T.C.
Supreme
General Assembly Of Law
Principal No: 2013/1235
Decision No: 2015/849
K. Date: 18.2.2015
At the end of the trial due to the “financial and moral compensation” case between the parties; Istanbul 12. Law of first instance (closed Şişli 3. Examination of the decision no 22.02.2011 and 2006/373 basis – 2011/70 decision given by the court of First Instance on the partial acceptance of the case, on request by the attorney of the defendants, the Court of Cassation 4.With the decree no 20.06.2012 and 2011/7590 basis-2012/10846 of the Legal Department;
(…1-in accordance with the articles in the file, the evidence on which the decision is based, and the reasons required in accordance with the law, in particular, there is no fault in the evaluation of the evidence, the defendant I.. B..’s appeals must be dismissed.
2-Defendant I.. B..as for ‘ s appeal:
The case is related to the demand for payment of the material and moral damages suffered by the cause of death as a result of the traffic accident. Part of the request was accepted by the Local Court; the decision was appealed by the defendants.
The plaintiffs, as a result of the traffic accident on 09/09/2003, support H.. B..they asked for financial and moral compensation, stating that ‘ s passed away.
The defendants argued that the request should be denied.
The Local Court decided on the partial acceptance of the case from the side of both defendants, taking the expert reports on the defect and the account dated 18/09/2008 and 20/04/2010 as the basis of the verdict.
The fact that public officials harm people while exercising their powers or doing their duties constitutes a defect of service of the relevant public institution. In this case, the responsible is the public institution under which the public official is working and the case should be filed against that institution. (T.C. Its constitution is 40/III, 129 / V, 657 Sy. K.13, HGK 2011/4-592 E., 2012/25 K.) The legal regulations in this regard contain mandatory provisions. On the other hand, from the point of view of the basic principles of Liability Law, the fact that such regulation has been included in the legislation is an important guarantee for the compensation of the harmdoer.
Defendant I.. B..the defendant I of the appellate decision for the reason described in Paragraph (2) above and the rejection of the appellate Appeals for the reason described in Paragraph (1) Above and the affirmation of the relevant part of the provision.. B.. spoiling the benefit…)
at the end of the re-trial, the court resisted the previous decision by overturning the case with a majority of votes.
RESOLUTION OF THE GENERAL ASSEMBLY OF THE LAW
The law was examined by the General Assembly and it was understood that the decision to resist was appealed during the period and as of the date of the decision to resist was made, Humk No. 1086 was amended by law No. 2494 and 438/II. in accordance with the provisions of paragraph I of the defendant.. B..’s request for a hearing was refused after the papers in the file were read and the need was discussed:
The case is related to the demand for payment of the material and moral damages suffered by the cause of death as a result of the traffic accident.
The request was partially accepted by the court; the decision on the appeal of the defendants was overturned by the special Office on the grounds described in the title section above; the court resisted the earlier decision.
The defendants appealed the decision to resist.
I-The Defendant I…. B.. review of the request for appeal of the deputy;
The dispute that comes before the General Assembly of law through resistance is gathered at the point of whether the traffic accident committed by the public officer defendant police officer is caused by the service defect or personal defect of the defendant public official, and whether the animosity can be directed against the public official in the case of financial and moral damages filed at the
In order to resolve the dispute, the legal regulations, concepts and institutions relating to the liability of the state for damages caused by the actions of public officials should be examined first.:
Public servant, No. 5237 of TCK 6.Article 1.in paragraph (C) of its paragraph, it is defined as “a person who participates in the conduct of public activity on a permanent, permanent or temporary basis by appointment or election or under any circumstance”. According to this definition, the only criteria for a person to be considered a public official is that the work he sees is a public activity.
In the reason for the article referred to in public activity, it is defined as “the execution of a service on behalf of the public by a political decision made according to the procedures set out in the Constitution and laws”.
4 of the Civil Servants Act No. 657.Article 1.in its paragraph,” public services; civil servants, contract personnel, temporary personnel and workers are made to see by the ” provision is included. (D); “workers: (a), (B) and (C) except for those mentioned in paragraph, and in accordance with the relevant legislation operated under indefinite-term employment contracts with permanent workers in a continuous working of the staff allocated to seasonal or campaign work, according to the relevant legislation or in forest fire fighting services, temporary employment positions that are less than six months to be run under fixed-term contracts temporary workers. it was described as”.
When we look at the regulations regarding the financial responsibility of public personnel,;
No. 2709 T.C.The 40th edition of its constitution entitled “Protection of Fundamental Rights and Freedoms”.in the article:
“Anyone whose fundamental rights and freedoms are violated by the Constitution has the right to request the opportunity to apply to the competent authority without delay.
