Full Remedy Action — State Liability in Damages

Full-Remedy Action — The Administration's Liability in Damages

A full-remedy action (tam yargı davası) is a type of administrative action brought to seek compensation for material and immaterial damages arising from the acts, transactions, or omissions of the administration. Regulated under Article 2(1)(b) of Law No. 2577 on Administrative Procedure (İdari Yargılama Usulü Kanunu — İYUK), this type of action is characterised as the administrative-law equivalent of a damages claim. As a requirement of the rule of law, the administration is obliged to compensate for damage it causes to individuals through its activities. This article comprehensively examines the definition, conditions, calculation of compensation, time limits, and relationship with annulment actions in full-remedy proceedings.

What Is a Full-Remedy Action and What Is Its Statutory Basis?

A full-remedy action is a type of administrative action — containing claims for material and immaterial compensation — brought by those whose personal rights have been directly infringed by the acts or transactions of the administration. It is regulated under Article 2(1)(b) of İYUK and is filed to seek redress for damage caused by administrative acts and transactions. The last sentence of Article 125 of the Constitution forms the constitutional basis of this action.

Unlike an annulment action, a full-remedy action is not aimed at annulling an administrative act but at obtaining compensation for the damage caused by the administration. In this type of action, the plaintiff seeks compensation for the damage suffered as a result of the administration's unlawful act or transaction. If the court accepts the plaintiff's claim, it orders the administration to pay a specified amount of compensation.

A full-remedy action is not limited to claims for compensation. Article 2(1)(b) of İYUK refers to “full-remedy actions” brought by those whose personal rights have been directly infringed by administrative acts and transactions. Compensation claims, recovery (restitution) actions, and certain tax disputes also fall within the scope of full-remedy actions.

The last paragraph of Article 125 of the Constitution provides: “The administration is obliged to compensate for damage arising from its own acts and transactions.” This provision forms the constitutional basis of the administration's liability in damages and provides the constitutional guarantee for full-remedy actions.

What Are the Conditions for a Full-Remedy Action?

To bring a full-remedy action, there must be an act, transaction, or omission of the administration; damage must have been caused by that act or transaction; there must be a causal link between the damage and the administrative activity; and the plaintiff's personal right must have been directly infringed.

Administrative activity: Administrative activities that may be the subject of a full-remedy action are: administrative acts, administrative transactions (conduct), and administrative contracts. An administrative act is a decision of the administration that produces legal consequences through a unilateral declaration of will. An administrative transaction refers to the administration's factual conduct — such as a road being in disrepair or a hospital failing to comply with hygiene standards.

Damage: In a full-remedy action, the plaintiff must have suffered material or immaterial damage. Material damage encompasses the actual diminution in the plaintiff's assets and lost income. Immaterial damage refers to the diminution in the plaintiff's non-material values, such as pain, suffering, and grief.

Causal link: There must be a causal relationship between the administration's act or transaction and the damage suffered by the plaintiff. The damage must arise as the natural and necessary consequence of the administration's activity. Force majeure, the fault of the injured party, or the fault of a third party severs or weakens the causal link.

Infringement of personal rights: Unlike an annulment action, in a full-remedy action an infringement of interests is not sufficient; the personal right must have been directly infringed. This means that a full-remedy action has a narrower standing requirement than an annulment action.

What Is Fault in the Service and How Does It Affect Liability in Damages?

Fault in the service (hizmet kusuru) occurs when a public service that the administration is obliged to run fails to function at all, functions late, or functions poorly. It is the most common basis for the administration's liability in damages. It is based on an objective concept of fault and is assessed independently of the personal fault of an individual public servant.

Fault in the service, unlike personal fault, is a fault attributed to the legal personality of the administration. It is not necessary to identify which public servant is responsible; what matters is whether the service was run properly. The Council of State's (Danıştay) case law identifies three forms of fault in the service:

Total failure of the service: The administration fails entirely to provide a service it is obliged to render. Examples include the fire brigade failing to respond to a fire at all, or the police remaining inactive in the face of a reported offence.

Late functioning of the service: The administration fails to provide the service within a reasonable time. The late arrival of an ambulance or failure to carry out road repairs in time fall within this category.

Poor functioning of the service: The administration provides the service but does so inadequately, failing to meet the required standards. Incorrect medical treatment at a hospital or incorrectly placed traffic signs are examples.

In cases of fault in the service, the burden of proof as a rule lies with the plaintiff. However, in some situations a presumption of fault shifts the burden of proof to the administration. The administration may escape liability by proving that the service was run properly.

What Are the Cases of No-Fault Liability?

No-fault liability (kusursuz sorumluluk) is the type of liability under which the administration is obliged to compensate for damage arising from its activities even when it has no fault. It is based on two main principles: the risk principle and the principle of equalisation of burden (spreading of public burdens). This type of liability comes into play where fault in the service is insufficient.

Risk principle: Damage arising from hazardous activities carried out by the administration, or from hazardous equipment, is compensated even without fault on the part of the administration. Damage caused to civilians during military exercises, harm to innocent third parties in police operations, and damage arising from hazardous facilities such as nuclear plants or dams fall within the scope of the risk principle.

Principle of equalisation of burden (equality before public burdens): This principle requires compensation where certain persons or groups suffer a special and extraordinary damage compared to others due to lawful activities of the administration. Depreciation in value of immovable property due to public works and damage suffered due to changes in zoning plans are assessed within this scope.

Even in cases of no-fault liability, the existence of a causal link is required. Force majeure, serious fault of the injured party, or the fault of a third party may sever the causal link and allow the administration to escape liability. However, under the social risk principle (for events such as terrorist acts), the administration may be held liable without a causal link being required.

How Is Compensation Calculated in a Full-Remedy Action?

