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Translated from Turkish by Tim Drayton
Article 41 defining torts (corresponds to Article 49 of the new Code of Obligations) and Article 60 regulating the limitation period in tort (corresponds to Article 72 of the new Code of Obligations) of the old Code of Obligations number 818; Article 102 of the old Turkish Penal Code number 765
On application by the claimants attorney for examination of ruling number 2009/394 E.-2012/30 K. dated 02.02.2012, which ordered dismissal of the case, by Trabzon Civil Court of First Instance No 3 at the conclusion of the proceedings held into the “pecuniary and non-pecuniary damages” action between the parties, it was quashed by Judgment number 2012/5092/ E.-2012/10286 K. dated 12.06.2012 of Civil Chamber No 4 of the Court of Cassation on the grounds:
“1-In accordance with the documents in the file, the evidence on which the decision was based and compelling reasons that accord with statute, dismissal is warranted of the claimant’s cassation objections directed against the defendant Ę.. Y.. .
2-Turning to the claimant’s cassation objections directed against the defendant O.. Y.., the claim is for non-pecuniary tortious damages. The court ordered dismissal of the case due to it being time barred and cassation review of the ruling was sought by the claimant.
The injurious act at issue took place on 21.11.2002, while the lawsuit was instituted on 23.12.2009.
Ruling was passed as drafted by the court on the grounds that the tortfeasor defendant’s act fell within the ambit of Article 240 of the Turkish Penal Code and the time limit of the penal action was five years pursuant to Article 102/4 of the Turkish Penal Code. A penal case was pending against the tortfeasor defendant on the date of the claim. Given that the claimant could have claimed his personal right as an intervenor in the penal case, the extended penal case could not be said to have been time barred. As such, this dispute as concerns the defendant should have been resolved on the merits. For the reason put forward, the ruling was not deemed well founded and had to be quashed ”
and the case was returned, the previous ruling being reinstated by the court at the conclusion of the retrial.
APPLICANT FOR CASSATION : Claimant’s attorney
JOINT CIVIL CHAMBERS RULING
Having determined that timely application had been made for cassation and following perusal of the documents in the file, it was held by the Joint Civil Chambers:
The case is one in which damages are sought for pecuniary and non-pecuniary harm resulting from a tort.
The claimant-debtor, averring that the defending lawyer was his creditor’s agent and he had given rise to duplicate recovery in the executionary action through concealing payments made external to the enforcement case, he had been deprived of his home in the execution of enforcement action as a result of its forced sale with the other defending creditor in the executory action, Ę.. Y.., who had taken assignment of the claim, and the defending lawyer O.. Y.. acting in consort, even though he had not been indebted in the manner that gave rise to the sale of his home the defendants had brought about this situation, the defendant had abused his position as lawyer and he had suffered pecuniary and non-pecuniary harm as a result of this incident, sought and claimed the collection jointly and severally of 20,000 lira in pecuniary and 50,000 lira in non-pecuniary damages from the defendants, without prejudice to further claims.
The defendants separately asserted a plea of time bar and also sought the dismissal of the case on its merits.
Dismissal was ordered of the claim for pecuniary and non-pecuniary damages by the local court on the grounds: ”The assignment transaction was enacted at the enforcement office on 21.11.2002, the defendant O.. Y.. signed the protocol as agent of one of the creditors, A.., sales procedures were instigated on 29/4/2004 under Giresun Enforcement Office’s instruction file that has been examined, the sale took place on 29.04.2004 while the claim was filed on 23.12.2009 and the one-year time limit, the act not being criminal in nature, from awareness of the consequence of the instance of harm mooted in the case of Ęsmail had expired, and also, when the trial held into the offence of abuse of position against O.. is considered, taking into consideration that O.. had conducted the transfer transaction on 21.11.2002 and had thereby withdrawn from the case and the date on which the harm arose must likewise be considered to be 29.04.2009, and, viewed in this context, the act deemed criminal had been classified as abuse of position and the penal proceedings were pending in this form, and the penal action time limit stipulated for this act pursuant, in view of the date of the crime, to the Turkish Penal Code number 765 was five years, the envisaged extended time period had also expired.”
