Individual Application

The Facts

A curfew was declared in the district where the applicant was residing due to the trench events taking place at the relevant time. Maintaining that he had to leave his residence during the period of curfew declared on account of the terrorist events in his district and that his family order had been disturbed and financial situation had deteriorated, the applicant applied to the Ministry of Interior, seeking the redress of the non-pecuniary damage he had sustained. The Ministry of Interior returned his application on the ground that it was the relevant governor’s office that would address the issue.

The full-remedy action brought by the applicant, raising the same allegations, for being awarded non-pecuniary compensation was dismissed by the incumbent administrative court (the court). In the reasoning of the decision, the court noted that the non-pecuniary damage sustained by the applicant did not involve any aspect of extraordinary nature, which might be considered as distinct from the damage sustained by the other individuals within the society. The applicant’s appeal against this decision was dismissed by the regional court of appeal.

The Applicant’s Allegations

The applicant claimed that his right to a fair hearing had been violated due to the explicit error in the application of the statutory provisions in the full-remedy action brought by him for the redress of the non-pecuniary damage he had sustained on account of a terrorist event.

The Court’s Assessment

The court acknowledged that the applicant had partially sustained non-pecuniary damage. However, it concluded that pursuant to the social risk principle, the necessary conditions which would require the State to redress this non-pecuniary damage had not been satisfied in the applicant’s case.

As indicated in the Council of State’s case-law, the State may be held liable, on the basis of the social risk principle, for the allegedly sustained damage when the conditions that the damage occurred due to terrorist acts or security operations conducted so as to fight against terrorism, that those sustaining damage were not involved in the occurrence of such incidents, and that the damage was of an exclusive and extraordinary nature are all satisfied in a given case.

In the present case, it is undoubted that the damage acknowledged by the incumbent court was sustained on account of terrorist acts or the security operations conducted to fight against terrorism. Nor was there any finding reached by the court that the applicant had got involved in the acts leading to the damage in question. Nevertheless, while acknowledging that the applicant, who had had to leave his residence under these conditions, had sustained some damage, the court considered that the damage was not, in any aspect, distinct from the one sustained by the other individuals within the society and it was not extraordinary as well.

Although the court pointed to the general state of public indignation caused as tens of security officers had been martyred during the conflicts extending to several provinces where heavy weapons had been used, it should be emphasised that no fault was attributed, in the decision, to the applicant for the occurrence of such events.

The court stressed that the State had taken a series of measures so as to ensure the evacuation of those residing in the region where security operations had been conducted and meet their daily needs. Undoubtedly, the measures taken by the State, within the scope of its constitutional duties, to ensure the safety of lives and property of the residents may be considered as initiatives to mitigate the non-pecuniary damage sustained by the applicant or at least preclude any increase thereof. However, such measures cannot be considered to make the applicant’s damage non-exclusive and ordinary.

Given these considerations as a whole, the Court has concluded that the inferior court’s interpretation to the effect that the damage sustained by the applicant was not of an exclusive and extra-ordinary nature was an explicit error of assessment. This interpretation rendered the relevant procedural safeguards dysfunctional, deprived the applicant of non-pecuniary compensation and undermined the fairness of the proceedings.

Consequently, the Court has found a violation of the right to a fair hearing.