The full remedy action is a type of administrative action, seeking damages, brought against the administration by persons who have suffered pecuniary or non-pecuniary loss because of an administrative act or operation, with a view to having that loss made good. This type of action may at first sight resemble the actions for pecuniary and non-pecuniary damages found in private law, but it differs from them at important points in its operation and its conditions.
For the action to be brought, there must be an unlawful act or operation of the administration, capable of amounting to a fault in the service, that constitutes the source of the damage. Even where the administration is not at fault in the operation or act that caused the damage, it may still be required to make good the pecuniary and non-pecuniary loss to the extent that a causal link can be established.
Subject-matter jurisdiction in these actions lies with the administrative courts; the court with territorial jurisdiction may vary according to the nature of the operation or act at issue. The time limit for bringing the action is the general period of 60 days. The moment from which that period begins to run differs according to whether the damage arose from an act of the administration or from one of its operations.
What Is a Full Remedy Action?
The seventh paragraph of Article 125 of the Constitution obliges the administration to make good the damage arising from its own operations and acts. If the administration does not discharge that obligation, those entitled who have suffered damage may seek redress for their loss through a full remedy action brought before the administrative courts. Put shortly, the action brought by persons who have suffered damage because of the operations and acts of the administration, with a view to having that damage made good, is called a full remedy action.
The Conditions for a Full Remedy Action
For the action to be brought, the existence of an unlawful act or operation attributable to the administration is first required. Whether or not the administration was at fault in bringing about that unlawfulness is no obstacle to the bringing of the action. Secondly, there must be damage that has actually materialised as a result of the act or operation in question. That damage may be a real pecuniary loss taking the form of increased expenditure or lost income, and it may equally be non-pecuniary damage arising from the impairment of personality rights.
The third condition is that a causal link can be established between the unlawful act or operation and the damage that has arisen. Where there is no relationship of cause and effect between the conduct and the damage, the claim is dismissed. Moreover, the right and capacity to bring this action are confined to persons whose rights have been infringed by the act or operation concerned.
At this point a decisive distinction must be noted: whereas an "impairment of interest" is regarded as sufficient in actions for the annulment of an administrative act, an "infringement of a right" is required in full remedy actions. Whether an infringement of a right has occurred is assessed separately by the courts in each file.
The Court with Subject-Matter Jurisdiction in Full Remedy Actions
Unless special legislation provides otherwise, subject-matter jurisdiction in these actions lies with the administrative courts. An example of an exception is the provision under which the actions listed in Article 24 of the Council of State Act No. 2575 are heard by the Council of State at first instance.
The Court with Territorial Jurisdiction in Full Remedy Actions
Full remedy actions arising from administrative contracts are subject to the general rule on territorial jurisdiction; in these actions jurisdiction lies with the administrative court of the place where the administrative authority that concluded the contract is located.
For other actions, territorial jurisdiction is regulated in Article 36 of the Administrative Procedure Act No. 2577. Accordingly, where the damage arises from a service such as public works or transport, or from any operation of the administration, the administrative court of the place where the service was provided or the operation took place has jurisdiction. In cases other than these, the court of the place where the claimant is domiciled is treated as having jurisdiction.
The Time Limit for Bringing a Full Remedy Action
A full remedy action must be brought before the administrative court within the general time limits applicable in administrative procedural law. Since the time limit for bringing an action before the administrative courts is sixty days, a full remedy action must likewise be brought within that period.
In determining when the period begins, it is of great importance whether the event causing the damage arose from an act of the administration or from one of its operations.
Where the damage arises from an administrative act, the period begins to run on the date on which it is fully learned that the damage originates from the administration and what its extent is. The law further makes it possible to bring an action for annulment of the administrative act first and then to bring a full remedy action. Objections to administrative acts and the action for annulment are a subject that calls for detailed treatment in its own right.
Where a full remedy action is brought after an action for annulment, an exception is made to the general time limits, and the claim for damages may be advanced even after the annulment action has been concluded. The full remedy action to be brought following an annulment action is a further heading that calls for separate examination in practice.
Where the damage arises from an operation of the administration, by contrast, an action cannot be brought directly. In that case the injured party must first apply to the administration that carried out the operation. Where the application is rejected in whole or in part, or where the administration does not reply within 30 days, a full remedy action may be brought within the time limit for bringing an action.
The Mandatory Prior Application to the Administration
A person whose rights have been infringed by an operation of the administration must apply to the administration within the periods laid down by law before turning to the courts. That application must be made within 1 year of the date on which the operation was learned of, whether upon written notification or otherwise, and in any event within 5 years of the date of the operation. In the application, the person concerned must request that the rights infringed be satisfied.
If the claim is rejected in whole or in part as a result of the application, recourse to the courts may be had within the time limit for bringing an action, running from the day following the day on which the rejection is served. Where, as is frequently seen in practice, the administration gives no reply at all within 30 days, recourse to the courts may be had within the same period running from the date on which that period expires.
Where a full remedy action is mistakenly brought before the civil courts rather than the administrative courts, it is dismissed for want of subject-matter jurisdiction. By virtue of an exception provided for in the legislation, no prior application to the administration is required in actions that were dismissed for want of jurisdiction and subsequently brought before the administrative courts.