Compensation is calculated under three main heads: actual damage, loss of earnings, and immaterial damage. The court appoints expert witnesses (bilirkişi) to determine the amount of damage. Pursuant to Article 16(4) of İYUK, the compensation is limited to the plaintiff's claim; the court cannot award compensation exceeding the amount claimed.

Material compensation covers actual damage and loss of earnings. Actual damage refers to the actual diminution in the plaintiff's assets: treatment costs, repair costs, the value of a demolished building, and similar items. Loss of earnings is the calculation of income the plaintiff would have earned had the damaging event not occurred; disability compensation and compensation for deprivation of support are assessed within this scope.

Immaterial compensation is awarded for the pain, suffering, grief, and decline in quality of life experienced by the person. The amount of immaterial compensation is determined having regard to the circumstances of the event, the parties' financial situations, the gravity of the fault, and the principle of equity. The Council of State emphasises that immaterial compensation must not be used as a means of unjust enrichment but should be in a deterrent amount.

Pursuant to Article 13(3) of İYUK, the amount of compensation claimed must be stated when filing a full-remedy action. However, following the statutory amendment made in 2013 with the addition of a provision to Article 16(4) of İYUK, the possibility was introduced of increasing the amount of compensation stated in the statement of claim. Accordingly, the plaintiff may increase the amount of compensation based on the outcome of the expert report or site inspection.

The degree of fault is also taken into account in the calculation of compensation. If the administration is entirely at fault, the full amount of the damage is compensated. However, if the injured party is also at fault (contributory negligence — müterafik kusur), a deduction is made from the compensation. Where a third party is at fault, the administration's liability is limited to its own proportion of fault.

How Is the Time Limit Calculated for Bringing a Full-Remedy Action?

In full-remedy actions arising from administrative acts, the time limit is 60 days from the day following service of the act. In full-remedy actions arising from administrative conduct, pursuant to Article 13 of İYUK, an application must first be made to the administration within 1 year of learning of the damage and in any event within 5 years of the date of the conduct, and thereafter the action must be filed within 60 days.

In full-remedy actions arising from administrative acts, the calculation of the time limit is the same as in annulment actions: the 60-day period begins on the day following service of the act, pursuant to Article 7 of İYUK.

In full-remedy actions arising from administrative conduct, Article 13 of İYUK provides a special time limit and procedure. Accordingly:

1) The interested party whose rights have been infringed by the administrative conduct must apply to the relevant administration within 1 year of learning of the damage and in any event within 5 years of the date of the conduct, requesting compensation for the damage.

2) If the administration partially or wholly rejects this application, the action must be filed within 60 days of the day following service of the rejection decision.

3) If the administration does not respond within 60 days, the application is deemed rejected and the action may be filed within the 60 days following that date.

If an annulment action has been filed and an annulment judgment has been rendered, pursuant to Article 12 of İYUK a full-remedy action may be filed within 60 days of the day following service of the annulment judgment. This provision allows the plaintiff to first seek annulment and then seek compensation.

What Is the Relationship Between a Full-Remedy Action and an Annulment Action?

According to Article 12 of İYUK, interested parties whose rights have been infringed by an administrative act have three options: they may bring a direct full-remedy action; they may bring an annulment action and a full-remedy action together; or they may first bring an annulment action and then bring a full-remedy action depending on the outcome. These three options are alternatives to each other and are left to the plaintiff's choice.

Direct full-remedy action: The plaintiff may claim compensation directly, without requesting the annulment of the administrative act. In this case, the court examines the unlawfulness of the act within the framework of the compensation claim but does not rule on the annulment of the act.

Bringing an annulment action and a full-remedy action together: The plaintiff may raise both the request for annulment of the act and the compensation claim in the same petition. In this case, the court rules on both claims.

First an annulment action, then a full-remedy action: The plaintiff first brings an annulment action and may then bring a full-remedy action within 60 days after the annulment judgment becomes final. This route is preferred where the amount of damage is not yet certain or where the outcome of the annulment proceedings is awaited.

In full-remedy actions arising from administrative conduct, there is no question of bringing an annulment action, as there is no administrative act to be annulled. Damages arising from administrative conduct are sought directly through a full-remedy action under Article 13 of İYUK.

In a full-remedy action, the court finds that the administration's act or conduct was unlawful and orders compensation for the damage. However, the judgment rendered in a full-remedy action does not set aside the administrative act challenged; the act continues to exist in law. Setting aside the act is only possible through an annulment judgment.

How Are Interest and Costs Calculated in a Full-Remedy Action?

Statutory interest is applied to the compensation awarded in a full-remedy action from the date of the action. The interest rate is applied at the statutory interest rate, which is 9% per annum [TO BE VERIFIED — the current statutory interest rate should be checked]. Litigation costs are imposed on the losing party; in the event of partial acceptance, costs are apportioned proportionally.

Pursuant to Article 28(6) of İYUK, in compensation cases the administration must make payment within 30 days of service of the judgment. If payment is not made within this period, the final court judgment may be enforced through execution proceedings. However, certain limitations exist regarding compulsory enforcement against the administration's assets.

If the plaintiff's claim is partially accepted, interest runs on the accepted amount and litigation costs are shared in proportion to the extent each party prevails. If the action is entirely dismissed, the plaintiff is ordered to pay litigation costs and the opposing party's attorney's fee.

Attorney's fees in full-remedy actions are determined in accordance with the Minimum Attorney's Fee Schedule (Avukatlık Asgari Ücret Tarifesi). In compensation cases, attorney's fees are calculated proportionally on the amount of compensation awarded. In the event of dismissal, a fixed-rate attorney's fee applies.

This content is for general informational purposes only and does not constitute legal advice.