Causes of Legal Liability of the Administration in Full Judgment Cases
In administrative law, there are generally two types of legal liability of the administration:
Private law liability arising from the contracts or acts of the administration in accordance with the principles of private law. For example, if a vehicle belonging to the administration is involved in a traffic accident, the lawsuit to be filed is a private law lawsuit. In this case, a full remedy action cannot be brought.
The responsibility of the administration in accordance with the principles of public law arising from the contracts made by the administration in accordance with the principles of administrative law and all kinds of transactions and acts of the administration. For example, the lawsuit to be filed against the administration by the person who has a traffic accident due to the wrong placement of traffic signs is a full remedy lawsuit.
The obligation of the administration to compensate those who suffer damages due to its acts, actions or omissions is based on two basic legal grounds in administrative law:
- The obligation to indemnify due to the “service defect” (defective liability) of the administration,
- Compensation obligation of the administration pursuant to the principles of “strict liability”.
In a full remedy action, the court must first investigate whether the administration has a “service fault” in the realization of the damage subject to the lawsuit. When it is determined that the administration did not have a service fault in the realization of the damage, the court should evaluate whether the administration should be held liable in accordance with the principles of “strict liability”. While awarding pecuniary or non-pecuniary damages in a full remedy case, the court must explain in its reasoning which of the reasons for the administration’s liability is based on the fault of service and the faultless liability.
In the event that the damage suffered is entirely due to the fault of the injured party or the third party, the administration is not liable for compensation. This is because, in this case, a causal link cannot be established between the public service and the damage. In order for the administration to be deemed legally responsible based on the principles of service defect or strict liability, there must be a causal link between the service and the damage. Social risk, which is an exceptional case where a causal link is not required, is analyzed separately below.
It should be emphasized that in order to file a lawsuit for compensation against the administration for health services, it is absolutely necessary to prove that the administration is at fault. In health services, it is not possible to file a lawsuit for pecuniary and non-pecuniary damages against the administration based on the principles of strict liability. In judicial decisions, the reason for this situation is based on the grounds that the person is in the position of directly benefiting from the public service and that the service is of a risky nature.
As a rule, the administration is obliged to pay the damages that can be causally linked to the public service it performs, and the damages arising from administrative actions and transactions are compensated within the framework of administrative law rules, in accordance with the principles of service defect or perfect liability. In order to file a full remedy lawsuit for the compensation of the damages incurred due to an administrative action, the administrative nature of the action and the material event causing the damage and the damage caused by it must be conclusively established (D10-K.2021/4115).
- Compensation Liability of the Administration due to Service Failure
The liability of the administration based on fault is called “service fault” in administrative law. A service defect is a deficiency, negligence or delay in the functioning of the administration or in the public service it performs. Service defect has a different meaning in administrative law than “fault-based liability” in private law. Unlike private law, it is an objectified defective liability that has a unique character. In judicial decisions, it is accepted that the defect of service is realized in three ways:
Service defect due to the failure of the public service to function at all,
Service defect due to the late functioning of the public service,
Service defect due to poor functioning of the public service.
Service defect relates to the organization and functioning of the public service. If the public service is performed incompletely or poorly, or if this activity is not in accordance with the requirements of the service, it is considered that the administration has performed the public service defectively. All personal defects of the public official arising from his/her duty while performing his/her duty constitute a service defect within the scope of “duty defect”.
Some examples of service defects that may be subject to a full judicial compensation case are as follows:
Disability of a person due to the wrong injection given by a doctor working in a public hospital,
A traffic accident caused by negligence or deficiency in the administrative activities of the administration in road construction, maintenance, operation and ensuring traffic safety,
Forgotten military ammunition explodes in a field, causing death,
Death of the patient in the ambulance due to a traffic accident caused by the ambulance driver while transporting a patient,
An infected person dies because the hospital is not sterile,
Death due to being struck by illegal electricity installed by the administration.
