Tag Archives: compensation

Accidents on the Road in Turkey, Car Crashes, Traffic Accidents

In case that traffic accident victims are not willing to file a case against vehicle driver who led road accident, they can claim against insurance company of mistaken driver’s car. In general, both driver and insurance company are set as defendants in one case due to the reasons mentioned below.

  1. Collection possibility from Insurance Company

Applicant victims prefer to assert a claim against Insurance company due to financial reasons. As can be understood, naturally financial capacity of insurance is better than ordinary driver. Only material compensation can be requested from the insurance. Moral compensation stemming from the accidents on the road can be only asserted towards driver.

  1. Insurance Company’s Confidentiality and Permanency

As compared to mistaken driven , insurance does not only give confidentality in financial situations.

In some cases , claimants hessitate to put the driver difficult situation and they only request moral compensation from them. In Turkey, it is very important to note that all vehicles in Turkey are obliged to have insurance for crashes. And if a vehicle damages a victim , as a claimant , he/or she can assert a claim to the car owner’s company. In the end, insurance company may recourse the compensation if the driver is fully mistanken.

Under Article 97 of Turkish Road and Traffic Act, “Victim can assert a direct claim against insurance company in the context of the act.”

Who can file a case as applicant in the court?

There are two issues in this point. If victim is alive under article 41, 45 and 47 articles of Code Obligation of Turkey, moral and material compensation can be filed against the company by victim. If victim is deceased stemming from  accident, relatives of deceased (such as mother, father, spouse, children, sibling, fiancee and other people who are depending on deceased’s support. If deceased file a case before marriage , spouse can resume the case.

Duration

The claims of compensation because of a unlawful act cease after a certain period of time. Normally the term is 2 years running from the date on which the damaged person recieved knowledge of damage and of the person who had caused the damage. This may not be longer than ten years from the date when the act causing the damage occured. (New Code of Obligation of Turkey entered into force in 2011,  article 72)

There is one important issue to consider in Turkish Law related to statute of limitations of tortious acts ( in other words acts stemming from Personal Injury). In case that wrongful act causing the damage also became an issue of a criminal offence , Statute of Limitations applying to Criminal Offence would be taken into account by civil court dealing with personal injury case.

For example, in case that a person died by a brick which is fell out from the building, this negligence will be an issue of both civil and criminal case.  In these situations, we need to consider time period stated in criminal act and in contract law of Turkey. If criminal act’s time period is longer then we need to take into account to criminal act provision related to this issue. To make it more concrete, according to Turkish Criminal Law, statute of limitation applies to killing of a person by negligence is 15 years, thus case can be filed within 15 years due to characteristic of offence.

Turkish Criminal Act, Article 66 states statute of limitations as below:

(1) Unless otherwise is provided in the law, public action is dismissed upon lapse of ;

  1. a) Thirty years in offenses requiring punishment of heavy life imprisonment,
  2. b) Twenty-five years in offenses requiring punishment of life imprisonment,
  3. c) Twenty years in offenses requiring punishment of imprisonment not less than twenty years,
  4. d) Fifteen years in offenses requiring punishment of imprisonment more than five years and less than twenty years,
  5. e) Eight years in offenses requiring punishment of imprisonment or punitive fine not more than five years

(2) Public action is dismissed upon lapse of half of the a/m periods if the convict completed the age of ten but not yet attained the age of fifteen at the commission date of the offense; as for the convicts who completed the age of fifteen but not attained the age of eighteen, public action is dismissed upon lapse of one third of the a/m periods.

(3) In determination of statute of limitation, the qualified form of offense which requires imposition of heavy punishment is considered on the basis of the evidences presented to the file.

(4) The maximum limit of the punishment assessed in the law for the offense is taken into account during determination of the periods mentioned in afore subsection. In offenses, where imposition of alternative punishment is in question, the punishment of imprisonment is taken as basis with regard to statute of limitation

(7) Statute of limitation may not be applicable in case of commission of offenses in abroad, which require heavy imprisonment, or imprisonment or imprisonment more than ten years.

Accordingly, in case that personal injury stemming from criminal offence we also need to take into account the provision which is mentioned above. Civil court will also consider prescription periods concerned above.

How the amount and the scope of material and moral compensation is determined by the courts?


In case that traffic accident resulted in death, inheritors have right to claim for compensation due to being destitute of help and the expenses related to funeral. The compensation can be claimed also for compensating moral damages such as depression and sadness due to the death.

If the injury occurred, bare of the job, duration of unemployment, loss of wage due to injury and treatment costs can be requested. Additionally, moral compensation can also be requested.

