T.C.
Supreme
General Assembly of Law
Mainly No:2013/1235
Decision No:2015/849
K. Date:18.2.2015
At the end of the trial for the case of “material and non-pecuniary compensation” between the parties; Istanbul 12 Dec First Instance Law (closed Şişli 3. Examination of the decision No. 22.02.2011 of the day and 2006/373 Basis- 2011/70 Decision issued by the Court of First Instance (Law of First Instance) on the partial acceptance of the case was requested by the deputy defendants, Supreme Court 4.With the addition of the Law Department’s Decision No. 2012/10846 dated 20.06.2012 and Based on 2011/7590-2012;
(…1-According to the articles in the file, the evidence on which the decision is based, and the reasons for the necessity in accordance with the law, especially if there is no inaccuracy in evaluating the evidence, the defendant I.. B..appeals of the appeal must be rejected.
2-Defendant I.. B..as for the appeal of:
The case concerns a request for payment of material and moral damage caused by death as a result of a traffic accident. A part of the claim was accepted by the local court; the decision was appealed by the defendants.
The plaintiffs expressed their support as a result of the traffic accident that occurred on 09/09/2003.. B..stating that he had passed away, they asked for financial and moral compensation.
The defendants argued that the request should be rejected.
The local court decided to partially accept the case from both sides of the defendant based on the expert reports on the defect and the account dated 18/09/2008 and 20/04/2010.
Damage to persons by public officials when exercising their powers or performing their duties constitutes a service defect of the relevant public institution. In this case, the responsible person is the public institution that the public official is working under, and the case should be filed against that institution. (T.C. Its Constitution is 40/III, 129/V, 657 Py. K.13, HGK 2011/4-592 E., 2012/25 K.) The legal regulations on this issue contain mandatory provisions. On the other hand, from the point of view of the basic principles of Liability Law, the fact that regulation in this way has been included in the legislation is an important guarantee for the compensation of the damage caused to the person.
Defendant I.. B..refusal of appeals by the defendant for the reason described in paragraph (1) above and approval of the relevant part of the judgment for the reason described in paragraph (2) of the decision appealed by the defendant I.. B.. to the detriment of the benefit…)
after the re-trial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and as of the date of the decision to resist, the Law No. 1086 was amended by Law No. 2494 of the HUMK No. 438 / II. in accordance with the provision of paragraph I of the defendant.. B..after the rejection of the request for a hearing was decided and the papers in the file were read, the need was discussed:
The case concerns a request for payment of material and moral damage caused by death as a result of a traffic accident.
By the court, the request was partially accepted; the decision on the appeal of the defendants was overturned by the Special Chamber on the grounds described in the title section above; the court resisted the previous decision.
The defendants appealed the decision to resist.
I-The Defendant I…. B.. in the examination conducted from the point of view of the deputy’s appeal request;
The dispute that comes before the General Assembly of the Law through resistance is brought to the point of whether the traffic accident committed by the public servant defendant police officer was caused by the service defect or personal defect of the defendant public official, whether the animosity can be directed to the public official in the case of material and moral compensation filed at the judicial jurisdiction according to the conclusion to be reached.
In order to resolve the dispute, first of all, the legal regulation, concepts and institutions related to the responsibility of the state for damages caused by the actions of public officials should be examined:
Public servant, Article 6 of the TCC No. 5237.Article 1.in paragraph (c) of paragraph (c); It is defined as “a person who participates in the conduct of public activity by appointment or election or on a permanent, temporary or temporary basis in any way”. According to this definition, the only criterion to be sought for a person to be considered a public official is that the work he sees is a public activity.
The article mentioned in the public activity is defined as “Carrying out a service on behalf of the public with a political decision made in accordance with the procedures established in the Constitution and laws” on the grounds of the article.
4 of the Civil Servants Law No. 657.Article 1.its paragraph contains the provision that ”Public services; civil servants, contract personnel, temporary personnel and workers are made visible by hand”. In subparagraph (D) of the same article, if; “workers: (a), (B) and (C) except for those mentioned in paragraph, and allocated in accordance with the relevant legislation of seasonal or permanent indefinite term employment contracts with workers operated under continuous working staff in campaign work, or according to the relevant legislation in forest fire fighting services, temporary employment positions to be run under a fixed-term employment contracts that are less than six months of temporary workers. it has been described as “.
When we look at the regulations on the financial responsibility of public personnel, it is;
T. No. 2709.C.Article 40 of the Constitution entitled “Protection of Fundamental Rights and Freedoms”.in the article:
“Everyone whose fundamental rights and freedoms have been violated by the Constitution has the right to request that the opportunity to apply to the competent authority be provided without delay.
