TURKISH ADMINISTRATIVE RESPONSIBILITY DUE TO ACTS OF TERRORISM (DECEMBER 2015)

In recent years, it is very sad to glance that Turkey has been subjected to acts of terrorism with the aim of abolishing the constitutional order. There is doubt that these acts not only cause major devastation to the government and the society, but also harm the individuals both tangibly and morally. Within this context, it is the responsibility of the government to compensate for the material and moral damages caused to individuals, especially those living in eastern regions of Turkey. In accordance with the constitutional principle of state of law and the final paragraph of article 125 of the Turkish Constitution, it is the legal obligation of the State to restore these damages.

Additionally, Law on the Compensation of Damages due to Terror and Counterterrorism Nr. 5233, constitutes the special provisions for the principles and procedures of compensating the tangible damages incurred by individuals due to acts of terror or counterterrorism efforts of the State. It should be noted that rapid amicable settlement has been accepted as the basic principle for compensation and hence, the debate in both judicial decisions and the doctrine has been ceased.

The main point of discussion in early stages was, whether the State can be held responsible for damages caused by acts of terror and if so, what should be the extent of this administrative responsibility. This administrative responsibility is mentioned to be found in the European Convention on Human Rights, the Constitution and the Law on the Compensation of Damages Arising From Terror and Counterterrorism numbered 5233.

Prior to 1990s, it was widely accepted that the State was only responsible for individuals’ damages in terms of neglectful service and that it could not be held responsible in any way for acts of terror that happened outside the State’s knowledge. This practice continued for several years has been ended with the adoption of the Law on the Compensation of Damages Arising from Terror and Counterterrorism numbered 5233 on July 27th, 2004.

It has been accepted with this Law that material damages incurred from acts of terror need to be resolved as soon as possible through amicable settlement. The compensation procedure that needs to be followed is briefly as explained below:

  • Anyone who has suffered material damages as a result of acts of terror, allowed to demand compensation. The application should be submitted to the Office of the Governor in the city of occurrence.
  • The application should be made with a written letter of statement including all information and documents relevant to the event and the damages.
  • The lapse of time occurs after 60 days within finding out about the damages and, in any case, within 1 year after the occurrence of the event.
  • Upon application, a Commission is being formed within Governorship. However, one shall note that such Commissions are constantly in operation in Eastern provinces.
  • The Commission is required to make a final decision within 6 months of the date of application. An extension of 3 months may be given by the Governor if found necessary.
  • The commission consists of a chairman and 6 members, who convene and decide with simple majority.
  • Even though the general policy of the Ministry of Interior and the Commissions is to resolve applications with amicable settlements without any submissions to courts, this may not be possible in each case.
  • If the Commission finds that the applicant has in fact incurred material damages from an act of terror, it sends a document of settlement to the rightful party, stating the appraised amount.
  • If the document of settlement is not signed within 30 days of reception, the applicant has the right to bring a full remedy action at the local administrative court in the province where the damages incurred.
  • In accordance with the Code of Administrative Procedure, exhaustion of all administrative application options is a precondition to initiate a lawsuit. Therefore, it is not possible to bring a full remedy action before applying to the Commission.
Finally, we should emphasize that the Law is aimed to heal the material damages arising from acts of terror through settlement agreements. However, we have encountered some instances in which the commissions rejected the compensation due to illogical causes. Thus, we can simply state that the existence of such Law does not constitute the simple heal of the loss in mean time.