In administrative law, there are generally two types of legal liability of the administration:
Private law liability arising from the contracts or acts of the administration in accordance with the principles of private law. For example, if a vehicle belonging to the administration is involved in a traffic accident, the lawsuit to be filed is a private law lawsuit. In this case, a full judgement action cannot be filed.
The responsibility of the administration in accordance with the principles of public law arising from the contracts made by the administration in accordance with the principles of administrative law and all kinds of acts and actions of the administration. For example, the lawsuit to be filed against the administration by the person who has a traffic accident due to the wrong placement of traffic signs is a full judgement lawsuit.
The obligation of the administration to compensate those who suffer damages due to its acts, actions or omissions is based on two basic legal grounds in administrative law:
1. The obligation to indemnify due to the “service defect” (defective liability) of the administration,
2. Compensation obligation of the administration in accordance with the principles of “strict liability”.
In a full remedy action, the court must first investigate whether the administration has a “service fault” in the realisation of the damage subject to the lawsuit. When it is determined that the administration did not have a service fault in the realisation of the damage, the court should evaluate whether the administration should be held liable in accordance with the principles of “strict liability”. While awarding pecuniary or non-pecuniary damages in a full judgement case, the court must explain in its reasoning which of the reasons for the administration’s liability is based on the fault of service and the faultless liability.
In the event that the damage suffered is entirely due to the fault of the injured party or the third party, the administration is not liable for compensation. Because, in this case, a causal link cannot be established between the public service and the damage. In order for the administration to be deemed legally responsible based on the principles of service defect or strict liability, a causal link between the service and the damage is required. Social risk, which is an exceptional case where a causal link is not required, is analysed separately below.
It should be emphasised that in order to file a lawsuit for compensation against the administration for health services, it is absolutely necessary to prove that the administration has a service defect. In health services, it is not possible to file a lawsuit for pecuniary and non-pecuniary compensation against the administration based on the principles of strict liability. In judicial decisions, the reason for this situation is based on the grounds that the person is in the position of directly benefiting from the public service and that the service is of a risky nature.
As a rule, the administration is obliged to pay the damages that can be causally linked to the public service it carries out, and the damages arising from administrative actions and transactions are compensated within the framework of administrative law rules, in accordance with the principles of service defect or perfect liability. In order to file a full judgement lawsuit for the compensation of the damages incurred due to administrative action, the administrative nature of the action and material event causing the damage and the damage caused by it must be conclusively established (D10-K.2021/4115).
1. INDEMNITY LIABILITY OF THE ADMINISTRATION DUE TO SERVICE DEFECT
The liability of the administration based on fault is called “service defect” in administrative law. A service defect is a deficiency, negligence or delay in the functioning of the administration or in the public service it fulfils. Service defect has a different meaning in administrative law than “fault-based liability” in private law. Unlike private law, it is an objectified defective liability that has a unique character. In judicial decisions, it is accepted that the defect of service is realised in three ways:
Defect of service due to the non-functioning of the public service,
Service defect due to the delayed operation of the public service,
Service defect due to poor functioning of the public service.
Service defect is related to the organisation and functioning of the public service. If the public service is performed incompletely or poorly, or if this activity is not in accordance with the requirements of the service, it is accepted that the administration has performed the public service defectively. All personal defects of the public official arising from his/her duty while performing his/her duty constitute a service defect within the scope of “duty defect”.
Some examples of service defects that may be subject to a full judgement compensation case are as follows
Disability of a person due to the wrong injection of a doctor in a public hospital,
A traffic accident caused by negligence or deficiency in the administrative activities of the administration in road construction, maintenance, operation and ensuring traffic safety,
Explosion of military ammunition left in a field causing death,
Death of the patient in the ambulance due to a traffic accident caused by the ambulance driver while transporting a patient,
Death of an infected person because the hospital was not sterile,
Death due to being hit by the illegal electricity installed by the administration.
