KÜHEYLAN HUKUK
Service Defect, Strict Liability and Procedure for Filing a Lawsuit within the Scope of İYUK No. 2577 Article 2, Article 13 and Article 36
This guide has been prepared based on the Administrative Procedure Law No. 2577 and the current provisions of Article 125 of the Constitution and the established case law of the Council of State.
Summary In accordance with Article 125 of the Constitution, the administration is obliged to pay the damages arising from its own actions and transactions. Compensation for this damage is requested in the administrative jurisdiction through a type of lawsuit called "full jurisdiction lawsuit". Liability is often based on "service defects" resulting from the administration providing a service poorly, late or not at all; However, even if the administration has no fault, in some cases it may be required to pay compensation in accordance with the principles of strict liability. Since the obligation to apply to the administration, deadlines and burden of proof before filing a lawsuit may differ depending on the source of the request, it is of great importance to determine the correct legal path at the beginning of the process.
1. What is a Full Jurisdiction Case?
A full jurisdiction lawsuit is a compensation lawsuit filed against the administration by people whose personal rights have been directly damaged due to the actions or transactions of the administration, in order to compensate for the material or moral damage they have suffered. It is regulated in Article 2 of the Administrative Procedure Law No. 2577 with the expression "full jurisdiction cases filed by those whose personal rights are directly affected due to administrative actions and transactions". Although it corresponds to the compensation case in private law in terms of the institution, it is subject to its own rules in terms of the principles of liability on which it is based and the procedure followed.
An accident occurring on a road left neglected by a municipality, medical negligence in a public hospital, loss suffered by a student due to an unfair disciplinary action, or loss of property resulting from confiscation without expropriation can be given as examples of situations that may be subject to a full jurisdiction lawsuit.
1.1. Difference from Annulment Case: While an annulment case is an objective case that aims only to eliminate the unlawful transaction and whose outcome affects everyone; A full jurisdiction lawsuit is a claim for compensation for the subjective right of the injured person and affects only the plaintiff. While anyone whose interests have been violated by the transaction can file an annulment lawsuit, only the person who personally suffered the damage can file a full jurisdiction lawsuit. In addition, while it is not mandatory to apply to the administration before the lawsuit in an annulment case, this application is, as a rule, mandatory in full jurisdiction cases arising from an action of the administration.
2. Cases of Liability of the Administration The liability of the administration for compensation is based on two basic principles in doctrine and jurisprudence: liability based on fault (service defect) and strict liability. The court first examines whether there is a service defect in the incident; If a service defect is detected, there is no need to apply the principles of strict liability.
2.1. Service Defect Service defect is defined as an objective defect, malfunction or gap that occurs in the establishment, organization or operation of a service that the administration is obliged to provide. This fault, unlike the personal fault of the public official, is directly and anonymously attributed to the administration; There is no need to show individually which official's concrete fault caused the damage. In practice, service defects are evaluated under three headings:
Non-operation of the service: The administration does not provide a service that it is legally obliged to provide; An example of this is that the fire brigade never goes to the scene despite a report.
Late processing of the service: Failure to provide the service within a reasonable time, causing the delay to cause damage.
Poor operation of the service: The service is not carried out in accordance with the legislation or the necessary care and quality; It is the most common type of service defect in practice.
In the jurisprudence of the Council of State, this triple distinction is used as a framework to concretize the service defect; However, in every case where the public official does not show the care expected from the service, it can be said that there is a service defect, even if it does not fall into one of these three cases. In addition, failure to implement a final judicial decision without justification by the administration is considered a serious malpractice, as it is considered a violation of a Constitutional obligation.
2.2. Strict Liability: Not every damage caused by the Administration may be due to a service defect. Even if there is no fault, if there is a causal link between the damage that occurs and the activity of the administration, the administration may still be held liable for compensation in some cases. Strict liability is based on two main principles:
Risk principle (including social risk): It is the compensation of damages arising from the dangerous activities carried out by the administration or the dangerous tools it uses, regardless of the fault of the administration. The "social risk principle" comes into play in damages arising from general social risks, such as terrorist incidents targeting the society, and where the perpetrator cannot be directly associated with the administration. The principle of equalization of sacrifice: While the whole society benefits from the blessings of public service, in cases where the burden of this service creates a special and extraordinary burden only on a certain person or persons, this imbalance is eliminated by the administration. The special damage suffered by a tradesman whose workplace is closed for a long time due to infrastructure work can be given as an example of this principle.