In its transactions, the state has to specify which law routes and authorities the persons concerned will apply to and their duration.
In accordance with the law, the state shall compensate the person for the damages suffered by the official officials as a result of the actual wrongdoing. The state reserves the right to recourse to the responsible official.”
the arrangement is located at.
125, entitled “Judicial way”, which regulates the judicial way against the administration.in the first sentence of the first paragraph of the article: “the judicial way against all kinds of actions and actions of the administration is clear.“; in accordance with the last paragraph of the article ” the administration is obliged to pay the damages arising from its own actions and operations.”129, which regulates the duties and responsibilities of public officials.article; in the first paragraph: “civil servants and other public servants are obliged to operate in accordance with the Constitution and laws.”in the fifth paragraph:” civil servants and other public officials may be prosecuted only against the administration, provided that they have recourse and in accordance with the terms and conditions set forth by the law, for damages arising from the defects they have committed in exercising their powers.”provisions are included.
The aim of the Constitution is to prevent civil servants and other public officials from being brought before the judicial authorities, to ensure that the public service is carried out without interruption, and also to protect public order by taking an addressee to the state which has a higher solvency than the civil servant or other public official in respect of the person who has suffered
As a matter of fact, 14.09.1983 day of the General Assembly of the Supreme Court of law 1980/4-1714 E., 1983/803 K. resolution 129/5 of the Constitution.the purpose of the article is discussed; ” T.C.The same conclusion was reached by stating that the Constitution never eliminates the legal responsibility associated with the actions and actions that cause the birth of the damage; on the contrary, it introduces the principle of the responsibility of the state, which should be considered safer for those who are harmed….”
Regulation in parallel with these constitutional provisions 657 civil servants law, dated 12.05.1982 and 2670 Law No. 6.amended by Article 13.it is included in the article.
Law No. 657 entitled “damages suffered by persons” 13.Article 1 of the law No. 3657 dated 06.06.1990. article amended, first paragraph:
“Persons subject to public law in relation to the duties suffered due to the damages of the personnel performing these duties, not against the relevant institution will file a lawsuit against. However, in the case of misappropriation by the personnel concerned of the money and valuable papers in the provision of money deposited or collected or maintained by the government offices, the amount embezzled shall be paid to the rightful owner by the Treasury without waiting for the result of criminal proceedings. The institution reserves the right to recourse to the personnel responsible in accordance with the general provisions.”
Provision is stipulated.
129/5 of the Constitution.Article 13 of the civil servants Law No. 657, which is the application law.justification of Article;
“This article regulates the liability for damages to be inflicted on those who are administered in respect of duties subject to public law.
The guarantee in the clause should be examined from two aspects:;
First of all, there is a guarantee in favour of those who are administered. Those who are administered shall be able to file a lawsuit directly against the responsible institution for damages caused to them due to duties subject to public law and thus find a defendant who is capable of paying the principal. Otherwise, it is possible that they face a civil servant with no ability to pay, even if they win the case, especially in respect of large damages. However, they will always be able to find an institution with the ability to pay.
The second guarantee is from the care of the civil servant, or rather, the ‘personnel tasked with services subject to public law’. Such personnel will not be threatened with permanent compensation while performing their duties, and therefore will not be faced with the disadvantage of public services being deemed too severe. However, it should not be understood that civil servants may act completely irresponsible, not to be threatened with litigation on a permanent basis and firsthand. With this article, the officer is protected from constantly dealing with the lawsuits filed against him in the courts, but his responsibility to the administration continues because of the damages he has given to the administration due to his duties….”statements are contained.
It is observed that the constitution 40/3, 125 / end, 129/5.with its articles, the framework of the application is clearly drawn;” civil servants and other public officials in the use of their authority arising from the defects in the compensation cases, only on the condition of recourse against the administration can be opened ” is clearly stated.
129/5 of the Constitution in resolving the dispute.it is important to determine what should be understood from the statement “fault they committed while using their powers” which is included in the article, and it is useful to make a statement about “defect” at this point.:
The defect is not defined in our laws. According to the accepted definition in practice and teaching, flaw is behavior that can be condemned by the rule of law. The reason for the condemnation is that he deviated from this style by not being treated in this way when there was an opportunity to behave otherwise and when it was necessary. In short, the defect, by its general definition, is a condemnation of a style of conduct by the order of law; this condemnation is caused by the fact that that behavior has deviated from the average style of action expected of individuals under certain circumstances.