On the seeking of cassation review of the ruling by the claimant’s attorney, the Specific Chamber threw out the cassation objections to the ruling passed as it applied to the defendant Ę.. Y.., but quashed it for the above-mentioned reasons as it applied to the other defendant O.. Y..; reinstatement was made by the local court of the previous ruling as applicable to the defendant O.. Y.. .
Cassation review of the ruling was sought by the claimants attorney.
The judgment against the defendant Ę.. Y.. has attained finality as the cassation objections were dismissed and is external to the dispute.
The dispute having come before the Joint Civil Chambers by virtue of reinstatement revolves around whether the time limit for action applicable to the defendant O.. Y.. had expired in the case at hand based on the allegation of tort. The legal basis of the case being heard is tort.
It would thus be beneficial to dwell on the notions of tort and time limitation and the statutory provisions for these legal arrangements.
Tort has been defined in Article 41 governing “obligations in tort” of the repealed Code of Obligations (CoO) number 818 as, “A person who unjustly causes harm to another either intentionally or through negligence and carelessness or recklessness must compensate for that harm.”
Accordingly, tort is harming another through an unlawful act.
To enable tort to be spoken of, the following four elements must coexist: Initially, there must exist an unlawful act. The second element is fault on the part of the actor. Thirdly, harm must arise due to this act that entails fault and is unlawful. Finally, there must be a causal link between the ensuing harm and the unlawful act. Under circumstances where all these elements are not in coexistence or one or more element is absent, tort cannot be said to exist.
On the other hand, the technical notion in private law of time limitation means the expiry of the time period the law recognizes for the acquisition or loss of a right.
Time limitation as provided for in Articles 125-140 of the Code of Obligations (CoO) number 818 is of a nature that prevents a right from being asserted and results in denial of effective legal protection to a right of claim or, in other words, the possibility of it being acquired through a lawsuit, if not claimed by the claimant pursuant to the statutorily stipulated time period and terms. The state forgoes the use of its own force in the collection of a time-barred claim and thus leaves the matter of whether the claim in question is paid to the obligor’s initiative. Consequently, while a time-barred claim is not extinguished, it henceforth becomes a natural obligation (obligatio naturalis). However, it must be pointed out that a claim merely having become time barred does not suffice for it to turn into an imperfect obligation; to this end the obligor must assert a plea in avoidance directed against the obligee in the personal action brought against him (Joint Civil Chambers’ judgments E:2010/8-231, K:255 of 05.05.2010; E:2013/4-36, K:2013/1457 of 09.10.2013 and E:2013/4-440, K:2014/115 of 19.02.2014). Hence, in terms of its legal nature, time limitation is a plea in avoidance arising under substantive law, while, in terms of procedural law, it is a means of defence (Kuru, Baki: Civil Procedural Law, Volume:IV, Istanbul 2001, Volume:2, p.1761; Von Tuhr, A., Obligations Law (C. Edege’s translation), Ankara 1983, Volume:1-2, p.688ff.; Canbolat, Ferhat: The Differences between the Plea in Avoidance and Objection and the Legal Consequences of their Assertion, Erciyes University Faculty of Law Journal, Volume III, Number 1, Kayseri 2008, p.255ff.; Joint Civil Chambers’ judgments E:2010/9-629, K:2011/70 of 06.04.2011; E:2013/4-36, K:2013/1457 of 09.10.2013 and E:2013/4-440, K:2014/115 of 19.02.2014).
As to the limitation period in tort, separate provision for this has been made in Article 60 of the repealed Code of Obligations number 818. With it said in the first paragraph of the above-mentioned article: “Actions seeking monetary damages in respect of injury and loss or non-pecuniary harm are barred after the lapse of one year as of the date on which the harmed party became aware of the harm and its perpetrator and in all cases ten years as of the occurrence of the act that caused the harm,” provision is made in paragraph two of the same article making reference to time limitation in penal proceedings: “This is with the proviso that if the injury and loss action arises out of an act that pursuant to penal law warrants a penalty subject to a limitation period of longer duration, that limitation period is also applied to the personal action.”
