Legal Assessment of Amendments to the Expert Witness Regulation

The amendments to the Expert Witness Regulation dated May 3, 2025, aim to restructure the expert witness system within the framework of specialization, accountability, and personal data protection principles. These changes seek to enhance the quality of theoretical and practical training, strengthen confidence in expert witnesses during judicial proceedings through the detailed specification of their fields of expertise, and ensure the judiciary's compliance with the principles of impartiality and fair trial, in line with the jurisprudence of the European Court of Human Rights.

Attorney Dr. Tolga Ersoy | 08/05/2025

The institution of expert witnessing is a crucial mechanism frequently resorted to for the healthy functioning of judicial proceedings, playing a fundamental role in clarifying technical matters. In this context, the recent amendments made to the Expert Witness Regulation dated August 3, 2017, by the Regulation Amending the Expert Witness Regulation, published in the Official Gazette No. 32889 on May 3, 2025, necessitate a detailed examination not only by practitioners but also for the integrity of the legal system as a whole. Consequently, these revisions are of a nature that can directly impact the reliability and impartiality of the judiciary.

The amendment to the definition in Article 4 of the Regulation expands the scope of information included in the expert witness roster; the increased measures for the protection of personal data are also noteworthy. With this amendment, compliance with the provisions of the Law on the Protection of Personal Data is ensured, aiming to safeguard personal privacy. Accordingly, efforts have been directed towards establishing a more secure and auditable system by both clarifying the expert witnesses' fields of expertise and restricting their identification details.

The redefinition of the roster requires the separate specification of expert witnesses' primary and sub-specialization areas, thereby encouraging specialization. Specifically, the detailed outlining of expertise areas provides the opportunity to ascertain whether expert witnesses assigned to cases are truly competent in the relevant subject matter. Particularly in complex technical disputes, this regulation seeks to mitigate the legal drawbacks that would arise from basing judgments on opinions rendered by non-specialists.

Here, the following question arises: Will such detailed specialization classification lead to a narrowing of the expert witness pool? In response to this concern, it is anticipated that the system will cultivate a sufficient number of experts internally as educational requirements are raised. In this context, it is believed that while these regulations might conceptually pose difficulties in the short term due to a limited number of highly specialized expert witnesses, they will ultimately contribute to the institutionalization of the system by enhancing quality in the long run.

The amendment to Article 30 of the Regulation establishes a structure that balances the duration of basic training between theoretical and practical components, emphasizing the application of theory to practice. Considering that expert witnessing is a duty based not only on knowledge but also on experience, a condition has been introduced requiring practical training to be provided by individuals who have actively served as expert witnesses for at least five years. In this regard, the regulation aims to reshape the expert witness institution based on principles of professional competence and merit.

Consequently, with the re-regulation of Article 33, the scope of institutions authorized to provide expert witness training has been clarified. Limiting these institutions to universities, the Justice Academy of Turkey, and public professional organizations, with the permission of the Directorate, aims to prevent arbitrary practices. The granting of training permits for a maximum period of three years also ensures that the system remains dynamic and under continuous oversight.

Another notable aspect is the high academic qualification requirement imposed on individuals who will provide expert witness training. The provision allowing legal professionals holding at least a doctoral degree to deliver theoretical training is a regulation designed to equip this field with scientific foundations. This aims to foster a deeper understanding of fundamental legal principles during the training process.

Within the scope of Article 46 of the Regulation, the explicit inclusion of the provisions of Law No. 6698 on the Protection of Personal Data in the expert witness rosters to be created reflects a regulation parallel to the jurisprudence of the Constitutional Court and the European Court of Human Rights. Indeed, these courts repeatedly emphasize that the right to the protection of personal data is considered a fundamental right, and administrative practices must be limited within this framework.

Furthermore, in the same article, entrusting the authority to create rosters to regional boards allows for a customized distribution of expert witnesses according to the needs of each judicial district. This local governance approach, as adopted in the decisions of the Regional Courts of Appeal, offers the ability to generate solutions based on local requirements. This will ensure the timely administration of justice.

Indeed, with the amendment to Article 61, the authority to collect evidence has been regulated to be exercised personally by the regional board president or an assigned member, or through letters rogatory. This strengthens the principles of transparency and accountability in expert witness appointments and prevents arbitrariness in evidence procurement. Pursuant to this provision, reinforcing the evidence evaluation process with institutional foundations will enable judicial decisions to be rendered more accurately and legitimately.

Here, the question may be posed: Will the judiciary's reliance on expert witnesses decrease or increase in light of all these regulations? The answer to this question lies in expert witnessing assuming a function limited to its areas of expertise and supported by oversight mechanisms. Accordingly, proper implementation will prevent the judiciary from deviating from its primary function; rather, it will ensure the integrity of the judicial process.

The fact that the provisions of the Regulation have been left to the administration of the Ministry of Justice ensures uniformity in practice by centralizing administrative responsibility. This situation is significant for the institutional functioning of the rule of law and will contribute to preventing redundant and conflicting practices.

Considering the jurisprudence of the European Court of Human Rights, it is self-evident that the impartiality, expertise, and competence of an expert witness are decisive factors for the fairness of judicial proceedings. Although an expert opinion is not binding, it is frequently observed in practice that it holds significant persuasive power over the judge.

These latest amendments to the Regulation aim for the expert witness institution to achieve a systematic, auditable, and specialized structure. Particularly given the decisive role of expert reports in criminal proceedings, the contribution of experienced criminal lawyers in examining expert reports and evaluating their admissibility as evidence for judgment is essential for the proper functioning of the system. In this regard, with the support of legal professionals proficient in technical matters, the likelihood of reaching the truth will increase, and the judiciary's reputation in the public eye will be preserved.

Relevant Regulation: https://www.resmigazete.gov.tr/eskiler/2025/05/20250503-4.htm