TC
HighCassation General Board
Case No: 2013/1235
Judgment No: 2015/849
K. Date: 18.2.2015
As a result of the “material and moral damage” case between the parties, the Istanbul 12th High Court of First Instance (Closed Şişli 3rd The examination of the decision of the Court of First Instance (Court of First Instance) dated 22.02.2011 and Decision numbered 2006/373 Esas- 2011/70 on the partial acceptance of the case was requested by the defendant’s attorneys to the Supreme Court. 4. With the addition of the 2011/7590-2012 Decision of the 4th Civil Chamber dated 20.06.2012 and numbered 2012/10846;
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1-According to the articles in the file, the evidence on which the decision is based and the reasons for necessity according to the law, especially if there is no inaccuracy in the evaluation of the evidence, the defendant is I..…1…1-According to the articles in the file, the evidence on which the d-According to the articles e evidence on which the decision is based and the reasons for necessity according to the law, especially if there is no inaccuracy in the evaluation of the evidence, the defendant is I.. B.. The appeal request should be rejected by the court.
2-Defendant I.. B.As for the appeal request of .:
The case is about the request for compensation for material and moral damage caused by death as a result of a traffic accident. Part of the case was accepted by the local court; the decision was appealed by the defendants.
Plaintiffs, by offering their support as a result of a traffic accident that occurred on 09/09/2003, B..stating that he had passed away, they demanded financial and moral compensation.
The defendants argued that the request should be rejected.aintiffs, by offering their support as a result of a traffic accident that occurred on 09/09/2003, B..stating that he had passed away, they demanded financial and moral compensat.
The second safeguard applies to civil servants, or more precisely, to “personnel responsible for services subject to public law.” This personnel will not be under constant threat of compensation while performing their duties and will therefore not face the disadvantage of public services being considered burdensome. However, it should not be understood that civil servants can act completely irresponsibly as long as they are not under constant and direct threat of litigation. This article states that civil servants are protected from having to constantly deal with lawsuits filed against them in court, but they remain liable to the administration for any damage caused to it in the course of their duties…
Articles 40/3, 125/final, and 129/5 of the Constitution clearly outline the framework for implementation, explicitly stating that “compensation lawsuits arising from faults committed by civil servants and other public officials while exercising their powers may only be brought against the administration with recourse.”
Article 129/5 of the Constitution contains provisions regarding the resolution of disputes. It is important to determine what is meant by the phrase “negligence committed while exercising their powers” in the article, and at this point, it is useful to explain “negligence”:
Negligence is not defined in our laws. According to the definition accepted in practice and doctrine, fault is conduct that is reprehensible under the legal system.
The reason for censure is that, while there was the possibility and obligation to act otherwise, the person deviated from this course of action. The reason for censure is that, despite having the opportunity to act differently and despite it being mandatory, the individual deviated from this standard by acting in this manner. In short, fault, in its general definition, is the condemnation of a form of behavior by the legal system; this censure stems from the deviation of the behavior in question from the average form of behavior expected from individuals under certain conditions.
Again, according to the prevailing view in teaching and practice, fault is divided into two categories in terms of liability law: intent and negligence.
In this context, intent is the deliberate and intentional causing of a result that is contrary to the law; negligence is the failure to take the necessary measures and exercise the necessary care to prevent such a result, even if the result is unintended.
When the incident is evaluated within the framework of administrative law principles, it is understood that the personal fault of a public official arising from their actions and transactions while on duty using the means of service, even if it is an intentional crime, will constitute a service fault, and therefore, any lawsuits that may be filed can only be filed against the administration. (Council of State 10th Chamber, dated 20.04.1989, 1988/1042 E., 1989/857 K. No. 1).
Meanwhile, it is necessary to emphasize the purpose of the concepts of “exercising their powers” and “personnel performing these duties”:
Another condition for the state’s liability is that the damage must have been caused by the official and other public servant “while on duty” and “while exercising their powers related to their duties.”Currently, there must be a functional (non-constructive) link between “performing duties” and “exercising authority” and the resulting damage; the damage must have arisen during the performance of public duties (public authority) due to these duties and authority.
According to private law provisions, civil servants and other public officials, both in their official capacity and as private individuals, are directly liable for damage caused to third parties while performing their private affairs (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 during the performance of a public service, the incident caused by an act or omission of a public official or representative that could be considered a service fault falls outside the scope of judicial accident; and a full trial 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).
These interpretations state that damages and losses suffered by individuals due to any kind of damage that can be linked to the public official’s ongoing duties and status related to their position, and the intentional or negligent nature of such behavior, independent of personal faults, are covered by the phrase “damages suffered by individuals in connection with their duties subject to public law” in Article 13 of Law No. 657 “damages suffered by individuals in connection with their duties subject to public law.”
On the other hand, according to Article 129/5 of the Constitution, regardless of whether the act committed by the official or public servant while on duty was intentional or negligent, it must be accepted that lawsuits arising from such acts should only be brought against the administration.
Indeed, based on the decision of the General Assembly of the Court of Cassation dated 01.02.2012 and numbered 2011/4-592, the decision numbered 2012/25; the decision dated 25.12.2012 and numbered 2013/4-419, the decision numbered 2013/1690; the decision dated February 26, 2014, numbered 2013/4-579, and the decision dated November 19, 2014, When the specific case is evaluated in light of these principles; on September 9, 2003, at around 08:30, the defendants İ..B..34…. were traveling from Şişli towards Mecidiyeköy in a vehicle with license plate number 01, and the plaintiffs’ deceased relatives, Yaya H., stated that they wanted to enter the pavement on the left side in relation to the direction of travel and cross to the right side when they arrived at the scene of the accident.
