Amount of Non-Pecuniary Damages

Objective–Subjective Criteria, Reasons for Increases–Decreases, and Implementation Strategy

Summary: Moral damages are an institution aimed at mitigating the damage to personal values, the amount of which is at the discretion of the judge, but which is subject to review through legal and logical criteria . Within the framework of Articles 56 and 58 of the Turkish Code of Obligations ("TBK"), the judge considers the nature of the event, the severity of fault, the level of impact, socio-economic data, the purchasing power of money, and equity. The prohibition of unjust enrichment , deterrence , fair balancing , and the principle of equality in similar cases are fundamental cornerstones that have gained consistency in the established jurisprudence of the Supreme Court. The following study details the objective and subjective criteria in determining the amount , the reasons for increase/decrease , the topics of interest, statute of limitations, and proof , and the practical scoring approach in practice

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1) Legal Framework and Founding Principles

• Turkish Code of Obligations, Article 56 : In cases of bodily harm or death, " appropriate " amount of moral damages may be awarded in favor of the injured party or the relatives of the deceased

• Turkish Code of Obligations, Article 58: In cases of violation of personal rights, in addition to actions such as identifying and preventing the attack, moral damages may also be claimed.

• Turkish Civil Code Articles 24-25: Protection, cessation, and compensation against unlawful attacks on personal rights.

• Turkish Code of Obligations, Articles 49, 51-52: Tortious acts and the judge's authority to determine compensation according to equity; contributory negligence and other circumstances leading to reduction.

1.1. The function of moral damages

1. The function of relief/comfort: To alleviate the trauma to the victim's mental balance.

2. Deterrence and balancing: A reasonable penalty that acknowledges the offender's culpable behavior

3. Prohibition against unjust enrichment: The amount a penalty or transfer of wealth ; disproportionately high amounts are rejected.

4. Equivalence and predictability: Closely spaced bands in similar events ; divergence if there is different intensity/defects .

1.2. The established approach of the Court of Cassation (summary of principles)

• The amount is determined by considering the severity of the incident, the status of the parties, fault, spread/impact, purchasing power of money , and equity

• "It cannot be a means of getting rich" ; however, simply keeping it low also negates its function of providing satisfaction

• The expert witness cannot determine the "amount"; data that may assist the judge can be provided (especially medical/psychological findings, access statistics).

• Interest on moral damages generally accrues from the date of the lawsuit ; however, different starting dates may be justified in certain special circumstances.

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2) Objective Criteria

Objective criteria are indicators that can be read from the event to the outside world ; they are based on concrete data rather than personal perception .

2.1. Nature and Severity of the Incident

• Type: Death, serious bodily harm, permanent/long-term injury, healthcare malpractice, workplace accident, traffic accident, crime against sexual integrity, violation of personal rights through press/internet, privacy-data breach, defamation/libel, etc.

• Intensity: The systematic and persistent nature of the action ; the distinction between a single attack and a series of attacks.

• Severity of consequences: Permanent sequelae, decreased daily living functionality, social isolation, and association with occupational and academic losses.

2.2. Severity of Fault and Causation

• Deliberate conduct > gross negligence > minor negligence.

• Supervision/organizational failure: Employer's occupational health and safety obligations; deficiencies in healthcare facility procedures.

• The strength of causality: The directness and predictability of the chain of influence .

2.3. Scope of Spread and Public Impact

• Print-internet-social media: Publication circulation/reach, content permanence (archival effect), viral spread.

• a correction/retraction has been issued; whether the content has been immediately removed.

2.4. Purchasing Power of Money and Economic Data

• Inflation and purchasing power at the time of the decision are taken into account; small nominal amounts impair the satisfaction function .

• The economic and social status of the parties is not the sole determining factor; however, it contributes to the assessment of proportionality and deterrence

2.5. Comparison Bands in Similar Cases

• equality , the established bandwidths are taken into account in similar cases of the same intensity.

