INVOLVEMENT OF THE LAYPERSONS IN THE TURKISH ADJUDICATION SYSTEM

Abstract

This paper examines the involvement of laypersons in the Turkish adjudication system in the light of U.S. civil procedure and procedural laws of some of the continental jurisdictions.

1. In Turkey only law school graduates my serve as judges and public prosecutors as in many jurisdictions.

2. Laypersons may act as mediator in adjudication in several jurisdictions. The typical example of this trend can be observed in the U.S. mediation system. According to another trend only lawyers graduated from a law school are entitled to serve as mediator. Mediation in Turkey reflects this trend. Only the lawyers having an experience of five years in the legal profession may serve as mediator in civil disputes.

3. In many jurisdictions non-lawyers may serve as arbitrator in domestic and international arbitrations. Under Turkish law, in domestic arbitration if the arbitral tribunal would be composed of three arbitrators, one of the them should be a lawyer having at least experience of five years in his/her field of law. Nevertheless, in cases of international arbitration when the dispute has a “foreign element” non-lawyers may serve as arbitrator.

4. Any person who is not a party may testify on matters that he/she directly witnessed. Witnesses are summoned by the court. The court may allow the parties to bring along witnesses without a summons. The judge may permit parties to direct questions to the witness. Cross examination (Cf U.S. Federal Rules of Evidence, Rule 614), and examination of certain witnesses at specific locations are not allowed under Turkish law (Cf members of the Federal Government or of a Land government in German law).

5. Expert opinions are generally used in the Turkish adjudication by the courts.

At the request of a party or ex officio the court may obtain an opinion from one or more experts (Gutachten) in a case where a specific or technical knowledge is necessary. The court shall instruct the expert and submit the relevant questions to him/her. Experts can be invited to the hearing. The court must give the parties the opportunity to ask for explanations or put additional questions. (Turkish CCP, Art. 266 et seq. Cf. Act on Expert Examination, No. 6754).

6. Under Turkish law the parties to an action may submit private expert opinions (uzman görüşü) taken from experts (private legal opinions or opinions on specific issues or technical matters).  Such opinions are subject to the discretion of the judge.

7. At the request of a party or ex officio the court may conduct an inspection in order to see the facts for itself or for a better understanding of the case. The court may summon witnesses or experts to the inspection. (See. Turkish CCP, Arts. 288, 290).

8. This paper indicates that the adjudication system in several jurisdictions is based, in principle, on the professional lawyers. Under Turkish law, only law school graduates may settle the disputes as judges. Non-lawyers may not render a judgment to settle a dispute. Arbitration and mediation are exceptions. Non-lawyers may serve as arbitrator and mediator. Laypersons can usually be benefitted as expert, expert witness, and appraiser as auxiliary elements in the adjudication systems.