In its transactions, the state is obliged to indicate which legislative means and authorities the relevant persons will apply to and their duration.
The damage suffered by the person as a result of unfair transactions by official officials is also compensated by the State in accordance with the law. The state reserves the right to appeal to the relevant official who is responsible.”
the arrangement is included in the.
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 is open against all kinds of actions and actions of the administration.”; in accordance with the last paragraph of the article “The administration is obliged to pay the damages arising from its own actions and transactions.” Article 129, which regulates the duties and responsibilities of public officials.article; in the first paragraph: “Civil servants and other public officials are obliged to operate in accordance with the Constitution and the laws.” in the fifth paragraph: “Compensation cases arising from defects committed by civil servants and other public officials when exercising their powers may be filed only against the administration, subject to recourse to them and in accordance with the forms and conditions provided for by law.” its provisions are contained in.
Civil servants and other public officials of the Constitution the powers of the aforementioned ingredients bet they were defective when using, prevent right or wrong as being brought before the judicial authorities, the public service are carried out without being interrupted and at the same time ensure that the person who has suffered damage from the direction of officer or other public officer to a higher state compared to ability to pay by the respondent is intended to preserve the public order.
As a matter of fact, the 14.09.1983 day of the General Assembly of the Supreme Court of Law 1980/4-1714 E., 1983/803 K. in its decision No. 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 related to the actions and behaviors that cause the birth of harm; on the contrary, it introduces the principle of State responsibility that should be considered safer for those who have been harmed …”.
In parallel with these constitutional provisions, regulation No. 657 of the Civil Servants’ Code, No. 6 of the Law No. 2670 of 12.05.1982.as amended by article 13.it is included in the article.
13 of the Law No. 657 entitled “Damages Suffered by Persons”.article 1 of the Law No. 3657 of 06.06.1990. in the first paragraph, the article is different:
“Individuals file a lawsuit against the relevant institution, not against the personnel performing these duties, for the damages they have suffered in relation to the duties subject to public law. However, in case of embezzlement of valuable documents containing money and money deposited in government offices or collected or stored by these offices by the relevant personnel, the amount embezzled will be paid to the rightful owner by the Treasury without waiting for the outcome of criminal proceedings. The institution reserves the right to appeal to responsible personnel in accordance with the general provisions.”
Its provision is stipulated.
129/5 of the Constitution.article 13 of the Civil Servants’ Code No. 657, the application of which is the law.in the justification of the article;
“This article regulates the responsibility for damages to be caused to those who are managed in terms of duties subject to public law.
The collateral in the article should be examined from two points of view;
First of all, there is a guarantee in favor of those who are managed. Those who are managed will be able to file a lawsuit directly against the institution holding the office for damages caused to them due to duties subject to public law, and thus they will have found a defendant with the ability to pay the principal. Otherwise, it is possible that they will face an officer without the ability to pay, even if they win the case, especially with regard to large damages. However, as in the article, they will always be able to find an institution with the ability to pay for them.
The second guarantee is from the point of view of the civil servant, more precisely, the “Personnel charged with services subject to public law”. Such personnel, in the performance of their duties, will not be under the threat of permanent compensation, and therefore there will be no such inconveniences as the fact that public services are considered too heavy. However, it should not be understood that officers can act completely irresponsibly if they are not threatened with a lawsuit on a permanent basis and firsthand. With this article, the officer is protected from dealing with lawsuits filed against him in the courts on an ongoing basis, but his responsibility to the administration for the damages he has caused to the administration due to his duties remains….” statements are included.
It is seen that the 40/3, 125 / last, 129/5 of the Constitution.the articles clearly outline the framework of the application; it is clearly stated that “compensation cases arising from defects committed by civil servants and other public officials when using their powers can only be filed against the administration on the condition of recourse”.
129/5 of the Constitution on the settlement of the dispute.it is important to determine what should be understood from the expression “the defect they committed while using their powers” contained in the article, at which point it is useful to explain the “defect:
The defect is not defined in our laws. According to the accepted definition in practice and teaching, a defect is a behavior that can be condemned by the legal order. The reason for the condemnation is that he deviated from this style by not being treated this way when there was a possibility to behave otherwise and it was mandatory. In short, a defect is, by its general definition, a condemnation of a style of behavior by the legal order; this condemnation results from the fact that this behavior deviates from the average mode of action expected of individuals under certain circumstances.
Again, according to the prevailing opinion in teaching and practice, from the point of view of liability law, it is accepted that the defect is divided into two, namely caste and negligence (installment). In this context, caste is the intentional and willful occurrence of an unlawful outcome; negligence is the failure to take the necessary measures to prevent such an outcome and not to take the necessary care, while not wanting the unlawful outcome.