Cases of strict liability are exceptional and are put forward as a secondary basis in cases where service defect cannot be proven or is difficult to prove.
3. Obligation to Apply to the Administration Before Filing a Lawsuit The procedure by which a full jurisdiction lawsuit will be filed varies depending on whether the damage results from a transaction or an action of the administration.
3.1. Damage Resulting from Administrative Action If the damage directly results from an unlawful administrative action, it is not mandatory to make a separate application to the administration before filing an annulment lawsuit against the relevant action. The full jurisdiction lawsuit can be filed with the same petition along with the annulment lawsuit, after the annulment lawsuit is finalized, or directly on its own; All three remedies are subject to the general lawsuit filing period, which runs from the date of notification or learning of the transaction. For requests arising from administrative action, it starts to be processed as of the notification of the administration's rejection response or the date on which the thirty-day response period expires. These deadlines are restrictive and if they are missed, the right to claim is eliminated as a rule.
3.2. Damage Resulting from Administrative Action If the damage is not based on an action of the administration but on an actual action (for example, a poorly maintained road, a faulty medical intervention or an excavation work), a direct lawsuit cannot be filed. Pursuant to Article 13 of the IYUK, the injured person must apply in writing to the relevant administration to request compensation for the damage, within one year from the date of learning about the incident and, in any case, within five years from the date of the action. If the administration does not respond to this request within thirty days, the request is deemed rejected; Upon express or implied rejection of the request, a full jurisdiction lawsuit may be filed within the general lawsuit filing period, starting from the notification of the rejection or the end of the thirty-day response period.
A lawsuit filed directly without complying with this preliminary application requirement will be rejected by the court on procedural grounds. For this reason, in case of damages arising from an administrative action, a written application must be made to the administration before filing a lawsuit.
4. Period for Filing a Lawsuit: After the preliminary application requirement is fulfilled and the administration's response (explicit or implied rejection) is received, the full jurisdiction lawsuit must be filed within the general lawsuit filing period. This period is sixty days in administrative courts and thirty days in tax courts, in accordance with Article 7 of the İYUK. For compensation claims arising directly from the administrative action, this period is from the date of notification or learning of the action; For requests arising from administrative action, it starts to be processed as of the notification of the administration's rejection response or the date on which the thirty-day response period expires. These deadlines are restrictive and if they are missed, the right to claim is eliminated as a rule.
5. Competent and Competent Court In full jurisdiction cases, the competent court is, as a rule, the administrative court; If the dispute is about taxes, duties and fees, the tax court has jurisdiction. Article 36 of the IYUK provides a special regulation in terms of jurisdiction: If the damage arises from a public service such as public works or transportation or from an action of the administration, the administrative court of the place where the service is provided or the action takes place has jurisdiction. In other cases, the administrative court where the plaintiff resides is deemed competent. The lawsuit must be filed against the administration that carried out the transaction or action that caused the damage; If the administration that establishes the transaction and the administration that implements it are different, special attention should be paid to the formation of parties.
6. Items of Damage That Can Be Claimed and Proof In a full jurisdiction lawsuit, both pecuniary and non-pecuniary damages can be claimed. Material compensation covers the actual decrease in the assets of the injured party (actual damage) and the gain that would have been obtained if the damaging event had not occurred (lost profit). Non-pecuniary compensation aims to partially relieve the pain and sadness felt as a result of the violation of personal rights; In order to accept non-pecuniary damages in administrative jurisdiction, no serious fault is required; it is sufficient to demonstrate the causal link between the damage and the action or operation of the administration.
Since the principle of ex officio investigation is valid in administrative jurisdiction, the court may request information and documents it deems necessary from the administration. However, it is of decisive importance for the course of the case that the plaintiff reveals the existence and amount of damage and the causal link between the action or operation of the administration and the damage with concrete evidence (such as expert report, medical record, invoice, witness statement) in his petition. The court often resorts to expert examination to determine the amount of compensation.
