The Liability of the Administration
The liability is that a person who is obliged to account for the harmful result of his/her act which is not in compliance with the law and the seizure of the property of the damaging person to obtain the right of the person who is damaged. The liability of the administration means that the damage caused by the administration to a person is compensated by transferring some values from the property of the administration to the property of the person who is damaged. There are two main principles of responsibility. The first one is “Liability with Fault”. The second one is “Liability without Fault”. “Liability with Fault” is the obligation of the contracting entity to compensate for the loss of a person who has been damaged by a defective act or transaction. “Liability without Fault” means that the administration is held responsible even if there is no fault of the administration. Accordingly, if there is a causal link between administrative behavior and damage, it is accepted that the administration is responsible without the condition of the defect.
Liability with a fault is also known as “service fault”. According to the definitions given in the exemplary decisions of the Council of State, a responsibility based on fault means that public services and activities cannot be carried out properly. In this sense, service defects can occur in three different ways. The service might be performed with a defect. The service might be performed late. The service might not be performed at all. For example, if a doctor working in the hospital does not take care of the patient who comes to the hospital and the patient dies, for this reason, the service will not be performed at all and the administration will be held responsible for this situation. If the doctor does not intervene in the patient at the required time, the service will be performed late and the administration will be held responsible again. If the doctor interferes with the patient incorrectly and the patient dies because of this, the service will be performed with a defect and the administration will be held responsible for this behavior. In administrative law, some conditions must be met to be held responsible for the damage caused by the administration. When one of these four conditions, namely administrative behavior (act), fault, damage, and causality, is missing, the administration cannot be held responsible for it even if there is damage.
As the field of activity of the administration expands, the possibility of harming people also increases. There may be no fault attributable to the administration in the occurrence of some of these damages. However, leaving them on the injured person without being compensated may not be in line with justice and equity. For this reason, it has been accepted that the administration is also held responsible for damages caused without any fault. This situation is stated in Article 125 of the Turkish Constitution as “The administration is obliged to pay the damages arising from its actions and actions”. The Theory of Liability without Fault is based on two main categories. The first one is “The Principle of Risk”. The second one is “The Principle of Equality in bearing Public Burdens”. The principle of risk is divided into three parts. The first one is the administration’s risky activities or tools. The second one is the principle of social risk. The third one is the principle of professional risk.
The risk principle expresses that the person who is engaged in a job that poses a danger to others or uses a tool of this nature should bear the consequences of the law. For example, public officials may suffer from various occupational accidents or occupational diseases while performing their duties. The principle that even if the administration faults the occurrence of the damage, it is still responsible. The principle of damages caused by social risks, on the other hand, refers to the compensation of the damages of people who have been harmed by violent acts aimed at destroying the constitutional order of the state. The victims of such harm are people who have been targeted by individuals and groups who want to disrupt the public order and destroy the constitutional order of the state and who resort to violence for this purpose. The causal link, which is one of the conditions of responsibility, is not sought in cases where the social risk principle is applied.
The Principle of Equality in bearing Public Burdens aims to compensate those who suffer from the services and activities of the administration for the benefit of society. The administration constructs and operates many public works and works such as roads, bridges, and airports in order to meet some needs for the benefit of society. All of society benefits from these works. However, some people may have been exposed to special and extraordinary damage during both their construction and operation. In order to apply for the responsibility of the administration in accordance with this principle, the resulting burden must have affected not all of the persons in the same situation and status, but only some of them, and the damage incurred must have a certain weight. Finally, the responsibility of the administration is eliminated or reduced in some cases. These are Force Majeure, Unexpected Situations, Injured person’s fault and Third party’s fault. However, these issues are issues that need to be addressed in more detail. Thank you very much for reading. I hope you enjoyed it.