2. INDEMNITY LIABILITY OF THE ADMINISTRATION DUE TO STRICT LIABILITY
No-fault liability is a state of liability in which the fault of the administration is not sought in order to be held liable, and it is deemed sufficient to prove the causal link between the damage incurred and the action or transaction of the administration. In cases of no-fault liability, it is not investigated whether the administration is at fault in the occurrence of the damage. No-fault liability is accepted for more dangerous or risky activities of the administration. No-fault liability is a type of liability imposed on the administration within the framework of the principles of equal sharing of the public burden (obligation), equality, equity, justice and objectivity.
As a rule, the administration is obliged to compensate the damages that can be causally linked to the public service it performs; and the damages arising from administrative actions and/or transactions are compensated within the framework of administrative law rules, in accordance with the principles of service defect or faultless liability. No-fault liability is based on the principle of compensation by the administration for special and extraordinary damages incurred by individuals during the performance of public service, and is a secondary type of liability compared to fault liability. In other words, the administration is obliged to compensate the special and extraordinary damages, which are the direct result of the service it performs, which can be causally linked to the administrative activity, in accordance with the principle of strict liability. In this context, the damages incurred by public officials due to their duties while performing their duties must also be compensated in accordance with the principle of strict liability. In the case; the plaintiff, who is a public official, assigned by the defendant administration to perform public service and retired as a duty disabled due to a traffic accident he had while travelling with the vehicle allocated by the administration to fulfil this duty, must be compensated for the special and extraordinary damages that can be causally linked to the administrative activity, which occurred due to the cause and effect of the public service carried out and which are the direct result of the public service carried out by the defendant administration, according to the principle of strict liability (D10D-Decision: 2017/5105).
Faultless Liability Due to Social Risk: The regime of faultless liability due to social risk is a state of liability developed through practice. On the other hand, with the principle of social risk developed by scientific and judicial jurisprudence, it is aimed to compensate the special and extraordinary damages incurred as a result of the realisation of a social risk arising from the conditions in which the society is located, which occurs in the field of activity of the administration, but is not a direct result of the public service carried out, and which is not a direct result of the public service carried out, and which is incurred solely due to being an individual of the society. In order for the principle of social risk to be applied, in addition to the fact that the event concerns the whole society and the damage occurs as a result of the realisation of a social risk, the event and the damage should not be the direct result of the public service being carried out, in other words, a causal link between the damage and the administrative action should not be established. Since it is not possible to apply the principle of social risk in cases where a causal link can be established between the damage and the administrative action, it is necessary to first investigate whether there is a service defect within the framework of administrative law rules, and if there is no service defect, it is necessary to determine whether the damage can be compensated according to the principle of strict liability (D10-K:2007/4199). In other words, social risk is a peculiar objective liability developed by administrative law, which can be discussed in cases where all other cases of strict liability, where a causal link can be established due to the defect in service and the act or action of the administration, are not applicable.
PERSONAL FAULT LIABILITY OF PUBLIC OFFICIALS
The personal fault liability of the public official is based on the principle that he/she is personally responsible for the damages caused by all actions or transactions that are not related to the public service carried out and outside the scope of his/her duty. In this case, it is accepted that the administration has no legal responsibility. Because, the public official who commits such a personal fault is like an ordinary citizen. The public official is personally liable for the damages since he/she commits an act completely independent from the service he/she performs on behalf of the administration.
The damage caused by the public official due to an action or transaction outside the scope of his/her duty is in the nature of “tort liability” in accordance with the principles of liability of private law. Damages caused by the personal fault of the public official, which is not related to his/her duty, are claimed by filing a lawsuit for pecuniary and non-pecuniary damages to the public official in accordance with the principles of private law. The court with general jurisdiction to hear the pecuniary and non-pecuniary damages to be filed within the framework of private law principles is determined as the civil court of first instance.
The cases in which the public official’s personal fault that is not related to his/her duty is accepted are as follows
The public official commits a crime,
Deliberate behaviour of a public official,
Gross negligence of a public official: The typical form of gross negligence of a public official in judicial judgements is the failure of public officials to implement court judgements.
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