The right to file a complaint, in other words the freedom to seek legal remedies, is set out in Article 36 of the Constitution as follows: “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures.” With this guarantee in place, individuals have the right and authority to request, both before the courts and by applying to the competent institutions and organizations, that their rights be protected against those who harm them, that legal action be taken and that those persons be punished.
However, the right to report and complain is sometimes abused out of hostility or for other reasons. The existence of an unjust report or complaint
Legal basis
In addition to the freedom to seek legal remedies guaranteed by the Constitution, Article 12 of the Constitution, titled “Nature of fundamental rights and freedoms,” states that everyone possesses inherent fundamental rights and freedoms which are inviolable, inalienable and indispensable. Article 17 further provides that everyone has the right to life and the right to protect and improve his or her material and spiritual existence.
Article 24 of the Turkish Civil Code (No. 4721) sets out the elements of an attack on personality rights and explains when such an attack is unlawful. Article 25 of the Civil Code provides that personality rights are protected against attacks through legal action. Under this article:
The plaintiff may ask the judge to prevent a threatened attack, to end an ongoing attack, or to declare unlawful an attack that has ended but whose effects continue.
Along with these, the plaintiff may also request that the correction or the judgment be communicated to third parties or published.
The plaintiff's right to claim pecuniary and non-pecuniary damages, and to request that any profit obtained through the unlawful attack be handed over under the rules on agency without authority, is reserved.
A claim for non-pecuniary damages cannot be assigned unless the other party has accepted it, and it does not pass to the heirs unless the deceased asserted it.
To protect personality rights, the plaintiff may file suit in the court of his or her own domicile or of the defendant's domicile.
Article 49 of the Code of Obligations sets out the sanction for such an attack.
Situations in which a compensation claim may be filed
As is well known, a right to compensation arises when it becomes clear that the offenses attributed to a person were not committed. Where the matter concerns an accusation of a criminal offense, innocence can be established in two ways.
A decision of non-prosecution
An acquittal delivered by the court after trial
The reasoning behind the court's acquittal is very important at this point. There is a difference between acquittals based on the principle “in dubio pro reo,” under which the defendant benefits from any doubt, and acquittals reasoned on the finding that it has been established that the defendant did not commit the offense.
Criteria for determining that a complaint was unjust
Whether the complaint was unjust is the main issue to be examined in such disputes. The criteria developed in the case law of the appellate courts are important when applied to specific cases. Below, we discuss under separate headings the case law that shows how the assessment differs depending on the facts.
Existence of an unjust complaint:
The central question here is whether the person abused the right to complain. The high courts have issued many decisions on this over the years and have developed a settled approach to when a person abuses this right.
Reports based on guesswork or similar vague hearsay or information:
As also stated in the decision of the Court of Cassation 4th Civil Chamber, Docket No. 9920, Decision No. 2217, dated March 8, 1988, the view adopted in both legal scholarship and judicial opinion is as follows. If a person who files a report or complaint has no serious and convincing evidence indicating that the event complained of occurred, and resorts to a complaint containing an accusation based purely on guesswork and analogy, or by treating as sufficient evidence whose adequacy even an ordinary person could question…., it must be accepted that the person's conduct is excessive and unlawful and involves gross fault. In that case, there will of course be an UNJUST complaint giving rise to liability.
Absence of even the slightest indication supporting the complaint
In its decision Docket No. 11734, Decision No. 2512, dated March 6, 2002, the Court of Cassation 4th Civil Chamber held that “…where there is not even minor evidence or indication that would justify the complaint, it must be accepted that the right to complain has been abused.” Likewise, in its decision Docket No. 10406, Decision No. 3213, dated April 7, 1989, the Court of Cassation 4th Civil Chamber held: “The defendant's exercise of the right to apply to the authorities based solely on his own guesswork and suspicion, without any indication whatsoever, constitutes excessive conduct. Because this conduct harms the plaintiff's personality rights, it justifies the claim of the plaintiff (the person complained about) for non-pecuniary damages.”
