Claim For Moral Damages Due To Unjust Complaint Of The Plaintiff Lawyer To The Bar Association
T.C. JUDICIAL COURT 4TH CIVIL CHAMBER E. 2015/702, K. 2016/173, T. 11.1.2016
* claim for moral damages due to the plaintiff lawyer’s unfair complaint to the bar association ( The Bar Association Decided Not to Open Disciplinary Proceedings / The words used by the defendant in the complaint petition were not insulting – Even the Offensive Thoughts Expressed by the Defendant will be Protected within the Scope of Freedom of Expression and Thought and the Statements in the Nature of Personal Value Judgment will be Accepted to Remain within the Limits of Criticism/Rejection of the Compensation Request)
* DEMAND FOR PAYMENT OF PECuniary DAMAGES INCURRED BECAUSE OF UNFAIR COMPLAINT ( Allegation that the Plaintiff Lawyer was Unjustly Complained to the Bar Association / The Words Used in the Defendant’s Complaint Petition Do Not Constitute Defamation – There is Ordinary Suspicion and Concrete Evidence That the Defendant Complained About the Plaintiff / The Case Should Be Dismissed )
* RIGHT TO COMPLAINT ( Persons Have the Right and Authority to Demand the Protection of Their Rights, Legal Action and Punishment Against Those Who Harm Them – The Existence of Some Signs and Facts, Even If Weak and Indirect, Is Sufficient to Justify the Complaint / Based on These, It Will Be Accepted That It Is Lawful to Use the Right to Complain in Cases Where Others Can Act Like the Defendant Against the Same Event )
* FREEDOM TO SEEK RIGHTS ( Persons Have the Right and Authority to Demand the Protection of Their Rights, Legal Action and Punishment Against Those Who Harm Them – The Existence of Some Signs and Facts, Even If Weak and Indirect, Which Justify the Complaint Is Sufficient )
2709/m. 12, 25, 26, 36
6098/m. 49
4721/m. 24, 25
SUMMARY : The lawsuit is related to the claim for compensation for the moral damage suffered due to unfair complaint.
The plaintiff, who works as a lawyer, stated that he made a phone call to the defendant, who is a company official, in order to reconcile on behalf of his clients who were dismissed from the non-suitable job, but the defendant complained to the Bar Association by attributing different meanings to the phone call, and as a result of the complaint, the Bar Association disciplinary board decided not to open a disciplinary proceeding since the allegations were groundless, and requested the payment of the moral damage he suffered.
Persons have the right and authority to demand the protection of their rights, legal action and punishment against those who harm them, either before judicial authorities or by applying to authorized institutions and organizations. The existence of certain signs and facts, even if weak and indirect, is sufficient to justify the complaint. Based on these, it should be accepted that the exercise of the right of complaint is lawful in cases where others can act like the defendant in the face of the same event. Otherwise, it should be concluded that the complaint is used by exceeding the limits of the freedom to seek rights and constitutes an attack on personal values.
It should be accepted that the words used in the defendant’s complaint petition are personal value judgments, do not constitute an insult, even the unpleasant and disturbing thoughts expressed by the defendant in the said complaint petition should be protected within the scope of freedom of expression and thought, and the statements in the nature of personal value judgments should be accepted within the limits of criticism. With the acceptance that there are ordinary doubts and concrete indications for the defendant to complain about the plaintiff, the request should be rejected completely.
LAWSUIT : At the end of the trial held by the court upon the request for non-pecuniary damages due to the attack on the personal rights of the plaintiff A. A. by Attorney Ö. K. on behalf of the plaintiff A. A., against the defendant S. G. with the petition dated 31/07/2013; the Supreme Court of Appeals examination of the decision dated 27/10/2014 on the partial acceptance of the case was requested by the defendant’s attorney within the time period, and after the acceptance of the appeal petition was decided, the report prepared by the examining judge and the papers in the file were examined and discussed as required:
DECISION : The lawsuit is related to the claim for payment of moral damages incurred due to unfair complaint. The court accepted a part of the claim and the decision was appealed by the defendant.
The plaintiff stated that he worked as a lawyer registered to the A… Bar Association, that he made a phone call to the defendant, who was a company official, in order to reconcile on behalf of his clients who were dismissed from their jobs, but that the defendant attributed different meanings to the phone call and complained to the A… Bar Association, and that as a result of the complaint, the disciplinary board of the A… Bar Association decided not to open a disciplinary proceeding since the allegations were groundless, and requested payment for the moral damage he suffered.
The defendant defended that he used his legal right of complaint and the lawsuit should be dismissed.
The court accepted that the expressions used by the defendant in the complaint petition submitted to the bar association were deemed to be an attack on the personal rights of the plaintiff and decided to partially accept the lawsuit.
The right to file a complaint, in other words, the freedom to seek rights, is included in Article 36 of the Constitution as “. . .”. The freedom to seek rights is guaranteed in this way; persons have the right and authority to demand the protection of their rights, legal action and punishment against those who harm them, either before judicial authorities or by applying to authorized institutions and organizations.
In addition to the freedom to seek rights guaranteed by the Constitution, Article 12 of the Constitution titled “. ” states that everyone has inviolable, inalienable, inalienable, inalienable fundamental rights and freedoms attached to his/her personality, and Article 17 stipulates that everyone has the right to life, protection and development of his/her material and spiritual existence. In Article 24 of the TCC, the elements of the attack on personal rights are specified and its illegality is explained. In Article 25, it is explained that the attack against the personal rights shall be protected through litigation, and the sanction of the attack is regulated in Article 49 of the Code of Civil Procedure.
In cases where the freedom to seek rights and personal rights come into conflict, it is unthinkable for the legal order to protect these two values at the same time. It will be accepted that it is appropriate for the less superior benefit to remain unprotected in that case and for that moment against the benefit that should be kept more superior. The freedom to seek rights is not unlimited as in other freedoms, and one cannot use this right only to harm others. In order for this right to be legally protected and to be accepted as properly exercised, it is not necessary that there is sufficient evidence to require the complainant to be punished or held responsible. It is sufficient to have some indications and facts that justify the complaint, even if they are weak and indirect. Based on these, it should be accepted that the exercise of the right of complaint is lawful in cases where others can act like the defendant against the same event. Otherwise, it should be concluded that the complaint is used by exceeding the limits of the freedom to seek rights and constitutes an attack on personal values.
From the information and documents in the file, the plaintiff is a lawyer and the defendant is a company representative, the defendant filed a petition of complaint to the bar association due to the plaintiff’s telephone conversation with the defendant due to the labor receivables of his non-suit clients, when the development of the incident and the entire petition are evaluated together, the words used in the petition of complaint are personal value judgments, they do not constitute insult, even the unpleasant and disturbing thoughts expressed by the defendant in the said petition of complaint are considered to be in violation of Article 10 of the A. S. Article 10, Article 26 of the Constitution, should be protected within the scope of freedom of expression and thought, the statements in the nature of personal value judgment should be accepted to remain within the limits of criticism, in this respect, with the acceptance that there are ordinary doubts and concrete indications in the defendant’s complaint against the plaintiff, it was not correct to partially accept the request instead of rejecting it in its entirety, and the decision had to be reversed.
CONCLUSION : It was unanimously decided on 11.01.2016 that the appealed decision should be reversed for the reasons shown above and the prepaid fee should be refunded if requested.