- Compensation Liability of the Administration due to No Fault Liability
No-fault liability is a state of liability in which the fault of the administration is not sought in order to be held liable, and it is deemed sufficient to prove the causal link between the damage incurred and the action or transaction of the administration. In cases of no-fault liability, it is not investigated whether the administration is at fault in the occurrence of the damage. No-fault liability is accepted for more dangerous or risky activities of the administration. No-fault liability is a type of liability imposed on the administration within the framework of the principles of equal sharing of the public burden (obligation), equality, equity, justice and fairness.
As a rule, the administration is obliged to compensate the damages that can be causally linked to the public service it performs; and the damages arising from administrative actions and/or transactions are compensated within the framework of administrative law rules, in accordance with the principles of service defect or strict liability. No-fault liability is based on the principle of compensation by the administration for special and extraordinary damages incurred by individuals during the performance of public service, and is a secondary type of liability compared to fault liability. In other words, the administration is obliged to indemnify the special and extraordinary damages that are the direct result of the service it performs, which can be causally linked to the administrative activity, in accordance with the principle of strict liability. In this context, the damages incurred by public officials due to their duties while performing their duties must also be compensated in accordance with the principle of strict liability. In the case; the plaintiff, who is a public official, assigned by the defendant administration to perform public service and retired as a duty disabled due to a traffic accident he had while traveling with the vehicle allocated by the administration to fulfill this duty, must be compensated according to the principle of strict liability for the special and extraordinary damages that can be causally linked to the administrative activity, which occurred due to the cause and effect of the public service carried out and which are the direct result of the public service carried out by the defendant administration (D10D-Decision: 2017/5105).
No-fault Liability due to Social Risk: The regime of no-fault liability due to social risk is a state of liability developed through practice. On the other hand, with the principle of social risk, which has been developed through scientific and judicial jurisprudence, it is aimed to compensate the special and extraordinary damages arising from the conditions in which the society is living, occurring in the field of activity of the administration, but not as a direct result of the public service carried out, resulting from the realization of a social risk, and incurred solely due to being an individual of the society. In order for the principle of social risk to be applied, in addition to the fact that the event concerns the whole society and the damage occurs as a result of the realization of a social risk, the event and the damage must not be the direct result of the public service being carried out, in other words, a causal link between the damage and the administrative action cannot be established. Since it is not possible to apply the social risk principle in cases where a causal link can be established between the damage and the administrative action, it is necessary to first investigate whether there is a service defect within the framework of administrative law rules, and if there is no service defect, it is necessary to determine whether the damage can be compensated according to the principle of strict liability (D10-K: 2007/4199). In other words, social risk is a peculiar form of objective liability developed by administrative law that can be discussed in cases where all other forms of strict liability, where a causal link can be established due to the defect in service and the act or action of the administration, are not applicable.
Personal Fault Liability of Public Officials
The personal fault liability of the public official is based on the principle that he/she is personally responsible for the damages caused by all actions or transactions that are not related to the public service carried out and outside the scope of his/her duty. In this case, it is accepted that the administration has no legal responsibility. This is because the public official who commits such a personal fault is like an ordinary citizen. The public official is personally liable for the damages since he/she commits an act completely independent from the service he/she performs on behalf of the administration.
The damage caused by the public official due to an action or transaction outside the scope of his/her duty is in the nature of “tort liability” in accordance with the principles of liability of private law. Damages caused by the personal fault of the public official, which is not related to his/her duty, are claimed by filing a lawsuit for pecuniary and non-pecuniary damages against the public official in accordance with the principles of private law. The court with general jurisdiction to hear the pecuniary and non-pecuniary damages to be filed within the framework of private law principles has been determined as the civil court of first instance.
The cases where the public official’s personal fault that is not related to his/her duty is accepted are as follows:
The public official commits a crime,
Intentional act of a public official,
Gross negligence of a public official: The typical form of gross negligence of a public official in judicial decisions is the failure of public officials to implement court decisions.
