Tort liability and its basic conditions
Under TBK Article 49, the basic matters for assessment are an unlawful act, fault, damage and an adequate causal link. Where a violation of sexual integrity is alleged, the heads of damage, the legal basis of liability and the existence of any other liable persons are determined on the concrete facts. The charge in the criminal proceedings and the claim of damage in the civil action should not be assumed to be identical.
Related guide: Offences Against Sexual Integrity: TCK Articles 102–105, Elements of the Offences, Penalties, Evidence and Court of Cassation Case Law.
Heads of pecuniary damage
Where damage is claimed for treatment and support costs, inability to work, loss of earnings and an impaired economic future, the relevant documents are required. Medical reports, invoices, income records and expert examinations serve different functions. A claim of future damage is not accepted automatically on a hypothetical basis; the necessary scientific and economic calculation is carried out.
Non-pecuniary damages and personality rights
Under TBK Article 56, the provisions on violation of personality rights and on non-pecuniary damage connected with bodily integrity are of importance. In assessing the amount claimed, the particular features of the event, the gravity of the violation, the situation of the injured person and equity are taken into account. Non-pecuniary damages are not a criminal sanction; they serve as appropriate satisfaction according to the particular features of the victim’s suffering.
The effect of the criminal file on the civil action
TBK Article 74 governs the effect of criminal-law judgments on civil proceedings. A criminal court’s binding finding that the act occurred, and matters such as the determination of fault and compensation, should be kept apart. The reasoning for an acquittal matters; not every acquittal removes a compensation claim of its own accord, while a conviction does not automatically prove the amount of damage.
Limitation and procedural matters
Under TBK Article 72, the date of becoming aware, the identity of the person causing the damage and the relationship with the limitation period for the offence must be examined. The court with subject-matter and territorial jurisdiction, standing to sue, the representation of a child victim and the power-of-attorney relationship are assessed separately. Before the action is brought, the confidentiality of documents and health data must be protected.
The child’s personal data and enforcement of the judgment
Unnecessary publication of a child’s identity and health data may give rise to a fresh violation of rights. In judicial and enforcement proceedings, attention is paid to purpose limitation, secure transfer of documents and the conditions of lawful representation. An award of compensation and its collection or actual enforcement are not the same stage; where necessary, enforcement steps must be pursued separately.
Use of health and psychological data in the proceedings
In a compensation claim, health documents, psychological assessments and records of economic damage may be important. Even so, the dissemination of unnecessary personal information outside the case file may interfere again with the victim’s private life. Documents should be submitted in a manner limited to the purpose of the action, secure and within the necessary scope. The medical conclusion stated in a report and the legal causal link to the tort must be assessed separately.
Calculation of damage and alternative causes
In calculating pecuniary damage, treatment costs, effects on the capacity to work and future economic consequences must be substantiated concretely. A pre-existing condition, damage arising from other events and the need for treatment may call for an expert examination where different causes are present. The right to compensation and automatic acceptance of every amount claimed are not the same thing.
Enforcement, collection and confidentiality after the judgment
An award of compensation in the claimant’s favour does not mean that the claim will be paid of its own accord. The conditions of finality and enforceability, interest, litigation costs, enforcement on the basis of a judgment (ilamlı takip) and the means of collection are assessed separately. In steps taken on behalf of a child victim, the authority of lawful representation and any conflict of interest are checked. Personal information submitted to the enforcement file should not be made public unnecessarily.
Elements of legal liability and the effect of the criminal decision
For pecuniary or non-pecuniary damages, the act, unlawfulness, fault or the relevant basis of liability, damage and the causal link must be examined under the concrete conditions. Within the framework of TBK Article 74, a criminal court’s decision and the civil judge’s being bound by it do not mean the same thing; in particular, the reasoning of an acquittal and the findings of material fact in the criminal file must be carefully separated. An acquittal does not in every case mean automatic rejection of compensation.
Pecuniary damage, future effects and proof
Heads such as treatment, counselling, loss of income, loss of capacity to work and future economic impact should be assessed by showing their connection to the event and the supporting documents. It is not presumed that all of these heads are present in every concrete file. The technical uncertainty of health documents and the examination of legal causation must not be confused.
