COMPENSATION LAWYER IN TURKISH LAW – COMPENSATION LAW

Compensation is an Arabic-origin word meaning “money or payment made in return for damage.” In the Turkish legal system, compensation refers to the payment made as compensation for material or moral damages arising from actions contrary to law, regulation, or contract.

A compensation lawyer is an attorney who provides legal advice and representation to individuals to remedy or minimize damages caused by torts or actions. They possess extensive knowledge and experience in compensation cases.

COMPENSATION LAWSUIT IN TURKISH LAW AND ITS TYPES

A compensation lawsuit is the legal remedy pursued by a person who has suffered material or moral damage as a result of a tort or behavior. Compensation lawsuits result in compensating the victim’s losses while also ensuring that the perpetrator faces the consequences of their unlawful behavior. In our legal system, compensation lawsuits are divided into two categories: material compensation and moral compensation. Material and moral compensation lawsuits can be filed together or separately.

Material Compensation: This aims to compensate for the reduction or damage to an individual’s assets due to unlawful acts or behaviors. These lawsuits cover tangible and calculable damages, such as damages to a vehicle in traffic accidents or material losses arising from breach of contract.
Moral Compensation: This type of compensation is sought for damages resulting from the emotional impact of suffering, pain, or sorrow experienced by a person due to an unlawful act or transaction. Such lawsuits are filed against emotional and psychological damages, for example, loss of reputation or defamation.
Loss of Support Compensation: This is the type of lawsuit filed to compensate for damages incurred due to the loss of support from a person as a result of another individual’s death or injury. For example, when a breadwinner dies due to an unlawful situation, their family may suffer from loss of livelihood.
Compensation Due to Unlawful Protective Measures: Protective measures such as arrest, detention, or custody can be decided by a prosecutor or a court for a suspect or defendant. When it is determined that the suspect or defendant is innocent, the person subjected to protective measures is entitled to file for material and moral compensation.

Currently, the most commonly sought types of material compensation stem from employee-employer disputes regarding severance and notice compensation. On the other hand, the most litigated type of moral compensation generally involves moral damages resulting from torts

SEVERANCE AND NOTICE COMPENSATION IN TURKISH LAW

Severance Compensation: It is the compensation to be paid by the employer to the employee based on the length of service in the workplace, provided certain conditions outlined in the law are met. Severance compensation is calculated based on the gross salary, including additional benefits such as transportation, meals, and social assistance.

CONDITIONS FOR RECEIVING SEVERANCE COMPENSATION IN TURKISH LAW

The conditions for receiving severance compensation are regulated in the Labor Law No. 4857.

Qualifying as an Employee: Article 14 of the Labor Law states that the following groups of individuals are not considered employees, thus they cannot receive severance compensation:
- Those working in maritime and aviation transport,
- Domestic workers,
- Those working in businesses with fewer than 50 employees (including 50) in agriculture and forestry,
- Any construction works related to agriculture within family economic limits,
- Apprentices,
- Athletes,
- Rehabilitated individuals.
Minimum One Year of Work Requirement: An employee must work for at least one year in the same workplace or workplaces of the same employer to qualify for severance compensation. If the employee has worked at different workplaces or companies under the same employer, all periods are considered in calculating the one-year work requirement.
Justified Termination: To be entitled to severance compensation, the employment contract must be for an indefinite term, whether written or verbal. The employee must have terminated the contract for justifiable reasons as outlined in Article 24 of the Labor Law No. 4857, or if the termination was made by the employer, it should not be based on justified reasons listed in Article 25 of the same law.

STATUTE OF LIMITATIONS FOR SEVERANCE COMPENSATION IN TURKISH LAW

The statute of limitations for severance compensation is five years from the termination of the employment contract. According to Article 3 of Law No. 7036 on Labor Courts, it is a prerequisite to apply to mediation before filing lawsuits for claims and compensation regarding individual or collective labor contracts.

An employee who wishes to file a severance compensation lawsuit must attach the original or a certified copy of the final report indicating that no agreement could be reached during mediation to the lawsuit petition. Thus, they can proceed to the lawsuit stage. However, if the employee does not attach the report to the petition, they are given a definitive period of one week. If the report is not submitted by the end of this period, the lawsuit will be dismissed

HOW IS SEVERANCE COMPENSATION CALCULATED IN TURKISH LAW?

