Material And Moral Damages Suffered Due To Death Resulting From A Traffic Accident Caused By A Police Officer
Republic of Turkey
Supreme Court of Appeals
General Assembly of Civil Law
Case No.: 2013/1235
Decision No.: 2015/849
Date: February 18, 2015
Following the trial concerning the “material and moral damages” case between the parties, the Istanbul 12th Civil Court of First Instance (now closed Şişli 3rd Civil Court of First Instance) partially accepted the case and issued Decision No. 2006/373 dated 22.02.2011 – 2011/70 Decision, was requested to be reviewed by the defendants’ attorney, and the Supreme Court of Appeals 4th Civil Chamber, with its decision dated 20.06.2012 and numbered 2011/7590 Case-2012/10846 Decision;
(…1-Based on the documents in the file, the evidence on which the decision is based, the compelling reasons required by law, and in particular the absence of any inaccuracy in the evaluation of the evidence, the defendant İ.. B..’s appeal should be rejected.
2-Regarding the defendant İ.. B..’s appeal:
The case concerns a claim for compensation for material and moral damages suffered as a result of death caused by a traffic accident. The local court accepted part of the claim; the decision was appealed by the defendants.
The plaintiffs claimed material and moral damages, stating that their breadwinner, H.. B.., died as a result of a traffic accident on 09/09/2003.
The defendants argued that the claim should be dismissed.
The local court, based on the expert reports on fault and calculation dated 09/18/2008 and 04/20/2010, decided to partially accept the case against both defendants.
Damage caused to individuals by public officials while exercising their authority or performing their duties constitutes a service fault of the relevant public institution. In this case, the responsible party is the public institution under which the public official works, and the lawsuit must be filed against that institution. (Turkish Constitution 40/III, 129/V, 657 Sy. K.13, HGK 2011/4-592 E., 2012/25 K.) The legal regulations on this matter contain mandatory provisions. On the other hand, from the perspective of the fundamental principles of Liability Law, the fact that this regulation is included in the legislation is an important guarantee for the compensation of the injured party’s damages.
The defendant İ.. B..’s appeal objections were rejected for the reason explained in paragraph (1) above, and the relevant section of the judgment was upheld, while the appealed decision was overturned in favor of the defendant İ.. B.. for the reason explained in paragraph (2)…
was overturned by a majority vote and the case was remanded for retrial, at the end of which the court upheld its previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
The General Assembly of Law reviewed the case and found that the appeal against the decision to uphold the previous ruling was filed within the time limit and that, as of the date the decision to uphold the previous ruling was issued, pursuant to the provisions of Article 438/II of the Code of Civil Procedure No. 1086, as amended by Law No. 2494, the defendant İ.. B..’s request for a hearing was rejected, and after reviewing the documents in the file, the following decision was reached:
The case concerns a claim for compensation for material and moral damages suffered as a result of death caused by a traffic accident.
The court partially accepted the claim; upon the defendants’ appeal, the decision was overturned by the Special Chamber for the reasons explained in the heading section above; the court upheld its previous decision.
The defendants appealed the decision to uphold the decision.
I-Regarding the review of the appeal filed by the representative of the defendant İ…. B..
The dispute brought before the General Assembly of the Court of Appeals through the appeal process centers on whether the traffic accident caused by the defendant police officer, a public servant, resulted from the defendant public servant’s professional negligence or personal negligence, and, depending on the conclusion reached, whether the public servant can be sued for material and moral damages in a civil court.
To resolve the dispute, the legal regulations, concepts, and institutions concerning the state’s liability for damages caused by the actions of public officials must first be examined:
A public official is defined in Article 6(1)(c) of Turkish Criminal Code No. 5237 as “a person who participates in the execution of public activities through appointment or election or in any other manner on a permanent, temporary, or provisional basis.” According to this definition, the sole criterion for a person to be considered a public official is that the work they perform is a public activity.
In the explanatory memorandum to the aforementioned article, public activity is defined as “the performance of a service on behalf of the public by means of a political decision taken in accordance with the procedures laid down in the Constitution and the laws.”
Article 4, paragraph 1 of the Civil Servants Law No. 657 states that “public services shall be performed by civil servants, contract personnel, temporary personnel, and workers.” Paragraph (D) of the same article states that “workers: those employed under indefinite-term employment contracts in permanent worker positions allocated in accordance with the relevant legislation, other than those specified in paragraphs (A), (B), and (C) and who are employed under indefinite-term employment contracts in permanent worker positions allocated in accordance with the relevant legislation, as well as temporary workers employed under fixed-term employment contracts for less than six months in seasonal or campaign work or in forest firefighting services in temporary positions in accordance with the relevant legislation.”
