Legal dispositions established by public authorities with the aim of realising the public interest and without any need for the consent of the other party are characterised as administrative acts. A finding of unlawfulness in any one of the elements of competence, form, cause, subject matter and purpose of an administrative act requires the annulment of that act. Beyond this, under Article 125(7) of the Constitution the administration is also obliged to make good the damage caused by its actions and acts. Where that obligation is not discharged voluntarily, the avenue open to the injured party is the full remedy action. In such an action it is possible to claim not only the diminution occurring in one’s assets but also non-pecuniary damages in compensation for the mental distress the person has suffered.
While the redress of damage sustained is provided in the ordinary courts through an action for damages, the same function is performed in the administrative judicial order by the full remedy action. A person who considers that an act of the administration is unlawful first brings the dispute before the courts by way of an action for annulment in order to have that unlawfulness remedied. Once the act, whose unlawfulness has been established by the court’s decision, has been set aside, a further, separate avenue of action opens up for those who have suffered damage on account of that act; it is this second recourse that corresponds, in administrative justice, to the full remedy action.
Below we assess, with a practical eye, the legal basis of the full remedy action, its relationship with the action for annulment, the principles on which the liability of the administration rests, the criterion of violation of a right required for standing to sue, and the time limits that must be observed.
What Is a Full Remedy Action?
The requirement that the administration make good the damage arising from its own activities is laid down in the Constitution, the highest instrument of the legal order. The instrument through which that constitutional rule is applied in administrative law is the full remedy action. The damage asserted in the action may take the form of a measurable diminution in the person’s assets, or it may be non-pecuniary in nature, aimed at redressing the pain and distress caused by an interference with personality rights. In these features the full remedy action bears a functional resemblance to the actions for pecuniary and non-pecuniary damages encountered in private law.
The Full Remedy Action Brought After an Action for Annulment
The ordinary course followed in practice is as follows: where the aim is to obtain redress for damage caused by an unlawful administrative act, the annulment of that act is sought as the first step. The reason for this is that administrative acts enjoy a presumption of lawfulness; even where an act is unlawful, it continues to produce effects and to be applied until it is annulled by a judicial decision. For that reason, interested parties generally first secure the setting aside of the act and then, once the annulment request has been accepted by the court, apply to the courts once more for compensation for the damage arising from the act.
That said, this sequence is not mandatory. There is no obstacle to a full remedy action being brought directly, without the annulment of the act causing the damage being sought. For a detailed examination of the subject, the note titled Action for Damages (Full Remedy Action) Against the Administration may be consulted.
Types of Liability of the Administration
Although it is expressly laid down in the Constitution that the administration is to be held liable for unlawful actions and acts, the basis on which that liability rests varies according to the nature of the case. The decisive criterion is whether there is any fault attributable to the administration in the occurrence of the damage. The administration does not always cause damage through faulty conduct; for that reason, liability in full remedy actions is examined under two headings.
Fault-Based Liability
At the root of the fault-based liability of the administration lies service fault. Where an administration acting contrary to the legislation in the conduct of a public service brings about, through that conduct, a situation in which the service has not been performed at all, has been performed belatedly or has not been performed properly, service fault comes into question and the administration is held liable in damages on the basis of fault-based liability. A detailed assessment of disputes arising from this type of liability is addressed in the note titled Actions for Damages Arising from Service Fault of the Administration.
Strict Liability
Strict liability has largely been shaped by judicial case law; it is a form of liability drawing on the notions of social risk, the fair distribution of public burdens, equality, equity and fairness. In order to have recourse against the administration on this basis, no inquiry is made into whether the administration was at fault; it is regarded as sufficient that a causal link can be established between the damage caused and the action or act of the administration.
The field of application of strict liability is shaped around three fundamental principles: the principle of risk (danger), the principle of equality before public burdens (the equalisation of sacrifice) and the principle of social risk.
