Many vehicle manufacturers around the world are working on the production and development of autonomous vehicles. In addition to the advantages that autonomous vehicles are thought to provide, the disadvantages that may arise are often discussed in the doctrine. Today, in most countries, there is still no casuistic regulation regarding the legal liability arising from accidents caused by autonomous vehicles. However, with the ongoing work on AI which was initiated in 2018 by the European Parliament, opinions and ideas about Autonomous Vehicles are taking form.
Today, in Turkey, there is still no special regulation for the damages caused by autonomous vehicles. On the other hand, the Highway Traffic Law No. 2918, which regulates the legal liability arising from accidents caused by motor vehicles, is in force. However, for autonomous vehicles, applying the Law No. 2918 and the consequences it will bring is controversial in the doctrine. It is clear that the Highway Traffic Law be inadequate in determining the role of the driver, the manufacturer, the role of defect and apportionment of liability, the relationship between the autonomous system and the accident, i.e. in autonomous driving. For this reason, with the widespread of autonomous vehicles, it is a requirement to make a special regulation or to revise the Highway Traffic Law
To give a technical definition; an autonomous (driverless) vehicle is a vehicle that can operate itself and perform the necessary functions without any human intervention thanks to its ability to perceive its environment. It is accepted today that there are 6 levels of these Autonomous Vehicles. As the level increases, the scope of the vehicle's independence regarding operational control also increases.
At level 0, there is no control over the operation of the car and the human driver does all the driving.
At level 1, the vehicle's ADAS (advanced driver assistance system) is capable of supporting the driver with steering or with acceleration and braking.
At level 2, ADAS can supervise steering, acceleration and braking in some conditions, although the human driver must continue to pay full attention to the environment throughout the trip and at the same time perform the rest of the necessary tasks.
At level 3, ADS (advanced driving system) can perform all parts of the drive in some conditions, but the human driver needs to be able to regain control when requested by the ADS.
At level 4, the ADS of the car is able to independently perform all driving tasks in certain conditions where human attention is not required.
Lastly, level 5 includes full automation, in which the ADS of the car is able to perform all tasks in any condition and does not require any driving assistance from the human driver.
With the widespread of autonomous vehicles, the issue of liability for damages has been one of the most legally discussed issues. However, in addition to this, it is not only the determination of liability for damages; many issues such as how to test autonomous vehicles, their commercial use, insurance, and security are also subject to discussion.
For example, when the project to design driverless vehicles was first launched by Google, many questions were raised by the public regarding whether "driverless vehicle prototypes" are legal. As a result of the statement made by the California authorities, it was stated that as long as there is a person who will be responsible if something goes wrong behind the wheel, there are no laws that would prevent Google from testing such models. As a matter of fact, Google has also announced that there are always at least three passengers in the test vehicles; a driver at the wheel and two technicians to monitor the software and systems. Therefore, various legal problems may surface in the development process until the autonomous vehicles are introduced into traffic. With the rapid development of technology, unmanned self-driving autonomous vehicles are expected to become widespread soon. However, without ensuring adaptation to the legal system, the negative impact of the legal problems that such a spread will cause will be great. Regulations on autonomous vehicles have started to be made by countries such as the USA, Great Britain and Germany in the last ten years. For this reason, it is necessary to accelerate the studies related to artificial intelligence in our Turkish legal system and to offer a fair solution to this situation.
As of March 2018, the European Group on Ethics in Science and New Technologies was established by the European Commission to work in the field of Artificial Intelligence (AI). Afterwards, in June 2018, the High-Level Expert Group was established in order to accelerate the work and conduct more comprehensive research, and the work has gained momentum in order to research on how to solve medium- and long-term problems related to AI. Since then, periodic reports and decisions have been issued by the European Commission and studies on artificial intelligence have been continuing.
The Artificial Intelligence Act, which is planned to be enacted by the European Union, is very important in terms of being the first law in the world that contains specific regulations on artificial intelligence in detail. The Law on Artificial Intelligence is formed within the framework of some basis principles. According to these principles; applications and systems that contain a heavy risk of violating human rights will be prohibited, and applications that contain a high risk will be subject to certain legal requirements. On the other hand, applications that are not explicitly prohibited or listed as high-risk in the law will be mostly allowed.
