Compensation and Full Judgement Lawsuits to be filed in case of violation of the right to protection of personal data due to the act or action of the administration
In the lawsuit filed against the administration, which has a defect in the preservation of the health report, which is sensitive personal data of individuals, it was decided to accept the compensation, taking into account the way the incident occurred, the position and status of the plaintiff and the nature of the administration's fault.
Pursuant to paragraph 125/7 of our Constitution, the administration is obliged to pay the damages arising from its own actions and transactions. Full judgement lawsuits are a type of lawsuit that allows the administration to compensate the damages caused by its own actions. The concept of full judgement action is regulated in Articles 24 and 27 of the Council of State Law and in many articles, especially in Article 2 of the Administrative Procedure Law. Full remedy actions are a comprehensive term and are defined in Article 2 of the Administrative Procedure Law as ‘actions brought by those whose personal rights are directly affected due to administrative actions and proceedings’. While violation of interest is sufficient to file an action for annulment, the personal right must be directly violated in a full remedy action. Full remedy actions are defined in the doctrine as compensation actions based on the financial liability of the administration as a result of its actions, transactions or administrative contracts, reclamation actions for the recovery of goods or money that have passed into the assets of the administration without a justified reason, and tax cases involving objection to the basis of the tax imposed [1].
If the subject of the full judgement action is based on the transaction, in other words, for damages arising from the administrative transaction, Article 12 of the Administrative Procedure Law No. 2577 states Article 12 of the Administrative Procedure Law No. 2577 stipulates that; ‘Those concerned may file a full remedy lawsuit directly to the Council of State and administrative and tax courts due to an administrative action that violates their rights, or they may file cancellation and full remedy lawsuits together, or they may first file a cancellation lawsuit and upon the resolution of this lawsuit, they may file a full remedy lawsuit within the litigation period starting from the date of notification of the decision on this matter or the decision to be given in case of recourse to legal remedies, or from the date of execution for damages arising from the execution of an action’. In short, if the damage is caused by the action of the administration, those who are damaged will either file a full judicial action directly in the administrative judiciary for the compensation of the damage, or will file an action for annulment and a full judicial action together for the cancellation of the transaction that they consider to be unlawful, or will first file an action for annulment and then file a full judicial action.
In the decisions of the Council of State, it is clearly stated that ‘The fact that the cancellation lawsuit has not been filed does not constitute a legal obstacle to the filing of a full judicial action in terms of that transaction, it is a requirement of the Law that a full judicial action can be filed directly, and the fact that the illegality of the transaction has not been determined by a judicial decision in a cancellation lawsuit does not require the rejection of the full judicial action filed due to the transaction for this reason [2], It is a legal requirement to file a full remedy action directly, and it is stated that the fact that the illegality of the transaction has not been determined by a judicial decision in an annulment case does not require the rejection of the full remedy action filed due to the transaction [3].
The fact that an action for annulment has not been filed does not constitute a legal obstacle to the filing of a full remedy action in respect of that transaction. In addition, winning an action for annulment is not a prerequisite for filing a full remedy action. Sometimes a full judgement action is filed for the compensation of damages arising from the implementation of the transaction. Here, the beginning of the period for filing a lawsuit is not the date of the establishment of the transaction, but the date of execution of the transaction.
‘The term ‘administrative action’ in the Administrative Procedure Law should not be interpreted narrowly. Damages arising from all kinds of activities or inactivity, vehicles, animals or movable and immovable properties or facilities of the administration, which are not in the case of an administrative action or the implementation of an administrative contract, should be considered within the concept of administrative action’ [4]. A preliminary decision is required before filing a full judgement action for administrative actions.
Article 13 of the İYUK states that ‘Those whose rights have been violated by administrative actions must apply to the relevant administration within one year from the date they learnt about these actions upon written notification or otherwise, and in any case within five years from the date of the action, and request the fulfilment of their rights before filing an administrative lawsuit. In the event that these requests are partially or completely rejected, a lawsuit may be filed within the lawsuit period starting from the day following the notification of the transaction on this subject, or from the date of expiry of this period if no response is given within sixty days.’
The time limit for filing a lawsuit in full remedy cases arising from the transaction is 60 days from the date of notification of the transaction if a full remedy case will be filed directly or if the cancellation of the transaction and the full remedy case will be filed together, 60 days from the notification of the decision concluding the cancellation case in case of first filing an annulment case and then filing a full remedy case, and 60 days from the receipt of the preliminary decision in full remedy cases filed against administrative actions. It is not important whether the decision has been appealed or appealed to the legal remedy for filing an annulment case first and then a full remedy case, and the 60-day period will start from the notification of the decision. There are two main reasons for the liability of the administration in these full judgement actions.
The first of these is fault liability and the other is strict liability. As a result of the lawsuit filed by the plaintiff requesting compensation for the non-pecuniary damage suffered by claiming that there was a service defect in the preservation of the report stating that the plaintiff was "Not Suitable for Military Service “ issued as a result of his examination at the Air Hospital, that it was illegally obtained by some media organs, that the obtaining of the document occurred due to the negligence, actions and decisions of the defendant administration contrary to the requirements of the legislation, that hundreds of news were made about the subject, that these news damaged his honour and dignity, ”TheTurkish Constitution, the European Convention on Human Rights and other International Conventions and Additional Protocols guarantee the protection of personal data within the scope of privacy. Constitution, the European Convention on Human Rights and other International Conventions and Additional Protocols, the protection of personal data is guaranteed within the scope of privacy, the health data of individuals are within the scope of sensitive personal data, there is a defect in the preservation of the health report, which is sensitive personal data, the way the incident occurred, the position and status of the plaintiff and the nature of the fault of the administration, and the compensation is accepted ‘ and the decision was found to be in accordance with the law and was approved. [5]
Footnotes
[1] For detailed information, see. A. Şerif GÖZÜBÜYÜK, Turgut TAN, Administrative Law Volume II. Turhan Kitabevi 2017, p 645
[2] Administrative Case Chambers of the Council of State 2006/1042 E, 2010/1761 K
[3] Administrative Case Chambers of the Council of State 2004/795 E, 2007/11820 K
[4] A. Şerif GÖZÜBÜYÜK, Turgut TAN, Administrative Law Volume II. Turhan Kitabevi 2017, p 664
[5] 15th Chamber of the Council of State Decision No. 2015/101001 E and 2016/664 K
