Wrongful Death Claim in Turkey under Turkish Law
Author: Mr. Gökhan Cindemir , Phd Candidate , Senior Partner Lawyer cindemir@cindemir.av.tr
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 ;
- a) Thirty years in offenses requiring punishment of heavy life imprisonment,
- b) Twenty-five years in offenses requiring punishment of life imprisonment,
- c) Twenty years in offenses requiring punishment of imprisonment not less than twenty years,
- d) Fifteen years in offenses requiring punishment of imprisonment more than five years and less than twenty years,
- 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
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