Severance compensation is calculated based on the gross salary the employee last received at the time of termination. Additionally, benefits such as transportation and meals are added to the last gross salary. The wage taken into account for calculating severance compensation is the employee’s gross wage. Therefore, severance compensation is calculated based on the gross salary determined without any deductions such as insurance premiums, taxes, and union dues, rather than the net pay the employee actually receives.

UNDER WHAT CIRCUMSTANCES DO EMPLOYEES QUALIFY FOR SEVERANCE COMPENSATION IN TURKISH LAW?

Justified termination due to health issues,
Non-payment or delayed payment of dues or overtime,
If the employer commits an offense against the employee (such as defamation, threats, or harassment),
During military service,
If there is a substantial change in the employee’s working conditions,
If the employee qualifies for retirement,
In the case of a female employee’s marriage (within one year),
If the employee is a union official,
If the employee dies, their heirs can file a lawsuit.

CIRCUMSTANCES PREVENTING RECEIPT OF SEVERANCE COMPENSATION IN TURKISH LAW

Cases where the employee does not comply with loyalty obligations and competition restrictions,
If the employee becomes ill or disabled due to their own fault, resulting in an absence of three consecutive workdays or five workdays in a month, and if the employer terminates the contract on these grounds, the employee cannot receive severance compensation.
If the employee’s illness is untreatable and it is determined by a health board report that their presence at work poses a risk, the employer’s termination on this basis means the employee cannot receive severance compensation.
If the employee provides misleading or false information when hired,
If the employee engages in behavior that humiliates the employer or their family or makes defamatory claims against the employer,
If the employee discloses the employer’s trade secrets,
If the employee commits an offense that requires seven days of imprisonment without probation at the workplace,
If the employee fails to report to work for two consecutive workdays without permission or legitimate reasons or fails to report to work after any holiday for two times in a month or totals three workdays within a month, the employer can terminate the contract, and the employee cannot receive severance compensation.

WHAT IS NOTICE COMPENSATION IN TURKISH LAW?

Notice compensation is the payment made in cases of resignation or dismissal. By paying this amount upon dismissal or resignation, the parties grant each other time to prepare for the job change. Regarding notice compensation regulated in the relevant article of the Labor Law: If the employer wishes to terminate an indefinite-term employment contract without just cause, they must comply with the notice periods or pay the equivalent of these periods in advance; if the employee wishes to terminate, they must comply with the notice periods (Labor Law Article 17/1).

A termination made without adhering to notice periods is considered unlawful termination. In the case of unlawful termination, the party that did not comply with the notice periods must pay compensation to the other party equal to the amount of salary for the notice period (Labor Law Article 17/4).

CONDITIONS FOR CLAIMING NOTICE COMPENSATION IN TURKISH LAW

The employment contract between the parties must be of indefinite duration,
The employment contract must have been terminated without just cause,
The notice periods specified in Article 17 of the Labor Law must not have been adhered to.

NOTICE PERIODS IN NOTICE COMPENSATION IN TURKISH LAW

In the case of termination without just cause, the terminating party is obliged to notify the other party of the termination in advance for a certain period based on the employee’s length of service (Labor Law Article 17).
The notification periods according to Article 17 of the Labor Law are as follows:
- For employees with less than six months of service, two weeks,
- For employees with six months to one and a half years of service, four weeks,
- For employees with one and a half to three years of service, six weeks,
- For employees with more than three years of service, eight weeks.

>>If different periods are provided between the employee and employer (TCK Article 432/5): The termination notice periods must be the same for both parties; if different periods are stipulated in the contract, the longest termination notice period applies to both parties.

COMPENSATION LAWSUITS DUE TO PROTECTIVE MEASURES IN TURKISH LAW

The Criminal Procedure Code No. 5271 includes measures of protection such as arrest, detention, search, seizure, or imprisonment. However, these protective measures must be applied in a proportionate and balanced manner. The arbitrary or excessive application of protective measures leads to the violation of individuals’ fundamental rights and freedoms. To prevent these risks, regulations have been made to ensure that the unlawful application of protective measures requires compensation.

When it is determined that the suspect or defendant is innocent as a result of an investigation or prosecution—that is, when the court issues an acquittal or the prosecutor issues a decision of non-prosecution—it is also determined that the protective measures were applied unjustly. The person subjected to unjust protective measures has the right to file a claim for both material and moral compensation. Article 141 of the Criminal Procedure Code lists the types of unjust protective measures compensation lawsuits filed against the Ministry of Finance, that is, against the state.

