ÇAKICI v. TURKEY JUDGMENT
15
the Government, claimed the lives of thousands of civilians and members of
the security forces.
58. Two principal decrees relating to the south-eastern region have been
made under the Law on the State of Emergency (Law no. 2935,
25 October 1983). The first, Decree no. 285 (10 July 1987), established a
regional governorship of the state of emergency in ten of the eleven
provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree,
all private and public security forces and the Gendarmerie Public Peace
Command are at the disposal of the regional governor.
59. The second, Decree no. 430 (16 December 1990), reinforced the
powers of the regional governor, for example to order transfers out of the
region of public officials and employees, including judges and prosecutors,
and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the state of
emergency regional governor or a provincial governor within a state of emergency
region in respect of their decisions or acts connected with the exercise of the powers
entrusted to them by this Decree, and no application shall be made to any judicial
authority to this end. This is without prejudice to the rights of individuals to claim
indemnity from the State for damage suffered by them without justification.”
B. Constitutional provisions on administrative liability
60. Article 125 §§ 1 and 7 of the Turkish Constitution provides as
follows:
“All acts or decisions of the administration are subject to judicial review ...
…
The administration shall be liable to make reparation for any damage caused by its
own acts and measures.”
61. This provision is not subject to any restrictions even in a state of
emergency or war. The latter requirement of the provision does not
necessarily require proof of the existence of any fault on the part of the
administration, whose liability is of an absolute, objective nature, based on
the theory of “social risk”. Thus, the administration may indemnify people
who have suffered damage from acts committed by unknown or terrorist
authors when the State may be said to have failed in its duty to maintain
public order and safety, or in its duty to safeguard individual life and
property.
62. Proceedings against the administration may be brought before the
administrative courts, whose proceedings are in writing.