PECUNIARY AND NON-PECUNIARY COMPENSATION IN ACCORDANCE WITH THE PRINCIPLE OF SOCIAL RISK
As a rule, the administration is obliged to indemnify the damages that are the direct result of the service it performs and for which a causal link can be established. However, as an exception to the aforementioned rule, the administration is obliged to compensate for certain damages that it is obliged to prevent but cannot prevent, without seeking a causal link. This principle, called social risk based on the understanding of collective responsibility, has been accepted by scientific and judicial jurisprudence.
It is known and observed that the so-called terrorist incidents, which are concentrated in a certain region of our country, are directed against the state, aim to destroy the constitutional order of the State, and that such incidents do not arise from personal animosity against the persons and institutions that are damaged.
The persons who have suffered damages due to the aforementioned acts, who have not participated in the terrorist acts in any way, are harmed not as a result of their own faults and actions, but as a result of the social turmoil in the society. In short, the cause of the damage is being a member of the society. The damages incurred as stated above should be compensated by the administration, which is obliged to prevent terrorist incidents but failed to do so, according to the principle of social risk explained above, without taking into account their special and extraordinary characteristics and without looking for a causal link. In fact, the compensation of the damages arising as a result of terrorist incidents by the administration and thus sharing them to the society is a requirement of equity and will be in accordance with the principle of social state.
It is understood that the death of the plaintiffs’ murisi, whose death was not based on any personal animosity and who did not have any fault of his own, was killed as a result of widespread terrorist activities against the state and the integrity of the country, simply because he was the village headman and a member of the society. In this respect, even if it is determined that there is no service fault of the administration in the case in dispute, the extraordinary damages that occur in a time and place where states of emergency are in force must be compensated by the administration in accordance with the principle of social risk, and there is no compliance with the law in the court decision that rejects the compensation lawsuit on the grounds that there is no service fault of the administration and that the conditions of the principle of social risk have not been realized (10th Chamber of the Council of State – Decision: 1993/3777).
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