Proportionality in non-pecuniary damages and personality rights
The assessment of non-pecuniary damages cannot be fixed by an automatic table or by the name of the offence alone. The nature of the act, its consequences for the personality right, the situation of the parties and the concrete circumstances are assessed within the framework of the relevant legal rules. In the statement of claim, the victim’s intimate information should be used only to the extent of legal need, and unnecessary details should not be brought into the public domain.
Collection after judgment and the representation of the child
An award of compensation is not automatic collection of the claim. The enforceability of the judgment, interest, litigation costs, enforcement and steps concerning assets must be assessed separately. In an action brought on behalf of a child victim, custody/guardianship (velayet/vesayet), the power of representation and possible conflicts of interest must be checked separately. The basic rule is that intimate information is not shared more than necessary during the enforcement or litigation process.
Findings that can be carried over from the criminal file to the civil action
The account of events in the criminal file, expert reports and the reasoning of the decision may be useful in the civil action. However, as regards TBK Article 74, the civil judge is not bound in the same way by every legal characterisation of the criminal court. The type of acquittal and conviction decisions, finality and findings of material fact must be carefully distinguished.
Protection of the victim’s personality rights and privacy
In a compensation action it is important to show concrete damage; but this aim does not justify making unnecessary health or private-life information public. In representing a child victim, conflicts of interest, confidentiality measures during the action and the submission of documents limited to the purpose should be considered. In enforcement steps after judgment too, unnecessary transmission of sensitive information must be avoided.
The criminal court’s decision and the civil judge’s assessment
Under TBK Article 74, the effect on the civil judge of the criminal court’s assessments of fault and damage, and the position of its findings of material fact, are different matters. In the civil action, tort, damage, fault and the adequate causal link must be assessed separately. The reason for an acquittal, finality and which material events the judgment established are significant. The forensic report and witness statements in the criminal file may be transferred; however, the civil judge cannot derive the amount of compensation automatically from the criminal judgment.
Substantiating pecuniary and non-pecuniary damage
Heads of pecuniary damage asserted in respect of treatment, rehabilitation, capacity to work and economic future must be established by appropriate documents and, where necessary, an expert examination. In non-pecuniary damages, the gravity of the act, the characteristics of the violation of the personality right, the effect of the event on the victim and equity must be assessed. The impression must not be given that the same amount or a standard tariff applies in every case. As to limitation, the special conditions of TBK Article 72 and its relationship with the limitation period for the offence must be examined according to the date of the event.
A child victim’s representation, privacy and collection of the award
In a child victim’s compensation action, the power of representation, any conflict of interest with the legal representative and the necessary protective measures must be investigated. Health, psychological support and private-life documents should be submitted only to the necessary extent; personal data must be protected in documents and case content that are published openly. After the compensation decision, the finality, payment, attachment and collection stages of enforcement proceedings are planned separately. Acceptance of a compensation claim and its actual collection are not the same step.
Related article: Sexual Assault and Harassment on Holiday: The Hotel Operator’s Liability, Victims’ Rights, Evidence and Compensation.
Conclusion
In assessing the compensation rights of victims of sexual assault and abuse, the relationship between the statutory elements of the offence or act concerned and the concrete evidence must be set out clearly. The reasoning of the court’s decision should address the decisive points of the claim and the defence; the legislation applicable on the date of the event should be taken into account. Protection of the victim and the guarantees of a fair trial are not opposed to one another, but are complementary obligations of a state governed by the rule of law.
Frequently Asked Questions
Is a civil action for compensation possible without a criminal case?
It is possible depending on the conditions; liability and proof are examined separately.
Does an acquittal automatically end the compensation action?
No; the reasoning for the acquittal and TBK Article 74 are assessed separately.
Is the amount of non-pecuniary damages set by an automatic tariff?
No; the particular features of the event and equity are what matter.
Who can bring an action on behalf of a child?
Lawful representation and possible conflict-of-interest provisions are examined in the concrete case.