As regards the principle of risk, the administration’s obligation to compensate arises in the following cases:
- Damage arising during meetings and demonstration marches
- Damage caused by the vehicles and equipment used in the performance of a public service
- Damage arising from occupational accidents sustained by public officials in the exercise of their duties
- Damage caused by activities that by their nature involve a particular danger
The principle of equality before public burdens comes into play where the burden of certain activities undertaken by the administration for the general benefit of society is shouldered alone by particular individuals. The aim here is to balance the burden borne by persons who, on account of an administrative activity, have been obliged to make greater sacrifices than others. This principle is applied in particular to damage arising from public works and zoning activities.
The position is different under the principle of social risk; no causal relationship is sought between the damage and the action of the administration. In practice, the disputes in which this principle is invoked mostly concern damage arising from acts of terrorism.
The Criterion of Violation of a Right in a Full Remedy Action
One of the most marked differences between the action for annulment and the full remedy action, the two principal types of action heard in administrative justice, emerges in the determination of the persons who may bring them. For an action for annulment it is sufficient that a person’s interest has been violated, and anyone satisfying that criterion may bring the action. In a full remedy action, by contrast, the criterion is narrower: no one other than those whose right has been violated by reason of the administrative act or action forming the subject matter of the action may bring it.
The Time Limit for Bringing a Full Remedy Action
In administrative procedural law the time limit for bringing an action is sixty days before the administrative courts and thirty days before the tax courts. The date on which that period begins to run varies according to the type of action to be brought. Moreover, in certain situations the time limit for bringing an action may begin to run afresh even though it has expired; detailed explanations on this subject are set out in the note titled The Revival of the Time Limit for Bringing an Action in Administrative Justice.
The General Time Limit for Bringing an Action
In full remedy actions heard before the administrative courts, the general rule is that the action must be brought within sixty days.
The point at which this period, which is preclusive in nature, begins to run varies according to whether the damage arises from an act or from an action of the administration.
Where the source of the damage is an administrative act, the period begins to run on the date on which it is fully learned that the damage arose from an administrative act and what the extent of that damage is.
Where the damage arises from an administrative action, it is not possible to bring an action directly. The injured person must first apply to the administration that carried out the action and request that their damage be made good. Where that application is refused in whole or in part, or where the administration gives no response at all within thirty days, a full remedy action may be brought within the time limit for bringing an action.
The Time Limit in an Action Brought After an Action for Annulment
That a full remedy action may be brought following an action for annulment, and the period within which that action is to be brought, are specifically laid down in the Administrative Procedure Act No. 2577:
Administrative Procedure Act No. 2577, Art. 12
“Interested parties may, on account of an administrative act violating their rights, bring a full remedy action directly before the Council of State and the administrative and tax courts, or bring actions for annulment and full remedy together, or they may first bring an action for annulment and, upon that action being determined, bring a full remedy action within the time limit for bringing an action running from the notification of the decision on the matter or of the decision to be given where recourse is had to appellate remedies, or, in respect of damage arising by reason of the execution of an act, from the date of execution. In this case too, the interested parties’ right to apply to the administration under Article 11 is reserved.”
Pursuant to that provision, where an action for annulment has first been brought in respect of an administrative act, a full remedy action may be brought within the time limit for bringing an action running from the date of notification of the decision given in that action or, where recourse has been had to an appellate remedy, of the decision of the higher court.
The point that must be underlined here is this: whether the action for annulment was determined in favour of or against the claimant does not constitute an obstacle to the bringing of a full remedy action.
The Four-Stage Assessment of the Council of State
In its decision of 15.03.2021, no. E. 2019/11966, K. 2021/3782, the 6th Chamber of the Council of State held that, on account of an administrative act violating rights, a full remedy action may be brought at four separate and mutually independent stages and in four separate ways. According to that decision, interested parties may:
- Bring a full remedy action directly against the act violating their rights, within the time limit prescribed for an action for annulment.
- Bring actions for annulment and full remedy together within the same period.