Considering the incident within the framework of the principles of administrative law, it is known from the principles that the personal defect of a public official related to his actions and actions while on duty using the means of service will constitute a service defect even if it is a deliberate crime, and therefore the lawsuits to be filed can only be filed against the administration (Council of State 10.Apartment T. 20.04.1989 day and 1988/1042 E., 1989/857 K. No. 1).
By the way, it should be emphasized what their purpose is with the concepts of ”using their powers“ and ”personnel performing these tasks:
Another condition of the state’s responsibility is that the damage was committed by the official and another public official “in the performance of his duty” and “in the exercise of his powers related to the duty”.
At the moment, there should be a functional (deconstructive) link between the “performance of duty” “exercise of authority” and the damage caused; the damage should be caused due to this duty and authority while performing a public duty (public authority).
In accordance with the provisions of private law, as a private person other than the title and capacity of a public official, civil servants and other official officials are directly responsible for the damage they cause to third parties when doing their private business (Fikret Eren, General Provisions of the Law of Obligations, 12.Basi, Istanbul 2010, p. 590 et seq.). In other words, if third parties are harmed during the performance of a public service due to a saving or act of a Civil servant or agent that can be considered a service defect, the incident remains outside the jurisdiction of the judicial accident; a full judicial case should be filed against the administration at the administrative judicial authority (Tekinay General Provisions of the Law on Obligations, Tekinay /Akman/Burcuoglu/Altop, 7.Basi, Istanbul 1993, p. 504- 505).
These comments demonstrate that individuals suffered by all damages, losses giving rise to any relationship could be established between the ongoing task of public personnel in the middle there is a status for the task, and processing this type of behavior intentionally or negligently, regardless of personal flaws and has emerged as a public service of the staff that is indistinguishable from this point of Law No. 657 13.it is expressed in the phrase “damages suffered by persons in relation to duties subject to public law” in the article.
On the other hand, Article 129/5 of the Constitution.according to the “defect” requirement mentioned in the article, it is mandatory to accept that lawsuits arising from these actions should only be filed against the administration, regardless of whether the action committed by the officer or public official exercising his authority was committed intentionally or negligently.
Indeed, the law of the General Board of the Supreme Court 01.02.2012 day and 2011/4-592 is based on decision 2012/25; 25.12.2012 day and 2013/4-419 Main, 2013/1690 decision; 26.02.2014 day and 2013/4-579 main, 2014/155 decision; 2013/4 day and 19.11.2014-1120, based on the decision 2014/922 numbered-numbered the same principles adopted in the sentence.
Considering the concrete event in the light of these principles; on 09.09.2003, at around 08:30, defendant I.. B..34…. in the dispatch and administration due to the duty ofwhile continuing its course from the direction of Şişli to the direction of Mecidiyeköy with car number 01 plate, Yaya H., the muris of the plaintiffs who want to enter the coating from the left side and pass to the right side according to the direction of navigation when they arrive at the crime scene..B..i am with the driver of the vehicle, who is a police officer, for allegedly causing the death of his muris with his defective behavior due to an incident that occurred when the vehicle in the administration of a was hit by the left front section.. B..it is understood that the plaintiffs filed a lawsuit for damages by opposing ni.
According to the report of the Traffic Specialist Department of the Forensic Medical Institution; the defendant is defective, the plaintiffs’ muris is defective in the incident, as well as the driver defendant I.. B.. a public lawsuit has been filed against him for ‘causing death as a result of imprudence and carelessness’, the Supreme Court 9 on appeal of the decision made as a result of the trial.It is understood that by the decision of the Criminal Department dated 04.02.2008 and based on 2007/5482, decision 2008/626, it was decided to overturn the provision on the grounds that “the defendant allegedly committed a breakthrough while on duty, in accordance with the provisions of Law 4483, the decision to stop for permission to investigate should not be taken into account”.
This claim of the plaintiffs is based on the content of defendant I.. B..it is based on a defect committed by an employee of the NDA as a police officer during his duties and while performing his duties, as well as on the negligence of a public official in terms of the nature of this defect.
As a result, according to the fact that the defendant’s personal fault, which is outside his duty, is not based on, although based on carelessness and imprudence, the action is related to duty and duty and is a service defect, the animosity in the case at hand falls on the administration, not on the public official.
II-One of the defendants.. B.. in the examination of the deputy’s appeal request;
Defendant I.. B.. the decision on the partial acceptance of the case filed against him by the local court must be approved by the Special Department on the grounds described in the title section above, and the defendant I.. B..since the decision on the refusal of the request to correct the decision of the Ministry has also been decided and the decision has been finalized from the point of view of the said defendant, the Ministry has no legal interest in appealing the decision to resist.
