Cross-examination in civil procedure law: A comparative analysis and its ineffectiveness in Turkish practice

The convergence of procedural laws in a globalizing world brings about the transplantation of institutions belonging to different legal families. In this direction, with Article 152 of the Code of Civil Procedure No. 6100 (HMK), which entered into force on 1 October 2011, the institution of “Examination” (Direct Questioning) was introduced into Turkish civil procedure law. In Turkey, which adopts the Continental European legal tradition where the judge plays a dominant role as a reflection of the inquisitorial model, this regulation—inherent to the adversarial system of Anglo-American law and enabling lawyers to question witnesses or experts directly without the mediation of the judge—is a structural novelty. However, in practice, this institution has not gained sufficient functionality and has remained an ineffective right due to both the hesitation of lawyers and the judges’ motivation to expedite trials. This study analyzes the authority to direct questions under Article 152 of HMK not merely as a narrow technical right but as an umbrella concept encompassing “direct examination” and “cross-examination” in Anglo-American law, utilizing it as a procedural case study. The article argues that the lack of detailed procedural regulations in the Code does not prevent the application of examination techniques and tactics developed over centuries in US law, provided they are compatible with the nature of Turkish civil procedure. Revitalizing these methods to reach the material truth and ensure the right to a fair trial will also pave the way for future legal reforms. Furthermore, the study emphasizes that the current system of trial transcripts based on narrative summaries (summary record) is fundamentally contrary to the nature of cross-examination; therefore, for the system to function effectively, a transition to a “verbatim record” system, which ensures the word-for-word recording of every statement, is an absolute necessity.