LIABILITY OF THE ADMINISTRATION DUE TO SERVICE DEFECT

1-Full remedy action is a type of administrative action brought by the administration for the purpose of compensating the pecuniary and non-pecuniary damage of the person who suffered damage due to any action, action or omission of the administration. A full remedy action can be qualified as an administrative action similar to the lawsuit for compensation or debt in private law brought against the administration. If a full remedy action is based on a claim for compensation for a loss arising from an administrative act, it can be filed together with an annulment action, or it can be opened as an independent action after the annulment action is finalized.

2- In administrative law, the function of full remedy action is explained as the elimination of damages caused by the transactions and actions of the administration to the property or monetary value of individuals. One of the types of full remedy cases is the Full Judgment Litigation as a Compensation Case.

3-Full Litigation Litigation Qualified as Compensation Case: It is a full-judgment case in which those who suffer damage when the administration inflicts harm on individuals with their actions and actions, by filing a lawsuit for pecuniary and non-pecuniary damages in administrative jurisdiction, ensure that the damage is remedied. One of the typical forms of the compensation case is the material and moral compensation case based on the service fault of the administration. For example, if the administration causes the death of a person due to a hole left by the administration while excavating, their relatives can file a lawsuit for material and moral damages against the administration.

4- Compensation liability of the administration against those who suffer losses due to their actions, actions or omissions are based on two basic legal reasons in administrative law:

-Compensation liability of the administration due to "service fault" (faulty liability),

-Compensation liability of the administration in accordance with the principles of “perfect liability”.

LIABILITY OF THE ADMINISTRATION DUE TO SERVICE DEFECT

1- The responsibility of the administration based on fault is called “service fault” in administrative law. A service fault is a deficiency, negligence or delay in the functioning of the administration or the public service it performs. Service fault has a different meaning in administrative law than in private law cases of “faulty liability”. Unlike private law, it is a case of culpable liability that is objective and has a unique character. In judicial decisions, it is accepted that service fault occurs in three ways:

-Defect in service due to non-operation of public service,

-Defect in service due to delayed public service,

-Defect in service due to poor functioning of the public service.

2-Service failure is related to the organization 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 considered that the administration carries out the public service defectively. All personal faults of a public official that occur due to his duty while performing his duty constitute a service defect within the scope of "duty fault".

3- Some examples of service faults that may be subject to a full remedy action are as follows:

- If a person becomes disabled due to the wrong injection of the doctor in the state hospital,

- Traffic accident caused by negligence or deficiency in the administrative activities of the administration in road construction, maintenance, operation and ensuring traffic safety,

-Military ammunition left in the field explodes and causes death,

- The death of the patient in the ambulance due to a traffic accident caused by the ambulance driver while carrying the patient,

- The death of a person infected with the virus because the hospital is not sterile,

-Death due to stray electricity by the administration.

HOW TO OPEN A FULL JURISDICTION?

1-Full remedy action is a type of administrative lawsuit that can be filed in the Council of State, administrative or tax court, depending on the nature of the administrative act or action. Full remedy cases can be opened as follows (D.6-K:2015/1893):

2- Before filing a full remedy action, those who have suffered damage from an administrative action must apply to the relevant administration within 1 year from the date they learned about the damaging administrative act in writing or in any other way, and in any case, within 5 years from the date of action, and request the fulfillment of their rights. In case of partial or total rejection of these requests, a full remedy action can be filed within the period of filing a lawsuit as of the day following the notification of the transaction in this regard.

3- They can directly file a full remedy action against the administrative action that violates the rights, within the period of filing a lawsuit for annulment action.

4- They can file annulment and full remedy actions together within the period of filing a lawsuit against the administrative act that violates the rights.

5- Upon the decision of the annulment action brought against the administrative act that violates the rights, they can file a full remedy action within 60 days from the notification of the decision.

6-Due to the damages arising from the execution of the administrative act that violates the rights, a lawsuit can be filed within the period of filing a lawsuit as of the execution date, or within the period of filing these four separate full remedy lawsuits, by using the remedies provided in Article 11 of the Law No. litigation can be brought.

WHAT IS THE FULL JURISDICTION TIME?

1-Administrative lawIn this case, the period of filing a full remedy action starts to run from the moment the full knowledge of the transaction or action that caused the damage and the extent of the damage.

2-Time to file a full remedy action directly in the administrative jurisdiction due to "administrative actions"; Those whose rights have been violated due to administrative actions should apply to the relevant administration within one year from the date they learned about these actions, upon written notification or otherwise, and in any case, within five years from the date of action, before filing an administrative lawsuit and request the fulfillment of their rights. In case of partial or total rejection of these requests, a full remedy action can be filed within the period of filing a lawsuit as of the day following the notification of the transaction in this regard. If the Administration does not respond to the request within 30 days, the request is deemed to have been rejected on the expiry of this period. After the request is deemed to be rejected, a full remedy action can be brought within the 60-day litigation period (Art. 11 of the Administrative Procedure Law).

3-Time to file a full remedy action directly in the administrative jurisdiction due to "administrative proceedings";

-General Litigation Period: From the notification of the administrative act, a full remedy action must be filed within 60 days in administrative courts and within 30 days in tax courts (IYUK art.7). These periods are not legal statute of limitations, but are in the nature of deprivation of rights. As a rule, when filing a full remedy action against all administrative actions, these litigation periods are applied.

