BİLİRKİŞİ RAPORUNDA TARAF BEYANLARININ DEĞERLENDİRİLMESİNİN, KAYSERİ BİLİRKİŞİLİK BÖLGE KURULU’NUN 2023/38 DİSİPLİN NOLU KARARLARI ÖZELİNDE BİLİRKİŞİNİN DİSİPLİN SORUMLULUĞU AÇISINDAN İRDELENMESİ
Abstract
Kayseri Cumhuriyet Başsavcılığının 2022/38541 nolu soruşturma dosyasına iki kişilik bilirkişi heyeti tarafından sunulan 19.10.2022 tarihli kök rapor ile 07.12.2022 tarihli ek raporun sonuç bölümünde “şüpheli ve şüpheli vekilinin iddiaları gerçeği yansıtmamakta'’ şeklinde ifadeye yer verilmiştir. Söz konusu ifadenin bilirkişilik mevzuatına aykırı olduğu iddia edilerek, bilirkişi raporlarını düzenleyen bilirkişiler hakkında başkaca aykırılık ve ihlal iddialarıyla birlikte 02.06.2023 tarihinde Kayseri Bilirkişilik Bölge Kuruluna şikâyette bulunulmuştur. Kayseri Bilirkişilik Bölge Kurulunca 14.06.2023 tarih 2023/38 disiplin nolu karar ile bilirkişiler hakkında herhangi bir disiplin yaptırımın uygulanmasına yer olmadığına karar verilmiş; söz konusu karara yapılan itiraz da Kurulun 06.09.2023 tarih 2023/38 disiplin nolu kararı ile kesin olarak reddedilmiştir. Bu çalışmada bilirkişi raporlarında taraf beyanlarının değerlendirilmesinin disiplin yaptırımını gerektirip gerektirmediği, Kayseri Bilirkişilik Bölge Kurulunun 2023/38 disiplin nolu anılan kararlarına konu bilirkişi raporlarında yer verilen "şüpheli ve şüpheli vekilinin iddiaları gerçeği yansıtmamakta'’ şeklinde ifade özelinde incelenmiş ve bu yönden kurul kararları değerlendirilmiştir. Şikâyet dilekçesinde ileri sürülen ve Kurulca karara bağlanan diğer aykırılık iddiaları ise incelenmemiş, çalışmanın kapsamı dışında tutulmuştur.
Keywords
Examination of the Evaluation of the Party Statements in the Expert Report in Terms of the Disciplinary Liability of the Expert Witness in the Context of the Decisions of the Kayseri Regional Board of Expert Witnesses with Diciplinary Number 2023/38
Abstract
An expert witness is a person who assists the judiciary in the understanding of the case by providing to judiciary with the special and technical information needed for the solution of the case subject to trial. Judges can apply for expert examination in cases where special and technical information is needed during the case process, prosecutors can apply during the investigation process. It was decided to conduct an expert examination in the investigation carried out by the Kayseri Chief Public Prosecutor's Office with the file number 2022/38541 for the crime of causing construction pollution and two experts were appointed on this matter. Two expert reports, the first report dated 19.10.2022 and the second report dated 07.12.2022, were submitted to the investigation file by two expert witnesses.
A complaint was filed against the expert witnesses to the Kayseri Expertise Regional Board on 02.06.2023, claiming that the basic principles and rules of expertise were violated and the report was prepared contrary to the legislation by expert witnesses in the first report dated 19.10.2022 and the second report dated 07.12.2022. One of the issues of the complaint is the statement written in the conclusion section of the expert reports as follows: "The allegations of the suspect and the suspect's attorney do not reflect the truth."
In the complaint made against the expert witnesses, all the statements and declarations of the suspect and the suspect's attorney in the investigation file were summarized such as no innovations or changes were made that would constitute the crime of causing construction pollution on the property after the building occupancy permit was issued by the complainant municipality and it was stated that all of them were real. This complaint was submitted to the Board as an attachment to the petition. It was stated that making unfounded and subjective comments about the defenses in the file, such as "the allegations of the suspect and the suspect's attorney do not reflect the truth" in the conclusion section of the expert reports, is wrong, misleading and contrary to the basic principles and rules of expertise, and it was requested that the necessary examinations and inspections be carried out.
Kayseri Expertise Regional Board decided that there is no need to impose any disciplinary sanctions with its decision dated 14.06.2023, meeting no 2023/8, discipline no 2023/38, decision no 2023/104. In the decision, it was stated that the defense of the expert witnesses was not consulted due to the subject of the claim and the absence of eviden-ce. In the justification of the decision, some of issues that determined to be contrary to the project by expert reports were mentioned and also it was stated that an evaluation was made that it was stated that these issues do not overlap with the defenses and the issue intented in the expert reports was also related to these issues.
The complainant's attorney objected to the decision of the Kayseri Expertise Regional Board dated 14.03.2023, meeting No 2023/8, discipline No 2023/38, decision no. 2023/104, stating that not to apply disciplinary sanction on 13.07.2023. It was stated that the decision was contrary to procedures, laws, precedent Board's decisions, the main purpose of the Expertise Law and the purpose of the existence of the Board. In the objection petition, it was stated that making a wrong decision by misjudging without even taking the defense of the expert witnesses would mean denial of the board's reason for existence and violation of the board's primary audit duty. The complainant's attorney's objection dated 13.07.2023 to the first Board decision was also flatly dismissed without making a new justification by the Kayseri Expertise Regional Board with the decision dated 06.09.2023, meeting no 2023/10, discipline no 2023/38, decision no. 2023/134, saying "with the justifications of the first decision".
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