As is clearly apparent from the text of the article, three separate limitation periods come into play with application to torts.
These are the one-year short limitation period that begins to run as of the date on which the harmed party learns of the harm and the perpetrator; the absolute limitation period running as of occurrence of the act and the lengthened (penal case) limitation period in cases where the act also constitutes a crime.
According to paragraph one of Article 60 of the CoO, the right to sue for damages in tort commences as of the harmed party’s awareness of the harm and tort and becomes time barred in one year. What matters here is learning of the harm and the party liable for damages. Being so positioned as to be able to learn does not set the limitation period running. Whichever of the harm and the liable party come to light last, the limitation period starts to run as of the latest date of awareness. If the harmed party is a juristic person, by contrast, consideration is given to awareness by the organ authorized to bring proceedings.
For the one-year period to commence, the harmed party must learn of the party liable for damages along with the harm. With fault liability he must learn of the perpetrator and, with strict liability, of the person the law holds liable. For the penal case limitation period provided for in paragraph two of Article 60 of the CoO to become applicable, provision must first of all have been made in the Penal Code or a specific law having penal effect that the injurious act constitutes a crime.
Unless specific statutes establish a different limitation period for torts, the limitation period stipulated in Article 60 of the CoO must be applied to actions brought for pecuniary and non-pecuniary damages in tort.
The meaning and purpose of Article 6/2 of the CoO is explained as follows in the doctrine and juristic conviction: A number of torts may invoke liability not purely from a private law standpoint, but also in terms of penal law and specific laws making penal provisions. It would surely defy logic for the harmed party to lose his rights for as long as the tortfeasor, that is the liable party, may be subject to penal prosecution whose consequences are generally harsher.
As such, if the tort simultaneously constitutes a crime under penal law or specific laws making penal provisions and a longer limitation period has been established for this act in such laws, the damages action is also subject to the limitation period relating to the penal case.
Accentuation was also given to this matter in Doctrinal Reconciliation Ruling number 17/26 of 07.12.1955. For while the limitation period in penal cases “varies according to the type of crime” it is for the most part longer than the private law limitation period in Article 60/1 of the CoO.
Consequently, if a penal case is pending against the perpetrator but the harmed party as claimant in the personal action was nevertheless not enabled to intervene or was not permitted to sue for damages in the civil court for the duration of this lengthy period (and especially with the penal case pending), the balance would be upset.
As such, if the injurious act at the same time warrants punishment and the limitation period established for this act in the penal code or specific laws making penal provisions is shorter than the one-year period in the CoO, then Article 60/1 of the CoO will be applied, while, if the limitation period established in these statutes is longer than the period in Article 60/1 of the CoO, then the longer period that has been established will also find scope for application in damages actions. As to the penal case limitation period whose application will be involved in such cases will, this will be determined as per Article 102 of the repealed Turkish Penal Code number 765 (or Article 66 of the current Turkish Penal Code number 5237) which was applicable on the date the act was committed.
It must immediately be noted that the limitation period in Article 60/II of the CoO is an arrangement that pertains entirely to private law and, as far as reasons that suspend and interrupt the limitation period are concerned, Articles 132 to 137 of the CoO will find scope for application, not Articles 102 and 104 to 107 of the repealed Turkish Penal Code number 765.
On the other hand, penal proceedings need not have been instituted against the perpetrator or sentence passed for the longer limitation period in respect of the penal case to be applied to damages actions; it suffices merely for an act that is punishable to have been committed, in other words, for the tort to be criminal in nature. Nevertheless, if there is a sentencing judgment passed by the penal judge which determines with finality whether a crime was committed or not, the civil judge is bound by this (Article 53 of the CoO). However, if the penal judge has granted acquittal due to insufficiency of evidence without addressing whether the act is a crime, the civil judge examines whether the tort is criminal in nature unconstrained by this. Likewise, in the absence of such a judgment, the civil judge freely examines and appraises whether an act was committed that entails penal liability and establishes the limitation period applicable to the incident.