-Special Litigation Period: Due to the nature of administrative proceedings, separate litigation periods may be stipulated in special laws or special articles, apart from the general litigation periods. In this case, not the general litigation period, but the special litigation period stipulated in the law on the administrative act, that special period is applied. However, in order to apply the period for filing a special suit, the period for filing a special suit must be clearly indicated in the action taken by the administration. In cases where the duration of filing a special lawsuit is not clearly indicated in the administrative act, a full remedy action can be brought against that administrative act within the general period of filing a lawsuit.

4-Time to file a full remedy action in case of applying to the higher authorities against the administrative action: Before the administrative action is brought by the relevant parties, the removal, withdrawal, change or a new action of the administrative act to be subject to the full remedy action is from the higher authority, if there is no higher authority, the authority that took the action. may be requested within the time of filing an administrative lawsuit. This application suspends the administrative litigation period that has started to process. If no response is received within thirty days, the request will be deemed denied. In case the request is rejected or deemed rejected, the period of filing a lawsuit starts again and the time passed until the application date is also taken into account (IYUK art.11). For example, upon the notification of an administrative act by Bakırköy District Governorate on 01.01.2021, the objection of the person who objects to the Istanbul Governorship, which is the upper authority, on 21.01.2021, is rejected by the Istanbul Governor's Office on 01.03.2021. In this case, the time remaining from the time of filing a lawsuit from the date of rejection of the higher authority will continue to run. That is, 20 days from the date of notification of the transaction until the date of objection, 21.01.2021, are deducted from the time to file a lawsuit, and the remaining time to file a lawsuit starts from the date of rejection of the higher authority, 01.03.2018.

5-Term of filing a full remedy action in case of an annulment action against the administrative act: Upon the decision of this action by filing an action for annulment of the administrative action that violates the rights of the concerned, upon notification of the decision on this matter or the decision to be taken in case of resorting to legal remedies; They can file a lawsuit for full remedy within the period of filing a lawsuit from the date of notification (Council of State and Administration 60 days, Tax jurisdiction 30 days). Due to the damages arising from the execution of an administrative act, a full remedy action can be filed within the period of filing a lawsuit (60 days by the Council of State and Administration, 30 days by the Tax Law), starting from the execution date of the transaction (IYUK art.12).

6- The period of filing a full remedy action in case of an application to the administrative authorities for a transaction or action; While there is no administrative action that may be subject to an annulment and full remedy action, or if the person concerned does not have knowledge of it although it exists; The person concerned may request an action or action by applying to the administration with a petition. If no response is received within 30 days, the request will be deemed denied. The persons concerned may file a lawsuit against the Council of State, administrative and tax courts, depending on the subject, within the period of filing a lawsuit as of the expiry of 30 days. In other words, if the request is deemed to be rejected, the period of filing a lawsuit becomes a period of disqualification after 60 or 90 days, depending on the subject, from the date of submission of the petition. In particular, we should point out that despite the administration's response within 30 days, if the answer is not certain, the relevant response may be considered as rejection of the request, and it may also file a lawsuit or wait for a definitive answer. In cases where the person concerned is waiting for a definitive answer, the time for filing a lawsuit does not run. However, the waiting period cannot exceed 4 months from the date of application. In cases where a lawsuit is not filed or the lawsuit is rejected from the deadline, after the expiry of the thirty-day periodIf the answer is given by the authorized administrative authorities, they can file a lawsuit within the period of filing a lawsuit (60 days by the Council of State and Administration, 30 days by the Tax Administration) as of the notification of the answer. For example, the administration did not respond to the application made with a petition on 01.02.2021 within 30 days, and then no lawsuit was filed within the period of filing a lawsuit. When the administration responds to the application made on 01.07.2021 after 5 months, an additional 60-day period of filing a lawsuit starts from the date of notification of the response.

JURISDICTION TO FULL JURISDICTIONS

The competent court in full jurisdiction cases is the administrative courts, unless otherwise provided by law. As an example of the exceptional situation in question, the regulation stating that the cases listed in article 24 of the Council of State Law No. 2575 will be heard at the Council of State as a court of first instance can be cited as an example.

COURT WITH AUTHORITY IN FULL JURISDICTIONS

In full jurisdiction cases arising from administrative contracts, the administrative court in the place where the administrative authority that made the administrative contract is the jurisdiction, which is subject to general jurisdiction.

The issue of jurisdiction in full remedy cases other than these is regulated in article 36 of the Administrative Procedure Law (IYUK). Accordingly, if the administrative dispute causing the damage is caused by a service such as public works-transportation or any action of the administration, the administrative court of the place where the service was performed/the action was taken is authorized. In other cases, the court of the place of residence of the plaintiff is deemed competent.

FEATURE IN FULL JURISDICTIONS

Full remedy actions should be brought directly against the administration that committed the illegal act and/or the action. Here, the hierarchy between the relevant administration should be observed in the determination of the authorized administration and hostility to the administration that is directly responsible for the transaction should be managed. If this is not done, the court decides to serve the real adversary after a spontaneous evaluation.

HOW ATTORNEY IS GIVEN TO THE LAWYER IN FULL JURISDICTION?

In the case of full jurisdiction, if the person has agreed with the lawyer, he applies to the notary by obtaining the lawyer's information. Here, it is conveyed that the information is requested to be given to the notary public and a general case power of attorney is to be issued. The general case power of attorney is given to the lawyer and the lawyer applies to the court together with this power of attorney and carries out the whole litigation process with this power of attorney. The person who has suffered damage due to any action, action or omission of the administration should use his constitutional right to sue and seek his right. Since these cases are cases that require expertise, it is recommended to get help from the trustee administrative litigation lawyer.