They claim that the police officer driving the vehicle, along with the vehicle driver, are plaintiffs in this case, alleging that their negligent behavior caused the death of the plaintiff’s predecessor due to an accident that occurred as a result of the vehicle driven by B.. colliding with the front left side of the vehicle. It is understood that the plaintiffs have filed a counterclaim for damages against The decision to partially accept the case filed against Defendant I.. B.. by the local court was upheld by the Special Chamber for the reasons explained in the above heading.
The decision to reject the Ministry’s request for correction of the decision regarding Defendant I.. B.. was also issued and has become final with respect to the said defendant. Therefore, the Ministry has no legal interest in appealing the decision to uphold the decision.
Therefore, it is necessary to decide to reject the defendant I.. B..’s request for objection.
During the discussions, some members argued that the local court’s decision to uphold the objection should be upheld due to the personal and professional negligence of the defendant driver in the incident, but this opinion was not accepted by the majority of the Board for the reasons stated above.
For the reasons explained above, compliance with the decision of the Special Chamber issued by the General Assembly of the Court of Appeals is mandatory, and insisting on the previous decision is contrary to procedure and law.
Therefore, the decision to insist must be overturned.
CONCLUSION: 1-Defendant I., the defendant specified in paragraph (II) above…B.. At the first meeting held on February 18, 2015, the attorney’s insistence on the REJECTION of the appeal request, on the grounds that there was no legal benefit in the appeal,
2-Defendant I., for the reasons stated in paragraph (I) above, pursuant to Article 30 of Law No. 6217 on the acceptance of appeals, with reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100, applied in accordance with Article 429 of the Code of Civil Procedure No. 1086, At the second meeting held on February 25, 2015, it was decided by majority vote to CANCEL the appeal and, if requested, to refund the appeal advance fee to the payer.
DISSENTING OPINION
The report dated 18.09.2008 by the Forensic Medicine Institution Traffic Expertise Department states that the defendant driver İ..B. was driving a vehicle belonging to the other defendant Institution, and despite braking when he saw the pedestrian entering the road to cross, no warning was given to the pedestrian who wanted to cross the road, and the accident occurred when the vehicle hit the pedestrian after braking at a distance of 13 m. After braking, the defendant driver hit the pedestrian.
As a result of this incident, the defendant driver was found to be 25% at fault for acting in violation of the duty of care and diligence. The plaintiffs’ claim is that the deceased pedestrian H.. B., who was attempting to cross the road without yielding the right of way when entering the sidewalk, without checking for traffic, and without considering the speed and distance of the oncoming vehicle. 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.Traffic accident resulting in injury or death to a person must be stated as an act of wrongdoing committed against that person.
Article 41 of Müga’s Debt Code No. 818 (Article 49 of the Turkish Civil Code), which regulates “debts arising from wrongful acts,” defines a wrongful act as “a person who intentionally, negligently, or recklessly causes unjust harm to another person is obliged to remedy that harm.” The case in question concerns a claim for compensation for damage arising from conduct contrary to the provisions of the Highway Traffic Law No. 2918 (KTK). The defendant Administration is the operator under the provisions of the aforementioned law.
Article 106 of the same Law provides that damage caused by motor vehicles belonging to general and supplementary budget departments, special administration, municipalities, and economic state institutions shall be compensated by the relevant institution.
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 state economic institutions. Articles 85 and following, which regulate the legal liability of the operator, stipulate that real and private persons and public legal entities are subject to the same liability provisions for damages resulting from the violation of traffic rules by motor vehicles.
On the other hand, the Highway Traffic Law No. 2918 regulates the liability of the operator and the driver and determines that this liability is fiduciary liability. Indeed, Article 110 of the KTK states: “Liability claims arising from this Law, including those related to damages caused by vehicles operated or owned by the State and other public institutions, shall be heard in judicial proceedings.
The fact that the injured party is a public official shall not prevent the application of this paragraph.” Under the KTK,
it is clear that liability arising from vehicle traffic on the roadways defined therein falls within the scope of private law, that public authority is not exercised by the administration, and that public officials must assume liability in the event of an act constituting a crime under criminal law 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 an “operator.”
In the specific case, it is understood that the actions of the defendant driver as a whole constitute a case arising from personal fault and failure to fulfill the duty of care, regardless of any service fault.
Both in teaching and in court decisions, the personal actions and behaviors of personnel have not been evaluated as administrative actions and transactions, and it has been accepted that cases based on personal fault should be examined by the Judicial Courts. (Tekinay-Akman-Burcuoğlu-Altop, General Provisions of the Law of Obligations, 1988 edition, p. 681, Cüneyt Ozansoy, Liability Arising from Management Negligence from a Historical and Theoretical Perspective, Doctoral Thesis (Tekinay-Akman-Burcuoğlu-Altop, General Provisions of the Law of Obligations, 1988 edition, p. 681; Cüneyt Ozansoy, Liability Arising from Management Negligence from a Historical and Theoretical Perspective, Doctoral Thesis, 1989, p. 330 et seq.)
Considering the material and legal facts explained above, we believe that the local court’s decision to accept the case should be upheld.