Moreover, it is immaterial whether the act committed constitutes a crime whose prosecution is initiated by complaint because this consideration is a condition for the institution of penal proceedings. In such terms, the inability for penal proceedings to be instituted due to lapse of the complaint period (Article 108 of the repealed Turkish Penal Code) is no obstacle to the limitation period in respect of such proceedings being applied to the damages action (Joint Civil Chambers’ judgment number E:4/71, K:77 of 03.06.1953).
In view of the provision under paragraph two of Article 60 of the repealed Code of Obligations number 818 to the effect that, if the tort constitutes a crime subject to a limitation period of a longer duration pursuant to penal statutes, the damages action will be subject to the penal case limitation period and will not be time barred prior to the penal case, this will also give rise to a contradiction whereby suing for damages is unacceptable and will be futile for as long as proceedings into the tort can be conducted by the State since the harmed party can seek compensation from the penal court for the pendency of the penal proceedings.
Claimants’ intervention in the penal proceedings is not a precondition for application of the extended penal case limitation period. It will also be beneficial at this very juncture to dwell on the provision for limitation periods in the repealed Turkish Penal Code number 765 (TPC).
The periods in the repealed TPC number 765 were the periods of “limitation periods for instituting publicly prosecuted cases” in Article 102 and the periods of “prescription of penalty periods” in Article 112 (the periods whereby penalties imposed became time barred).
The articles have been titled differently from its predecessor in the current Turkish Penal Code number 5237 and the title of Article 66, the counterpart of former Article 102, is “Case limitation period”, and that of Article 68, the counterpart of former Article 112, is Penalty limitation period.”
The limitation periods applicable in damages actions are to be established in accordance with the maximum penalty the article pertinent to the act stipulates and not the amount of the penalty handed down as an individual’s circumstances dictate for the act.
As was explained in Doctrinal Reconciliation Ruling number E:1941/36, K:1942/15 dated 03.06.1942 of the Grand General Council: “The penal case limitation period must be calculated in acordance with the penalties warranted by the felonies and misdemeanours as enumerated in each sub-paragraph of Article 102 of the repealed TPC number 765, and not in accordance with the amount of the penalty delared and awarded by the court.”
To put it more bluntly, the penal case limitation periods applicable to damages actions brought before the civil courts are to be calculated in accordance with the maximum (top) penalties set out individually in Article 102 of the repealed TPC number 765 (Article 66 of the new TPC number 5237), and not in accordance with the lengths of the (particular) penalties handed down by the court with aggravating and mitigating reasons taken into consideration.
The penalties for crimes are included in the first four sub-paragraphs and for misdemeanours in the the last two sub-paragraphs of Article 102 of the old TPC and the periods precluding publicly prosecuted cases are laid down as being 20, 15, 10, 5 and 2 years and 6 months respectively. Indeed, the same principles were adopted in the Joint Civil Chambers’ judgments number E:2011/4-640, K:2012/89 of 22.02.2011 and E:2013/4-440, K:2014/115 of 19.02.2014.
It is moreover worth noting the effect on the limitation period of the making of personal claims in the period in which the repealed Code of Criminal Procedure number 1412 was in force (20.08.1929-31.05.2005).
”Private prosecution” is regulated in Articles 350 to 358 of the repealed CCP number 1412, as is intervention in publicly prosecuted cases and the raising of personal claims in Article 365 of the same statute. Thereby, the victim of the crime is enabled to raise a personal claim through intervention in penal proceedings.
However, not only is private prosecution excluded in the Code of Criminal Procedure number 5271 that came into effect on 01.06.2005, but the possibility has not been afforded of raising personal claims though intervention in penal proceedings. Hence, the possibility of raising personal claims in penal proceedings came to an end on 01.06.2005.
Through the provision, “Personal claims in proceedings instituted before the penal courts prior to the date on which this law entered into force are adjudicated by these courts without declaring non-jurisdiction” in Temporary Article 1 of the Law on the Manner in which the Code of Criminal Procedure number 5320 is to be Enforced and Applied, a solution was also envisaged for the resolution of potential problems that might emerge in practice (Joint Penal Chambers’ judgment numbe E:2008/1-126, K:2008/177 of 24.06.2008).