When we look at the regulations regarding the financial liability of public personnel;
Article 40 of the Turkish Constitution No. 2709, titled “Protection of Fundamental Rights and Freedoms,” states:
“Everyone whose fundamental rights and freedoms are violated by the Constitution has the right to request that the opportunity to apply to the competent authority without delay be provided.
The State must specify in its proceedings which legal channels and authorities the persons concerned may apply to and the time limits for doing so.
Any damage suffered by a person as a result of unjust actions by public officials shall be compensated by the State in accordance with the law. The State reserves the right to seek recourse from the relevant official responsible.”
The first sentence of the first paragraph of Article 125, titled “Judicial Remedy,” which regulates judicial remedies against the administration, states: “Judicial remedies are available against all actions and proceedings of the administration.” In accordance with the last paragraph of the article, “The administration is obliged to pay for the damage arising from its own actions and proceedings.” Article 129, which regulates the duties and responsibilities of public officials, states in its first paragraph: “Civil servants and other public officials are obliged to act in accordance with the Constitution and the laws.” The fifth paragraph states: “Compensation claims arising from faults committed by civil servants and other public officials while exercising their powers may only be brought against the administration, subject to recourse against the civil servants and other public officials, and in accordance with the form and conditions specified by law.”
The aforementioned articles of the Constitution aim to prevent civil servants and other public officials from being brought before the courts, rightly or wrongly, on the grounds that they acted negligently while exercising their powers, to ensure the uninterrupted performance of public services, and at the same time, to protect public order by making the State, which has a higher payment capacity than the civil servant or other public official, the addressee on behalf of the person who has suffered damage.
Indeed, in its decision dated September 14, 1983, No. 1980/4-1714 E., 1983/803 K., the General Assembly of the Court of Cassation discussed the purpose of Article 129/5 of the Constitution; “The Constitution of the Republic of Turkey never eliminates the legal liability for actions and behaviors that cause damage; on the contrary, it introduces the principle of State liability, which should be considered more secure for those who suffer damage,” it was stated, reaching the same conclusion.
A regulation parallel to these constitutional provisions is found in Article 13 of the Civil Servants Law No. 657, as amended by Article 6 of Law No. 2670 dated May 12, 1982.
The first paragraph of Article 13 of Law No. 657, titled “Damages Suffered by Individuals,” as amended by Article 1 of Law No. 3657 dated June 6, 1990, states:
“Persons shall file lawsuits against the relevant institution, not against the personnel performing the duties, for damages they have suffered in connection with duties subject to public law. However, in the event that money or valuable papers equivalent to money deposited with or collected or kept by government offices are embezzled by the relevant personnel, the amount embezzled shall be paid to the rightful owner by the Treasury without waiting for the outcome of criminal proceedings. The institution reserves the right to seek recourse from the responsible personnel in accordance with general provisions.”
This provision is stipulated.
In the justification of Article 13 of the Civil Servants Law No. 657, which is the implementing law of Article 129/5 of the Constitution;
“This article regulates the liability for damages to be awarded to those administered in respect of duties subject to public law.
The guarantee in the article should be examined from two perspectives;
First and foremost, there is a guarantee in favor of those administered. Those administered may file a lawsuit directly against the institution responsible for the duties subject to public law for damages caused to them, and thus find a defendant with the actual ability to pay. Otherwise, especially in cases of large damages, even if they win the case, they may be faced with a civil servant who is unable to pay. However, as the article stands, they will always find an institution with the ability to pay before them.
The second safeguard concerns civil servants, or more precisely, ‘personnel responsible for services subject to public law’. Such personnel will not be under a constant threat of compensation while performing their duties and, consequently, will not face the disadvantage of public services being perceived as overly burdensome. However, not being under the constant and direct threat of litigation should not be understood to mean that civil servants can act completely irresponsibly. This article protects civil servants from constantly having to deal with lawsuits filed against them in court, but their liability to the administration for damages caused to the administration in the course of their duties continues…”.
It is clear that Articles 40/3, 125/final, and 129/5 of the Constitution clearly define the framework for implementation, explicitly stating that “lawsuits for damages arising from faults committed by civil servants and other public officials in the exercise of their powers may only be brought against the administration on condition of recourse.”
Fault is not defined in our laws. According to the definition accepted in practice and doctrine, fault is conduct that is censurable under the legal system. The reason for censure is that, while there was the possibility and obligation to act differently, one did not do so and deviated from that standard. In short, fault, in its general definition, is the condemnation of a behavior by the legal system; this condemnation stems from the fact that the behavior deviates from the average behavior expected from individuals under certain conditions.
Again, according to the prevailing view in doctrine and practice, fault is divided into two categories for the purposes of liability law: intent and negligence. In this context, intent is the deliberate and intentional causing of a result contrary to the law; negligence is the failure to take the necessary precautions and exercise due care to prevent such a result, even though the result contrary to the law is not intended.
