T.C. COURT OF CASSATION 4th CIVIL CHAMBER
Basis No: 2017/2801 Decision No: 2017/4714 Date: 18.09.2017
NON-BINDING NATURE OF THE SUSPENSION OF THE PRONOUNCEMENT OF JUDGMENT (HAGB) FOR THE CIVIL JUDGE (Non-Pecuniary Damages Based on the Act of Insult – Since the HAGB Order Issued by the Criminal Court is Not a Finalized Conviction and is Not Binding on the Civil Judge Within the Meaning of Article 74 of the TCO, the Lawsuit Must Be Dismissed Regarding the Defendant)
NON-PECUNIARY DAMAGES BASED ON THE ACT OF INSULT (In the Criminal Trial, the Defendant Was Sentenced to 2 Months and 27 Days of Imprisonment and a Suspension of the Pronouncement of Judgment Was Ordered / The HAGB Order of the Criminal Court is Not a Finalized Conviction, nor is it Binding on the Civil Judge Pursuant to Article 74 of the TCO)
Relevant Articles: Turkish Code of Obligations (TCO) Art. 74; Criminal Procedure Code (CPC) Art. 231/5.
SUMMARY: The lawsuit concerns a request for non-pecuniary damages based on the acts of insult. The court decided to accept the lawsuit on the grounds that there was an attack on the plaintiff’s personal rights. The defendant was tried for the crime of insult against the plaintiff and was sentenced to 2 months and 27 days of imprisonment, with a decision rendered for the Suspension of the Pronouncement of Judgment (HAGB), which became final without objection. Pursuant to Article 231/5 of the CPC: “The suspension of the pronouncement of judgment means that the judgment established shall not produce any legal consequences for the defendant.” The decision of the criminal court resulting in HAGB is not in the nature of a finalized conviction, and it is not binding on the civil judge within the meaning of Article 74 of the TCO. The court should have decided to dismiss the lawsuit regarding the defendant by considering the facts explained above.
LAWSUIT: Upon the request for non-pecuniary damages by the plaintiff’s counsel against the defendants through a petition dated 27/05/2014; following the trial conducted by the court, and upon the appeal of the judgment dated 05/03/2015 by the defendants’ counsel within the legal time limit; after deciding to accept the appeal petition, the report prepared by the rapporteur judge and the documents within the file were examined:
DECISION: 1-) Regarding the appeal objections of the defendant [First Defendant]: Based on the documents in the file, the evidence justifying the judgment, and the fact that no error was observed in the evaluation of the evidence, the groundless appeal objections of the defendant must be rejected.
2-) Regarding the appeal objections of the other defendant: The lawsuit concerns the request for non-pecuniary damages based on the acts of insult. The court decided to accept the lawsuit, and the judgment was appealed by the defendants. The plaintiff claimed that their personal rights were violated due to the defendant S.K. insulting them in the garden of a condolence house on the date of the incident, and requested non-pecuniary damages. The defendant argued for the dismissal of the lawsuit. The court accepted the lawsuit on the grounds that there was an attack on the plaintiff’s personal rights.
Due to the incident subject to the lawsuit, the defendant was tried on the grounds of committing the crime of insult against the plaintiff and was sentenced to 2 months and 27 days of imprisonment, and it was decided to suspend the pronouncement of the judgment, which became final without objection. Pursuant to Article 231/5 of the CPC: “The suspension of the pronouncement of judgment means that the judgment established shall not produce any legal consequences for the defendant.” The decision of the criminal court resulting in the suspension of the pronouncement of judgment is not a finalized conviction, and it is not binding on the civil judge within the meaning of Article 74 of the TCO.
Upon examination of the criminal file, it is observed that the defendant was sentenced with general expressions without discussing which statements constituted the crime of insult, which witness statements (for or against the defendant) were given priority, or why certain witness statements were relied upon. In the joint evaluation of the initial witness statements taken during the Prosecution investigation immediately after the incident and the witness statements heard during the trial, it is understood that the existence of words and behaviors of the defendant in the nature of an insult against the plaintiff has not been proven. Pursuant to the aforementioned provision of the law, a conviction whose pronouncement is suspended is not binding on the civil judge.
Therefore, while the court should have decided to dismiss the lawsuit regarding the defendant by considering the facts explained above, establishing a judgment as written and holding the defendant liable for non-pecuniary damages was not correct and required a reversal of the decision.
CONCLUSION: It was unanimously decided on 18.09.2017 that the appealed judgment be REVERSED in favor of the defendant for the reasons shown in point (2) above, that the appeal objections of the defendant be rejected for the reasons shown in the first point, and that the advance appealfee be returned upon request.