding or prevent the judge from assessing it
together with the other evidence. Failure to object cannot give rise to a
procedural vested right, since it merely results in the party’s failure to
exercise that right and does not confer any corresponding right on the opposing
party.
5. CONCLUSION
An expert
report is a document prepared and submitted to the court for the resolution of
a dispute where the matter requires specialized or technical knowledge beyond
the field of law. By its nature, an expert report constitutes discretionary
evidence and is not binding on the judge. The parties may object to the report
within two weeks from the date on which it is served on them. The right granted
to the parties to object is set out within the scope of their right to be
heard. The failure of either or both parties to object to the report does not
give rise to a procedural vested right. In this respect, failure to object
merely means that the party’s right to object can no longer be exercised; it
cannot result in a procedural vested right arising in favor of the opposing
party. The parties’ silence with respect to the report does not constitute
acceptance of the report. Objecting to an expert report is a procedural act,
and failure to object cannot result in the creation of a substantive right.
In conclusion,
the parties are granted a mandatory two-week period within which to object to
an expert report, and their failure to object within this period does not
constitute acceptance of the report. Accordingly, no procedural vested right
arises, since the judge is not bound by an expert report, which constitutes
discretionary evidence, and has the authority to assess it freely together with
the other evidence. In its recent decision dated 06.05.2026, the General
Assembly of Civil Chambers adopted a change in approach and made clear that
failure to object to an expert report does not give rise to a procedural vested
right.
Alper Turhan,
Legal Intern
References:
1. Ömer Buğra
Alihocagil, “Medeni Usul
Hukukunda Bilirkişi Raporunun Hazırlanması Ve Bilirkişi Raporuna İtiraz” (“Preparation
of Expert Reports and Objections to Expert Reports in Civil Procedure Law”), Tokat
Gaziosmanpaşa University, Faculty of Law, Department of Civil Procedure and Debt
Enforcement & Bankruptcy Law, Article, 2018, pp. 1–2
2. Gürelli
(1967), pp. 1-2
3. Decision,
dated 15.04.2021 and bearing
the Basis number 2017/494 and the Decision number 2021/506, of the
General Assembly of Civil Chambers of the Court of Cassation
4. Decision,
bearing the Basis number 2024/957 and the Decision number 2024/2592, of the 10th
Civil Chamber of the Court of Cassation
5. Decision,
dated 06.05.2026 and bearing the Basis number 2026/129 and the Decision number 2026/299,
of the General Assembly of Civil Chambers of the Court of Cassation