When viewed within the framework of administrative law principles, it is a well-established principle that the personal fault of a public official in relation to their actions and transactions carried out using service vehicles during the performance of their duties will constitute a service fault, even if it constitutes an intentional crime, and therefore any lawsuits that may be filed can only be filed against the administration. (Council of State 10th Chamber, dated 20.04.1989, No. 1988/1042 E., 1989/857 K.).
At this point, it is necessary to focus on the purpose of the concepts of “while exercising their powers” and “personnel performing these duties”:
Another condition for the state’s liability is that the damage must have been caused by a civil servant or other public official “while performing their duties” and “while exercising their powers related to their duties.”
Therefore, there must be a functional (official) link between the “performance of the duty” and the damage caused by the “exercise of authority”; the damage must have arisen during the performance of the public duty (public authority) and because of that duty and authority.
Civil servants and other public officials are directly liable for damage caused to third parties while performing their private affairs as private individuals, outside their capacity as public officials, in accordance with private law provisions (Fikret Eren, General Provisions of the Law of Obligations, 12th Edition, Istanbul 2010, p. 590 et seq.). In other words, if third parties suffer damage due to an act or omission of a public servant or agent that could be considered a service defect during the performance of a public service, the incident falls outside the jurisdiction of the judicial court; a full-fledged lawsuit must be filed against the administration in the administrative court (Tekinay, General Provisions of the Law of Obligations, Tekinay/Akman/Burcuoğlu/Altop, 7th Edition, Istanbul 1993, pp. 504-505).
All these explanations show that if a connection can be established between the damage suffered by individuals and the duties performed by the public personnel who caused the damage, then there is a situation related to the duty, and such behavior, regardless of whether it is intentional or negligent, constitutes personal fault of the public employee that cannot be separated from the service. This is expressed in the phrase “damage suffered by persons in connection with duties subject to public law” in Article 13 of Law No. 657.
On the other hand, since Article 129/5 of the Constitution refers to the condition of “fault,” it must be accepted that lawsuits arising from the actions of a civil servant or public official exercising their authority must be brought against the administration, regardless of whether the action was committed intentionally or negligently.
Indeed, the Supreme Court of Appeals General Assembly of Civil Law, in its decisions dated February 1, 2012, with case number 2011/4-592 and decision number 2012/25; December 25, 2012, with case number 2013/4-419 and decision number 2013/1690; February 26, 2014, case number 2013/4-579, decision number 2014/155; November 19, 2014, case number 2013/4-1120, decision number 2014/922.
In light of these principles, when the specific case is evaluated; on September 9, 2003, at around 08:30, the defendant İ.. B.., while driving a car with license plate number 34….01 in the direction of Mecidiyeköy from Şişli, entered the pavement on the left side in the direction of travel and attempted to cross to the right side, colliding with the left front part of the vehicle driven by the police officer B.. B.., who was attempting to cross from the left side of the road in the direction of travel to the right side. It is understood that the plaintiffs filed the present compensation lawsuit against the police officer who was driving the vehicle and İ.. B.., alleging that their negligent behavior caused the death of their deceased relatives.
According to the report of the Forensic Medicine Institute’s Traffic Expertise Department, the defendant was found to be secondarily at fault, while the plaintiffs’ deceased relative was found to be primarily at fault in the incident. Furthermore, a public prosecution case was initiated against the defendant driver, İ.. B.. was prosecuted for the crime of “causing death as a result of negligence and carelessness,” and upon appeal of the decision rendered as a result of the trial, the Supreme Court of Appeals 9th Criminal Chamber, in its decision dated 04.02.2008, case no. 2007/5482, decision no. 2008/626, also ruled that “failing to consider that a stay of proceedings should have been ordered for the purpose of obtaining permission to investigate, in accordance with the provisions of Law No. 4483, given that the defendant was alleged to have committed the crime while on duty.”
The plaintiffs’ claim is based on a fault committed by the defendant, who worked as a police officer at İ.. B.., during his duties and while performing his duties, and on the nature of this fault as negligence on the part of a public official.
Therefore, since the defendant’s personal fault outside the scope of his duties is not relied upon, and since the action is based on carelessness and negligence, but is related to the performance of his duties and constitutes a service fault, the dispute in this case falls on the administration, not the public official.
II-In the examination of the appeal request of the representative of the defendant İ.. B..;
The decision rendered by the Special Chamber, based on the reasoning explained in the heading section above, to partially uphold the decision of the local court regarding the lawsuit filed against the defendant İ.. B.. and to reject the defendant İ.. B..’s request for a correction of the decision, the decision has become final with respect to the aforementioned defendant, and therefore, the Ministry has no legal interest in appealing the decision to resist.
Therefore, the defendant İ.. B..’s appeal request should be rejected.