CIRCUMSTANCES IN TURKISH LAW UNDER WHICH A LAWSUIT CAN BE FILED DUE TO UNLAWFUL PROTECTIVE MEASURES

According to the Criminal Procedure Code, individuals who are subjected to unlawful protective measures during a criminal investigation or prosecution can request compensation in the following circumstances:

Individuals who were arrested, detained, or had their detention extended under conditions other than those specified by law (Article 141/1-a of the Criminal Procedure Code),
Those who were not brought before a judge within the legal period of detention (Article 141/1-b),
Those who were detained without being reminded of their legal rights or without having their request to benefit from these rights fulfilled (Article 141/1-c),
Those who, although detained in accordance with the law, were not brought before the judicial authority within a reasonable time and were not given a verdict during this time (Article 141/1-d),
Those who, after being lawfully arrested or detained, were acquitted or decided not to proceed with prosecution (Article 141/1-e),
Those who were sentenced but spent more time in detention than their sentence or were convicted solely to a judicial fine because the offense committed only carries a fine according to the law (Article 141/1-f),
Those whose reasons for arrest or detention and the accusations against them were not explained in writing or, when that was not possible, verbally (Article 141/1-g),
Those whose arrests or detentions were not notified to their relatives (Article 141/1-h),
Those for whom a search order was executed disproportionately (Article 141/1-i),
Those whose property or other assets were seized without meeting the necessary conditions, or for whom necessary precautions were not taken to protect their property, or whose property or assets were used for purposes other than intended, or whose property was not returned in a timely manner (Article 141/1-j),
Those who were subjected to judicial control measures such as house arrest (not leaving the residence) or hospitalization for treatment of drug, stimulant, or volatile substance addiction, and after the imposition of these measures, a decision of no prosecution or acquittal was issued (Article 141/1 of the Criminal Procedure Code).

THE TIME LIMIT FOR FILING A COMPENSATION LAWSUIT DUE TO UNLAWFUL PROTECTIVE MEASURES AND THE COMPETENT COURT IN TURKISH LAW

According to Article 142/1 of the Criminal Procedure Code No. 5271, compensation claims due to protective measures can be filed within three months from the notification of the final decision to the concerned party and, in any case, within one year from the date of the finalization of the decision or ruling. Local courts treat this period as a statute of limitations, not a time-barred period, meaning that if the one-year period passes without the concerned party learning of the decision, the case will be dismissed.

For claims for material and moral compensation due to unlawful protective measures, the competent court is the heavy criminal court located in the residence of the concerned party. If there is no heavy criminal court in the residence of the claimant, the nearest heavy criminal court is authorized and competent to hear the case.

CIRCUMSTANCES UNDER WHICH A MATERIAL AND MORAL COMPENSATION LAWSUIT CAN BE FILED IN TURKISH LAW

Material and moral compensation lawsuits can be filed to remedy the damage caused by any unlawful act or transaction. Although compensation lawsuits can be filed for many different reasons, the most commonly filed compensation lawsuits are as follows:

Material and moral compensation lawsuit resulting from a work accident,
Material and moral compensation lawsuit filed for damages caused by traffic accidents,
Material and moral compensation lawsuit due to breach of contract,
Material and moral compensation lawsuit arising from malpractice (medical error),
Material and moral compensation lawsuit filed due to divorce,
Material and moral compensation lawsuit filed due to copyright infringement,
Material and moral compensation lawsuit filed for violations of personal rights through written and visual media or social media,
Material and moral compensation lawsuit that can be filed due to crimes such as defamation and threats that harm personal rights,
Material and moral compensation lawsuit filed due to trademark infringement.

CONDITIONS FOR ACQUIRING THE RIGHT TO FILE A COMPENSATION LAWSUIT IN TURKISH LAW

The conditions for acquiring the right to compensation vary depending on the type of unlawful act or transaction, the connection between the person or institution causing the harm, and the statute of limitations. In general, the conditions for acquiring the right to compensation in our legal system are listed below.