Again, according to the prevailing view in doctrine and practice, it is accepted that in terms of the law of responsibility, flaw is divided into caste and neglect (taxir). In this context, caste is the deliberate and willful creation of the unlawful result; negligence is the failure to take the necessary measures to prevent such a result, and due diligence is not shown, even though it does not want the unlawful result.
Within the framework of the principles of administrative law, it is known that the personal defect of a public official in the course of his / her actions and actions by using the means of service will constitute a service defect even if it is a deliberate offence and therefore the cases to be brought can only be filed against the administration (Council of State 10.Circle T. 20.04.1989 days and 1988/1042 E., 1989/857 K. Decree Number).
By the way, the concepts of “using their authority” and “personnel performing these tasks” should be focused on what their purpose is.:
Another condition of the state’s responsibility is that the damage was carried out by the civil servant and another public official “in the exercise of his duty” and “in the exercise of his powers in relation to the duty”.
Therefore, there must be a functional link between” performance of duty “and” exercise of authority ” and the actual loss must be born because of this duty and authority while performing the public duty (public authority).
Officers, public servants and other government officials, as a private person outside the adjectives and capacities, according to the provisions of private law, while performing their specific jobs are directly responsible for their damages to third parties (Fikret Eren, law of obligations-General Provisions 12.Basi, Istanbul 2010, p. 590 et al.). In other words, if, during the appearance of a public service, third parties are harmed by a saving or action of a civil servant or agent that may be considered a defect of service, the event is excluded from the jurisdiction of the judicial accident.; a full judicial case should be filed against the administration in the administrative judicial authority (Tekinay law of Obligations General Provisions, Tekinay/Akman/Burcuoğlu/Altop, 7.Bası, Istanbul 1993, p. 504- 505).
All these statements show that if any relationship can be established between the damage suffered by persons and the duty carried out by public personnel causing harm, then there is a situation concerning the duty, and such acts are manifested as personal defects of public personnel that cannot be separated from the service, regardless of their deliberate or negligent conduct, and this is the case in Article 13 of law 657it is stated in the article “damages suffered by persons in relation to duties subject to public law”.
On the other hand, 129/5 of the Constitution.according to the “defect” clause, it is obligatory to accept that the cases arising from these actions should only be filed against the administration, regardless of whether the action committed by the civil servant or public official who uses his authority is done deliberately or negligently.
As a matter of fact, the same principles were adopted in the decree no.01.02.2012 day and 2011/4-592 basis, 2012/25 decision; 25.12.2012 day and 2013/4-419 basis, 2013/1690 decision; 26.02.2014 day and 2013/4-579 basis, 2014-2011 decision; 19.11.2014 day and 2013/4-1120 basis, 2014/922 decision of the General Assembly of the Supreme Court of law.
Considering the concrete incident in the light of these principles; on 09.09.2003 at 08: 30 the defendant I.. B..for his duties in the dispatch and administration of the 34….01 license plate number of the car with the direction of Şişli Mecidiyeköy going towards the direction of the course when it comes to the scene of the incident, according to the direction of the left side of the coating entrance to the right side of the claimants who want to pass to the Murisi yaya H..B..I with the driver of the vehicle who was a police officer with the claim that he caused the death of his murislerin due to his flawed behavior due to the incident which occurred as a result of being hit by the Left front section of the vehicle under his direction.. B..it is understood that the claimants have opened their case for damages at hand by showing ni adversary.
According to the report of the Traffic Specialist Office of the Forensic Medicine Institution, the defendant’s minor was defective and the plaintiffs ‘ Muris were fundamentally defective in the case, and the driver was the defendant.. B.. on the appeal of the decision made at the end of the trial, the Court of Cassation held a public trial on the charge of ‘imprudence and carelessness to cause death’. 9.It is understood that with the decision of the penal department dated 04.02.2008 and 2007/5482 basis, 2008/626, it was decided to overturn the sentence on the grounds that “the defendant should be given a stop decision for the investigation permit in accordance with the provisions of Law No. 4483 in case of the alleged
This claim by the plaintiffs is based on the content of the defendant I.. B..the person who works as an NDA police officer is subject to a defect committed during and while performing his duty, and the negligence of the public official as to the nature of this defect.
In this case, since the defendant’s personal defect is not based on his / her duty, and the action, even if it is based on carelessness and imprudence, is related to the duty and the duty and has the nature of the service defect, the animosity in the case at hand falls to the administration, not the public official.
II-I of the defendants.. B.. in the review of the appeal request of the deputy;
Defendant I.. B.. the decision given by the Local Court on the partial acceptance of the case against the defendant shall be upheld by the special Office on the grounds described in the title section above.. B..since the decision has been finalized in respect of the defendant, the Ministry has no legal benefit in appealing the decision to resist.