In light of the Artificial Intelligence Law's principles, the issue of legal liability of Autonomous Vehicles will also be clarified. Nowadays, Great Britain, who enacted the "Automated and Electric Vehicles Act" in 2018 about autonomous vehicles have adopted the approach down below in legal liability for autonomous vehicle accidents:
- If the accident was caused by an autonomous vehicle while driving itself;
- If the autonomous vehicle has insurance when the accident occurs and;
- If an insured person or someone else has been injured due to an accident, the insurer will be responsible for all damages caused by the accident.
Therefore, regardless of the debate over who will be responsible for accidents caused by autonomous vehicles (such as the driver, vehicle owner and manufacturer), in Great Britain, it is foreseen that the insurer of the vehicle will be directly responsible for the damages arising from the accident in the presence of the conditions specified in the law. It is clear that the reason for making such an arrangement is to ensure that the damages of the people who have suffered damage can be compensated quickly. As a rule, the insurer has the right of recourse to other persons responsible for the accident after the damages are covered.
The important thing is that the accident is required to occur "due to a self-driving autonomous vehicle". This element is stipulated as a prerequisite to be able to go to the insurer's liability. However, this arrangement also failed to prevent various uncertainties. For example, in a scenario that the autonomous vehicle is unable to detect the pedestrians with its sensors, and a human driver anticipating that the vehicle will hit a pedestrian, how the defect distribution will be when the driver takes control over the vehicle and the vehicle hits a pedestrian still remains unclear. On the other hand, it is also unclear what amount of responsibility attributed would be legally fair to the human driver who does not take control over the vehicle, even though they anticipate the possibility of an accident by relying on the technical characteristics of the autonomous vehicle.
Discussions on how this responsibility should be determined, both civil and criminal, continue in the doctrine. In the context of criminal law, when it is considered in terms of intention and foresight (which are the two most basic elements of negligence), the tendency to find flaws in people instead of autonomous systems has become a fairly common opinion in the doctrine. Attributing responsibility for accidents caused by technology to humans in an erroneous and immeasurable way has entered the literature with the name "moral crumple zone" in international sources. In the commercial aspect of the situation; if human drivers continue to be found at fault in accidents caused by autonomous vehicles, it is inevitable that such vehicles will be undesirable to use. This situation obliges the necessary legislation to be included in the legal systems as soon as possible.
Despite all these legal uncertainties, it is observed that the studies carried out on autonomous vehicles are in technical development and dissemination every day. Today, the roadmap for meeting all kinds of material and moral damages caused by autonomous vehicles, which often manifest themselves in small but important areas of traffic such as braking system, automatic parking system, has still not been determined in the international context.
In the Turkish legal system, as in most other countries, there is no specific legal regulation for autonomous vehicles yet. So, within which framework of legal legislation can the legal liability for accidents involving autonomous vehicles be determined in Turkey? In Turkey, legal liability for traffic accidents is resolved within the framework of the relevant provisions of the HTL. In the law, a traffic accident is defined as an incident resulting in death, injury and damage involving one or more mobile vehicles on the highway. Again, in the HTL, a vehicle is defined as the general name of motorized, non-motorized and special purpose transportations which can be used on the highway, as well as construction machinery and rubber-wheeled tractors. Therefore, there is no obstacle to the inclusion of the concept of "autonomous vehicle" in the scope of the Highway Traffic Law in terms of disputes that may occur until a special law is passed on this issue. However, regarding the distribution of legal liability; it is necessary to determine the autonomous vehicles by taking into account many external factors and elements different from those specified in the Highway Traffic Law due to their nature.
CONCLUSION
The act of driving in autonomous vehicles is carried out through autonomous systems that are partially or completely independent of the human driver. Today, the regulations on liability for damages from traffic accidents caused by autonomous vehicles are internationally insufficient. Therefore, as long as there is no legislative change in Turkish law, it is concluded that legally determining the legal liability arising from accidents caused by autonomous vehicles today is only possible through the interpretation of the HTL.
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