After it was understood that the decision to resist was appealed in due time and the papers. In the file were read, the necessity was discussed:
The lawsuit is related to the claim for compensation for the damage caused. To the plaintiff’s immovable property during the road widening works. The plaintiff’s attorney claimed that many fruit trees, ornamental plants, iron railings, concrete walls, iron gazebos and brick walls in the garden. Of his client’s immovable property were demolished and destroyed. By the defendant administration without any notification, and demanded and sued for the collection. Of the material damage from the defendant. The defendant attorney defended the rejection of the lawsuit.
The court’s decision on partial acceptance of the lawsuit. Was reversed by the Special Chamber upon the appeal of the defendant’s attorney, for the reasons explained above. The court decided to resist on the grounds relied on in the previous decision, and the defendant’s attorney appealed the decision of resistance. The dispute before the General Assembly of Civil Chambers. Of the Court of Cassation centres on whether the damage caused by the defendant administration to the plaintiff’s immovable. Property is due to the defendant administration’s activities within. The scope of public service or whether it is based on a wrongful act, and whether the lawsuit petition should be rejected in terms of jurisdiction.
In terms of the solution of the dispute in the concrete case, it is useful to explain the concept of service defect.
Paragraph 1 of Article 125 titled “Judicial remedy” of the Constitution of the Republic of Turkey No. 2709 includes. The provision “Judicial remedy is open against all kinds of actions and transactions of the administration”, and the last paragraph includes. The provision “The administration is obliged to pay the damages arising from its own actions and transactions”.
Two types of responsibility of the administration are accepted in administrative law. One is the private law liability arising from the contracts. Made by the administration in accordance with the principles of private law. The other is the type of liability specific to administrative law. Which is formed 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 transactions and actions of the administration. The obligation of the administration to indemnify the damages caused to individuals is based. On the “defect of service (defective liability)” and “faultless liability” of the administration.
The liability of the administration based on fault is described. By the concept of “service fault” in practice. Although it is difficult to make a complete and comprehensive definition. Of service defect, it is generally defined. In the doctrine as the occurrence of some defect, illegality, disorder, irregularity. Deficiency, disability or negligence in the establishment, regulation or organisation. Structure, personnel or operation of any public service. That the administration is obliged to perform. The existence of a defect in service in three cases is accepted by both jurisprudence and doctrine. These three situations are. Non-performance of the service. Late performance of the service and poor performance of the service.
Accordingly, as a rule, the administration is obliged. To compensate the damages that can be causally linked. To the public service it performs, and in accordance. With subparagraph “b” of paragraph 1 of Article 2 of the Administrative Procedure Law (İYUK) titled “Types of Administrative Lawsuits and the Limit of Administrative Jurisdiction”; “Those whose personal rights are directly affected. Due to administrative actions and transactions” can file a full court case in administrative jurisdiction. Again, in Article 15/I-a of the İYUK, it is also stipulated. That the lawsuits filed in matters where the judicial jurisdiction.
Has jurisdiction shall be dismissed. As a matter of fact. The same principles were adopted in the decisions. Of the General Assembly. Of Civil Chambers dated 04.11.2015 and numbered. 2014/17-731 Esas, 2015/2366 Decision; dated 04.11.2015 and numbered 2015/17-86 Esas, 2015/2364 Decision. When the concrete case is considered. In the light of these general explanations. The plaintiff’s immovable property. Was damaged during the road widening works carried. Out by the defendant administration, and this damage occurred. Due to the poor functioning of the service provided. By the defendant administration. (Court of Cassation HCJ – Decision: 2016/426).
You can access our other article examples and petition examples by clicking