As has been seen, not only can personal claims not be adjudicated in publicly prosecuted cases brought before the penal courts as of 01 June 2005, but non-jurisdiction must be declared over such claims (Joint Penal Chambers’ judgment numbe E:2011/3-267, K:2011/297 of 27.12.2011).
It must immediately be noted that the institution of publicly prosecuted (penal) proceedings, application to intervene in such proceedings or even the application to intervene in publicly prosecuted proceedings while reserving a personal right (damages claim) cannot be considered to be a reason that interrupts the limitation period in terms of Article 133 of the CoO (Kuru, Baki: Civil Procedural Law, Volume:II, Istanbul 2001, Volume:2, p.1658ff.; Joint Penal Chambers’ judgments number E:1976/4-3068, K:1977/468 of 11.05.1977 and E:2013/4-440,K:2014/115 of 19.02.2014).
Finally, the asserting of a personal right through intervention in the publicly prosecuted proceedings while the penal case is pending had been enabled prior to 1 June 2005 pursuant to the above-mentioned Doctrinal Reconciliation Ruling number 17/26 of 17.12.1955 (Article 365/2 of the repealed CCP number 1412). However, as was stressed above, since the asserting of a personal right through intervention in the penal case is not enabled in the CCP number 5271 that entered into force as of 01 June 2005, there remains no scope for the application of Doctrinal Reconciliation Ruling number 17/26 of 17.12.1955 in the case at hand as of this date.
Indeed, the principles stressed above have also been adopted in the Joint Penal Chambers’ judgments number E:2013/4-36, K:2013/1457 of 09.10.2013 and E:2013/4-440, K:2014/115 of 19.02.2014.
In appraising the case at hand informed by the legal discussion and determinations made above, the date on which the tort alleged by the claimant occurred was 22.11.2002, because 22.11.2002 was accepted as being the date in the judgment that attained finality on 15.06.2011 of Trabzon Serious Crime Court No 1 (initially E:2007/206, K:2008/171 of 23.09.2008 and subsequently E:2011/40, K:2011/100 of 07.06.2011).
In the penal proceedings to which emphasis was given immediately above, the charges were dismissed as time barred in the publicly-prosecuted case brought against the defendant lawyer O.. Y.. on the count of abuse of position pursuant to Article 240 of the TPC number 765. The penal proceedings were determined to have still been pending on the date the action at hand was brought (18.12.2009). As has been stressed above, pursuant to Article 60/2 of the repealed CoO number 765, if the injurious act simultaneously constitutes a crime, the applicable limitation period is the penal case limitation period stipulated for that crime. Hence, in view of the maximim penalty for the crime provided for in Article 240 of the repealed TPC number 765 that was in force on 22.11.2002, the penal case limitation period is five years pursuant to Article 102/4 of the same statute.
As such, in view of the date of 22.11.2002 on which the tort occurred, the five-year action limitation period lapsed on 22.11.2007, while the action at hand was determined to have been brought on 18.12.2009 following expiry of the limitation period.
Despite the claimant having intervened in the penal proceedings, the application to intervene in the penal case does not interrupt the limitation period as he claimed no personal right.
Even if the local court’s acceptance of the date the harm arose as being 29.04.2004 is erroneous in that the date of the tort to which final effect was given in the penal case was 22.11.2002, dismissal of the case as being time-barred for action was the correct outcome.
In such terms, considering the points discussed above, the local court’s reinstatement of its previous ruling on the grounds of lapse of the action limitation period in opposition to the Specific Chamber’s reversal ruling accorded with procedure and the law by way of outcome.
Consequently, the reinstatement ruling must be upheld for the various reasons set out above.
CONCLUSION : It was decided unanimously on 08.04.2015, in dismissal of the claimant’s attorney’s cassation objections, that the reinstatement ruling be UPHELD for the various reasons set out above and the collection of any other fee is unwarranted as the necessary cassation judgment fee was obtained in advance.