The final paragraph of Article 125 of the Constitution imposes on the administration an obligation to make good the loss caused by its own acts and transactions. Within that framework, persons who suffer pecuniary or non-pecuniary loss because of an unlawful act or transaction of the administration may bring a full remedy action in order to seek compensation for their loss. Not every loss caused by the administration necessarily arises from fault, however; even where there is no fault, the administration may be held liable to compensate if a causal link can be established between the loss that has occurred and the administration’s act or transaction.
By contrast, a significant proportion of the losses attributed to the administration in practice stems from service fault. Where, as a result of conduct contrary to the legislation, the public service comes to operate not at all, late or badly, the administration’s fault-based liability comes into play. Compensation for losses of that kind is secured by way of the compensation action known in administrative jurisdiction as the full remedy action.
To give a familiar example from practice, losses arising because a municipality failed to take the necessary safety measures during road construction works are a typical manifestation of service fault. In the same way, losses stemming from services performed negligently at public health institutions such as a state hospital or a university hospital may also be based on service fault. Such actions must be brought within the 60-day preclusive period, which is the general period for bringing an action in administrative jurisdiction. We separately address below how that period is calculated and exceptional situations such as the revival of the period.
The Concept of Service Fault
Service fault on the part of the administration may appear in the form of the service not being performed as it should be during the discharge of the public service, and it also covers cases in which the service is not provided in time or is not provided at all.
Although administrative acts are mostly carried into effect through natural persons holding the status of civil servant, the liability arising from those acts belongs to the administration, which is the owner, author and originator of the act. From time to time, however, the administration’s service fault causes third parties affected by the act to suffer pecuniary or non-pecuniary loss. In that eventuality, those who suffer loss may pursue the administration’s liability in compensation by bringing a full remedy action seeking redress for the loss suffered.
Those who suffer loss from service fault do not face a single option. A full remedy action may be brought for compensation of the loss, and the annulment of the administrative act that gave rise to the loss may also be sought. These two claims may be raised together in a single action, or the route of first obtaining an annulment decision and then bringing a full remedy action may be preferred. In addition, there is no legal obstacle to bringing a full remedy action directly, without any recourse to the courts for the annulment of the act. The matter is addressed in detail in our study entitled The Compensation (Full Remedy) Action to Be Brought Following the Annulment of an Administrative Act.
The Legal Nature of the Liability
There is more than one type of liability giving rise to the administration’s obligation to compensate in administrative jurisdiction. In some cases the administration may be held liable even though it bears no fault whatsoever in the act or transaction that caused the loss. Liability based on service fault, by contrast, is in the fullest sense a fault-based liability. That is to say, whether the administration faces a financial sanction under this head depends on whether there is fault in its acts and transactions.
In that respect, liability for service fault is an institution particular to administrative law and differs in many ways from the types of liability found in private law.
Conditions of the Compensation Action
Pursuing the administration’s financial liability on account of service fault requires a series of conditions to be present together in the concrete case. The administrative courts examine those conditions of their own motion; where a deficiency is established, the action may be dismissed.
The failure of even one of the conditions summarised below to be met may result in the dismissal of the action:
- That the action has been brought within the statutory period
- That there is a public service being performed
- That, in respect of that service, a service fault determined by reference to time, place and the circumstances of the concrete case is present
- That a loss has occurred on account of the service in question
- That it is established by the person suffering loss that the administration has acted contrary to the principles of public service
The Period for Bringing an Action
In compensation actions based on service fault, the general period for bringing an action in administrative jurisdiction, namely 60 days, applies. When that period, which is preclusive in nature, begins to run differs according to whether the loss arises from a transaction or from an act of the administration.
Where the loss stems from an administrative transaction, the period begins on the date on which it is fully learned that the transaction causing the loss belongs to the administration and what the extent of the loss is.
Where the loss arises from an act of the administration, by contrast, a full remedy action cannot be brought directly. In that situation the person suffering loss must first apply to the administration that performed the act and request compensation for the loss. Where the application is rejected in whole or in part, or where the administration gives no reply at all within 30 days, a full remedy action may be brought within the period for bringing an action.
It should further be noted that in some cases a period for bringing an action that has expired may revive. The details on the matter are examined in our study entitled The Revival of the Period for Bringing an Action in Administrative Jurisdiction.
Allocation of the Burden of Proof
In compensation actions based on service fault, a person claiming to have suffered loss is not obliged to identify the public official who actually performed the service or to prove that person’s personal fault. At the centre of the proceedings lies the establishment that the activity carried on by the administration was performed with fault, that the service was not performed as it should have been, or that it was not performed at all.
