Non-pecuniary damages are a form of compensation intended to redress the pain, grief and suffering caused by an unlawful attack on a personality right. Where that attack has been carried out by the State, that is to say by the administration, the non-pecuniary damage may be advanced before the administrative courts under the head of a full remedy action. Indeed, the object of full remedy actions heard in administrative jurisdiction is to make good the damage that has arisen. The loss for which redress is sought may be pecuniary in nature, and it may equally be non-pecuniary.
Non-pecuniary damage can rarely be measured in money. For that reason, in an action brought seeking non-pecuniary damages, the judge of the administrative court applies to the concrete case a series of criteria that are generally taken into account when awarding compensation. Having assessed these elements, the judge determines the amount in the exercise of their discretion. The amount to be determined must accord with equity and must not lead to the unjust enrichment of the injured party. That said, the claim for non-pecuniary damages set out in the statement of claim may be increased once, upon payment of the court fee, until final judgment is given.
The damage arising from the operations and acts of the administration may be pecuniary in nature, and it may equally be non-pecuniary, directed at redressing the distress felt as a result of an infringement of personality rights. The pain, grief and suffering felt on account of an assault on a personality right are termed non-pecuniary damage.
Types of Action in Administrative Jurisdiction
Under Art. 2 of the Administrative Procedure Act No. 2577, actions in administrative jurisdiction are essentially gathered under three headings: actions for annulment, actions arising from administrative contracts, and full remedy actions.
Actions for annulment are brought by persons whose interests are impaired by an administrative act, on the ground that the act is unlawful.
Actions for annulment and for damages arising from administrative contracts stem from contracts concluded by administrative bodies through procedures such as direct labour, joint direct labour, concession and tax farming. As regards administrative contracts, both an action for annulment and a full remedy action may be brought in administrative jurisdiction.
An action for damages (a full remedy action) brought against the administration, for its part, is aimed at making good the damage arising as a result of the operations or acts of the administration. The right and capacity to bring this action are conferred only on persons whose rights have been infringed by administrative acts or operations.
Claims for Non-Pecuniary Damages in Full Remedy Actions
Where the attack on personality rights has been carried out by the administration, the resulting non-pecuniary damage may be claimed in administrative jurisdiction, before the administrative courts, under the name of a full remedy action. For the court to be able to allow such a claim, three elements must be present together.
Above all, there must be damage that has actually materialised. Secondly, the source of that damage must be an operation or an act of the administration. Finally, there must be an adequate causal link — that is, a relationship of cause and effect — between the damage that has arisen and the conduct of the administration.
On the other hand, the administration, which is required to provide services in accordance with the principle of the public interest, may display faulty conduct while carrying out a service, and this may lead to a loss of rights for those concerned. Detailed explanations of the legal avenues available for making good damage suffered where the administration is at fault in the service are set out in our note entitled Actions for Damages Arising from a Fault in the Service of the Administration.
Determining the Amount of Non-Pecuniary Damages
In most cases it is not possible to measure the monetary equivalent of non-pecuniary damage arising from an operation or act of the administration. For that reason the judge of the administrative court hearing the action exercises their discretion in awarding compensation in favour of the person, having regard to the circumstances of the concrete case. In other words, no mathematical calculation is involved here. It is accepted in the settled decisions of the higher courts that, in order to give concrete shape to the discretion conferred on the judge, a series of criteria must be taken into account when the amount is determined.
According to the case law of the higher courts, the following matters in particular must be taken into account when the amount of non-pecuniary damages is established:
- The personal situation of the injured party and the characteristics they possess,
- The nature of the administrative activity that caused the damage,
- The proportion of fault that may be attributed to the injured party,
- The degree of physical or mental pain, grief and distress experienced by the injured party.
In addition, the amount to be determined must be such as not to enrich the injured party unjustly, and must be established to the extent required by law and equity.
Increasing the Claim in Full Remedy Actions for Non-Pecuniary Damages
Until 2013, a claimant in administrative jurisdiction was bound by the amount stated in the pleading and could not alter that amount subsequently. It was therefore of great importance that the amount sought was correctly determined when the action was brought.
Since the legislative amendment of 11.04.2013, the amount stated in the pleading in full remedy actions may be increased on one occasion only, upon payment of the court fee, until final judgment is given. The provision draws no distinction as to whether the compensation sought is pecuniary or non-pecuniary in nature.
On this subject, the following assessment is set out in the decision of the 10th Chamber of the Council of State, Case No. 2009/9938, Decision No. 2014/1117, dated 25.02.2014:
Council of State, 10th Chamber, Case No. 2009/9938, Decision No. 2014/1117, 25.02.2014
"By the amendment made to the Administrative Procedure Act No. 2577 by Act No. 6459, it has been made possible for the amount stated in the statement of claim in full remedy actions to be increased, including at the appellate stage, and also in actions pending on the date of entry into force, without regard to time limits or other rules of procedure. As can be seen, the Act includes the expression 'in full remedy actions, the amount stated in the statement of claim may be increased'; it is apparent that it makes no mention of any distinction as to whether the amount of compensation is directed at making good pecuniary or non-pecuniary damage. Accordingly, the conclusion is reached that the facility of increase in question may be applied to the amount of non-pecuniary damages as well as to the amount of pecuniary damages. In other words, it is possible for claimants, by a pleading submitted to the court that gave the decision upon payment of the fee corresponding to the increased amount, to increase on one occasion only the amounts of pecuniary and non-pecuniary damages stated in the statement of claim."
