Turkish Law-auto Accidents

I am a member of a study group of lawyers, judges and law students in Houston, Texas, USA. Members take turns educating one another on various aspects of law. My group will soon be presenting information to the others on how a small civil lawsuit might be handled in several different nations, including Turkey. The purpose is both to educate ourselves on other nations' legal systems, and to help us see how the American system might be viewed by a foreign visitor.

Assume that one person's auto has hit an animal (horse, donkey, cow) in the road. The animal is killed, the auto is damaged, and the driver has minor injuries.

I would greatly appreciate any information you could give on any of the following questions -- or similar questions I should be asking, but am too ignorant to pose:

1. How long would the driver or the animal's owner have to file suit? From reading other postings, it seems like one year. Is that correct?

2. In what court would the lawsuit be brought? Assuming the driver was traveling, far from home, could the driver bring suit in his home city, or would he be required to sue where the accident occurred?

3. Who would have the burden of proving fault? The person who brings suit?

4. What sort of damages could the driver recover, assuming the animal's owner is at fault? Would it be limited only to the costs of repairing the auto and medical expenses? Could the driver recover for lost earnings? Pain and suffering? Are exemplary or punitive damages available?

5. Can witnesses be compelled to attend court to give testimony? Is it more common to submit written statements?

6. What is the role of lawyers in the process? Do they examine witnesses in court? Are they expected to be biased in favor of their respective clients? Do they deliver arguments before the judge?

7. Is there only one judge? What is a judge's typical background? Is there a procedure for challenging a judge who might be biased?

8. If the motorist brings suit and loses, might the motorist be required to pay the animal owner's legal bills?

9. How long might the legal process take, on average, from filing suit until judgment?

10. What right is there to appeal an unfavorable judgment?

11. Are there any good materials, available in English, addressing any of these issues?

Thank you for any attention you are able to give to this inquiry

Jim Paulsen, Professor
South Texas College of Law
Houston, Texas USA

Mr. Paulsen,

As a contribution to your efforts on the attainment of a general knowledge regarding the Turkish law , I will try to enlighten you from the viewpoint of our legal system and in the context of your given case and questions:

The case you've mentioned should be assessed mainly from two aspects:
a)Penal Law consequences
b)Civil Law Consequences
And the civil law sanctions might be considered from two aspects:

aa.Torts liability of general nature regulated by the Code Of Obligations(CO)
bb. Traffic liability of a specific nature regulated by the Road
Traffic Law(RTL)

The RTL defines a traffic accident as :
An accident occurred on the road involving one or more vehicles, mobile or not, having such results of death,injury or like damages.

As you may assume the answers directly vary according to the rules on which shall we base our evaluation.Anyway, I want to clarify the case by both approaches:

1.The claims of compensation in the torts liability is subject to 1 year from the date of awarenes on the occurrence of accident and the identity of perpetrators and 10 year from the accident in any case.This 1 year period exceeds to 2 years in the RTL.(Plus, both laws state that if criminal codes confer a more advantageous and long limitation phase then it may be applied providing the accident is considered as a penal offense)

2.The civil court of the place of the accident taken place ,as a rule, has a jurisdictive power. In addition, the court of the place where the defendant is resident owns competence either(Turkish Law of Civil Procedure Art. 10)The suit might be filed where the insurance(compulsory) companies' represantative or center is located.(RTL)

3.In the torts liability, the claimant should take the whole burden of proof, when the traffic liabilty is considered the liabilty turns to an extra-fault one (strict liability) and the defendant shall assume the burden of confutation.

4. Compensation for tangible or intangible damages may be sought .The indemnity limit depends on the gravity of the fault(intent,gross or slight negligence) involving the lost income ; exemplary damages are not stated overtly but this is within the discretionary power of the judge.

5.Witnesses may be enforced to attend a trial ; in case of the default of an admissible excuse of non-attendance they may be fined.Written statements may be accepted in exceptional cases.

6.As far as my little information on US law is concerned, the lawyers role in Turkish law system is really different from your system(especially in civil law).In Turkey, lawyer is not that active in the trials since most of the cases are depending on the written procedures.In case of witnesses, for instance, the lawyer (or client) may only enforce the judge to ask questions to the witness when his testimony needs clarity and a direct inquisition by the lawyers to the witness is not in question.But delivering arguments is possible by the attorneys within the limits of written procedure of course; and the bias on the part of client is normally expected.

7.The civil cases are tried before one judge (Court of Peace and Court of First Instance)The judges are faculty of law(4 years of education) graduates and subjected to a written and oral exam of qualification on occupational knowledge by the Ministry of Justice and than a related phase (2 years)of training before taking office. An allegation of being biased on the part of one side , he/she may be challenged for denial or if a decision was already given he/she may be complained since it constitutes a criminal offence set by the Turkish Penal Code.

8. Yes, the loser of the case may undertake the legal expenses.(Not including the contractual fee of an attorney only a limited sum of money set down by law)

9.This process may exceed 1 year when we take into account the incapabilities of our courts and the time-depleting procedures such as summons of witnesses and adjustment of damage.

10.Appealling is possible to the Supreme Court on the grounds of breaches of law as procedure or merits of a case.Additionaly, appeals of redress or adjustment on the court de cassation are probable.

11.You may get in touch with your colleagues in Turkey or may expand your exploration in the net for relevant information.(Or questioning here again

Av.Bülent Sabri Akpunar

My name is Stan Crawford and I am a member of Professor Jim Paulsen's study group in the United States. I would like to ask a couple of additional questions: (1) If a claimant sues another for negligence, and the party suing is also guilty of some carelessness, does this completely defeat his recovery under Turkish law, or would he still be entitled to recover some percentage of his damages? (2) Under Turkish law, if an insurance company pays a claim for property damage, can they sue the person that caused the damage to recover the amount they paid on the claim? If so, are they subject to the defenses that could be asserted against their insured; for example, that the property that was destroyed was in fact illegally owned?
Thank you for your assistance.

Stan Crawford
El Paso Corporation Legal Department
Houston, Texas

Dear Cranford,

1.The case you have mentioned was explicitly set by the Turkish Code of Obligations out in the Art. 44 as :

"the judge may order a reduction on the quantity of compensation or completely set the claim of indemnity aside in cases such as an advance consent or a likely contribution in the occurrence or increase of damage or aggravation of the conditions of the defendant by the injured party."

So the judge is to assess the circumstances and even could reject the suit for damage recovery.

2.In the property insurance , the company becomes legally successor of the claims of the insured in the extent that the recovery was fulfilled.Therefore, the firm is subject to the alleged defences of the litigants' which might be advanced as if those pleas were pleaded against the insured.

Hope this helps.