Fault: In order to file a compensation lawsuit, there must first be a fault/damage caused. Material damage refers to economic losses that can be calculated in concrete terms. This damage must be proven with concrete evidence.
Illegality: It must be proven that the damage was caused by an unlawful act or transaction by the defendant.
Causal link (Cause-effect relationship): A cause-and-effect relationship must be established between the damage and the party causing the damage. The responsibility of the party committing the unlawful act must be established with a legal basis.
Statute of limitations: In compensation lawsuits, the lawsuit must be filed within a certain period from the date the unlawful act occurred. These periods vary depending on the type of compensation and are subject to legal regulations.
Right to file a lawsuit: The compensation lawsuit can be filed by the harmed person or by the lawyer representing the harmed person. For compensation for loss of support due to death, the relatives of the deceased may file the lawsuit.

WHICH COURT HANDLES COMPENSATION LAWSUITS IN TURKISH LAW?

Article 6 of the Civil Procedure Law No. 6100 regulates the general rule of jurisdiction. According to this article, a material and moral compensation lawsuit can be filed in the defendant’s place of residence, which is the general jurisdiction for all cases, or in the civil court of first instance located where the legal entity (company, foundation, association, university, etc.) is headquartered. While the general rule for jurisdiction in compensation lawsuits is the civil court of first instance, in some exceptional cases, this may change. For example, in cases related to employee wages, if there is a labor court, the labor court will have jurisdiction. Additionally, according to Article 10 of the Civil Procedure Law (HMK):

Compensation lawsuits arising from breach of contract can be filed in the authorized courts mentioned above or in the civil court of first instance located where the contract is to be executed. In compensation lawsuits arising from commercial transactions and material and moral compensation lawsuits where both parties are merchants, the competent court is the commercial court of first instance.

HOW ARE COMPENSATION LAWSUITS FILED AND HOW LONG DO THEY TAKE IN TURKISH LAW?

In the Turkish legal system, both material and immaterial compensation lawsuits are subject to written procedural law. Once the competent court is determined based on the reason for filing the lawsuit, the location where the lawsuit will be filed is decided. Generally, the court can be the place of residence of the harmed party, the location where the tort was committed, or the defendant’s place of residence.

The first stage of filing a lawsuit is the petition stage. Mutual petitions are written, including the lawsuit petition and the defense petition. The process of exchanging these petitions may take about 1-2 months. Afterward, both parties are notified for a preliminary examination hearing. Once the preliminary examination stage is completed, the court proceeds to the investigation stage.

In the investigation stage, all evidence is collected. If there are witnesses among the evidence, witness statements are taken. If the lawsuit is based on an accident, expert reports related to injury or damage are obtained, followed by a final accounting report. Both parties have the right to object to this report and may request it to be revised. If the court accepts the objection, it will order a new expert report.

The court then proceeds to the oral examination stage and issues its decision. The plaintiff or the defendant can appeal the decision if they wish. The duration of compensation lawsuits typically lasts around 1.5-2 years, depending on the type of case, the court’s caseload, or other reasons such as judicial recess. If one or both parties appeal, the duration may be extended.

The Time Limit for Filing a Material and Immaterial Compensation Lawsuit in Turkish Law

If the tort that is the subject of the compensation lawsuit constitutes a criminal offense (e.g., traffic accident, work accident, or medical malpractice resulting in death or injury), the statute of limitations for the criminal case applies, and the same time limit applies for the material and immaterial compensation lawsuit.
The time limit for filing a material and immaterial compensation lawsuit due to a tort is 2 years from the date the tort is discovered or the damage occurs. Even if the act and the perpetrator are discovered later, the time limit is 10 years in any case (Turkish Civil Code, Article 72/1). If 10 years have passed from the date the tort was committed, the right to file a lawsuit expires.
The time limit for filing a material and immaterial compensation lawsuit following a divorce is 1 year from the finalization of the divorce (Turkish Civil Code, Article 178). The parties can file a compensation lawsuit together with the divorce case, or within 1 year after the divorce is finalized.
In compensation lawsuits arising from a breach of contract, the general statute of limitations is 10 years (Turkish Code of Obligations, Article 146).

Antalya Compensation Lawyer – Compensation Lawsuits

Compensation lawsuits are a complex and lengthy process, depending on the type and circumstances of the case. Therefore, it is essential to seek support from a legal advisor or lawyer with a professional background in this area.

In Antalya, there are many lawyers who specialize in this field. When choosing a lawyer, it is important to select one with a proven track record and experience in this area. At our law firm in Antalya, we provide legal consulting and representation services to our clients with our team of experienced and specialized lawyers. You can contact us for more information or to schedule an appointment via the contact section.

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