Service Fault of the Administration (Hizmet Kusuru)
The fault-based liability of the administration is referred to as “service fault” (hizmet kusuru) in administrative law. Service fault occurs when there is a deficiency, negligence, or delay in the operation of the administration or in the public service it performs. Unlike “fault-based liability” in private law, service fault in administrative law is an objective and unique form of liability. Judicial precedents accept that service fault manifests in three ways:
Failure of the public service to function at all.
Delayed functioning of the public service.
Defective (poor) functioning of the public service.
Service fault is related to the organization and operation of the public service. If a public service is performed inadequately or poorly, or if the activity does not comply with the requirements of the service, the administration is deemed to have conducted the service with fault. Any personal fault of a public official arising from the performance of their duty constitutes a “fault of duty” (görev kusuru) and is categorized under service fault.
Examples of Service Fault Subject to Full Remedy Actions:
A person becoming disabled due to an incorrect injection by a doctor in a state hospital.
Traffic accidents caused by negligence or deficiencies in the administration’s activities regarding road construction, maintenance, or ensuring traffic safety.
Death caused by the explosion of military ammunition left in a field.
Death of a patient in an ambulance due to a traffic accident caused by the ambulance driver.
Death of a person infected by a virus due to non-sterile hospital conditions.
How to File a Full Remedy Action (Tam Yargı Davası)?
A Full Remedy Action is a type of administrative lawsuit that can be filed in the Council of State (Danıştay), administrative courts, or tax courts, depending on the nature of the administrative act or action. These lawsuits can be filed as follows:
A full remedy action may be filed directly within the statutory period prescribed for an annulment action against the administrative act violating the rights.
An annulment action (iptal davası) and a full remedy action may be filed together within the statutory period.
A full remedy action may be filed within 60 days from the notification of the decision rendered in an annulment action.
For damages arising from the execution (icra) of an administrative act, a lawsuit may be filed within the statutory period from the date of execution.
Additionally, the administrative appeal procedures provided in Article 11 of Law No. 2577 may also be utilized within these four distinct filing periods.