İdarenin Kusursuz Sorumluluğu

This study examines the principle of "no-fault liability" (strict liability), a secondary and exceptional type of liability in Turkish administrative law. Lacking a fully formed statutory framework and shaped essentially by the case-law of the Council of State, this type of liability denotes the administration's obligation to compensate damage arising in certain situations even in the absence of any service fault.

The Types of Administrative Liability

The administration's liability consists in making good, out of its assets, the damage it causes to a person. It is examined under two main heads:

• Fault liability (service fault): the principal form. It arises where the public service conducted by the administration "functions badly, functions late, or does not function at all".
• No-fault (objective) liability: compensation of damage arising from the administration's lawful acts and operations regardless of whether the administration is at fault. This type of liability was developed by judicial decisions, out of considerations of equity and justice, in the face of the new risks that emerged especially with mechanisation and the great wars.

The Principles on Which No-Fault Liability Rests

In Turkish administrative law, no-fault liability rests on two basic principles:

• The risk (danger) principle: the administration is held liable, even without any service fault, for damage arising from activities dangerous by nature or from the dangerous instruments it uses (military exercises, ammunition depots, nuclear plants). Under this principle are further assessed: dangerous methods — damage resulting from the risks inherent in administrative methods such as the rehabilitation of young offenders or trial releases of the mentally ill; occupational risk — harm suffered by public officials, in the course of or by reason of their duties, from the risks inherent in the service they perform; and social risk — where a general danger such as terrorism, civil disturbance or war inflicts special and grave damage on particular individuals only, that damage is borne by the state on behalf of society. A peculiarity of the social-risk principle is that, unlike the other heads of liability, no direct causal link between the damage and an administrative activity is required.
• The principle of equalisation of sacrifice (equality before public burdens): where the burden of a lawful administrative activity benefiting the whole of society (the building of a road, for example) falls upon a particular person or group alone, the special and extraordinary damage suffered by those persons is compensated by the administration on behalf of society.

Circumstances Excluding Liability

The administration's liability is not absolute. Certain circumstances may remove it wholly or in part:

• Force majeure: events such as earthquake or flood, developing outside the administration's will, unforeseeable and irresistible. Force majeure removes both fault and no-fault liability.
• Unexpected circumstance: unforeseeable and unpreventable events occurring within the administration's field of activity. This removes fault liability but does not remove no-fault liability (in particular that resting on the risk principle).
• The conduct of the injured party and of third persons: where the damage stems wholly or partly from their acts, the administration's liability is removed or reduced to the extent the causal link is severed.

In conclusion, no-fault liability is an exceptional avenue developed, as a requirement of the modern social state governed by the rule of law, to protect the individual against the acts of the administration and to secure equity.