Standing to Be Sued in Full Remedy Actions
The action must be directed against the administration that carried out the unlawful operation or act. In determining standing correctly, the hierarchical structure between administrative bodies must be taken into account and the administration genuinely responsible for the act must be named as respondent. If this is not done, the court, following an assessment it makes of its own motion, will order service on the true respondent.
The Form of the Statement of Claim in Full Remedy Actions
The formal rules to be observed in pleadings addressed to the presidencies of the Council of State and of the administrative and tax courts are set out in Articles 3 and 5 of the Administrative Procedure Act No. 2577. If the statement of claim is not prepared in accordance with those rules, the court will order that the pleading be rejected and will require the deficiencies to be made good and the action to be brought afresh.
Grounds Giving Rise to a Full Remedy Action
The unlawfulness that gives rise to liability in damages may stem from the fault of the administration, but it may equally stem from operations and acts in which it is not at fault.
Fault in the Service
In providing the public services it is required to carry out, such as health, education and security, the administration must act in accordance with the requirements of the service. Where the service does not function at all, functions late or functions badly, a fault in the service arises. Liability in fault can arise only if a causal link is established between the operation of the administration and the pecuniary or non-pecuniary damage that has occurred. Claims for damages arising from a fault in the service have a broad field of application that calls for separate assessment in its own right.
Strict Liability
The liability of the administration is not confined to damage arising from its fault. Certain instances of strict liability arising in the course of the provision of public services may also give rise to an obligation to make good the damage. These instances, recognised in the case law, are assessed around the principles of the equalisation of public burdens, risk, and social risk (damage suffered as a result of acts of terrorism).
Damage for Which Compensation May Be Sought
Persons may suffer damage of a pecuniary or non-pecuniary nature because of an operation or act of the administration. Pecuniary damage denotes the monetary diminution occurring in a person’s assets; non-pecuniary damage is the pain, grief and suffering experienced as a result of the act or operation. For example, a person who loses a limb because of a negligent medical intervention carried out in a state hospital may claim, as pecuniary damages in a full remedy action, heads such as hospital expenses and loss of earning capacity. That same person may also claim non-pecuniary damages for the pain and grief suffered on account of the health problems that emerged in their body following the intervention and the trauma created by the course of treatment.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
Turkish law allows the parties to defend and represent themselves in person before the courts; save for a few limited exceptions, representation by a lawyer is not compulsory. No separate requirement is laid down for the administrative courts either. That said, because of the complexity of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act No. 2577, errors of procedure and substance that are difficult to make good may be committed where the process is conducted by persons who are not lawyers. It is therefore appropriate to obtain support from lawyers practising in the field of administrative law before any step is taken.
Can an action for annulment and a full remedy action be brought together?
A person whose rights have been infringed by an administrative act may bring an action directly seeking damages, and may equally combine the annulment and full remedy claims in a single pleading. It is also possible to bring an action for annulment first and then, once that action has been determined, to bring a full remedy action.
Can the amount of damages claimed be increased later?
The amount stated in the pleading may be increased until final judgment is given; this facility may, however, be used only once.
Is there a monetary threshold for recourse to the appellate courts?
Recourse to the appellate courts in full remedy actions is subject to monetary thresholds. If the subject matter of the action exceeds the thresholds laid down, recourse to the appellate courts is available. For 2023 the threshold for appeal was set at TRY 20,000 and the threshold for appeal on points of law at TRY 581,000.
Is a benefit obtained by the injured party deducted from the damages?
If the injured party has also obtained a benefit as a result of the act or operation that caused the damage, the amount of that benefit is deducted from the amount of damage calculated.
Does the fault of the injured party affect the damages?
If the injured party or a third person is at fault in the occurrence of the damage, a reduction is made in the damages calculated in proportion to that fault.
The Independent Legal Assessment
In full remedy actions the first threshold determining whether the claim will be examined on the merits is the correct characterisation of the source of the damage. Whether the damage arose from an administrative act or from an operation determines, all at once, when the period begins to run, whether a prior application to the administration is mandatory and which court is to be regarded as having jurisdiction. In practice a significant proportion of files come to nothing on grounds of time limits or procedure, without the merits ever being reached, because this characterisation was made incorrectly.
When a concrete claim for damages is being formulated, it is appropriate to give priority to the following headings:
- Clarifying at the outset whether the damage arose from an administrative act or from an operation, and determining the prior application requirement accordingly
- Recording separately the date on which the operation was learned of and the date of the operation itself, so that the 1-year and 5-year periods can be monitored
- Establishing the infringement of a right in concrete terms, as distinct from an impairment of interest
- Gathering the medical, technical or expert evidence supporting the causal link before the action is brought
- Directing the action, with regard to the hierarchy between administrative bodies, against the unit actually responsible for the act
- Calculating the pecuniary and non-pecuniary heads separately, bearing in mind that the facility to amend the claim may be used only once
Independent Legal provides advisory and litigation services throughout the whole process in disputes arising from the liability of the administration, from the prior application stage to review by the appellate courts.
This briefing note has been prepared for general information purposes. Because administrative law legislation, and in particular the Administrative Procedure Act No. 2577, contains more detailed rules than other branches of law, we recommend obtaining legal support from lawyers practising in this field before taking any step, so as to avoid any loss of rights.