Background
On 11 June 2021, a young girl was struck and killed by a vehicle on a pedestrian crossing. The defendant driver was subsequently convicted by the Antalya 8th Criminal Court of First Instance of causing death through conscious negligence (bilinçli taksir) under Articles 85/1, 22/3, and 62 of the Turkish Penal Code and sentenced to three years, ten months, and twenty days’ imprisonment. That conviction was affirmed on appeal and became final on 15 September 2022.
The deceased’s father and her minor sibling brought civil claims against the driver, the registered vehicle owner, and the mandatory liability insurer. The father sought loss-of-support damages of 273,611.57 TL (insurer’s liability capped at 115,068.00 TL under the policy) as well as 350,000.00 TL in moral damages. The minor sibling separately sought 350,000.00 TL in moral damages. The defendants contested fault, the quantum of moral damages as excessive, and raised procedural objections regarding the insurer’s prior-notice requirement and jurisdictional competence.
The case had a lengthy procedural history. A first commercial-court judgment was set aside by a prior appeal panel solely because the case value exceeded 500,000 TL and therefore required a collegiate bench rather than a single judge. After remand and re-hearing by a panel, Antalya 1st Commercial Court issued a new judgment on 26 December 2023 awarding full material damages (253,611.57 TL) and partial moral damages (300,000.00 TL to the father; 200,000.00 TL to the minor sibling). The defendants appealed again, and the sibling’s moral-damages claim was severed into the present file for separate appellate review.
The Court’s Holding
The 13th Civil Chamber identified a fundamental defect in the legal representation of the minor sibling-plaintiff. The deceased child and her minor sibling were the children of the plaintiff father and a non-party mother. Following the parents’ consensual divorce, the Antalya 2nd Family Court had, by a judgment finalized on 16 June 2020, awarded joint custody (ortaklaşa velayet) to both parents, with the children residing with the father. That joint-custody arrangement was in force at the time the lawsuit was filed and when the lower court rendered its second judgment. After the accident, the mother separately obtained sole custody through new family-court proceedings finalized on 29 January 2025, but that transfer post-dated the relevant litigation period.
Under Articles 51 and 52 of the Code of Civil Procedure (HMK), a minor who has legal standing (taraf ehliyeti) but lacks litigation capacity (dava ehliyeti) must be represented by all holders of legal-guardianship authority. Where custody is shared, neither parent alone may exercise that authority unilaterally; both must join the action or one must obtain the other’s express consent. Here, the father filed suit and granted a power of attorney on behalf of the minor child acting alone, with no indication anywhere in the record that the mother had consented. The lower court failed to investigate this defect despite the defendants raising it.
Because the legal-representation deficiency was never cured, the Chamber vacated the lower court’s 26 December 2023 judgment without examining the merits, pursuant to Article 353/1(a-6) of the HMK. It remanded the severed file to the first-instance court with instructions to join the mother (or secure her consent), allow the properly constituted representative to continue or ratify the claim, and then re-adjudicate. All other grounds of appeal raised by the defendants — including the quantum of moral damages, the insurance notice requirement, and interest-calculation methodology — were declared premature and not addressed. The decision is final and not subject to further appeal.
Key Takeaways
- In Turkey, a child subject to a joint-custody order cannot be validly represented in litigation by only one parent; both custodial parents must join as representatives, or one must provide documented consent to the other’s conduct of the proceedings.
- A court must investigate and resolve legal-representation defects raised by a party before proceeding to the merits; failing to do so constitutes a procedural error warranting vacation of judgment under HMK Article 353/1(a-6).
- Post-judgment changes in custody status (here, the mother obtaining sole custody in January 2025) do not retroactively cure a pre-existing representation defect in earlier proceedings — the status at the time of filing and judgment controls.
- In traffic-fatality cases involving multiple plaintiffs, severing the claims of individual plaintiffs (here, separating the minor sibling’s moral-damages claim) is permissible where the procedural issues affecting one plaintiff are distinct from those affecting others.
Why It Matters
This decision is a practical reminder for Turkish litigators that joint-custody arrangements — increasingly common following reforms expanding shared parenting — create procedural complexity in civil litigation. Counsel bringing claims on behalf of a minor child must verify the full custody landscape before filing, obtain documented consent from all joint custodians, and ensure the record reflects that consent. A gap in this documentation can derail even a well-founded damages claim through multiple rounds of appeal and remand, as this case illustrates: it had already been vacated and remanded once on a separate procedural ground before this second vacation.
More broadly, the ruling reaffirms that Turkish appellate courts treat proper legal representation of minors as a threshold requirement that overrides all merits-based arguments. Defendants in tort actions involving minor plaintiffs — particularly in mass-exposure or multi-victim scenarios such as traffic accidents — have a clear strategic incentive to scrutinize the custodial and representational arrangements of minor claimants at the outset of litigation.