Consequences of Decisions in Cases Requiring Technical Expertise Without Expert Examination in Administrative Trials

Introduction

Article 31 of the Administrative Procedure Code No. 2577 (“APC”) sets out the cases to which Civil Procedure Code No. 6100 (“CPC”) shall apply where IYUK contains no provisions. As per the referred provision, CPC shall apply to expert examinations.

According to Article 266 of the CPC, courts decide to obtain expert opinion in cases where the resolution require special or technical information other than law, ex-officio or upon request of either party. However, courts cannot appoint experts in cases which can be resolved through experience, or the legal knowledge required by the profession of judgeship.

Precedents of the Council of State

As per the precedents of the Council of State, the lack of expert examination in cases requiring special and technical information to be resolved constitutes deficient examination, which sets grounds for the local court’s decision to be revoked.

Indeed, 10^th Chamber of the Council of State pointed out that the local court must have conducted an expert examination in a case initiated with the request for a guideline concerning touristic route planning to be cancelled, as the resolution of the dispute relates to:

• The impact of the road on the environment,
• Whether the road can pass through the agricultural wetlands or not, and
• Alternative routes.

All of which require special and technical information. In this regard, the Council of State revoked the local court’s decision on grounds of deficient examination[1].

Again, in another case, 10^th Chamber of the Council of State examined a lawsuit initiated with the request for an administrative action rejecting the application for changing the route of a road passing through the plaintiff’s immovables to be cancelled. In the referred dispute, the Council of State stressed that the court must have evaluated:

• Whether the road in question fulfils the construction specifications or not,
• Whether the road can be technically shifted by way of revising the project in line with the plaintiff’s request or not,
• How the change would affect the road construction expenses, environment and other factors,
• The accuracy of the route in technical terms, and
• Compliance with the master plans, if any.

The Council of State revoked the local court’s decision by stating that, since the abovementioned points require technical information and expertise, the local court must have rendered a decision by way of obtaining an expert report upon conducting an on-site examination regarding the area in dispute[2].

In another case related to the cancellation of the master plan revision concerning an area transformed into park from parking lot, the 6^th Chamber of the Council of State also emphasized that determining the compliance with the master plans and the existence of public interest is a technical issue requiring expertise; and revoked the local court’s decision by stating that the court must have conducted an on-site examination and expert review[3].

In a case related to the cancellation of the rejection of an application for removing a cesspool connected to a sewage system to another location, the local court rejected the lawsuit on grounds that:

• There is no evidence supporting the plaintiff’s claims that the misplacement of the cesspool connected to the sewage system causes damage to human and animal health as the sewage mixes to the drinking water,
• Analysis provided no data showing that ammonium mixes to the water.

The 8^th Chamber of the Council of State revoked the local court’s decision on 04 February 2022 on grounds of deficient examination and stated that the local court must have conducted an expert examination, as the matter requires special and technical information[4].

Remarks

Clearly, the Council of State’s settled precedents revoke the court decisions rendered without expert examination in cases requiring special and technical information to be resolved on grounds of deficient examination. The precedents further stress that the purpose of applying for expert opinion is to obtain the necessary data required to render a lawful decision, and the experts should be appointed among persons having special and technical knowledge regarding the matter. Additionally, the precedents indicate that expert reports must respond to the questions clearly and beyond doubt, and the content of the report must bear the necessary qualifications to be relied on by the court.

[1] 10^th Chamber of the Council of State, E. 2013/885 K. 2015/2981, Date: 15.6.2015

[2] 10^th Chamber of the Council of State, 2012/6591 E., 2013/818 K., Date: 11.2.2013

[3] 6^th Chamber of the Council of State, E. 2017/856 K. 2021/4755 Date: 30.3.2021

[4] 8^th Chamber of the Council of State, E. 2017/549 K. 2022/553 Date: 4.2.2022

First published by ILO - Litigation Newsletter in Aug 23, 2022.