Whether the public service was performed with fault is determined in the light of the principles governing public law together with the provisions of the relevant legislation. In addition, the particular circumstances of the concrete case are taken as the basis in determining fault and liability. Put differently, this type of action does not lend itself to a standard method of determination capable of being applied in the same way to every file.
The burden of proof on the administration covers a narrower field: the administration is expected to establish that it performed the public service in question as it should have been performed.
Courts With Subject-Matter and Territorial Jurisdiction
Subject-matter jurisdiction for the resolution of these disputes lies with the administrative courts.
The court with territorial jurisdiction is determined according to Article 36 of the Administrative Procedure Act No. 2577. According to that provision:
- Where the loss has arisen from a service such as public works and transport or from any act of the administration, the court of the place where the service was performed or the act took place has jurisdiction.
- As a rule, the court of the place where the administration performing the service is located has jurisdiction.
- In cases falling outside these, recourse is had to the court of the place of the claimant’s domicile.
Examples of Service Fault From Practice
A claim for redress of the diminution occurring in the assets of a person who has suffered loss on account of service fault is assessed under the head of pecuniary damages.
Non-pecuniary damages, in turn, are damages sought with a view to alleviating to some degree the moral distress caused by the pain, grief and sorrow experienced by a person because of the administration’s service fault.
The following examples may be given in relation to service fault:
Where a public official causes harm to persons entirely of that official’s own volition, for political or personal motives, or under the influence of feelings such as rancour, spite and enmity, this constitutes service fault.
Losses arising because the necessary safety measures were not taken while works were being carried out on a road within the administration’s area of responsibility may likewise be based on service fault.
Losses stemming from the faulty performance of a health service by the administration are among the classic examples of this institution.
The loss arising where a person unfit for military service is conscripted and that person takes his own life may also be assessed within the scope of service fault.
Similarly, where persons suffer loss because municipalities have neglected the required maintenance and adjustment of barrier systems, the administration’s liability in compensation arising from service fault may be pursued.
Frequently Asked Questions
Is representation by a lawyer compulsory before the administrative court?
Save for limited exceptions, Turkish law allows parties to defend and represent themselves in person; representation by a representative before the court is, as a rule, not compulsory. Nor is representation by an administrative law lawyer required before the administrative courts.
The complex structure of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act No. 2577 may, however, where the process is conducted by persons who are not lawyers, lead to errors of both form and substance that are difficult to remedy. In order to avoid any loss of rights in administrative proceedings, which contain detailed rules, it is advisable to obtain assistance from a lawyer practising in the field of administrative law before any step is taken.
Which situations are treated as service fault?
Cases in which the service operates badly, operates late or does not operate at all are assessed within the scope of service fault.
What does it mean for the service to operate badly?
Situations such as the service being performed contrary to the legislation, the administration acting carelessly while performing the service, or the tools and equipment used not being of the required quality are accepted as the service operating badly.
Is the administration’s failure to implement a court decision service fault?
The implementation of court decisions is a constitutional requirement. The administration’s failure to implement court decisions constitutes gross service fault.
Is it compulsory to apply to the administration before bringing an action?
Where the service fault arises from an act of the administration, the person suffering loss must apply to the administration that performed the act before bringing an action. That application must be made within one year from the date on which the act was learned of by written notification or by another means, and in any event within five years from the date of the act. Where the service fault stems from an administrative transaction, by contrast, applying to the administration is not compulsory but optional.
Independent Legal Assessment
In service fault files, even where the merits are often beyond dispute, a significant proportion of actions come to nothing on procedural grounds. The principal reason for this is a failure to characterise correctly at the outset whether the loss arises from an administrative transaction or from an administrative act. Where losses arise from an act, an action brought without a prior application is dismissed on procedural grounds, while in losses stemming from a transaction an unnecessary application process can lead to the preclusive period being exhausted.
The second critical point is giving concrete form to the loss. A failure to support the heads of pecuniary loss with a calculation report, invoices and documents amenable to examination by a court-appointed expert, and the raising of a claim for non-pecuniary damages in a manner disproportionate to the nature of the incident, result in the claim being met only in part.
The heads that should be brought to the fore in a concrete file are as follows:
- Establishing whether the source of the loss is a transaction or an act and determining accordingly whether a prior application is required
- Calendaring the one-year and five-year application periods in losses stemming from an act
- Establishing by documentary evidence the date of knowledge and the extent of the loss
- Supporting with administrative records and technical reports the fact that the service operated not at all, late or badly
- Claiming the heads of pecuniary and non-pecuniary damages separately and in a calculable form
- Framing the choice between the action for annulment and the full remedy action according to the circumstances of the file
Independent Legal provides advisory services and conducts litigation throughout the entire process in disputes arising from the administration’s liability, from the prior application stage to appellate review of the full remedy action.