- Bring a full remedy action, following the determination of the action for annulment brought against the act, within the time limit for bringing an action running from the notification of the decision.
- Bring an action, in respect of damage arising by reason of the execution of the act, within the time limit for bringing an action running from the date of execution.
The decision further states that, within these four separate periods for bringing a full remedy action, such actions may also be brought by making use of the avenues of application provided for in Article 11 of Act No. 2577.
Frequently Asked Questions
Is representation by a lawyer mandatory in a full remedy action?
Turkish law allows the parties to defend and represent themselves in person before the courts; save for a limited number of exceptions, there is no obligation to be represented by a lawyer. Nor is representation by an administrative law lawyer a statutory requirement in actions brought before the administrative courts.
Nevertheless, the multi-layered structure of administrative law legislation and the fact that the time limits in the Administrative Procedure Act No. 2577 are both short and strict may, where the process is conducted by persons who are not lawyers, lead to errors — both procedural and substantive — that cannot subsequently be remedied. For that reason it is advisable to obtain the support of lawyers practising in the field of administrative law before any step is taken.
Can actions for annulment and full remedy be brought in the same petition?
A person whose right has been violated by an administrative act may, if they wish, bring a full remedy action directly; or they may, if they wish, combine the annulment and full remedy claims in a single petition and raise them together. Besides these, the avenue of first bringing an action for annulment and then, once that action has been determined, bringing a full remedy action is also open.
Can the administration be required to pay damages even without fault?
The liability of the administration arising from its actions and acts is of two kinds: fault-based liability and strict liability. Where one of the cases of strict liability arises, the administration may be held liable to make good the damage of the person concerned even though it bears no fault whatsoever.
Who may bring a full remedy action?
This action may be brought only by persons whose right has been violated by reason of the administrative act or action relied upon as the basis of the action. While a violation of an interest is regarded as sufficient for an action for annulment, in full remedy actions a violation of an interest is not of itself sufficient; the existence of a violation of a right is required.
Is there a monetary threshold for recourse to appellate remedies in full remedy actions?
Yes. Monetary thresholds are prescribed for recourse to appellate remedies, and the subject matter of the action must exceed those thresholds. For 2023, the threshold for an appeal was set at TRY 20,000 and the threshold for an appeal on points of law at TRY 581,000.
Is it necessary to apply to the administration before bringing an action?
A person who has suffered damage on account of an action of the administration must apply to the administration that carried out the action before bringing a full remedy action; the injured party must first address their claim for compensation to the administration concerned. Article 13 of the Administrative Procedure Act No. 2577 lays down the requirement of applying to the administration only for damage arising from administrative actions. Where the damage arises from an administrative act, an action may be brought directly; the injured party may, however, choose to apply to the administration in that situation as well if they wish.
Independent Legal Assessment
What determines the outcome in full remedy actions is often not the amount of compensation claimed but the characterisation made at the outset of the process and the calculation of the time limits. Wrongly identifying whether the damage arose from an act or from an action leads to the preliminary application stage being omitted, or to the sixty-day preclusive period being started from the wrong date; defects of this kind result in the action being dismissed without the merits being examined. In actions to be brought after an annulment decision, documentary monitoring of the date of notification and of the appellate stages is decisive.
In mapping out the course of a concrete dispute, the following headings should be addressed as a priority:
- Clarifying whether the source of the damage is an act or an action, and determining the requirement of a preliminary application accordingly
- Being able to demonstrate, for the purposes of standing to sue, a violation of a right rather than a violation of an interest
- Whether liability is to be based on service fault or on one of the principles of strict liability
- Reflecting in the file, with documentary evidence, the dates of notification, of knowledge and of execution that mark the start of the period
- Claiming the heads of pecuniary and non-pecuniary damages separately in the petition, with the amounts stated
This text has been prepared for general information purposes only. Independent Legal provides advisory services and conducts litigation in disputes arising from administrative law.