• However, mechanical equalization is not performed; concrete differences (e.g., persistence, disability, access frequency) require adjustment within the bandwidth

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3) Subjective Criteria

Subjective criteria encompass the personal circumstances of both the victim and the perpetrator, as well as the subjective impact of the event on the victim

3.1. Personal Characteristics and Level of Impact of the Victim

• Age, health history, vulnerability: Children, the elderly, people with disabilities, and pregnant women at higher .

• Social-professional profile: Distinction between public figures and private individuals; reputation-career impact.

• Psychological findings: Diagnosis, treatment, need for therapy; reports objectify the level of impact.

• Family ties: The degree of closeness and intensity of the actual relationship between relatives in case of death/serious bodily harm

3.2. The Perpetrator's Personal Status and Behavior

• Actions such as expressing remorse , apologizing , making amends, voluntarily correcting/retracting the content , or removing the content may lead to a reduction in the sentence

• Sarcastic, persistent, condescending, hateful behavior and repeated violations are increased penalties .

3.3. Time Factor

• The time elapsed between the attack and the lawsuit ; the delay, whether the impact has lessened or not ; but delay alone does not constitute forfeiture of rights (statute of limitations reserved).

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4) Increasing the Strength (Example Bend Points)

1. Deliberate and systematic violation (persistent, campaign-style attack).

2. High reach and persistence (mainstream media, highly engaging social media, archival impact).

3. Severe consequences (permanent disability, long-term treatment, post-traumatic stress disorder).

4. Targeting vulnerable groups (children, people with disabilities, the elderly, pregnant women).

5. Lack of apology/correction, denial and persistence; also, to gain unfair advantage .

6. Damage to public office or professional reputation (professional honor).

7. Employer/corporate breaches: System failure, pervasive risk.

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5) Reasons for the Discount

1. Contributory negligence/incitement (Turkish Code of Obligations, Article 52): If the victim's contribution weakens the causal link between the violation and the consequence .

2. Apology, retraction, prompt removal of the content, reasonable remedial actions.

3. Short-lived and limited-reach breaches; low rate of spread.

4. Compensation for the damage: Satisfaction through alternative means (e.g., a visible apology on the same platform) – but this does not eliminate the amount.

5. Mildness of tangible impact: Absence of medical/psychological findings, temporary nature of the impact.

6. The delay is close to the statute of limitations , and the claim is becoming increasingly uncertain (it does not legally invalidate the claim, but an equitable reduction may be considered).

Note: "Economic situation" is not a reason for a discount in itself; it only contributes to the assessment of proportionality and deterrence

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6) Interest, Statute of Limitations and Collection

• Start date for interest calculation: In claims for moral damages, the general rule is the date of the lawsuit ; however, in some exceptional cases (e.g., explicit default/warning), a different starting point may be accepted.

• Type of interest: Statutory interest; no default interest applies if there is no contractual rate.

• Statute of limitations: The general period for torts is 2 years (without knowledge) and in any case 10 years; for criminal acts, the statute of limitations is longer (Turkish Code of Obligations, Article 72).

• Collection and enforcement: Enforcement takes place once the judgment becomes final; provisional attachment and precautionary measures are exceptional measures in cases of moral damages.

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7) Proof and Evidence Strategy

• Medical/psychological reports, therapy records, medication/treatment documents; social security/disability data (physical injury).

• Proof of reach and distribution: Analytical reports, circulation, page views, number of shares, comments, and likes, Wayback/ARCHIVE traces.

• Retraction/apology records, content removal timeline.

• Witness accounts (family, work environment, social environment).

• The expert only supporting data ; the final amount is determined by the judge.

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8) Quantity Logic According to Application Areas (Case Types)

8.1. Traffic/Work Accident – ​​Death or Serious Injury

• The intensity of the family's physical relationship and the grieving/trauma process; significant increases in favor of the victim if there is permanent disability

• If the employer's occupational safety obligations have been violated, gross negligence .

8.2. Healthcare Service Defect

• Lack of proper information, incorrect/incomplete treatment, and failure to distinguish between complications and defects.

• Permanent scarring/organ loss, profound decrease in quality of life are reasons for seeking treatment.

