Compensation Rights in Military Accidents

The functioning of the state is regulated through three branches: the Legislative, Executive, and Judicial. Actions and procedures regulated through these branches may sometimes result in illegalities and/or harm to individuals. Such harm falls under the responsibility of the state, and the aim is to remedy individual grievances in different ways depending on the nature of the damage.

Liability in administrative lawsuits

In administrative lawsuits, compensation is the subject of full judicial review, and the basis for liability arising from damages is Article 125/7 of the Constitution. The relevant article states: "The administration is obliged to compensate for damages arising from its own actions and procedures." The balance between the administration and public personnel is regulated in Article 129/5 of the Constitution. According to this article: "Compensation lawsuits arising from faults committed by civil servants and other public officials while exercising their powers may only be filed against the administration, subject to recourse against them and in accordance with the form and conditions specified by law." There is no dispute that the lawsuit must be filed against the administration. However, the state reserves the right of recourse, depending on the fulfillment of the relevant conditions. There is no legislative regulation or systematic framework governing the issue of liability in the field of Administrative Law. This area is highly dynamic and is managed through judicial precedents, primarily based on Article 125 of the Constitution. Because it is a case-law-based area, the concept of liability can sometimes be broadened and sometimes narrowed in judicial decisions. For example, the judiciary sometimes does not consider fault alone sufficient for liability, but also requires that the fault be severe. Although the law does not distinguish between severe and minor fault, the judicial approach has persisted for years. This ambiguity is criticized by some authors in legal doctrine, and it is hoped that relevant regulations will be made in this area.

Compensation

In both private and public law, compensation is used as an effective tool to remedy damages. While there are variations from time to time, fundamentally, fault, damage, and causal link are required for compensation. However, in some cases, strict liability may also come into play. Following the 2017 constitutional amendment and the closure of Military Courts, military compensation cases, which were once a type of military lawsuit, are now heard in administrative courts as full-jurisdiction lawsuits. According to Article 2/b of the Administrative Procedure Law, full-jurisdiction lawsuits
"can be filed by those whose personal rights have been directly violated due to administrative actions and procedures." In lawsuits filed by individuals meeting these conditions, the amount of compensation is assessed separately according to whether it is classified as service fault or strict liability.

Service defect

Although there are differing opinions in jurisprudence regarding what is meant by the concept of "service defect," the main outlines of service defects were determined in the decision of the 10th Chamber of the Council of State, numbered E.1982/185. "According to the principles of administrative law, for a service defect to exist in an event, it is necessary that a malfunction, disorder, irregularity,
deficiency, or defect has occurred in the public services that the administration is obligated to carry out, due to reasons such as the failure to issue necessary orders and instructions regarding the organization, operation, or personnel; insufficient supervision; the use of tools and equipment not being suitable and sufficient for the service requirements; the failure to take necessary precautions or taking them late or untimely; and the alleged damage must have resulted from this.
Legally, it is not possible to decide on compensation for damages suffered due to actions and procedures carried out by the administration in accordance with the laws and regulations, based on the principle of service defect. For such damages, compensation for the decrease in the assets of individuals depends on the existence of the concept and principles of responsibility in the event." In military compensation cases, particularly those involving injury and limb loss, the first thing examined is whether the administration has committed a service defect. Accordingly, if the defendant administration, the Ministry of National Defense, has performed poorly, delayed, or failed to provide any of the services it was obligated to provide in the areas of health, personnel selection, security measures, or safety, then a service defect may be found against the administration. For example,
the failure or inadequacy of infirmary services, or incorrect or delayed intervention by assigned personnel, can be given as examples.

Strict responsibility

In the case of strict liability, the primary consideration is whether there was a service defect in the incident that caused the damage. If there is no service defect, but damage still occurs, then the court examines whether the administration can be held strictly liable and attempts to remedy the damage accordingly. There are three main approaches to strict liability. It is believed that strict liability can be applied in these situations.

• Accordingly, the first situation is the risk-danger situation.
• The second case is equality in public burdens, or in other words, the equalization of sacrifices.
• The third and final situation is social risk. In every case, it is not possible to make a definitive choice between these three situations.

The characteristics of military service involve a fluidity between events regarding the balancing of danger and sacrifice. The military profession inherently involves danger and risk due to the equipment used and the scope of the work. As a requirement of strict liability, even if the administration has taken all necessary precautions and has no fault in terms of service, the inherent risk and danger of the military profession can still give rise to strict liability on the part of the administration. The cause and source of harm is danger. A causal link must exist between the harm and the danger. However, fault is not sought here. The administration is liable even if it proves its innocence. The danger-risk principle is examined in Turkish law on two main grounds: occupational risk and the risk posed by the tools and equipment used. Occupational risk applies to situations that inherently create danger. For example, the use of weapons in the armed forces, the presence of heavy weapons, etc., make military services inherently more dangerous than other services. The risk arising from the tools and equipment used can be considered as situations where the entire activity is not dangerous, but the tools and equipment used in a part of the activity create danger. It can be said that both types of dangerous situations persist in the military profession. Therefore, when claiming compensation in full-fledged lawsuits, not only service negligence but also the strict liability of the administration should be considered. However, strict liability of the administration does not always necessitate compensation. Force majeure and the fault of the individual or the gross negligence of a third party can sometimes play a role in eliminating or reducing the liability of the administration. In military compensation cases, for example, if
the person whose rights have been violated has caused the loss of a limb or injury due to their own fault, the liability of the administration may be eliminated; contributory negligence may also come into play in cases where both the administration and the plaintiff are at fault.

Contributory negligence

Contributory negligence can be a reason for a reduction in compensation. For example, if the plaintiff lost a limb due to refusing or delaying treatment, the administration may be exempt from liability. However, this should be evaluated according to the specific circumstances of the case. Whether the administration can absolve itself of liability by invoking force majeure in cases of injuries or limb loss during military service is a matter of debate. For instance, can a force majeure event be invoked against a plaintiff who lost a leg as a result of a bomb attack on a military personnel transport vehicle? My personal opinion is that the dangers and risks inherent in the military profession fall under force majeure and do not constitute an exemption from liability.
Regarding the determination of compensation, while there is no systematic process in administrative law, attempts are sometimes made to determine the amount of compensation by referring to Article 55 of the Turkish Code of Obligations. However, it should be noted that this approach is not considered reasonable in legal doctrine. This is because while private law cases involve the compensation of damages between equal parties,
administrative law, which aims to protect the individual against public authority, requires different approaches. Especially in cases of limb loss and bodily harm, it should be considered that not only material compensation but also moral compensation is equally important. In this regard, a 2015 decision by the Military Administrative Court awarded a meager 1,000 Turkish Lira as moral compensation, but in 2016, the plaintiff appealed the decision to the Constitutional Court, which ruled that the amount of material compensation should be 40,000 Turkish Lira. Based on this, it can be said that in military compensation cases arising from limb loss and injuries, the suffering, grief, and distress experienced or to be experienced by the plaintiff should be considered as much as the financial burden incurred.

To get expert answers to all the details and questions you may have, you can consult with Attorney Ferhat Kule

Esra Cetin