Competence to File a Lawsuit Anyone whose interests have been violated The person who personally suffered the damage
Pre-Application Obligation As a rule, it is not sought Mandatory in case of damage caused by action (IYUK art. 13)
Time to File a Lawsuit 60 days from notification of the transaction 60 days from notification of rejection/implied rejection
Concrete Application Scenario Incident Summary Form A pedestrian who fell into an infrastructure pit that had been left open for a long time on a sidewalk under the responsibility of the district municipality and without any warning signs or barriers was injured, resulting in a fracture in his leg; suffered losses due to treatment expenses and workforce loss.
Application and Legal Process Küheylan Law Firm, which was applied for a few weeks after the incident, firstly compiled the photographs and minutes of the scene, hospital records and witness statements and determined that the municipality did not fulfill its obligation of care and supervision, and therefore there was a service defect in the nature of poor service. In accordance with Article 13 of the İYUK, a written application was made to the municipality and compensation for material and moral damage was requested; Since no response was received within the legal period of thirty days, a full jurisdiction lawsuit was filed in the relevant administrative court within the prescribed period.
Conclusion: As a result of the discovery and expert examination commissioned by the court, it was determined that the municipality carried out the infrastructure work without sufficient warning and security measures and that this negligence constituted a service defect; material and moral benefits in favor of the plaintiff
7. Frequently Asked Questions Can I file a compensation lawsuit against the administration directly in the Civil Court of First Instance? No. Compensation for the damages caused by the administration while performing public services is requested in the administrative court through a "full jurisdiction lawsuit" in the administrative jurisdiction, not in the judicial judiciary. Incorrect selection of the competent court will result in the rejection of the case based on jurisdiction.
What happens if I file a lawsuit directly without applying to the administration? If the damage is caused by an administrative action and no application has been made to the administration before the lawsuit, the court rejects the case on the grounds that the preliminary application requirement has not been met. For this reason, a written application must be made to the administration before filing a lawsuit for action-related requests.
I think there is no service fault, but I still suffered damage, can I get compensation? Yes, in some cases where no service defect can be detected, it is possible for the administration to pay compensation in accordance with the principles of strict liability (risk principle or equalization of sacrifice). In order for these principles to be applied, it is sufficient to have a causal link between the damage and the administration's activity.
Should I file the full jurisdiction lawsuit together with the annulment lawsuit or separately? If the damage is caused by an administrative action, the full jurisdiction lawsuit can be requested in the same petition together with the annulment case, or it can be filed after the annulment case is finalized or directly on its own. Which method is preferred should be determined according to the circumstances of the concrete case and the proof strategy.
Attention: Common Mistakes in the Process Skipping the application to the administration in case of action-related damage: A lawsuit filed without a written preliminary application within the scope of İYUK Article 13 is rejected due to procedural reasons and causes loss of time.
Mixing one and five-year periods: The one-year period from the date of learning and the maximum period of five years from the date of action should be evaluated together, and action should be taken according to whichever comes first.
Not concretizing the causal link between the damage and the action of the administration: If the petition only mentions the existence of damage and the fault of the administration or the causal link is not supported by evidence, the risk of rejection of the request increases. Listing the wrong administration as the defendant: Failure to correctly identify the administrative authority that carried out the transaction or action may lead to incomplete formation of parties and rejection of the case due to procedural reasons.
Confusing the legal remedy: It should not be overlooked that a lawsuit should be filed in the administrative jurisdiction, not in the judicial jurisdiction, for damages arising from public service.
Conclusion Full jurisdiction lawsuit is the basic legal guarantee given to the individual in compensating the damages arising from the flawed or, in some cases, flawless actions and transactions of the administration. However, benefiting from this assurance requires following the correct procedure according to the source of the damage, meticulously complying with the preliminary application and time conditions, and demonstrating the service defect or causal link with concrete evidence. With its knowledge of the current legislation in the field of administrative law and the jurisprudence of the Council of State, Küheylan Law Firm offers comprehensive legal support to its clients at every stage of compensation claims against the administration, from the preliminary application to the end of the litigation process.
Important Legal Notice: The legal explanations contained in this guide have been prepared by Küheylan Law Firm for general information purposes and do not constitute legal advice. Since the unique circumstances of each file may change the outcome, it is recommended to seek support from an administrative law attorney from the beginning of the process.
KÜHEYLAN HUKUK