Where the freedom to seek legal remedies and personality rights come into conflict, the legal order cannot protect both values at the same time. It will be accepted as appropriate that the lesser interest is left unprotected, in that case and at that moment, in favor of the interest that deserves greater weight. Like other freedoms, the freedom to seek legal remedies is not unlimited, and a person may not use this right merely to harm another. For this right to be legally protected and considered properly exercised, it is not necessary that there be sufficient evidence to warrant the punishment or liability of the person complained about. It is enough that some indications and facts justifying the complaint exist, even if they are weak and indirect. Where others could have acted in the same way as the defendant on the basis of those indications in the same situation, the exercise of the right to complain should be accepted as appropriate. Otherwise, it must be concluded that the complaint exceeded the limits of the freedom to seek legal remedies and constituted an attack on personality rights.[1]
Where the consequences are serious, even if the false report involved only error and fault
To say that a person did not abuse the right to complain, it is not enough to establish that he or she did not act intentionally and with the aim of harming the person complained about, in other words out of hatred and malice. Even where such conduct involves fault rather than intent, if the degree of fault is serious, and especially if there is no or insufficient indication that the alleged act was committed, it must be accepted that the right to complain was abused.[2]
Where there is no unjust complaint
Exercising the right to report and complain is a natural consequence of the freedom to seek legal remedies set out in Article 36 of the Constitution, and as a constitutional right its exercise has always been considered lawful. This lawful exercise becomes unlawful and gives rise to liability only when it is diverted from its purpose and used to harm the other party intentionally or through gross fault.
As can be seen, this liability is not objective liability without fault. It can arise only where there is intent or gross fault. Therefore, when assessing this ground of justification, great care must be taken not to restrict the freedom to seek legal remedies to the point of eliminating it. A very delicate balance must be struck, and fault-based liability must not be turned into strict liability.
In this respect, the defendant's act of reporting and complaining cannot by itself be considered unlawful. […] Therefore, the court awarded non-pecuniary damages without an objective assessment of all the evidence in line with the points explained above and without taking into account that the conditions were not met because the defendant was exercising the right to report and complain arising from the Constitution. This was not found to be correct.
As a rule, for non-pecuniary damages to be awarded, there must be an attack on personality rights as generally defined in Article 25 of the Turkish Civil Code, and there must be no ground in the case that would eliminate unlawfulness, which is one of the elements of a tort. There is no doubt that companies, like natural persons, have personality rights.
The freedom to seek legal remedies guaranteed by Article 36 of the Constitution, and within this scope the right to report and complain, is a ground of justification. For an attack on personality rights through an unjust report or complaint to exist, the complaint must have been made unjustly, based on untrue and unreal material facts, with the aim of harming the other party, for example out of hatred and malice. For the right to report and complain to be considered exercised, evidence is not required. It is sufficient that there are indications regarding the truth of the alleged events that would justify the report or complaint. […]
There were sufficient indications justifying the complaint, and the complaint was made within the scope of the constitutional freedom to seek legal remedies. Taking this into account, the unfounded case should have been dismissed. Instead, the court erred in its assessment of the evidence and partially accepted the case, which was incorrect. Since the defendant's grounds of appeal were found well-founded for this reason, they were accepted and the judgment was reversed for the reasons explained. [3]
This case law defines unjust reports and complaints in extremely clear and precise terms.
Determining the limits of compensation:
Pecuniary damages:
A claim for pecuniary damages seeks compensation for a loss that can be quantified. There must be a loss directly connected with the report or complaint.
Here, the person must state clearly and specifically what financial loss he or she suffered and support it with evidence. For example, the person may seek compensation for the loss suffered from hiring a lawyer, having a business closed and similar consequences.
Non-pecuniary damages:
A person whose personality rights are unlawfully attacked may claim non-pecuniary damages. In determining the amount, the judge should consider not only the nature of the act and event constituting the attack but also the parties' degree of fault, their status, the positions they hold and their other social and economic circumstances. Bearing in mind that each case may involve particular circumstances and conditions, the judge should state objectively in the judgment the reasons affecting the exercise of discretion, because Article 4 of the Civil Code provides that where the law grants discretion, the judge shall decide in accordance with law and equity. The sum so determined is of a unique nature, with a function similar to compensation in that it restores peace of mind to the injured person. It is not a penalty, nor is it intended to make good a loss to one's property. The limit of this compensation must therefore be determined according to its purpose. The amount awarded should be as much as is needed to achieve the sense of satisfaction sought in the given situation.
Under the rule that non-pecuniary damages must not become a source of enrichment, non-pecuniary damages in Turkish law mainly serve only to provide moral satisfaction.
You can contact our office for advice on disputes of this kind.
[1] Court of Cassation 4th Civil Chamber, Docket No. 2014/7854, Decision No. 2015/3622, dated March 25, 2015
[2] Court of Cassation 4th Civil Chamber, Docket No. 1989/281, Decision No. 1989/3471, dated April 13, 1989
[3] Court of Cassation 7th Civil Chamber, Docket No. 2005/3639, Decision No. 2005/4132, dated December 27, 2005