By that decision it was laid down that both the pecuniary and the non-pecuniary claim in a full remedy action may be increased once. Accordingly, there is no obstacle to a claim for non-pecuniary damages being advanced in instalments in administrative jurisdiction.
By contrast, by reason of the types of action set out in the Code of Civil Procedure No. 6100 and of the nature of non-pecuniary damages, the claim stated in the pleading cannot be increased after the action has been brought in actions for non-pecuniary damages heard in the civil courts.
Interest on Non-Pecuniary Damages in Full Remedy Actions
There is no express provision in the legislation as to whether interest may also be claimed alongside non-pecuniary damages in administrative jurisdiction. In some of its decisions in past years, the higher courts reached the conclusion that interest could not run on non-pecuniary damages. In the great majority of decisions given recently, however, the contrary view is adopted; it is accepted that interest should run on non-pecuniary damages as well, from the date of the application to the administration.
At this point it must be emphasised that, where the claimant has made no claim as to interest, the court cannot award interest of its own motion. Under the principle that the court is bound by the claims made, which applies in administrative jurisdiction, interest can run on non-pecuniary damages only if it has been sought in the statement of claim.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative courts?
Turkish law allows the parties to defend and represent themselves in person before the courts; save for limited exceptions, there is no obligation to be represented by counsel. Nor is there any obligation to be represented by an administrative law lawyer before the administrative courts.
That said, the complexity of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act No. 2577 may lead to errors of form and substance that are difficult to make good where the process is conducted by persons who are not lawyers. In order to avoid any loss of rights in administrative proceedings, which contain detailed rules, it is appropriate to obtain support from lawyers practising in the field of administrative law before any step is taken.
Is suffering yet to be experienced taken into account when non-pecuniary damages are determined?
In establishing the amount, regard is had not only to the non-pecuniary loss the injured party has already borne but also to the fact that they will continue to endure pain, grief and sorrow for some time. Assessing all these elements, the court determines the amount so as to alleviate, at least in part, the distress felt because of the event, and in a manner that does not lead to enrichment.
What happens if the injured party has also obtained a benefit from the act that caused the damage?
Where the injured party has also secured an advantage on account 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 or of a third person 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.
Can the siblings of a deceased person claim non-pecuniary damages?
There is no uniform line on this point in the decisions of the Council of State. In some decisions the siblings’ claim is rejected on the ground that the tie of kinship is not sufficient on its own; in others it is accepted that siblings, and indeed even the deceased’s stepmother, may claim non-pecuniary damages.
Can damage to property give rise to non-pecuniary damages?
Damage directed at property may found a claim for non-pecuniary damages if it has caused a diminution in the injured party’s non-pecuniary values; that is to say, if the property damaged carried a non-pecuniary value beyond its material value.
Does a refusal to award pecuniary damages bar an award of non-pecuniary damages?
The existence of non-pecuniary damage does not necessarily require that there also be pecuniary damage. In that respect, the fact that no pecuniary damages have been awarded does not mean that non-pecuniary damages cannot be awarded.
If the claimant dies during the proceedings, to whom are the damages paid?
Where the claimant dies after the action has been brought, the non-pecuniary damages awarded are paid to the claimant’s heirs.
Is there a difference between administrative and civil jurisdiction as regards increasing the claim?
In actions for non-pecuniary damages heard in administrative jurisdiction, the amount sought in the pleading may be increased on one occasion only. In actions for non-pecuniary damages heard in civil jurisdiction, by contrast, the amount stated in the pleading cannot be increased.
The Independent Legal Assessment
Non-pecuniary damages in administrative jurisdiction are often treated as a secondary head alongside pecuniary damages; in practice, however, the points that really determine the outcome of the action are the establishment of the causal link and the proper procedural presentation of the claim. Because the monetary equivalent of non-pecuniary damage is left to the discretion of the judge, setting out the injured party’s personal situation and the gravity and effects of the event with concrete evidence in the pleading is decisive.
The facility to increase the claim affords the claimant considerable flexibility; but because that right may be used only once, its timing is a strategic choice. An increase used too early may leave new material emerging during the proceedings without redress. In a concrete file we recommend giving priority to the following headings:
- Evidencing the causal link between the operation or act of the administration and the damage that has arisen
- Giving concrete shape to the extent of the non-pecuniary damage through the personal situation and the effects of the event
- Advancing the claim for interest expressly in the statement of claim and stating the date from which it runs
- Using the one-off right of increase at the most suitable moment before final judgment
- Completing the claim procedurally by paying the fee corresponding to the increase in time
- Preparing in advance the response to allegations of fault attributable to the injured party
Independent Legal provides advisory and litigation services in full remedy actions brought to obtain compensation for pecuniary and non-pecuniary damage arising from the acts and operations of the administration.