During the deliberations, some members argued that the defendant driver’s personal and service-related negligence should be relied upon in the case and that the local court’s decision to uphold the appeal should be affirmed. However, this opinion was not accepted by the majority of the Board for the reasons stated above.
For the reasons explained above, while the Special Chamber’s decision to overturn the ruling, which was also adopted by the General Assembly of the Court of Appeals, must be complied with, the previous decision to uphold the ruling is contrary to procedure and law.
Therefore, the decision to uphold the ruling must be overturned.
CONCLUSION: 1-Since the defendant İ.. B..’s representative has no legal interest in appealing the decision to uphold the ruling, as explained in paragraph (II) above, the appeal is REJECTED, unanimously at the first meeting held on 02.18.2015.
2-For the reasons explained in paragraph (I) above, the defendant İ.. B..’s appeal objections are accepted, and the decision to resist is overturned for the reasons stated in the Special Chamber’s overturning decision, pursuant to Article 30 of Law No. 6217 and the “Provisional Article 3” added to the Code of Civil Procedure No. 1086 pursuant to Article 429 thereof, and that the appeal fee be refunded to the payer upon request, was decided by majority vote at the second hearing held on February 25, 2015.
DISSENTING OPINION
The report dated 18.09.2008 of the Traffic Expertise Department of the Forensic Medicine Institution, on which the judgment is based, states that the defendant driver, İ.. B.., while driving the vehicle belonging to the other defendant Institution, did not warn the pedestrian who wanted to cross the road, and that although he applied the brakes when he saw the pedestrian entering the road to cross, he was 25% at fault for the accident that occurred as a result of hitting the pedestrian after applying the brakes for 13 meters, due to his actions contrary to the duty of care and diligence. The plaintiffs’ support, the deceased pedestrian H.. B.., who was supporting the plaintiffs, was struck by the vehicle driven by the defendant driver when he attempted to cross the road without checking the traffic and without considering the speed and distance of the approaching vehicle, thereby failing to yield the right of way. It was determined that the defendant was 75% primarily at fault for violating the duty of care and diligence. On the other hand, it is also seen that the fault ratio in the aforementioned report is parallel to the fault ratio in the report dated 28.09.2004 obtained by the criminal court.
It should be noted that causing injury or death to a person as a result of a traffic accident constitutes a tort against that person.
Article 41 of the repealed Code of Obligations No. 818 (BK) defines tort in Article 41 (Article 49 of the New Civil Code (TBK)), which regulates “debts arising from wrongful acts,” as follows: “A person who causes harm to another person wrongfully, whether intentionally, through negligence and indifference, or through carelessness, is obliged to compensate for that harm.”
The subject matter of the case concerns a claim for compensation for damage caused by conduct contrary to the provisions of the Highway Traffic Law No. 2918 (KTK). The defendant Administration is in the position of operator according to the provisions of the aforementioned law. Article 106 of the same Law stipulates that the provisions of this law regarding legal liability shall apply to damages caused by motor vehicles belonging to general and supplementary budget departments, special administrations, municipalities, and public economic enterprises. Articles 85 and following, which regulate the legal liability of the operator, stipulate that real and private persons, as well as public legal entities, are subject to the same liability rules without distinction for damages arising from the motor vehicle’s violation of traffic rules.
On the other hand, the Highway Traffic Law No. 2918 (KTK) regulates the responsibilities of the operator and the driver and determines that this responsibility is joint and several liability. Indeed, Article 110 of the KTK stipulates that “liability cases arising from this law, including those related to damages caused by vehicles owned or operated by the State and other public institutions, shall be heard in the judicial courts. The fact that the injured party is a public official does not prevent the application of this paragraph.”
It is clear that the liabilities arising from vehicle traffic on the roadway as defined in the KTK fall within the scope of private law, that there is no use of authority derived from public power by the administration, and that public officials must assume liability in cases where an act is committed that is defined as a crime in the criminal code or other laws.
In light of these provisions of the Highway Traffic Law No. 2918, the administration should be held liable for damages caused by public vehicles not under public law rules, but under private law rules as the “operator.”
In the specific case, it is understood that the defendant driver’s actions constitute a lawsuit arising from personal negligence and failure to fulfill the duty of care, without being related to a service defect as a whole. Both in doctrine and in judicial decisions, the personal actions and behaviors of personnel have not been considered administrative actions and proceedings, and it has been accepted that the place of examination for lawsuits based on personal negligence is the Judicial Court. (Tekinay-Akman-Burcuoğu-Altop, General Provisions of the Law of Obligations, 1988 edition, p. 681; Cüneyt Ozansoy, Liability Arising from the Fault of the Administration from a Historical and Theoretical Perspective, Doctoral Thesis, 1989, p. 330 et seq.)
Therefore, considering the material and legal facts explained above, we believe that the local court’s decision to accept the case should be upheld.