8.3. Violation of Personal Rights Through Press/Internet

• High reach – persistence and ethical violation (insult/defamation/privacy) → aggravation.

• Quick retraction and removal → discount.

• Public interest and freedom of expression are observed; criticism insult.

8.4. Privacy and Breach of Personal Data

• sensitive data (health, sexual life, children) → significant increase.

• Balancing the risk of multiple sanctions (administrative, criminal, and private law) along with the GDPR aspect

8.5. Family Law Context (Insult-Violence-Betrayal Allegations)

• The penalty is increased if there is domestic violence and psychological abuse; everyday harsh words stemming solely from marital conflict are subject to a narrower penalty depending on the nature of the violation .

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9) Practical Scoring and Banding Approach (Peer-Based Internal Assessment Tool)

Warning: This section is not a binding formula for the court . It provides a practical checklist to help the lawyer ensure internal consistency and predictability in their case strategy .

Let's assume each factor is assigned a score of 0–2 , generating a total index between 0–20 . By matching this total score to the range seen in similar cases in local court practice, the initial claim range can be predicted.

Factors (0–2 points):

1. Severity of fault (intentional=2, gross=1.5, simple=0.5–1)

2. Spread/reach (high=2, medium=1, limited=0–0.5)

3. Duration/continuity of the violation (systematic=2, singular=0–1)

4. Tangible consequences/sequences (permanent=2, temporary=0.5–1)

5. Psychological findings (diagnosis/therapy=1–2)

6. Victim's vulnerability (child-disabled etc.=2)

7. The perpetrator's subsequent response (apology/denial/removal: between -0.5 and -2)

8. Purchasing power of money (adjustment to current economic conditions: 1–2)

9. Compatibility with similar precedents (band check in equivalent files: 0–1.5)

10. The balance between freedom of expression and public interest (0–1.5 depending on the clarity of the injustice)

Comment:

• 14–20 points: Upper band (severe cases; high reach and lasting impact)

• Scores 9–13: Medium band (significant violation; limited/brief access or limited sequelae)

• 0–8 points: Lower band (minor and isolated violations; quick recovery)

The lawyer can support this scoring with the evidence set and define two ranges for the minimum and maximum reach of the claim (e.g., “X–Y range; essentially X, Y in case of increasing evidence”).

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10) Litigation and Claim Strategy

1. Value of the claim : If the claim is set excessively low , the satisfaction function is impaired; if the claim is set too high , it triggers an objection of "enrichment." Choose a reasonable range using a scoring-comparative analysis

2. Interest claim: the date of the lawsuit ; any notice of default should be explained.

3. Evidence of dissemination : Upstream content in internet/press files is difficult without documented access-persistence .

4. Psychological-medical basis : Treatment-report-therapy evidence strengthens the quantitative axis

5. Correction/Refutation: The other party's offers of apology/refutation price management ; recorded .

6. Expert scope: The expert quantitative ; only data that objectifies the effect (access statistics, medical findings) is requested.

7. Judgment clause: The amount, commencement date for interest, announcement/retraction, court costs, and attorney's fees must be written net of funds.

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11) Common Mistakes

• The expectation of "calculations by formula": The legal system operates not by formulas , but by fairness and precedent

• Asking the expert about the amount: The decision rests with the judge; the expert only provides technical data

• Request for a top-tier bandwidth without evidence: A top-tier bandwidth is difficult without proof of access, persistence, and psychological impact .

• Forgetting the start of interest payments.

• Contradictory statements and excessive claims: These create unjust enrichment objections and a trust issue.

Result: Balance, Satisfaction, and Deterrence

Determining the amount of moral damages is like the mathematics of equity : objective data (type of incident, fault, extent, purchasing power) and subjective effects (victim's vulnerability, psychological impact, perpetrator's attitude) are weighed on the same scale . The prohibition against unjust enrichment is the limit; the goal is satisfaction and deterrence . In practice, the most sound strategy for a lawyer is to expand the evidence set early , follow precedent bands , and establish the initial claim with rational justifications, keeping the upper limit of these bands in mind . This allows the judge's discretion to approach a predictable and defensible amount .