Hence the defendant I.. B..the appeal request must be rejected.
While some members argued that the decision to resist should be upheld by the Local Court, claiming that it was based on the personal and serviceable defect of the defendant vehicle driver in the case, this opinion was not adopted by the majority of the board for the reasons mentioned above.
For the reasons described above, it is against the procedure and the law to resist the previous decision, while the decision to break the special circle adopted by the General Assembly should be obeyed.
Therefore, the decision to resist must be broken.
1-the defendant I described in paragraph (II) above.. B.. the refusal of the appeal request because the decision of the deputy to resist had no legal benefit in the appeal, was unanimous in the first meeting held on 18.02.2015,
2-for the reasons described in paragraph (I) above, Defendant I.. B..with the acceptance of the appeal appeals of the court, the decision to resist was made in accordance with the reasons cited in the decision to overturn the Special Chamber of Law No. 6217.article 429 of the Code of Civil Procedure No. 1086 which is being applied with the attribution of “provisional Article 3” added to the law of Civil Procedure No. 6100.in the second meeting held on 25.02.2015, it was decided by a majority of votes.
VOTE AGAINST
In the report dated 18.09.2008 of the Traffic Specialist Department of Forensic Medicine, which is based on the verdict, the defendant is the driver.. B..’s, while cruising with the vehicle belonging to the other defendant institution, the road does not alert the pedestrian who wants to cross the road, to cross the road to see the pedestrian who applied the brake, 13 m. in the event that occurred as a result of the collision of the pedestrian following the brake exercise, due to acts contrary to the duty of care and care, the support of the plaintiffs is the responsibility of the late pedestrian H.. B..’s, without checking the traffic of the vehicle and taking into account the speed and distance of the approaching vehicle entering the coating and attempting to cross the road while not leaving the first right of passage in the event that resulted in the defendant driver being hit by the vehicle management, attention and care in contravention of the obligation to act was found to be On the other hand, the defect rate in the said report and the defect rate in the report dated 28.09.2004 received by the Criminal Court are in parallel.
It should be noted that causing injury or death to a person as a result of a traffic accident is a tort against him.
Article 41 of the Code of Obligations (BK) No. 818, which regulates “obligations arising from unfair transactions”.(Tbk’s 49.) in the article tort is defined as” the person who has caused harm to another person, either intentionally or through negligence and indifference or imprudence, is obliged to compensate for that loss”.
The case is related to the demand to pay the damages caused by the conduct contrary to the regulations in the Highway Traffic Law(KTK) no.2918. The defendant administration is in the position of operating according to the provisions of the said law. 106 Of The Same Act. in the article, it is determined that the regulations of this law on civil liability will be applied because of the damages caused by the general and additional budget departments and motor vehicles belonging to the private administration, municipality and economic Public Enterprises. Operator’s legal liability in subsequent articles 85 and governing of motor vehicles for damages arising by reason of any breach of the traffic rules, public and private persons and entities subject to the rules regardless of actual liability are anticipated to be the same.
On the other hand, the Highway Traffic Law(KTK) No. 2918 regulated the responsibilities of the operator and the driver and determined that this responsibility was a fiduciary responsibility. As A Matter Of Fact, Ktk’s 110.article; ” liability cases arising from this law, including those relating to the damages caused by vehicles that are operated or owned by the state and other public institutions, are seen in judicial proceedings. The fact that the person who is harmed is a public official does not prevent the application of this clause provision”.
It is clear that the responsibilities arising from vehicle traffic on the road lanes defined in the ktk fall within the scope of private law, that the administration does not exercise any authority arising from public power, and that public officials must assume their responsibilities if an act is committed as a crime under the Penal Code or other laws.
In the face of these regulations of Highway Traffic Law No. 2918, the administration should be held responsible for the damages caused by public vehicles, not according to the rules of public law, but according to the rules of private law in the capacity of “operator”.
In the concrete case, it is understood that the actions of the defendant driver are a case arising from the failure to properly fulfill the obligation of personal defect and care, in whole, without regard to the defect of Service. The personal actions and actions of the personnel are not considered administrative actions and procedures in both teaching and judicial decisions, and it is accepted that the place of examination of cases based on personal defect is the place of judicial jurisdiction. (Tekinay-Akman-Burcuogu-Altop general provisions of Law of Obligations 1988 edition, sh.681, Cüneyt Ozansoy-responsibility arising from the imperfection of Administration in historical and theoretical terms, Ph. D. thesis 1989 sh.330 et al.)
In this case, we believe that the decision of the Local Court on the acceptance of the case should be upheld based on the material and legal facts described above.