If the person become disabled due to accident, he/she can request compensation depending upon severity of the disability and power loss. The proportion of disability is extremely important for determination of the compensation amount. Besides, damages related to vehicle and other property can be also requested.

The economic condition of the applicant is also very important for the determination of compensation amount. If the damage cannot be proved properly with evidences, the compensation amount will be lower or minimum wage amount will be considered as damage. Considering feature of moral compensation as a intangible concept, provability requires significant evidences related to

Compensation of Damages for Foreign Victims due to Terror under Turkish Law

Within the scope of the Law No. 5233 on the Compensation of Damages Resulting from Terrorism and the Fight against Terrorism, the damages of our citizens who are victims of terrorism are compensated. Under Law No. 6353 and Law No. 6495, employment rights in the public services and salaries are provided for our citizens (including foreigners) who are victims of terrorism. Procedures for the allocation of salaries and the compensation of damages are conducted by the Governors’ Offices and by the Organization of Social Security. Procedures for employment are conducted by the Ministry of Family and Social Policies and by the State Personnel Administration.

Training was provided by the Department of Veterans and Relatives of Martyrs for the personnel assigned at the Provincial Directorates of the Ministry of Family and Social Policies for the relatives of martyrs, veterans and citizens who are victims of terrorism on 24-28 February 2014.

It must be boren in mind that there are exceptions regarding the scope of the law.

This law does not apply to:
a) The damages compensated by the state by way of awarding land or houses or in any other
way.
b) The damages compensated due to a court decision or in accordance with Articles 30-31 of
the Code no 4353, Concerning The Service of Finance Proxy Head Law Counselor and Cases
l Public Directorate, Prosecution of GovernmentTrials Procedures and Changes on Central and Town Staff,
c) The damages compensated in accordance with the final judgment of the ECHR taken in line with Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms for violation of the articles of the convention or its additional protocols or the damages paid in accordance with the provisions of the Convention by way of friendly settlement.
d) The damages which occurred due to reasons other than terrorism, such as economic and social reasons, and the damages which occurred due to displacement of persons on their own
will.
e) The damages occurred due to deliberate acts of the persons themselves.
f) The damages suffered by persons on account of their act of aiding and abetting in terror incidents or due to crimes falling under Articles 1, 3 and 4 of the Anti Terror Law provided
that they have been convicted of such crimes
Under article 7, damages which must be compensate is stated as below:

 The damages to be compensated by this Law through peaceful settlement are as follows:

a) All damages given to the animals, trees, – products and other movable and immovable properties.
b) Damages resulting from injury, physical disability and death and the expenses made for medical treatment and funerals.
c) Material damages due to the reason that people could not reach their assets because of the activities carried out under the fight against terrorism.

Gökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

Wrongful Death Claim in Turkey under Turkish Law

 As in common law countries, Turkish Law also covers damages stemming from death involved incidents by third parties. Traffic Accidents, Construction Accidents and other death involved accidents caused by third parties are subjected to Turkish Tort Law and also Criminal Law. Wrongful Death is also stipulated under Turkish Penal Law under the section of “intentional murder” or “murder with negligence”. In Turkish Criminal Law, there are levels of negligence and penalty of the perpetrators are depending on this negligence level. In case of death caused by third person, deceased relatives (official inheritors of deceased) can claim compensation with a civil case and also request punishment from the criminal court at the same time. Under Turkish Law, prosecutor must start prosecution against third party in order to find out liability of offender. It is important to note that negligence level which is decided in Criminal Court does not have to be same as in Civil Court. Civil and Criminal courts have technically different concept of negligence level. In that case, if criminal court finds perpetrator 100 percent mistaken, it does not mean that Turkish Civil Court will take that ratio completely into consideration. Because determination of negligence level process and conditions in both law field is different.

 Criminal Case

 Under Turkish Law, Offenses against life is stipulated under article 81. :

Offenses against Life

Voluntary manslaughter (Felonious Homicide)

ARTICLE 81-(1) Any person who unlawfully kills a person is sentenced to life imprisonment.”

 “Life imprisonment” is envisaged for intentional murder situations. Death by negligent conduct is stipulated under article 85 as below:

 ARTICLE 85-(1) Any person who causes death of a person by negligent conduct is punished with imprisonment from three years to six years.

(2) If the act executed results with death or injury of more than one person, the offender is punished with imprisonment from three years to fifteen years.

