Danıştay kararları ışığında Türk idari yargısının manevi tazminata yaklaşımı
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Date
2021
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Sosyal Bilimler Enstitüsü
Abstract
Being a corollary and necessity of the state of law, the civil liability of administration signifies a fiscal responsibility and means compensation of damages caused by the actions and procedures of the administration by transaction of certain assets of its own to the injured party within the framework of principles and rules of public law. Within this scope, the administration is liable for compensation of pecuniary and non-pecuniary damages caused by decease, corporal damage and attack on personal rights. The fact that the non-pecuniary compensation to be paid for non-pecuniary damage is assessed by judge/court at both ordinary justice and administrative justice organs renders it closely related to notions and institutions such as principles state of law (equality before judiciary, justice and equity), fundamental rights and freedoms, particularly right to a fair trial and right of property; confidence in judiciary and rule of law. In its decisions concerning disputes related to neglect of duty, the Council of State specifies that non-pecuniary compensation should inseparably include and observe the following three elements which are adequacy in terms of relieving albeit partially the pain and sorrow of the injured party; being able to expose the graveness of defect of administration in the case and not giving rise to unjust enrichment. The Council of State describes non-pecuniary compensation as a means of moral satisfaction of the person whose moral values and joy of life decreased, not as a means of compensation of the decline in the assets of the related person. Besides the basic elements of non-pecuniary compensation such as defect and damage some other elements related to procedure affect the amount of non-pecuniary compensation to be paid.
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Keywords
idari yargı, danıştay