Therefore, the defendant I.. B..a decision must be made to reject the appeal request.
During the interviews, it was suggested by some members that the decision of the local court to resist should be upheld based on the personal and serviceable defect of the defendant car driver in the incident, although this opinion was not adopted by the majority of the Board for the reasons mentioned above.
For the reasons described above, while it is necessary to comply with the decision to overturn the Special Chamber adopted by the General Assembly of the Law, it is contrary to the procedure and the law to resist the previous decision.
Therefore, the decision to resist must be overturned.
S O N U O : 1-Defendant I, described in paragraph (II) above.. B.. at the first meeting held on 18.02.2015, the decision of the deputy to resist the REFUSAL of the appeal request, as there is no legal benefit in the appeal, was unanimously,
2-For the reasons described in paragraph (I) above, defendant I.. B..30 of Law No. 6217 on the acceptance of appeals of the decision to resist, for the reasons indicated in the decision to overturn the decision of the Special Chamber.article 429 of the Code of Civil Procedure No. 1086, which is applied with the reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100.in accordance with the article, it was decided by a majority vote at the second meeting held on 25.02.2015 to CANCEL it, return the advance fee of the appeal to the depositor if requested.
VOTE AGAINST
In the report dated 18.09.2008 of the Traffic Specialized Department of the Forensic Medical Institution, which is based on the verdict; defendant driver I.. B..’s, while the other defendant was cruising with a vehicle belonging to the Institution, there was no warning to the pedestrian who wanted to cross the road, although he applied the brake when he saw the pedestrian entering the road to cross the road, 13 m. in the event that occurred as a result of hitting a pedestrian after the braking exercise, he was found to be 25% tali defective due to his actions contrary to his obligation to pay attention and care, the support of the plaintiffs is the deceased pedestrian H.. B..in the event that the defendant driver, who did not leave the first right of way when entering the pavement and trying to cross the road without checking the vehicle traffic and not taking into account the speed and distance of the oncoming vehicle, was hit by a vehicle under management, it was determined that he was 75% fundamentally defective by acting contrary to the obligation of attention and care. On the other hand, it is also seen that the defect rate in the aforementioned report and the defect rate in the report dated 28.09.2004 received by the criminal court are parallel.
It should be noted that the injury or death of a person as a result of a traffic accident is a tort committed against him.
41, which regulates the “debts arising from unfair transactions” of the Law on Obligations (BK) No. 818 of Müga.(TBK’s 49th.) in the article, a tort is defined as “A person who intentionally, negligently and with indifference or imprudence unfairly causes harm to another person is obliged to compensate for this damage”.
The case in question relates to a request to pay damages caused by a violation of the regulations contained in the Road Traffic Code (KTK) No. 2918. The Defendant Administration is the operator 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 regarding legal liability will be applied for damages caused by motor vehicles belonging to general and added budget apartments and private administration, municipal and economic state enterprises. In articles 85 and subsequent articles regulating the legal responsibility of the enterprise, it is stipulated that real and private persons and public legal entities are subject to the same liability rules regardless of the damages caused by motor vehicles’ behavior contrary to traffic rules.
On the other hand, the Highways Traffic Law No. 2918 (KTK) has regulated the responsibilities of the operator and the driver and determined that this responsibility is a fiduciary responsibility. As a matter of fact, KTK has 110.article; “Liability cases arising from this law, including those related to damages caused by vehicles that are operated or owned by the State and other public organizations, are considered in judicial proceedings. The fact that the person who has been harmed is a public official does not prevent the application of the provision of this paragraph” provided for the provision.
It is clear that the responsibilities arising from vehicle traffic on the highway strip defined in the KTK fall into the field of private law, there is no use of public power by the administration, public officials should assume their responsibilities if an act is committed that is prescribed as a crime in the criminal code or other laws.
In the face of these regulations of the Highways Traffic Act 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 defendant driver’s actions as a whole are a case caused by a personal defect and the failure to properly fulfill the duty of care, regardless of the service defect. Both in teaching and in judicial decisions, the personal actions and behaviors of personnel were not considered administrative actions and actions, and it was accepted that the place of examination of cases based on personal defect was the place of Judicial Jurisdiction. (Tekinay-Akman-Burcuoglu-Altop General provisions of the Law of Obligations 1988 edition, sh.681, Cuneyt Ozansoy-Responsibility Arising from the Defect of Management from a Historical and Theoretical Point of View, Doctoral Dissertation 1989 sh.330 et seq.)
At the moment, we think that the decision of the local court on the adoption of the case should be upheld, taking into account the material and legal facts described above.
