Civil Liability of Public Officials — The Recourse Action

Examine the civil liability of public officials and the recourse action within the framework of Constitution Art. 129/5, Law No. 657, the general provisions and the division of jurisdiction.

Loss caused to third parties by public officials' acts in connection with their duties is subject to a special liability regime. Article 129/5 of the Constitution provides that actions for damages arising from faults committed by public officials in the exercise of their powers are to be brought against the administration, subject to recourse against them and in accordance with the form and conditions prescribed by law. Articles 12 and 13 of Law No. 657 distinguish the recourse regimes for damage to public property and for damage caused to third parties. This article examines the basis of liability, the conditions for recourse, the difference from a full remedy action and the question of jurisdiction.

The Constitutional Basis of Public Officials' Civil Liability

Under Constitution Art. 129/5 and Art. 13 of Law No. 657, actions for damages arising from faults committed by civil servants and other public officials in the exercise of their powers are brought against the administration, subject to recourse against them and in the form and on the conditions prescribed by law. The protection covers acts and transactions connected with the performance of public duty. For purely personal acts entirely separable from the duty, direct personal liability and the jurisdiction of the ordinary courts may arise; the distinction is not drawn merely by labelling the fault “gross” or “slight”.

The Distinction Between Service Fault and Personal Fault

A service not functioning at all, or functioning late or badly, may constitute a service fault of the administration. Where there is a personal fault connected with the duty, the injured party as a rule proceeds against the administration; after paying compensation, the administration may have recourse against the official in proportion to their fault. A public official's tort in their private life, or one separable from their duty, may be subject to the general provisions. TBK Art. 66 is not the general basis for service fault governed by public law; cases in which the administration acts in private law and has the status of an employer are assessed separately.

Legal Bases of the Recourse Action

The recourse relationships must be distinguished. Article 12 of the Civil Servants Law governs damage caused by a civil servant to State assets; Article 13 governs recourse against the official for damage suffered by a third party by reason of a duty governed by public law and paid by the administration. Article 71 of Law No. 5018 concerns the definition of public loss and the regime for its recovery from those responsible. For recourse between persons jointly liable in tort, TBK Art. 62 and, as to limitation, Art. 73 may apply; the provisions on special accountancy and the Court of Accounts are reserved.

Conditions for a Recourse Action

It is required that the administration be liable to the injured party, that the compensation has been paid, that there be causation between the public official's unlawful and faulty conduct and the loss, and that the sum recovered be proportionate to the fault. Recourse is not automatic for the whole sum paid in every case. An expert may be consulted on technical matters; the assessment of legal fault and liability is for the court.

For recourse subject to TBK Art. 73 the period is two years from the date on which the compensation was paid in full and the jointly liable person became known, and in any event ten years from the full payment. Public loss and the different periods in special statutes may also apply.

Determining the Degree of Fault in a Recourse Action

One of the most critical matters in a recourse action is determining the public official's degree of fault, which directly affects the amount the administration may recover.

In determining the official's fault, a distinction is drawn between service fault and personal fault. The administration may recover only an amount proportionate to the official's personal fault. It cannot claim from the official the portion of the loss arising from service fault, since service fault falls within the administration's institutional responsibility.

The following criteria are taken into account in determining the degree of fault: whether the official's act was intentional or negligent; whether any negligence was gross or slight; the official's experience and level of expertise; the working conditions and any organisational fault of the administration; the contribution of the administration's other units to the occurrence; and whether the injured party was contributorily at fault.

An expert examination may be used on technical or financial matters. The expert gives an opinion on factual and technical matters; the legal characterisation, the effect of fault on liability and the amount of recourse are determined by the court.

Differences Between a Recourse Action and a Full Remedy Action

A full remedy action is brought by the injured party against the administration; a recourse action is brought by the paying administration against the official at fault. In a full remedy action arising from an administrative act, an application is made to the administration under İYUK Art. 13 within one year of learning of the act and in any event within five years of the act; following refusal or the thirty-day implied refusal, the action is brought within the applicable period. Losses arising from an administrative decision are subject to the regime in İYUK Art. 12. The explanation that the action must simply be brought “within one year of knowledge” is incomplete.

The Question of Jurisdiction in a Recourse Action

Since Art. 13 of the Civil Servants Law provides for “recourse under the general provisions”, the ordinary courts may in many cases have jurisdiction over an administration's recourse claim against a public official. By contrast, administrative assessment of a public loss, a Court of Accounts judgment, the status relationship or a collection route in a special statute may change the jurisdiction and the type of action. Jurisdiction is determined by identifying the parties and the legal basis of the claim, in the light of the current case law of the Court of Jurisdictional Disputes; no single forum should be stated for all recourse actions.

Determining the Provisions Applicable to a Recourse Claim

The accrual of the right of recourse, jurisdiction, time limits and the collection procedure cannot be determined by a single formula described as “the Council of State's practice”. That the loss has been paid to a third party, the official's fault and causation are the fundamental elements of a recourse claim. In addition it must be established whether the claim rests on Art. 12 or Art. 13 of the Civil Servants Law, on the provisions on joint liability in the Code of Obligations, on the public loss regime in Law No. 5018, or on a special statute. An expert examination is not mandatory in every file; it is carried out at the court's discretion where a technical matter arises. Nor can the time limit be calculated until the applicable legal regime has been determined.

Determination and Recovery of Public Loss

Public loss within the scope of Art. 71 of Law No. 5018 is a decision, act, transaction or omission contrary to legislation that prevents an increase in, or causes a decrease in, public resources. The loss may be determined in an audit, an inspection, judicial proceedings or a Court of Accounts process. Appeals against a Court of Accounts judgment, an action against an administrative assessment and recovery of the claim through the ordinary courts are not the same process. It cannot be said that an action for annulment must automatically be brought before the administrative court within sixty days of every determination letter.

Points to Bear in Mind in a Recourse Action

A recourse action involves various points requiring attention from both the administration and the public official.

For the administration: the payment record, the calculation of loss, the official's act, and the evidence of fault and causation should be preserved; the legal basis of the claim, the competent forum and the time limit should be determined. The consequences of using or not using the recourse or administrative collection route are assessed by reference to the competent organ and the special legislation.

For the public official: the official's act, their powers, the orders given and working conditions, any organisational fault of the administration, the injured party's contribution and the share of other responsible parties may be examined. These facts do not create automatic exemption from liability; they are taken into account in assessing fault and causation.

Finally, a recourse action is a complex type of action requiring knowledge of both administrative law and the law of obligations. It is of considerable importance that both the administration and the public official obtain professional legal support during the process in order to protect their rights effectively.

This content is for general information purposes and does not constitute legal advice. In specific disputes it is recommended that professional legal support be obtained from an attorney.

Frequently Asked Questions

Does the injured party sue the civil servant directly?

For loss arising in the exercise of official powers, the claim is as a rule against the administration; for a purely personal act separable from the duty, against the individual.

Does the administration recover in full every sum it pays?

No. Fault, causation, special legislation and the competent organ's obligation are assessed.

What is the limitation period for recourse?

Where TBK Art. 73 applies, two years from full payment and knowledge of the responsible party, and in any event ten years from full payment.

Is a recourse action always heard by the administrative courts?

No. Depending on the legal basis and any special statute, the ordinary or the administrative courts may have jurisdiction.