It must be noted that Turkish Prosecutor must start and follow the case with or without consent of the decease’s relatives. Accordingly, criminal case’s procedure is not depending on the will of the decease’s family. Under Turkish Law, killing is dealing with public policy matter and prosecutor and Turkish Courts are responsible to punish the perpetrator who violates the public order.

Civil Case

Evidences from criminal case is very crucial for civil case. In litigation, facts and evidences from the criminal case must be requested for civil case to be examined in litigation. In civil case, moral and material compensation can be demanded from the third party which caused the death (or from the insurance company of a third party). Loss of support for relatives of deceased, compensation for funeral, hospital expenses, and etc. can be demanded under title of material compensation. Defendants who are financially affected from the death of deceased must prove their loss of support and their financial dependency to deceased. Dependents are those survivors who have received or would have received support payments from the victim. They are usually the relatives of the deceased person. In Turkish Law, finance may be considered as dependents. Family members of the deceased person may additionally demand equitable compensation for their emotional suffering.

Compensation

If the conditions of a tort exist (act against law, damage, casual relation, negligence), then injured party may claim compensation. The amount of compensation shall be decided by the judge in the two stages. The judge determines first the amount of the injury that the damaged person has actually suffered. The person claiming compensation has to prove the damage. The judge subsequently determines the amount of compensation after taking into account the circumstances and the degree of fault. The judge may reduce or completely deny any compensation if the damaged person has consented to the tortious act, or if circumstances for which is responsible have caused or aggravated the damage, or have otherwise adversely affected the position of the party liable.[1]

The claims of compensation because of tortious act cease after a certain period of time normally the term is two years running from the date on which damaged person received knowledge of damage and of the person who had caused the damage. This may not be longer than 10 years from the date when the act causing the damage occurred.

But if criminal case is started along with civil case then criminal cases’ statute of limitations will apply to the matter.

Turkish Criminal Act, Article 66 states statute of limitations as below:

(1) Unless otherwise is provided in the law, public action is dismissed upon lapse of ;

  1. a) Thirty years in offenses requiring punishment of heavy life imprisonment,
  2. b) Twenty-five years in offenses requiring punishment of life imprisonment,
  3. c) Twenty years in offenses requiring punishment of imprisonment not less than twenty years,
  4. d) Fifteen years in offenses requiring punishment of imprisonment more than five years and less than twenty years,
  5. e) Eight years in offenses requiring punishment of imprisonment or punitive fine not more than five years

In that case, Turkish Lawyer shall determine the statute of limitation applying to a specific issue.

[1] Introduction To Turkish Law, Tuğrul Ansay, Kluwer Law International, Page 170

Attorney Gökhan Cindemir

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

Notice of Termination for Employment Contracts in Turkish Labor Law

The employment contract may be terminated in several way;

  1. By the consent of the parties about terminating the contractual relation.
  2. By the death of the employee (Code of Obligation)
  3. Due to Deadline of the Contract
  4. Termination of Labor Contract with notification

In case of termination of the labor contract, Employer or Employee must notify  the contract’s termination prior to certain time periods which are determined by the law. These periods are depending on the employment duration of employee. If termination is done without notification, then employer must pay the salary which amounts to the period determined by the law.

 “Article 17. Before terminating a continual employment contract made for an indefinite period, a notice to the other party must be served by the terminating party.

The contract shall then terminate:

  1. in the case of an employee whose employment has lasted less than six months, at the end of the second week following the serving of notice to the other party;
  2. in the case of an employee whose employment has lasted for six months or more but for less than one-and-a-half years, at the end of the fourth week following the serving of notice to the other party;
  3. in the case of an employee whose employment has lasted for one-and-a-half years or more but for less than three years, at the end of the sixth week following the serving of notice to the other party;
  4. in the case of an employee whose employment has lasted for more than three years, at the end of the eighth week following the serving of notice to the other party.

These are minimum periods and may be increased by contracts between the parties.

UP TO 6 MONTHS EMPLOYMENT                       2 WEEKS  NOTIFICATION PRIOR TO TERMINATION                                                                                   OF CONTRACT

UP TO 6 MONTHS TO 12 MONTHS                    4 WEEKS NOTIFICATION PRIOR TO TERMINATION                                                                                      OF CONTRACT

1,5 YEAR TO 3 YEARS                                          6 WEEKS  NOTIFICATON PRIOR TO  TERMINATION                                                                                    OF CONTRACT

MORE THAN 3 YEARS                                          8 WEEKS  NOTIFICATION PRIOR TO TERMINATION OF                                                                             CONTRACT

These periods cannot be lessen by employer with provision stipulated in the employment contract.

Gökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647